1718883 (Refugee)

[2023] AATA 1351

1718883 (Refugee) [2023] AATA 1351 (5 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Rebecca Kate Wallace (MARN: 0640179)

CASE NUMBER:  1718883

COUNTRY OF REFERENCE:                   Libya

MEMBER:Damian Creedon

DATE:5 April 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 05 April 2023 at 3:46pm

CATCHWORDS

REFUGEE – Protection Visa – Libya – actual or perceived political opinion – a member of the Zawiya Tribe – oppose the Wershefana – pro-Gaddafi – recipients of scholarships funded by the Gaddafi Government – close association with someone widely known to have become an ISIS fighter – westernized, progressive and moderate religious and political views – perceived religious views as being “unIslamic” –– state protection will not be available to the applicant– applicant has a well-founded fear of persecution– member of the same family unit as the applicant – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5H, 5J, 36, 65

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 August 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background:

2. The first-named applicant (the applicant[1]), a [age]-year-old citizen of Libya, applied for the visa on 1 September 2015. The second-named applicant is the applicant’s wife; the third to fifth-named applicants are, respectively, the couple’s two daughters and their son.[2]

   [1] Unless the context otherwise requires, the Tribunal will refer to the applicants collectively in this decision through the claims of the first-named applicant.

   [2] The Tribunal notes the Birth Certificates provided for each of the applicants.

3. The applicant first arrived in Australia on [date] April 2011 as the holder of a Student (TU574) visa granted on 13 October 2010; that visa ceased on 18 September 2015.  The applicant is presently onshore holding a bridging visa pending the outcome of his application for a Protection visa.[3]

   [3] The visa status of the second- to fifth-named applicants effectively “mirrors” that of the first-named applicant as secondary visa holders.

   Protection visa application:

4. The applicants’ written claims for protection are set out in their submissions to the Tribunal of 30 March 2023.  They claim to be at real risk of serious harm should they return to Libya for any or all of the following reasons:

   a.Their actual or perceived political opinion as being seen to oppose the Wershefana and/or as being aligned with groups engaged in conflict with this miltia in recent years including the Zawiya forces, Libyan Dawn and more recently the Zintan brigade.

   b.Conversely, their perceived political opinion as being pro-Gaddafi or as having benefited from this regime as recipients of scholarships funded by the Gaddafi Government.

   c.Their actual or perceived political opinion as being against other militia or tribal groups operating in Libya and particularly in or around Zawiya as westernized, progressive and open-minded thinkers who do not support any of the main players involved in the current conflict.

   d.Their perceived political opinion as supporters of ISIS or their Libyan affiliates based on their close association with someone widely known to have become an ISIS fighter from 2015 (namely their son/brother, [Mr A]).

   e.Their perceived religious views as apostates or as being ‘unIslamic’ and/or someone who are otherwise perceived to be contravening “public morals” or moral codes around behaviour based on their westernized, progressive and moderate religious and political views.

5. Additionally, the third- to fifth-named applicants claim to be at real risk of serious harm should they return to Libya for any or all of the following reasons:

   a.Their perceived religious views as being “unIslamic” or as opposing the traditional religious and cultural norms imposed on women by conservative elements currently operating across Libya.

   b.Their actual or perceived political opinion as supporting or promoting women and girls’ rights in Libya and/or as opposing efforts to restrict these rights.

   c.Their actual or perceived membership of particular social group(s) including as a “(Westernized and/or Progressive) Highly Educated Women” “Women seeking to have an active public life”, “(Young) Libyan women who do not adhere to strict religious and societal gender norms” (Young) Female Professionals”, “ Female School Teachers (and their family members)” and/or “(Young) westernized women returning to Libya after a prolonged absence living and studying in a Western country”

6. The applicant participated in an interview with the delegate of the Minister on 4 August 2016 (PV interview).  The Tribunal has listened to the interview in full.  The material aspects of the interview may be summarised as follows:

   a.The applicant stated his name and confirmed his date of birth; he stated that he was born in Zawia, Libya.  His mother and four of his siblings are resident in Zawia; one of his siblings is resident in [Country 1]; he has one daughter who is resident in Libya with her mother. 

   b.Between 2008 and 2011 the applicant worked in Libya as a university [lecturer].  Prior to this role the applicant was employed in several fields: [details deleted].

   c.The applicant arrived onshore in 2011; his purpose in coming onshore was to finish his PHD; although he has now finished PHD it is yet to be conferred as there is a discrepancy in the fees paid.  The applicant surmises that his is because he had been granted a scholarship [which] had “stopped” in 2013.  The applicant finished his PHD in “May of this year”.

   d.The applicant returned to Libya on two occasions between May and July 2013 and between November and December 2013.  The applicant stated that his PHD involved a case study [and] that one of the requirements of his PHD was to “collect data”.  The applicant stated that this involved him conducting interviews, surveys, and questionnaires of participants in the industry in Libya.  When pressed, the applicant stated that the subject of these interviews, etc, was [deleted].  When further pressed, the applicant stated that the title of his PHD theses is:

   [Title].

   e.The applicant stated that he interviewed “consultants” in the [industry], “some engineers and some project managers”.  When asked about the reliability of the data, given the state of Libya at the time, the applicant stated that he was not collecting government data, rather the opinions of persons involved in the industry according to their individual experience.

   f.When asked whether he could have conducted these interviews and obtained the information “remotely” from Australia, the applicant stated that his supervisor had insisted that the data be collected and recorded in person.

   g.The applicant stated that he completed his PHD through [University 1] and identified his supervisors by name when pressed.  The applicant collected data in Zawia and Tripoli.  He travelled by himself, providing initial funding for the trips himself for which he was later reimbursed by the university. 

   h.The applicant confirmed the identity of, and his relationship to, the second- to fifth-named applicants.  He stated that he has one other son who is offshore and a daughter with his first wife who lives in Libya with her mother.

   i.The applicant then discussed his son who is offshore, making reference to a newspaper article; he stated that he has not spoken with his son since he left Australia in January 2015.  When pressed, the applicant stated that his son had also been studying at [University 1]. 

   j.The applicant stated that he found out that his son had joined ISIL[4] from:

   [4] The Islamic State of Iraq and the Levant.

   The people that came to my house.

   k.When pressed, the applicant confirmed that he meant “ASIO” officials.  When further pressed, the applicant stated that before leaving his son had told him that he was going on a [trip] and would return in “a week”.  The applicant said that his son had gone on such [trips] previously, “from time to time”.

   l.When asked by the delegate whether his son still had Libyan citizenship the applicant stated that he did not know.

   m.The applicant stated that his eldest daughter is finishing her study at [another school]. 

   n.The applicant stated that he does not work in Australia and obtains assistance from [an organisation] to support himself and his family.  The assistance started in “March”.  Prior to that the applicant stated that he had saved money from his scholarship “salary” or “benefit”.  The payments were made by the “Libyan [government]”.  The last such payment he received was on [date] March 2015. 

   o.The delegate then asked the applicant why he cannot return to Libya.  The applicant stated there were “many reasons”.

   p.“One of the reasons”, he stated, was that when the revolution started in Libya he was one of the anti-Gaddafi supporters.  When pressed as to how he supported the revolution the applicant stated that he first heard about the revolution when he was in Zawia; the revolution started in Benghazi; Zawia had been placed on the “blacklist” by the Gaddafi regime and was “in this position” when the revolution began.

   q.The applicant stated that when he heard about the start of the revolution, he went to [Location 1] in Zawia to show support for Benghazi; when pressed the applicant stated all of those present at the [Location 1] were there to show support from the revolution in Benghazi.  When further pressed as to the number of people present in the [Location 1] at this time the applicant stated to the effect that he could not count them; when further pressed as to whether there were “thousands” the applicant stated “maybe”.

   r.The applicant stated that the group were standing in the [Location 1] when pro-Gaddafi forces entered the area.  He stated that there were people in the area standing and watching the crowd and recording videos, and from this the applicant stated his belief that participants in the demonstration were investigated.

   s.The applicant stated that the pro-Gaddafi forces entered Zawia and took control of the essential facilities.  They then circled the [Location 1], preventing participants in the demonstration from leaving, and started to arrest people.  There were also killings.

   t.When asked what happened when Gaddafi was overthrown, the applicant stated things were hard until the fall of the regime in 2013.  This is what encouraged the applicant to return to Libya to conduct his PHD interviews.

   u.The applicant stated that his belief that his name was listed among those who were “wanted” for participating in the protest; he based this belief upon having been stopped at a roadblock after eventually leaving the [Location 1].  He was eventually let through the roadblock after providing his personal details and was told that he would be interviewed at a later time regarding his participation in the event.

   v.The applicant stated that after leaving the protest in the [Location 1] he believed he would eventually be arrested; he stated that he had his Australian visa by this time and that a friend in Australia arranged travel for him; he stated that he “escaped” to [Country 2] for four days before flying from there to Australia.

   w.The delegate raised with the applicant his decision to return to Libya in 2013; the applicant stated to the effect that there was cause for optimism as to the future of Libya at that time; he stated:

   At that time there was no talk about bringing the old regime back.

   x.When asked by the delegate why he is afraid to return to Libya, the applicant stated:

   As soon as I am there, they will catch me.

   y.When pressed as to why this would occur, the applicant stated that there were two reasons: because the general tendency now is for a return to the old regime; there is also a place which is close to Zawia called “Wershefana” who are supporters of the Ghaddafi regime and are now supporting Haftar.  They are getting hold of anyone in Zawia who were opposed to the Ghaddafi regime.

   z.When asked by the delegate why he waited until 2015 to make an application for a protection visa, the applicant stated to the effect that he was waiting for the situation in Libya to become clearer.

7. The delegate refused to grant the visa on 13 June 2018 on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.

8. The applicant applied for a review of the delegate’s decision on 27 June 2018.

   Application for review:

9. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

10. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 425(2)(a) of the Act.

11. The applicants were represented in relation to the review by their registered migration agent.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law:

12. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

13. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

14. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

15. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

17. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Evidence:

18. The Tribunal has before it a range of material, including, relevantly:

    (a)the applicants’ protection visa application forms, which were lodged on 1 September 2015;

    (b)the applicants’ identity documents provided to the Department, being their passports;

    (c)the protection visa decision dated 1 August 2017 (delegate’s decision);

    (d)the application for review form dated 22 August 2017, which includes a copy of the delegate’s decision;

    (e)Department file [concerning] the applicant’s protection visa application, which includes all documents submitted to the Department in support of his protection visa application;

    (f)documents submitted to the Tribunal in support of the applicant’s review application, including the following:

    ·        Statement of [the first named applicant] that was included in the applicants’ Protection Visa application submitted on 1 September 2015.

    ·        Statutory Declaration from [the first named applicant] dated 30 March 2023 (statutory declaration).

    ·        Statutory Declaration from [the second named applicant] dated 30 March 2023.

    ·        Statutory Declaration from [Miss B] dated 30 March 2023.

    ·        Statutory Declaration from [Miss C] dated 30 March 2023.

    ·        Pre-Hearing Legal and Country Information Submissions dated 30 March 2023 provided on behalf of the Applicants in support of their review application.

    ·        Copy of Award Certificate for Doctorate Degree issued to [the applicant] on [date] October 2017 by [University 1].

    ·        Copy of Statement of Academic Record relating to [the applicant]’s Doctorate Degree dated 29 January 2018.

    ·        Copy of Correspondence from [University 1] dated 21 March 2017 advising of the delay in conferral of [the applicant]’s Doctorate Degree.

    ·        Copy of [High] Achievers for 2018 of [a] College which includes [Miss C].

    ·        Copy of Award Certificate for [a] Degree of [Miss C] conferred by [a university] on 27 July 2022.

    ·        Sample of newspaper articles published in local [and] National news sites relating to [Mr A] joining ISIS.

    ·        Libya as a Failed State: Causes, Consequences, Options, Research Notes Number 24, The Washington Institute for Near East Policy, November 2014.

    ·        Could sun-soaked Libya be the Mediterranean's next tourism hot spot?, MSNBC, 14 March 2012.

    ·        Tourism: Arab Spring countries bet on tourism at FITUR-2013, ANSAmed, 4 Feb 2013.

    ·        Black, I., Libya begins tentative voyage towards becoming tourist hotspot of the future, The Guardian, 7 November 2013.

    ·        Al-Warfalli , Ayman, Libya's elected parliament agrees to return to U.N. talks, Reuters, 3 March 2015.

    ·        Malta welcomes agreement between Libya's rival factions, Times Malta, 18 Dec 2015.

    ·        Libya unveils UN-backed government based in Tunisia, The Guardian, 20 Jan 2016.

    ·        Anderson, J.L., Isis Rises in Libya, The New Yorker, 4 August 2015.

    ·        UNHCR Position on Returns to Libya - Update II, UN High Commissioner for Refugees (UNHCR), September 2018.

    ·        Position on the Designations of Libya as a Safe Third Country and as a Place of Safety for the Purpose of Disembarkation Following Rescue at Sea, UNHCR, September 2020.

    ·        Country Policy and Information Note: Security and Humanitarian Situation, Libya, UK Home Office, September 2020.

    ·        Country of origin information report on Libya, Ministry of Foreign Affairs of the Netherlands, June 2020.

    ·        More deaths as Zawia Wirshefana fighting continues, Libya Herald, 26 March 2016.

    ·        ZMM (Article 15(c)) Libya CG [2017] UKUT 263 (IAC), 28 June 2017.

    ·        Armed clashes lead to the closure of roads between Al-Zawiya and Warshafana, Libya Observer, 30 July 2021.

    ·        Ibrahim, A.B., War Against Wirshiffana Kidnap Gangs Looms, Libya Observer, 20 Aug 2016.

    ·        Ten Years Later. Militias Still Control Libya, Libya Review, 29 December 2021.

    ·        Armed clashes in Al-Zawiya for second time in less than a month, 218 News, 5 May 2022.

    ·        Libya: Clashes erupt in Al-Zawiyah between militias aligned with Government of National Unity (GNU) late Sept. 25, resulting in several casualties, Crisis24, 25 Sep 2022.

    ·        Libya's Attorney General urges security apparatuses in Al-Zawiya to enforce the law, Libya Observer, 3 Jan 2023.

    ·        Libya: Lingering disruptions likely following reports of armed clashes in Al-Shurafa area of Al-Zawiyah, Crisis24, 6 Feb 2023.

    ·        Abuse Behind Bars: Arbitrary and unlawful detention in Libya, UNHCHR, April 2018.

    ·        Libya Security Monitor, 17 June 2016.

1. The Tribunal has read and had regard to each of these documents; the Tribunal has also had regard to:

   a.the Department of Foreign Affairs and Trade (DFAT) DFAT Country Information Report Libya, 14 December 2018 (DFAT Report);

   b.the United Kingdom Home Office (UKHO) Country Policy and Information Note Libya: Security and humanitarian situation, September 2020 (UKHO Note); and

   c.the United Nations Human Rights Council (UNHCR) Report of the Independent Fact-Finding Mission on Libya, (3 March 2023)[5] (UNHCR Report).

   [5] Advance Edited Version

   Country of reference:

2. The applicants claim to be citizens of Libya. Based on evidence provided to the Department by the applicants, and in the absence of any other evidence to the contrary, the Tribunal finds that Libya is their country of nationality and also their receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

3. The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations under s.36(3) of the Act.

   Assessment of evidence:

   Overview

4. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

5. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

6. The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

7. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

   General background evidence

8. The applicant’s personal details and the general background to his applicant is uncontroversial and is succinctly set out in his statutory declaration.  It is consistent with his PV interview and corroborating materials, and it is convenient to set it out in full:

   …

   Background

   3.    I was born in [year] in the city of Al Zawiyah (also spelt Zawia)^[[6]] in the northwest of Libya.

   [6] The Tribunal notes confirmation of the applicants birthplace is set out in his birth certificate provided to the Tirbunal.

   4.    I am from the Zawiya tribe^[[7]] and am a follower of the Sunni Muslim faith.

   [7] An informal history of the Zawiya Tribe may be found at: < family

   5.    I have four children in [total]. This includes my two sons, [Mr A] and [Son D], and two daughters, [Miss C] and [Miss B].

   6.    [Son D], [Miss C] and [Miss B] have continued to live together with my wife and I since birth. They each remain financially and emotionally dependant on my wife and I. They are also included in the same review application before the Tribunal.

   7.    [Mr A] had initially travelled to Australia with the rest of my family in August 2011. However, I was subsequently advised by the Australian Security and Intelligence Office (ASIO) that he had departed Australia in January 2015 in order to fight for the Islamic State of Iraq and the Levant (ISIS). …

   8.    I also have a daughter, [from] a previous marriage. [She] had not travelled to Australia with my family. [She] is currently married and living together with her family in Libya.

   My Education and Employment

   9.    I completed a [degree] through [a named] University in 1984.

   10.   After completing my degree I worked [for] [a Company] from February 1990 to September 1996. From 1996 to December 1999 I was working as a [occupation] for [another] Company.

   11.   From January 2000 I commenced my first teaching role [as] a [specialist] Teacher based at [a] School in Zawiya.

   12.   While working at [this] School, I commenced studies towards a Masters [Degree] majoring in [major] [in] Triploli in 2006.^[[8]]

   [8] The Tribunal notes confirmation of the applicant’s master’s degree qualification issued by [an educational institution], Tripoli.

   13.   From January 2008 I was employed as an Assistant Lecturer at [a] Faculty of [a university]. I had continued in this role up until my departure from Libya in April 2011.^[[9]]

   [9] The Tribunal notes confirmation of the applicant’s qualifications and work experience has been provided from [name] University, Faculty [deleted].

   14.   By April 2011 I had been able to secure a scholarship enabling me to travel to Australia in order to complete a Doctorate Degree.^[[10]]

   [10] The Tribunal notes confirmation of the applicant’s scholarship award issued by [a] Committee [dated] 11 July 2010.

   15.   I commenced studies towards a Doctorate Degree through the School of [deleted] Faculty of [University 1] from April 2011. The focus of my Doctoral Thesis was [details deleted].

   16.   I had submitted my final PhD Thesis for my Doctorate on 15 September 2015. However, there had been some initial delay in the conferral of my degree due to an outstanding tuition fees. These tuition fees were supposed to have been paid by the Libyan Government as part of the scholarship I had received at the time of departing Libya.[11]

   [11] The Tribunal notes confirmation of financial support for the applicant’s PHD studies dated [June] 2010.

   17.   I had been instructed by [University 1] that they would contact the Libyan Embassy in Australia to resolve the issue. I was then subsequently notified in 2017 that the matter had been resolved and I would be awarded my Doctorate Degree. I was then consequently conferred my PhD from [University 1] on [date] October 2017.[12]

   [12] The Tribunal notes confirmation of the award of the applicant’s Doctor of Philosophy conferred on [date] October 2017 by [University 1], Perth.

   18.   To this day, I am not aware if the Libyan Embassy in Australia had paid the outstanding fees or if [University 1] had eventually agreed to waive the remaining debt.

   …

   Scholarship

   23.   My scholarship had been issued at the time Gaddafi was in power in Libya. I had been trying to secure a scholarship to study abroad since I completed my Bachelor Degree in 1984.

   24.   Eventually I believe I was considered for the based on the marks I had achieved in my Masters Degree as well as my work at [a university]. My application for this scholarship was being considered long before the revolution began in Libya and before I had participated in any anti-Gaddafi protests.

   25.   At the time I had attended the anti-Gaddafi protests I was in the final stages of completing my arrangements to travel to Australia. By that that time I had already been enrolled to study at [University 1] and been granted a Student Visa.

   26.   At the time I attended the protests in Zawiya, I had been hopeful that Gaddafi would be removed from power before I left Libya. It was my expectation at that time that if he was removed, a new government would be formed and they would still honour the scholarships already arranged under the previous regime.

   27.   At the time I attended the protest, Gaddafi’s removal was more important than my scholarship. Gaddafi was destroying the country and anybody who dared to speak against him was being killed. I then felt obligated to join in the anti-Gaddafi protests. I do not regret this decision as these protests had ultimately helped push the revolution against Gaddafi forward. However, I am grateful that my involvement in these protests had not prevented me from travelling to Australia.

   28.   It was not until the end of March 2011 that I finally received confirmation of the financial support I would be receiving from the Libyan Government as part of my scholarship. I received the first of my scholarship funding by 1 April 2011 and I had left Libya travelling [to] [Country 2] by around [date] April 2011.

   29.   The financial funding I had initially received only covered my travel to Australia. I was informed that arrangements for my family would be made separately once I had settled in Perth. However, I eventually covered the costs of the flight tickets for my family personally to enable them to depart by early August 2011 as the situation in Libya continued to deteriorate and I was concerned for their safety. I would have arranged their flights earlier if I could but it had taken me until August 2011 to get enough money together to get them to [Country 2] and to book flights from there.

   30.   After the fall of the Gaddafi regime, I had faced delays or missed payments of my scholarship allowances from the Libyan Government. This was something many Libyan students in Perth had been experiencing over this period. By early 2015, I had stopped receiving payments altogether from the Libyan Government as part of my scholarship. They had also stopped paying my tuition fees to the [University 1]. I understand by that time, Libya’s scholarship program was beginning to crumble from a lack of funds caused by the poor security and economic conditions.

   31.   Some Libyan students in Perth believed that the payments had stopped as the initial scholarships had been arranged under the former government and that they were being punished for benefiting from the Gaddafi regime. I do not know myself why the payments had stopped. However, while I strongly opposed Gaddafi, I believe there would be people back in Libya who would presume recipients of scholarships awarded while Gaddafi was in power were selected based on their loyalty or connection to his regime.

   Extended family in Libya

   32.   Both my parents are now deceased. I also have [siblings].

   33.   My brother, [Mr D], had been living in Tripoli but fled during the revolution after he became threatened due to his work as a senior manager of a company. [Mr D] travelled to [Country 1] without his family in the hope he would be able to bring them over later. I understand [Mr D] applied for permanent residency in [Country 1]. However, I do not know [Mr D]’s current status in [Country 1] at this time.

   34.   Another brother [has] regularly been travelling between [Country 3] and Libya in recent years to receive treatment for a [medical] issue. The healthcare system in Libya has collapsed due to the conflict and so most Libyans need to travel into neighbouring countries to get even basic healthcare.

   35.   Otherwise, the rest of my siblings continue to reside in Zawiya. Many of these siblings have described to me the insecurity in Libya and their concerns for their family’s safety there. However, these siblings have no options available to them at this time to get out of Zawiya.

   Travel History

   36.   I first arrived in Australia on [date] April 2011 on a Student Visa. Prior to this I had only ever travelled out of Libya briefly to [Country 2] and [Country 3] for short holidays of a few days at a time.

   37.   Since arriving in Australia in 2011, I had made two return visits back to Libya. The first trip was from [date] May 2013 to [date] July 2013 and the second trip was from [date] November 2013 to [date] December 2013. Further details on these trips are provided below.

   38.   I have not departed Australia since last re-entering the country on [date] December 2013.

9. Under the heading “Political and religious views” the applicant sets out his personal beliefs.  In essence the applicant states that, influenced by his father, and informed by his education, he became opposed to the Gaddafi regime.  He states:

   I could see that Gaddafi was nothing more than an ignorant and corrupt dictator who was driven by his own self-interest.

   …

   He severely suppressed any form of freedom of expression or thought in Libya. Anyone who spoke out or challenged any of the policies of Gaddafi were immediately arrested, tortured and often executed.

10. The applicant continues:

    As I got older I then had continued to develop strong feelings against the Gaddafi regime. In the years leading up to the revolution in 2011, many of the views I held against Gaddafi were shared among many of my own relatives, my wife’s relatives and friends in Zawiya

11. In respect of his religious beliefs the applicant describes himself as “a moderate” and “as holding progressive and more western style of views as compared to many of the people in Libya”; he states:

    I am a strong supporter of democracy and the importance of protecting freedoms of speech, the right to debate and protest as well as the freedom of religion.

12. The applicant states that he believes in “secular governments”, that is, of a separation between religion and the state.

13. The applicant’s evidence as to key events in Zawiya before and after his departure are again succinctly set out in his statutory declaration.  It is consistent with his PV interview and corroborating materials, and it is convenient to set it out in full:

    54.   I was born and raised in Zawiya which is a coastal city in Northwestern Libya. This area became the location of some of the fiercest fighting during the Libyan Civil War in 2011 between Gaddafi loyalists and rebel groups fighting to overthrow his regime. It has remained a hotspot for violent clashes since the start of the Second Libyan Civil War from mid 2014.

    55.   The people in Zawiya had become known for being against Gaddafi. There had been growing opposition to Gaddafi in this city for years before the start of the revolution with initial protests taking place there back in August 2009

    56.   Demonstrations then commenced in Zawiyah on [date] February 2011 in [Location 1] in the centre of the city. These occurred in response to the brutal crackdown by Gaddafi forces against the protesters in Benghazi the day before. The demonstrations at [Location 1] continued to grow over the coming days until the protestors outnumbered the Gaddafi security forces causing the latter to have to abandon the city on [date] February 2011.

    57.   As confirmed in my Protection Visa application, I had attended the protests held at [Location 1]. My participation in these protests had also been shown on footage used in a [report]. A copy of this [video] was provided in the statement included with my Protection Visa application.[13]

    [13] The applicant provided the following link to the [video] stating “[deleted]”.

    …

    59.   The capture of Zawiya by the protestors would have been seen as a major threat to the Gaddafi government given its strategic location close to Tripoli. By around 23 February 2011, after initially trying to bribe the protesters to stand down, Gaddafi sent into Zawiya armed forces and militias loyal to him who then proceeded to open fire at the protesters. Dozens of unarmed civilians were killed in this attack by the Gaddafi loyalists.

    60.   This attack consequently spurred the people in Zawiya into starting a rebellion against Gaddafi and his forces. Fighting between Gaddafi loyalists and rebel fighters then continued to intensify over February- March 2011.

    61.   Immediately after the protests, checkpoints were set up around the city by Gaddafi loyalists who were trying to identify persons who may have been supporting the rebellion.

    62.   As confirmed in the statement included with my Protection Visa application, I had been stopped at one of the checkpoints manned by armed Gaddafi loyalists in the days following the protests. While at this checkpoint I had been questioned as to why I had been at [Location 1] during the protests. From this time, I became concerned about my safety in Libya and began planning my departure from the country.

    63.   By mid-March 2011 Zawiya had been retaken by Gaddafi loyalists as the rebel forces were forced to retreat. A Pro-Gaddafi rallies were arranged by the government in March 2011 in the centre of Zawiya as a way to try to show that the city was now back under their control. My wife and daughter ([Miss B]) had been forced to attend these protests alongside other staff and students from their school.

    64.   By late March 2011, the Gaddafi loyalists were conducting sweeps throughout Zawiya rounding up men they suspected may have been involved in or were supporting the rebellion.

    65.   As the sweeps around my area began to escalate, I decided I could not wait any longer and travelled [to] [Country 2] where I waited until I was able to board my flight to Australia that left around [date] April 2011.

    66.   After I had left Libya, fighting continued to break out sporadically between Gaddafi loyalists and the rebel groups as the rebels tried to take back Zawiya.

    67.   In mid-June 2011, Gaddafi loyalists had begun going from house to house searching for rebel fighters or those suspected of supporting them. Around that time, armed men had shot outside my family’s home while my wife was there with my younger children. Details of this incident is provided in my wife’s Statutory Declaration provided to the Tribunal. I had also made reference to this shooting at my family home in the statement I had included with my Protection Visa.

    68.   In July 2011, further daughters encountered further issues including being cased  while travelling home from school by armed gunmen and a bomb explosion had occurred at [Miss B]’s school while she was sitting her final exams. Further details on this are included in [Miss B] and [Miss C]’s Statutory Declarations.

    69.   Over this period I had become increasingly concerned about my family’s safety and was trying to make arrangements for them to leave Libya as soon as possible. I was eventually able to arrange for my family to travel to Australia via [Country 2] by [date] August 2011.

    70.   By 13 August 2011, rebel groups entered into Zawiya and were able to re-capture large parts of the city as most of the pro-Gaddafi forces were forced to retreat. The Gaddafi loyalists then led a counter-offensive attack leading to intense fighting in the city lasting many days with the rebels forces being supported at that time through a bombing campaign by NATO. The rebels were eventually able to take control of Zawiya. The success in Zawiya then enabling the rebels to take Tripoli a few days later.

    71.   While the revolution was coming to an end, Gaddafi loyalists were still targeting those seen to be supporting the rebellion at that time. My wife’s brother, [Mr E], had been detained by Gaddafi forces in around February 2011 for speaking out against Gaddafi. By September 2011, Gaddafi loyalists had announced plans to execute its political prisoners with [Mr E] being among those sentenced to execution.

    72.   However, the revolution subsequently came to an end by October 2011 following the capture and execution of Gaddafi. I understand at this time [Mr E] had been released alongside the other political prisoners held in Gaddafi prisons. [Mr E] then left Libya as he would have still remained at risk of being targeting by Gaddafi loyalists.

    73.   There had been a period of stability and peace in Zawiya and the rest of Libya throughout 2012-2013. However, this was short-lived with Libya entering into its Second Civil War from mid-2014. Zawiya has since that time seen regular violent clashes break out across the city between different armed groups. The city has also remained generally lawless with abductions, extortion, rapes and murders being a regular occurrence.

    74.   Initially from mid-2014 many of the attacks being carried out in Zawiya were being led by the militia for the Wershefana tribe. The Wershefana have a longstanding tribal dispute with the Zawiya who were also on opposite sides of the revolution against Gaddafi. These tribes have often been on opposing sides of the Second Libyan Civil War including in the Zawiya militia initially supporting Libya Dawn in their efforts to seize the Tripoli International Airport from Zintan and Wershefana militias.

    75.   A militia known as the “Tribes Army” was formed by August 2014 and made up predominately of Wershefana fighters who were involved in fighting against the Libya Dawn as well as launching attacks across Zawiya city.

    76.   As mentioned in the statement included within my Protection Visa interview, members of my wife’s family had been victims of the attacks by the Wershefana militia on Zawiya during this period. This had included my wife’s cousin, [who] had been killed by members of the Wershefana militia during one of their attacks on Zawiya. My wife’s brother [has] also been filmed participating in fighting for the Zawiya forces against the Wershefana militia in the [Location 1] during this same period.

    77.   There were reports that members of the Wershefana militia were executing people included on lists for the “Rats of Zawiya”. This was a list of those who had been involved in the rebellion against Gaddafi with the term “rats” being what his regime had used to describe the rebels. Relatives of both my wife and I were included on this list.

    78.   The strategic location of Zawiya has continued to cause it to remain a fiercely contested area for other armed groups during the course of the current conflict in Libya. There have then also been in recent years a number of clashes between different rival militia groups in Zawiya trying to seize control of this area. Persons seen to oppose or not support any of these armed groups remain vulnerable and unprotected in Zawiya. Many people have been abducted, tortured or killed as a result of their suspected ties to a rival armed group.

    79.   Most recently, intense fighting broke out in the streets of Zawiya city in September 2022 between two militias who are both aligned to the new provisional government formed in March 2021 known as the Government of National Unity (GNU). Only a few weeks ago, in February 2023, armed clashes broke out again in the Al-Shurafa area of Zawiya between another two rival militia groups. Criminal groups, kidnapping gangs and Islamist militias also have remained active in and around the areas surrounding Zawiya.

    Country information:

1. A general background to the present situation in Libya is provided by the UKHO Note:

   4.1.1 A BBC Libya country profile stated:

   ‘Libya, a mostly desert and oil-rich country with an ancient history, has more recently been known for the 42-year rule of the mercurial Colonel Muammar Gaddafi - and the chaos that has followed his departure.

   ‘Libya was under foreign rule for centuries until it gained independence in 1951. Soon after oil was discovered and earned the country immense wealth…

   ‘The toppling of long-term leader Muammar Gaddafi in 2011 led to a power vacuum and instability, with no authority in full control.

   ‘The country has splintered, and since 2014 has been divided into competing political and military factions based in Tripoli and the east.

   ‘Among the key leaders are

   • ‘Prime Minister Fayez Sarraj, head of the internationally-recognised government in Tripoli;

   • ‘Khalifa Haftar, leader of the Libyan National Army, which controls much of eastern Libya;

   • ‘Aghela Saleh, speaker of the House of Representatives based in the eastern city of Tobruk;

   • ‘Khaled Mishri, the elected head of the High State Council in Tripoli.

   ‘Islamic State group briefly took advantage of the conflict to seize control of several coastal cities including Sirte, which it held until mid-2017. It retains a presence in the desert interior.

   ‘Colonel Gaddafi seized power in 1969 and ruled for four decades until he was toppled in 2011 following an armed rebellion assisted by Western military intervention.

   ‘In recent years the country has been a key springboard for migrants heading for Europe, and a source of international tension as rival governments in the west and east seek to establish nationwide control.

2. A 2014 report from Amnesty International entitled Libya: ‘Rule of the gun’ amid mounting war crimes by rival militias[14] provides relevant information in respect of the applicant’s claims as to the situation in his home city in the early 2010s:

   Since 13 July 2014, militias and armed groups have launched indiscriminate attacks in urban areas of the capital, Warshafana (southwest of Tripoli) and Zawiya with complete disregard for civilians and civilian objects, forcing hundreds of thousands of people to seek protection in safer parts of Libya or across its international borders. According to estimates by UNHCR, the United Nations High Commissioner for Refugees, there were 287,000 people displaced within and around Tripoli and Benghazi as of 10 October 2014. A further 100,000 people had reportedly fled Libya to neighbouring countries. In most cases, militias have failed to give effective advance warning of attacks to civilians or take other necessary precaution to spare civilians as required by IHL. Seemingly unconcerned with the consequences of their actions, they fired GRAD rockets, mortars, artillery and anti-aircraft machine-guns into crowded civilian areas, hitting mosques, hospitals and homes and causing severe shortages in electricity, water, food, fuel and medical supplies.

   Amnesty International has documented a number of indiscriminate attacks that have resulted in the killing and injury of civilians and damage to medical institutions, civilian homes, businesses and infrastructure. These attacks amount to war crimes. Following the takeover of Tripoli International Airport by Libya Dawn on 23 August 2014 and the withdrawal of Zintan-led forces, clashes have continued over the control of Military Camp 27 in the area of Warshafana, southwest of Tripoli, at times reaching Zawiya, and parts of the Nafusa Mountains such as Kikla. Since then, forces allied with the Libya Dawn coalition have indiscriminately shelled the area of Warshafana causing wide-scale displacement of civilians, estimated at 14,500 families in the first two weeks of September alone. A number of civilians have been injured and killed, although no reliable statistics are currently available. According to press reports, Al-Zahra Hospital was hit by rockets on 21 September 2014 prompting the evacuation of patients and staff.

   [Tribunal’s emphasis.]

   [14] See: < p.5

3. Amnesty International further notes that:[15]

   Civilians have been abducted and held without evidence of committing any crime, solely on account of their identity, their opinions, perceived political affiliation or on the basis of their peaceful activities such as organizing protests. Individuals have been abducted following identity checks at checkpoints, from their homes or workplaces. At times, militias appear to have detained individuals in order to secure a ransom or a prisoner exchange.

   …

   Civilians from tribes or cities such as Zawiya, Gharyan, Nalut or Qalaa, which are perceived to support Libya Dawn, have been stopped and abducted at checkpoints in the Warshafana area on or near the coastal road linking Tripoli with the Tunisian border.

   [Tribunal’s emphasis.]

   [15] Ibid. p.10, 13.

4. This view of the situation in Libya is supported by credible information from the International Crisis Group (ICG) in a report entitled Libya: Getting Geneva Right.[16]  In that report, the ICG provides a useful summary of the complexity of the situation in Libya at that time (references omitted):

   There is a dangerous simplification in the region, as in Libya itself, that reduces overlapping conflicts to an existential struggle between Islamists and (anti-Islamist) former-regime elements. The divides are multilayered, and any peaceful solution must reflect and address this complexity. The pro-GNC camp includes Islamists – Muslim Brothers, Salafis and former members of the Libyan Islamist Fighting Group (with the latter two also in the pro-HoR camp) – but their primary objective is not to impose Sharia. They are part of a wider, looser coalition of self-styled revolutionaries that includes, among others, entrepreneurs and local minority groups who make common cause on the basis of having fought together in the 2011 uprising. All make their top priority a radical overhaul of the state inherited from the old regime. The pro-HoR camp is unified in favouring greater continuity with the past but it, too, is diverse. It is comprised of ex-Qadhafi-era officials who joined the 2011 uprising but feel threatened by the revolutionary political and military leadership; and die-hard loyalists in exile and local constituencies who blame instability on empowerment of Islamist groups and the poor governance of the GNC and associated governments. It vehemently opposes the sidelining of figures from the old regime, notably by the Political Isolation Law. It has an important federalist component from the east (Cyrenaica) that urges more devolution to the three historic provinces (sometimes Cyrenaica’s secession), as well as non-Arab minorities from the south. Overlaid onto this are tribal and ethnic rivalries, strong parochialisms and cultural tensions between inland Bedouins and the more cosmopolitan, coastal, urban population. Finally, competition for hydrocarbon wealth is a fundamental conflict driver, both among constituencies discriminated against under the old regime and among groups and militias that are enriching themselves in the post-Qadhafi chaos.

   [16] 26 February 2015 >

   The DFAT Report notes the following on the origins and continuation of tribal violence in Libya: [17]  

   3.1 The Gaddafi regime’s policy of Arabisation had a detrimental effect on all non-Arab minorities in Libya. The 1969 Constitution and a later 1977 Declaration on the Establishment of the Authority of the People defined Libya as an Arab nation with Arabic as its only official language. Ethnic minorities were commonly the victims of discrimination under Gaddafi, and were frequently denied access to education, health care and other basic services. After the fall of the Gaddafi regime, the recognition of civil, political and cultural rights for the three main minority groups - Amazigh (Berbers), Tuareg and Tebu – was considerably extended. The government, the General National Congress, officially recognised the Amazigh, Tuareg and Tebu languages in 2013, and allowed them to be taught in schools. The extent to which official recognition is implemented in practice is unclear.

   3.2 In August 2011, the TNC introduced a Draft Constitutional Charter for the Transitional Stage (the ‘Constitutional Declaration’). The 2011 Constitutional Declaration was intended to remain in effect until a permanent constitution was written and ratified in a referendum, which has not yet occurred. The Constitutional Declaration remains nominally in effect throughout Libya, although the extent to which it is practically observed varies considerably across the country. The Constitutional Declaration states that Libyans are equal before the law; enjoy equal civil and political rights; have the same opportunities; and are subject to the same public duties and obligations, without discrimination due to religion, doctrine, language, wealth, race, kinship, political opinions, and social status, tribal or eminent or familial loyalty.

   3.3 Law No. 10 Concerning the Criminalisation of Torture, Forced Abduction, and Discrimination (2013) provides for terms of imprisonment of three to fifteen years for depriving a person of any of his or her rights because of membership in a group or clan, residence in a geographic area, or ethnicity (or colour). The law assigns the same punishments to political, administrative, executive, or military leaders who fail to take necessary measures to prevent or discover crimes specified in previous articles when those acts were committed by persons under their command and control. The extent to which the law is practically observed varies considerably across the country.

   3.4 Libya is a highly diverse nation and with an estimated 140 tribes. In 2017, Human Rights Watch reported that attacks against religious minorities in Libya had gone unpunished since the end of 2011. Gaddafi governed with divide and rule tactics, pitting local tribes against each other. Today, the United Nations continues to work with various communities to resolve grievances peacefully through local reconciliation. At the local level, reconciliation committees mediate conflicts that erupted during the transition between Tebu and Zwiya in Kufra; Tebu, Tuareg and Arabs in Sabha, Murzuq and Ghadames; Zawiya and the Warshafana tribe on the western coast; and Mashashiya and Zintan in the Nafusa mountains and Bani Walid.

   [Tribunal’s emphasis.]

   [17] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Libya’ (14 December 2018) p 18.

5. The Tribunal also notes the Australian Government Travel Advice on Libya, issued 28 October 2021[18], which advises:

   We've reviewed our advice for Libya. We haven't changed the overall level of our advice, do not travel. If you're in Libya and it's safe to do so, leave as soon as possible. Monitor the website and social media of airlines and airports for available flights. We can’t advise you on the safety of departure options. Due to the ongoing unrest, our ability to provide consular services is severely limited. Contact the Embassy in Rome if you require consular assistance.

   Do not travel to Libya due to ongoing fighting, unstable security and the high threat of terrorist attack and kidnapping.

   [Tribunal’s emphasis.]

   [18] Libya Travel Advice & Safety | Smartraveller

6. The Tribunal also notes the following information from a more recent report to the UN Human Rights Council, dated 27 June 2022[19]:

   6. The start of the Mission’s temporal mandate coincided with the direct aftermath of the Libyan Political Agreement (LPA) meant to provide a way out of the conflict that had divided Libya into two rival sets of parliaments, governments, and military coalitions since July 2014. However, efforts to fully implement the LPA over the following years have been unsuccessful, with the Government of National Accord (GNA), created by the LPA, struggling to consolidate its authority. In particular, the Libyan legislature, the House of Representatives, never endorsed the composition of the GNA.

   7. The lack of political stability also influenced the resurgence of military confrontations and hostilities of varying intensity, in the east, west and south of the country, including a non-international armed conflict from April 2019 to June 2020 between the Libyan National Army (LNA) and the GNA, both supported by a variety of foreign actors. Ultra-local dynamics became subsumed into this conflict and pre-existing rifts between armed groups in all regions of Libya crystallised along the LNA/GNA divide leading to numerous armed 1 A/HRC/48/83 and A/HRC/49/4. 2 A/HRC/50/CRP.3. 3 A/HRC/48/83, paras. 12-13. A/HRC/50/63 3 confrontations throughout the country. On 3 October 2020, the forces affiliated with the GNA and the LNA signed an Agreement for a Complete and Permanent Ceasefire.

   8. On 15 November 2020, the Libyan Political Dialogue Forum (LPDF) adopted a political road map, providing for the establishment of a Government of National Unity (GNU) and the holding of presidential and parliamentary elections on 24 December 2021. However, two days prior to the scheduled date, the High National Elections Commission (HNEC) declared its inability to organise elections citing inadequacies in the electoral legislation and irregularities in the judicial process relating to the eligibility of candidates.

   9. The House of Representatives, considering that the GNU’s mandate had expired, appointed a new Government of National Stability (GNS) headed by former interior minister Fathi Bashaga in February 2022, leading to another deadlock between two rival governments, the internationally recognised GNU led by Abdul Hamid Dbeibah and the GNS. At the time of writing, this political stalemate persists.

   10. These developments occurred against a backdrop of persistent insecurity with armed groups and militias assuming various degrees of control over territory, infrastructure and security institutions throughout the country. Political allegiances of such groups often shift in their pursuit of official mandates, legitimacy, and funds. At the time of writing, localised tensions persist, and some key issues continue to contribute to insecurity and ongoing human rights violations in the country. They include the continued presence of Da’esh-affiliated groups, as well as mercenaries, private military companies, and foreign fighters. Libya’s limited capacity to conduct operations to clear landmines and other explosives is also a contributing factor.

   [Tribunal’s emphasis.]

   [19] >

   In a contemporary news article[20] continued indiscriminate violence is reported in and around Zawiya:

   People injured in armed clashes in Al-Zawiya

   Identical sources from Al-Zawiya city confirmed that armed clashes took place between two groups, affiliated with the government's security apparatuses, inside the residential neighborhoods in Al-Harsha area during Iftar time on Saturday.

   The sources indicated that light and medium weapons were used in the clashes, and a number of people were injured. The real reasons for the clashes were not known, amid reports of disputes between members of the two groups.

   Al-Zawiya witnesses, from time to time, disputes that often end in clashes and some people get killed, amid demands from the people to control the use of weapons.

   [Tribunal’s emphasis.]

   [20] Assad, A.K., People injured in armed clashes in Al-Zawiya, Libya Observer, 2 April 2023.

7. A further article entitled Clashes break out near Libya's largest oil refinery the new site ‘Ahram Online’ confirms the continued violence in and around Zawiya, noting the following:[21]

   [21] Hatem, M, Clashes break out near Libya's largest oil refinery, Ahram Online, 2 April 2023.

   Three people were found wounded on Sunday, one critically, after clashes began on Friday between armed groups in the Harsha neighbourhood west of the city of Zawiya, the Libyan newspaper Al-Shahed reported.

   Harsha residents reported hearing gunfire and explosions on Friday near the Zawiya refinery, Libya's largest oil refinery with a capacity of up to 120,000 barrels per day, Sky News Arabia reported.

   Clashes reignited on Saturday evening at Iftar time, as rival militias resumed fighting over resources and black-market interests, Al-Shahed reported.

   The violence occurred between armed forces affiliated with militia leader Muhammad Bahron, nicknamed “the Mouse,” and a group affiliated with the Al-Kabwat militia, according to local sources, Al-Shahed added.

   Zawiya regularly witnesses fighting between armed groups for power and influence, benefiting from the security crisis that gave rise to smuggling drugs, oil and human trafficking.

   Clashes come only days after Libyan citizens formed what they call "The Movement to Correct the Course in Great Zawiya” to face issues plaguing the city, citing “moral collapse, uncontrolled crime, drugs and smuggling," Sky News reported.

   The movement’s members called on authorities and tribes to confront criminal militias threatening the security and stability of the community.

   Militias exploded in Libya following the February 2011 protests that toppled the country’s leader, Muammar Gaddafi.

   The power vacuum after his fall allowed militias to form and arm themselves using weapons from the old regime.

   Though the militias were originally seen as liberators that helped end Gaddafi’s rule, they quickly began fighting over resources.

   These forces under rival commanders created a state of lawlessness in the country, hampering security and progress in Libya years after the leader’s fall.

   [Tribunal’s emphasis.]

8. The Tribunal has read and had regard to the country information provided by the applicant as set out above, and to other authoritative sources.  When considered in the context of the recent history of Libya it may readily be concluded that persistent efforts by state actors, the United Nations and other international bodies to ameliorate the ongoing effects of the Libyan revolution, while having brief periods of relative success, are ongoing.  In this regard the United States State Department’s 2021 Country Reports on Human Rights Practices: Libya reports on the current state of the country:

   Libya’s interim Government of National Unity was selected by the 75-member UN-facilitated Libyan Political Dialogue Forum in November 2020 and subsequently endorsed by the Libyan House of Representatives. Libya was emerging from a state of civil conflict. The government controlled limited territory. Parallel, unrecognized institutions in the eastern part of the country, especially those aligned with the nonstate actor known as the Libyan National Army, led by General Khalifa Haftar, challenged its authority.

   The government had limited control over security forces, which consisted of a mix of semiregular units, tribal armed groups, and civilian volunteers. The national police force under the Ministry of Interior oversaw internal security, supported by the armed forces under the Ministry of Defense. Security-related police work generally fell to informal armed groups, which received government salaries but lacked formal training, supervision, or consistent accountability. There were credible reports that members of security forces committed numerous abuses.

   The Government of National Unity and nonstate actors largely upheld the 2020 cease-fire agreement, although both sides continued receiving support from foreign military forces, foreign fighters, and mercenaries. Informal nonstate armed groups filled security vacuums across the country. ISIS-Libya attempted to maintain a limited presence in the southwestern desert. The Libyan Political Dialogue Forum and House of Representatives each convened to establish a framework for national elections as called for by the Libyan Political Dialogue Forum roadmap. Elections did not take place as scheduled on December 24.

   Significant human rights problems included credible reports of: unlawful or arbitrary killings by various armed groups; forced disappearances by various armed groups; torture perpetrated by armed groups on all sides; harsh and life-threatening conditions in prison and detention facilities; arbitrary arrest or detention; political prisoners or detainees; serious problems with the independence of the judiciary; arbitrary or unlawful interference with privacy; serious abuses in internal conflict, including killing of civilians and the recruitment or use of children in conflict; serious restrictions on free expression and media, including violence against journalists and the existence of libel and slander laws; substantial interference with freedom of association; refoulement of refugees and asylum seekers; serious government corruption; lack of accountability for gender-based violence; trafficking in persons; threats of violence targeting ethnic minorities and foreigners; existence or use of laws criminalizing same-sex sexual conduct between adults; significant restrictions on workers’ freedom of association, including limits on collective bargaining and the right to strike; and forced labor.

   Divisions between western and eastern institutions, a security vacuum in the south, the presence of criminal groups throughout the country, and the government’s weakness severely inhibited investigation and prosecution of abuses. The government took limited steps to investigate, prosecute, and punish officials who committed human rights abuses and acts of corruption within its area of reach; however, its limited resources, as well as political considerations, reduced its ability and willingness to prosecute and punish perpetrators.

   [Tribunal’s emphasis.]

   State protection

1. The DFAT Report notes the following on state protection in Libya: [22]

   5.1 Within Libya, no clear delineation distinguishes state security forces and opposition forces. Instead, Libya hosts a complex set of armed actors, with varying alliances, degrees of association with the state and with each other. The current security environment and, consequently, protection offered by the state, is best understood against the background of the security apparatus in Libya from previous years. During 2011, a loose coalition of brigades rose up against Gaddafi’s forces, strengthened by defecting members of the Gaddafi forces. Following the uprising, militias refusing to lay down their weapons were integrated into the state security structures. Groups that had been operating under militia command found themselves in paid positions with the legitimacy of affiliation to state institutions. In 2017, in Tripoli alone, an estimated 40 different militia groups operated, with the GNA securing the loyalty of certain groups through payment.

   Military – Libyan Armed Forces

   5.2 Prior to 2011, Libya had been called ‘the world’s largest military parking lot’. It had a formidable military in relation to population size, yet a large proportion of its equipment was in storage or poorly maintained. The Libyan army had 50,000 personnel, half of whom were poorly trained conscripts. The navy comprised 8,000 personnel and was considered to have moderate capacity, having participated in NATO-led maritime exercises. The air force fleet included 374 combat-capable aircraft and 18,000 personnel, but had a record of poor pilot training and poor maintenance. Gaddafi had set up elite military units, but the rest of the armed forces, and supporting governmental structures, collapsed during the nine-month conflict in 2011. By May 2011, more than eight generals and an entire brigade had either left the country or joined opposition forces.

   5.3 The head of the internationally-recognised GNA’s Presidential Council is Commander in Chief of the army, air force and navy (including the coast guard). In effect, it has very limited military control. Accurate data on the armed forces’ capacity are difficult to obtain. Due to a lack of operational capability on the part of the defence and police forces, the GNA relies on militia to maintain its nominal control over the capital.

   Police

   5.12 According to the most recent available figures, the number of police personnel was approximately 130,000 in September 2015. Comprising over half of officials or civil servants, approximately 5,000 were commissioned officers and 51,000 non-commissioned officers. Following the uprising many officers did not return to work. The state consequently attempted to strengthen the police force by employing ‘Thuwars’ (members of armed militias). The approximate current ratio is 30 per cent experienced officers and 70 per cent thuwars. The Libyan National Police force (LNP) is considered understaffed, underequipped and dysfunctional. As a consequence, external armed groups with no accountability to central authorities fill the void. The public perceives the police as unable to exercise its mandate. Militias see the police as corrupt and tainted by the legacy of the Gaddafi regime. Police operational capacity varies across the country. Businesses face a high corruption risk when dealing with police. No mechanisms exist to investigate corruption.

   5.13 The National Security Directorate, which reports to the Ministry of Interior, is Libya’s conventional police force. It is tasked with investigating crime and traffic offences and protecting public property. The Judicial Police are responsible for managing prisons under the GNA Justice Ministry, an estimated 6,400 detainees were held in its prisons in the east, west and south of the country. The General Directorate for Central Security (GDCS), previously known as Police Operations, also reports to the MoI, and provides crowd control, mobile and special surveillance. The Criminal Investigations Unit, also within the Ministry of Interior, focuses on combatting organised crime including human smuggling, drug trafficking, weapons smuggling, abductions and murder. It has limited capacity and armed groups hinder its work.

   5.14 DFAT is not aware of any mechanisms to investigate and punish abuses of human rights or corruption by police and security forces. In a security environment largely dominated by militias, a blurred chain of command has led to confusion about responsibility for the actions of armed groups, including those nominally under government control. Police and other security forces have usually been ineffective in preventing or responding to violence incited by militias. In the absence of effective legal institutions a culture of impunity prevails.

   [22] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Libya’ (14 December 2018) pp 38, 40-41.

   Analysis:

2. The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:

   In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[23]

   [23] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf

3. However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[24]

   [24] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

4. Having listened and had regard to the entirety of the PV interview the Tribunal is satisfied that the applicant answered all questions asked by the delegate honestly and truthfully.  When considered with his subsequent written statements and submissions, his corroborating documents and in the context of the country information set out above, the Tribunal considers the applicant’s evidence to be coherent and plausible, and to not run counter to generally known facts.

5. Overall, therefore, the Tribunal regards the applicant’s evidence as credible.

6. In tandem with the credibility of the appellant’s account of his experiences in Libya is the question of whether he in fact holds the views and attitudes he claims.  There are two competing considerations in this regard which the Tribunal keeps to the front of its mind.  The first is the ease with which a claim to support a certain cause or hold a certain view can be fabricated.  At the same time, the Tribunal is in no doubt as to the predicament for an individual trying to establish such a claim, given the internal nature of the beliefs underlying the support for the cause, particularly where the cause stands in opposition to state authorities. 

7. The Tribunal notes that the applicant’s actions since arriving onshore have been consistent with his stated intentions as a student (studying for and achieving his PHD), and it is not unusual or implausible that he would hold the views he claims.  The applicant has been consistent on these claims over a significant period; the Tribunal notes that when his personal views were discussed in his PV interview there was nothing in his evidence that was forced or appeared artificial.  Accordingly, the Tribunal is prepared to allow the applicant the benefit of the doubt in this regard. 

8. The Tribunal accepts that the general political and security situation in Libya is so fluid, and the armed groups so numerous, that there is a real chance that the applicant will suffer persecution for the reasons he claims should he be removed from Australia to Libya.  There is no information available to the Tribunal to suggest when travel into Libya might be sufficiently safe to discount that risk.

9. The Tribunal is, therefore, satisfied that there is a real chance that the applicant will face serious harm, and therefore persecution, in Libya.  The Tribunal is satisfied that the essential and significant reason for the persecution feared is on the grounds of his actual or perceived political opinions as a member of the Zawiya Tribe, and as resident in Zawiya, and as generally being seen to oppose, or at least to not be aligned with, the Wershefana and/or any of the other militia or tribal groups operating in Zawiya or Libya generally. 

10. On the basis of the evidence before it, including the country information cited above, the Tribunal is not satisfied that state protection is available to the applicant in Libya.  The Tribunal is not satisfied that the applicant would be able avoid the harm referred to by internally relocating within Libya.  For these reasons the Tribunal accepts the applicant has a well-founded fear of persecution in all areas of Libya for the reasons stated.

11. It follows that the Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s.5J. In considering whether he comes within the definition of a refugee contained in s.5H, it accepts that he is outside the country of his nationality and unable to return to it owing to his well-founded fear of persecution. Therefore, he meets the criteria in s.5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicant. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the applicant is a refugee.

12. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

13. The Tribunal is also satisfied that the second- to fifth-named applicants are members of the same family unit a person in respect of whom Australia has protection obligations under s.36(2)(a), namely the applicant.

14. For the avoidance of doubt the Tribunal’s decision in this regard cannot and does not impact upon or change the current or future legal status of any members of the applicant’s family not named as applicants in this decision.

    decision

15. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

    (ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Damian Creedon
    Member

    
    

    Attachment  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …