1719111 (Refugee)

[2023] AATA 2332

1719111 (Refugee) [2023] AATA 2332 (19 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Rebecca Wallace (MARN: 0640179)

CASE NUMBER:  1719111

COUNTRY OF REFERENCE:                   Libya

MEMBER:Damian Creedon

DATE:19 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)(aa) of the Migration Act; and

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

Statement made on 19 April 2023 at 7:49am

CATCHWORDS

REFUGEE – protection visa – Libya – political opinion – Gaddafi loyalists – Libyan National Army supporters – opposition to the Government of National Accord – Revolutionary Committee member – study abroad scholarship recipient – supporting women’s rights – particular social group – returnee from the West – Westernized, progressive and/or highly educated women – fear of Islamist groups – fear of killing – transit from any point of entry to Tripoli carries risk of harm – complementary protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
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 dependants.

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 11 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), [an age]-year-old citizen of Libya, applied for the visa on 29 April 2016. The second-named applicant is the applicant’s wife; the third-named applicant is the couple’s daughter.[1]

   [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.

3. The applicant first arrived in Australia [in] August 2013 as the holder of a [Student] visa granted on 24 June 2013; that visa ceased on 1 December 2017.  The applicant is presently onshore holding a bridging visa pending the outcome of his application for a Protection visa.

   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 supporters of General Khalifa Haftar and his Libyan National Army (LNA). The applicants claim they would be identified as such not only as a consequence of expressing their actual views in support of these groups but also based on their history as Gaddafi loyalists as well as their affiliation with tribes known to be aligned with Haftar/the LNA.

   b.Conversely, their actual or perceived political opinion as opposing the Government of National Accord (GNA), the newly established provisional Government of National Unity (GNU) and/or militias aligned to either the GNA or GNU. Again, the applicants claim they would be identified as opposing these groups as a consequence of expressing their actual religious and political views that run contrary to the ideologies held by the GNA/GNU but also based on their history as Gaddafi loyalists as well as their affiliation with tribes known to oppose the GNA/GNU and/or their affiliated militias.

   c.Their actual or perceived political opinion as being pro-Gaddafi or as having benefited from this regime through [the applicant’s] previous membership in one of Gaddafi’s revolutionary committees as well as his receipt of a scholarship funded by the Gaddafi Government;

   d.Their actual or perceived political opinion as opposing the myriad of Islamist militias operating in Libya, particularly those active in Tripoli, or the fundamentalist ideologies being enforced by these groups. The Applicants fear they would face an increased risk of targeting by Islamist groups as westernized, progressive and secular-minded thinkers who are against religious extremism and support women’s rights;

   e.Their perceived religious views as apostates or as being ‘un-Islamic’ and/or persons who are otherwise perceived to be contravening “public morals” or social codes around behaviour being enforced by Islamist groups in Libya; and/or

   f.Their actual or perceived membership of particular social group(s) including; “(former) Gaddafi Scholarship recipients”, “(Westernized) Medical Professionals” “Medical Professionals perceived to be affiliated to the LNA “and/or “Wealthy Professionals who have been living in Western Countries for a prolonged period.

5. Additionally, the second- and third-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 “un-Islamic” or as opposing the traditional religious and cultural norms imposed on women and girls 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:

   i.For the second-named applicant: “Female member of the [Region 1] tribe”, “Westernized, Progressive and/or 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 ” “Female Medical Professionals”, “Women returning to Libya after a prolonged absence living and studying in a Western country”.

   ii.For the third-named applicant: “(Westernized) Girls” “Libyan Children born in Western Countries” “Returnee girls who have grown up in Western Countries” and/or “Children belonging to wealthy and/or professional families”

6. The applicant participated in an interview with the delegate of the Minister on 7 February 2017 (PV interview).  The Tribunal has not been provided with a copy of the PV interview; however, the interview was summarised by the delegate in their decision record in the following terms (uncorrected):

   ·The applicant is a Married Sunni Arab, from Tripoli, Libya with one child. Apart from his wife (Applicant 2) and chid (Applicant 3), his remaining immediate family all reside in Libya.

   ·He identifies himself a as a pro-Gaddafi supporter, and fears harm on return to Libya on that basis from anti-Gaddafi groups.

   ·His support is shown through his membership of the Revolutionary Committee (RC), resulting in his government scholarship to [Country 1] from [specified year] until 2011, his pro-Gaddafi actions in [Country 1], and his belonging to the Warfalla tribe.

   ·While in the RC he was in involved in social activities to promote the party. The RC had chapters at all universities, along with sub-chapters for each branch, and was assisted in finding for employment, scholarships and advancement.

   ·During the revolution against Gaddafi in March 2011, he participated in three protests in support of Gaddafi at the [Country 1] Libyan embassy on [specified days]. He, three friends and a small number of other people supported Gaddafi, however the majority supported to revolution and as a result he believes there are no media reports of him being there.

   ·Following the three protests, he moved address and changed his phone number, in order to avoid the harassment from anti-Gaddafi groups who identified him at the protests. Apart from attending the three protests, he has been involved in no other pro-Gaddafi activities since his departure from Libya in [year]. He ensured he kept a low political profile, even during the protests, as he was of the belief that Gaddafi would fall and he wished to return to Libya.He was also busy with study (being his main reason for departing Libya), which prevented him from being involved in more pro-Gaddafi activities.

   ·His family informed him that he should prolong his stay overseas and not return, due to the dangers faced by pro-Gaddafi supporters, such as his family. As a result, he remained in [Country 1] for a further two years, attempting to obtain a student visa for [Country 2] (but was refused in January 2012), until obtaining a scholarship in Australia in May 2013.

   ·Two of his [siblings, named] who were employed in [oil fields] disappeared in December 2015, following Islamic State of Iraq and the Levant (ISIL) taking in control. He and his family have not heard from them since then. His remaining family reside in the Tripoli area.

   ·His family were forced to move during the 2011 conflict, due to their home being destroyed in the conflict.

   ·His parents were granted a visitor visa to Australia in June 2014, however due to the Tripoli airport being closed in July 2014, they were unable to depart.

   ·Due to his actions in [Country 1] in 2011, he believes that he will be identified as a pro-Gaddafi supporter through other Libyans informing the current Libyan government and militia of his protest involvement.

   ·He fears being harmed due to being a returnee from overseas, and being identified as pro-Gaddafi on that basis, as well as he and his wife belonging to tribes being associated with Gaddafi. His wife’s cousins have also been killed during the conflict.

   ·He fears being killed or harm due to the general lack of security throughout the country and from the Islamist controlled government due to his secular views.

7. The applicant’s do not contend, and there is no suggestion in any of the materials before the Tribunal to suggest, that the delegate’s summary of the PV interview is materially incorrect, incomplete, or misleading and the Tribunal places weight upon it as accurately reflecting the applicant’s evidence at the time of his Protection visa application.

8. The delegate refused to grant the visa on 11 August 2017 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.

9. The applicant applied for a review of the delegate’s decision on 23 August 2017.

   Application for review:

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

11. 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.

12. The Tribunal has had regard to the President's Directions and in particular the direction that members are to take all reasonable steps to complete papers allocated to them as quickly as possible, and that generally in reviewing a decision to refuse the grant of a protection visa members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.

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

    CONSIDERATION OF Claims and evidence

    The relevant law:

14. 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.

15. 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.

16. 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).

17. 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.

18. 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

19. 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:

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

    (a)the applicants’ protection visa application forms, which were lodged on 29 April 2016;

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

    (c)the protection visa decision dated 11 August 2017 (delegate’s decision);

    (d)the application for review form dated 23 August 2017, which includes a copy of the delegate’s decision;

    (e)Department file [number] 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:

    ·Statutory Declaration from [the applicant] dated 10 April 2023 (statutory declaration).

    ·Statutory Declaration from [the applicant’s wife] dated 10 April 2023.

    ·Copy of Award Certificate and Academic Transcript for [Qualification 1] conferred to [the applicant] on 9 March 2018 by [University 1].

    ·Copy of contract covering [the applicant’s] current employment as [Position 1] with [Agency 1].

    ·Copy of Academic Transcript for [Qualification 2] conferred to [the applicant’s wife] [in] March 2022.

    ·B6 Copy of fixed term contract covering [the applicant’s wife’s] current employment as [Position 2] with [Employer 1].

    ·Photographs taken of anti-Gaddafi protesters outside of the Libyan Embassy in [Country 1] [in] March 2011.

    ·Map issued by the UN’s Office for the Coordination of Humanitarian Affairs (OCHA) in November 2017 showing [Region 1]. This map confirms the location of [the applicant’s wife’s] home area [named] within the [Region 1] region.

    ·        Map published by the [source] on 9 November 2017 showing the region of [Region 1].

    ·        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.

21. 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 (UNHRC) Report of the Independent Fact-Finding Mission on Libya, (3 March 2023)[2] (UNHRC Report).

    [2] Advance Edited Version

    Country of reference:

1. 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.

2. 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

3. 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).

4. 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.

5. 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.

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

   General background evidence

7. The applicant’s personal details and the general background to his application is uncontroversial.  As set out in his statutory declaration it is a relatively succinct and material summary of a complex period, and it is convenient to set it out in full:

   …

   Background

   2. I was born on [date] in the neighbourhood [named], located in Tripoli, Libya.

   3.I am from the Warfalla tribe and a follower of the Sunni Muslim faith.

   4. I married my wife, [name], [in] February 2015 in [Australia]. [My wife] and I currently have one child, [name], who was born on [date]. My wife and daughter are currently residing with me in Perth, Australia and are included in my review application.

   5. I departed Libya on the [date] travelling to [Country 1] to undertake further graduate studies based on a scholarship received under the former Gaddafi regime

   6. While in [Country 1], I secured a scholarship through [University 1] to undertake a [Qualification 1] in Australia in 2013. l entered Australia on a [Student Visa] [in] August 2013 and have not departed the country since that time. Also, I have not returned to Libya since my departure in [year].

   Tribal affiliations

   7. l belong to the Warfalla tribe with the original tribal lands of my grandparents being in the [named area] located in the West of Libya. Some of my extended relatives continue to live within [this area].

   8. The Warfalla tribe had been one of the key tribes responsible for keeping Gaddafi in power. Many of the members of my tribe had held positions within the security services, military forces and revolutionary committees that were under the control of Gaddafi. I also had been personally associated with Gaddafi's regime as a member of the revolutionary committee at my university in Libya, [University 2].

   9. During the First Libyan Civil War in February 2011, some members of the Warfalla tribe had joined the rebellion against Gaddafi. By the end of May 2011, a number of Warfalla elders pushed for an end in the fighting and, in doing so, gave their support for the removal of Gaddafi and his sons from power.

   10. However, most of the Warfalla (including my own family) remained loyal to Gaddafi to the end. In fact, my tribal home [area] had become a target of heavy fighting at the end of the First Libyan Civil War as it remained a stronghold for Gaddafi and his forces right up until his eventual capture.

   11. Since the overthrow of Gaddafi, the Wartalla have become aligned with Khalifa Haftar and his Libyan National Army (LNA) and especially in its recent battles against the rise of Islamist terrorist groups like the IS-Libya.

   My family in Libya

   12. Both of my parents are still alive. I also have [named family members].

   13.To the best of my knowledge, my parents and siblings are all currently residing in Tripoli.

   14.However, I understand that most of my family have faced displacement from their homes on at least two occasions since the overthrow of the Gaddafi regime in 2011.

   15. Firstly, a majority of my family had been displaced in late 2011 after Gaddafi had been killed. At this time, the anti-Gaddafi rebels had captured Tripoli and began targeting those suspected of belonging to the tribes who had been loyal to Gaddafi, including the Warfalla.

   16.I understand my parents and most of my siblings were forced to flee our family home during this time and were living with other relatives in an area away from the centre of the conflict. My family had subsequently returned back to Tripoli later in 2011 as the situation began to improve.

   17.As mentioned in the information provided with my Protection Visa application, two of [siblings] went missing around the end of 2015 while working in the [Oil fields]. Both of [them] have since returned home in 2018 after Haftar managed to take back the oil fields from a militia that was controlling them.

   18.At the time my brothers went missing we believed that ISIS had been behind their capture as this group had secured control over [their region] around this time and had been involved in the abduction of foreign and local oil workers.

   19.However, once my brothers returned home, we learned it was a militia led by warlord, Ibrahim Judhran, believed to be aligned with the UN-backed Government of National Accord (GNA), that were behind their abduction. The militia had captured my brothers alongside other oil workers detaining them in a camp on the oil fields while making them work. My brothers indicated they were treated very badly and had not been permitted to contact anyone while held hostage. It was then only with the help of Haftar and his forces that my brothers and the other oil workers were finally freed and able to return to their families.

   20. Most of my family were displaced again in 2019 as General Haftar, supported by the Libyan National Army (LNA) and other militias, tried to capture Tripoli. Over this period, there was heavy shelling occurring across our home area and violent clashes breaking out between rival militias.

   21.My family returned to the family home after Haftar and his militias retreated by late 2019. However, my family do not feel safe in their home area and live in fear of being targeted by any of the multiple militias that remain active in their region but particularly those aligned to the GNA or the newly established Government of National Unity (GNU).

   My education and employment background in Australia and overseas

   22. I completed a [specified] degree in [year] from [University 2].

   23. After Completing my undergraduate studies, I undertook a [position] from [year] to May 2006 at [two locations].

   24. On the completion of [this period], I worked as [an occupation 1] at [a named employer] from October 2006 up until my departure from Libya in [year].

   25. From [year] to September 2011, I completed my [Qualification 3] from [University 3] in [Country 1]. I then completed [between specified years] a [further qualification] through the same university.

   26. During my studies in [Country 1], I completed a [job placement] at [a named employer] in [Country 1] in 2012. In addition toa brief exchange in [Country 2] from [in] 2012.

   27. From late August 2013I commenced studies for a [Qualification 1] at [University 1]. My studies were fully funded through an international postgraduate scholarship received through this university. My [qualification] was conferred on 9 March 2018.

   28. During my [last] studies (2013-2018), I was working in different academic roles for [University 1] including as a research scholar, tutor, sessional lecturer and research assistant.

   29. Since January 2019 I have continued to participate in research projects for [University 1] as [a named position]. I have also served, since December 2020, [in another role].

   30. Otherwise, from November 2018 to June 2022 I was employed full-time at [Employer 2] initially as a [specified role] and then [in another position].

   31.Since November 2022, I have been employed full-time as a [Position 1] for [Agency 1], Perth. My job is primarily responsible for [specified programs].

   32. If I was forced to return to Libya, the expectation would be that I would return to work as either [an occupation 1] or in similar [roles] as have been performing while in Australia.

   Gaddafi Scholarship

   33.I had received a scholarship from the former Gaddafi government for my [studies] in [Country 1] from [year]. My scholarship payments ceased following the fall of Gaddafi's regime in late 2011.

   34. The scholarship I had received covered the costs of my tuition fees in [Country 1] as well as providing me a regular allowance to cover my living expenses while in [Country 1].

   35. Many of the students who had been studying abroad on Gaddafi funded scholarships believe that our funding had been cut due by the Libyan Embassy to the belief that we were Gaddafi loyalists. The Libyan Embassy in [Country 1] had been vocal in condemning the Gaddafi regime during the anti-government protests that took place in Libya in 2011.

   36. Due to acts of intimation against pro-Gaddafi students in [Country 1] and being unable to retain my scholarship through the Libyan government, I applied for a scholarship from Australian universities to enable me to finish my [studies] there. My subsequent [studies] in Australia were funded through an international postgraduate scholarship obtained direct from [University 1] in 2013.

8. The applicant’s statutory declaration also touches upon his current political views and his fears regarding returning to Libya now or in the reasonably foreseeable future.  Where relevant that evidence will be set out in the Tribunal’s analysis below.

   Country information:

9. It is convenient to consider relevant country information prior to an analysis of the evidence.  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.

10. A 2014 report from Amnesty International entitled Libya: ‘Rule of the gun’ amid mounting war crimes by rival militias[3] provides relevant information in respect of the situation in Libya 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.]

    [3] See: < p.5

11. Amnesty International further notes that:[4]

    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.

    [Tribunal’s emphasis.]

    [4] Ibid. p.10, 13.

12. 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.[5]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.

    [5] 26 February 2015 >

    A more contemporary outline of the origins and continuation of violence in Libya is provided in the DFAT Report:[6] 

    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.]

    [6] DFAT Report p 18.

1. The Tribunal also notes the following information from a more recent Mission report to the UNHRC, dated 27 June 2022[7]:

   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.]

   [7] >

   It may readily be concluded, when considering the recent history of Libya, 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.]

2. The DFAT Report notes the following on state protection in Libya: [8]

   [8] DFAT Report pp 38, 40-41.

   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.

3. Although there are emerging signs for hope of a better future,[9] the Tribunal also notes the current Australian Government Travel Advice on Libya which advises:[10]

   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.]

   State protection

   [9] See: SRSG Abdoulaye Bathily's Remarks to the Security Council Meeting on Libya - 18 APRIL 2023 < Libya Travel Advice & Safety | Smartraveller

4. The DFAT Report notes the following on state protection in Libya: [11]

   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.

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

   Analysis:

5. 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.[12]

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

6. However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[13]

   Actual or perceived Gaddafi regime loyalists

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

7. DFAT reports the following on actual or perceived Gaddafi regime loyalists:[14]

   3.51 A generalised attitude of resentment towards Gaddafi supporters and fighters is widespread throughout Libya (see Black Libyans). This animosity derives from the conduct of the regime following the outbreak of conflict in 2011. Between February 2011 and the fall of Tripoli in August 2011, pro-Gaddafi forces committed murder, enforced disappearance and torture. Gaddafi forces launched indiscriminate attacks into civilian areas using mortars, artillery and rockets and laid anti-personnel and anti-vehicle mines.

   3.52 In June 2017, unidentified armed groups killed 12 detainees upon their conditional release from prison in Tripoli. All 12 were members of the former Gaddafi government and were accused of taking part in violence against anti-government protesters in 2011. On 29 July 2015, a mass trial of 28 senior regime figures resulted in 24 being convicted of crimes relating to the Gaddafi regime’s conduct during the 2011 conflict. Nine of the defendants, including Gaddafi’s son, Saif al-Islam al Gaddafi, were sentenced to death in a trial widely criticised by international observers (see Death Penalty). In the aftermath of the verdict, small scale pro-Gaddafi rallies took place in several Libyan cities, including Benghazi. Gaddafi loyalists retain influence but do not hold official positions in Libya, and tend to align with the LNA bloc. A Zintani militia released Saif al-Islam from house arrest in June 2017. Saif al-Islam’s house arrest had shielded him from both the death sentence handed down by an interim government in Tripoli and extradition to the International Criminal Court on war crime charges. In a televised interview, Ghassan Salame, head of UNSMIL said that the political reconstruction process ‘may include’ Saif al-Islam. While some, limited, re-grouping of support for Gaddafi has emerged, a generalised attitude of resentment continues toward perceived Gaddafi supporters and fighters.

   3.53 DFAT assesses that those who were, or are perceived to have been, high-ranking officials in the Gaddafi regime (including ministers, senior bureaucrats, military personnel or diplomats), or who had close associations with the Gaddafi family, or those associated with the Libyan security forces during the 2011 conflict, face a high risk of both societal and official discrimination throughout Libya. This may include being illegally detained, beaten or tortured; having death threats made against themselves or their families; or being killed. The Gaddafi regime was in power in Libya for 42 years, from 1969 to 2011. Over such a long period of time, the majority of the population would have either worked for, had some association with, or had a member of the family who worked for, or had an association with the regime. DFAT assesses it is unlikely that a Libyan with a low-level association with the regime would face discrimination as a result of this association.

   [14] DFAT Report p 28.

1. The applicant’s fear of being (at least) perceived to be a Gaddafi regime loyalist rests upon his tribal identity, his family allegiances and his claims to have been a member of the revolutionary committee at university, specifically he states:

   The Warfalla tribe had been one of the key tribes responsible for keeping Gaddafi in power. Many of the members of my tribe had held positions within the security services, military forces and revolutionary committees that were under the control of Gaddafi. I also had been personally associated with Gaddafi's regime as a member of the revolutionary committee at my university in Libya, [University 2].

2. The Tribunal is not persuaded, however, that the applicant would have been perceived any differently from any other member of the revolutionary committee at his university either before or after his tenure in those roles; the Tribunal places weight in this regard on DFAT’s assessment that:

   Over such a long period of time, the majority of the population would have either worked for, had some association with, or had a member of the family who worked for, or had an association with the regime.[15]

   [15] Op.cit.

3. Consistently with DFAT’s assessment, the Tribunal concludes that it is unlikely in these circumstances that the applicant, having a such relatively low-level association with the regime, would face discrimination as a result of this association

4. The Tribunal does not therefore accept that the applicant has a well-founded fear of harm by reason of his, or his family’s actual or perceived loyalty to the Gaddafi regime.

   Former recipients of study abroad scholarships

5. DFAT reports the following on former recipients of study abroad scholarships: [16]

   3.54 For several decades, Libya has utilised its oil wealth to provide scholarships to enable graduate students to study abroad. The scholarships program, run by the Ministry of Higher Education (MoE), sent around 5,700 predominantly graduate students abroad annually to study in foreign universities. After Gaddafi’s fall, the program was extended to include former rebel fighters through the Warriors Affairs Commission, to help transition former rebel fighters into civilian life. While detailed statistics are not available, international observers estimated that as many as 20,000 Libyans were studying on government scholarships in 2015 in the United Kingdom, the United States, Canada, Egypt, Malaysia and Australia. Government payments occur erratically due to the challenging political situation in Libya.

   3.55 The Libyan North American Scholarships, administered through GNA and MoE, signed a contract renewal in July 2017. Sources estimated about 650 students were in Canada and 150 in the United States, mostly from the elite, and that each student had around three accompanying dependents. Other estimates are much higher, with over 1,000 in Canada and up to 2,000 Libyan students on scholarship in the United States.

   3.56 In February 2014, Amnesty International expressed concerns about Decree 13 (2014), issued by the parliament the previous month, which aimed to punish Libyan students and state employees abroad who had engaged in ‘activities hostile to the 17 February Revolution’ by withdrawing their scholarships, salaries and bonuses. The decree instructed embassies and relevant authorities to submit names to the general prosecution for interrogation. Amnesty International argued the broad and vague provision included in the decree could be used to prosecute Libyan individuals who publicly expressed their opposition to the uprising and participated in protests and demonstrations supporting Gaddafi’s rule during their time abroad.

   3.57 DFAT is aware of one case where a former scholarship holder was arrested on return to Libya. Moad al-Hnesh, a 34 year old studying mechanical engineering in the United Kingdom, was arrested by a militia on his return to Libya in 2012. Al-Hnesh was reportedly detained after a group of Libyan students whom he had met in the UK filed a complaint against him with the military council, accusing him of participating in demonstrations and publishing false information on the situation in Libya during the 2011 conflict. Amnesty International reported in September 2013 that al-Hnesh had been charged under Article 178 of the Penal Code, which criminalised any activities of a Libyan abroad perceived to be against the interests of the state, and which carried a life sentence.

   3.58 Local and international sources consider it unlikely that a recipient of a study abroad scholarship would be targeted solely on this basis if they were to return to Libya, regardless of whether they had received the scholarship during the Gaddafi regime or afterwards. DFAT assesses that an ordinary recipient of a study abroad scholarship faces a low risk of societal or official discrimination or violence upon return to Libya.

   [Tribunal’s emphasis.]

   [16] DFAT Report pp 28-29.

6. Despite his claim to have protested in [Country 1] in 2011, there is nothing in the evidence provided by the applicant to indicate that he has undertaken any activities in Australia or elsewhere that may give rise to an adverse profile of the type described in the country information.  While the applicant maintains that, as a former recipient of a study abroad scholarship he would have reason to fear harm on his return to Libya, the Tribunal accepts the country information that he faces a low risk of societal or official discrimination or violence on this basis.  In making this assessment the Tribunal has considered the cumulative impact of the applicant’s (low-level) association with the Gaddafi regime as analysed above.

   Treatment of returnees and conditions for returnees

7. DFAT reports the following on the treatment of returnees and conditions for returnees to Libya:[17]

   [17] DFAT Report pp 44-45.

   Conditions for Returnees

   5.30 IOM reports that between 2016 and mid-2018, some 370,000 internally displaced people had returned to their homes in Libya, with 92 per cent returning to their previous home. Returnees’ primary needs are access to health services, access to education and access to security. The main reasons driving internal displacement were: the threat or fear of general conflict and armed group presence (reported by 84 per cent of IDPs); other security related issues (14 per cent); and economic displacement (two per cent). In 2018, UNHCR reported that the most vulnerable IDP groups were unable to return to their communities due to resistance from neighboring communities, military groups and local authorities. These groups include IDPs from Tawergha, Benghazi, Mashashya, Sirte, Warshafana, Tripoli and Kikkla. In June 2018, IOM reported 192,513 internally displaced persons in Libya.

   5.31 An increasing number of Libyans are joining a mixed migratory movement to Europe. In 2017, 1,234 Libyan nationals arrived in Italy by sea. This number included unaccompanied and separated children. Despite a 34 per cent decrease in overall sea arrivals in Italy in 2017, Libyan arrivals increased by 39 per cent compared to 2016. DFAT considers the political and security situation in Libya unstable and highly fluid.

8. The Tribunal has not accepted that the applicant’s profile places him at risk for a convention reason and there is no evidence to suggest that, by reason of being a returnee, his risk would be elevated to any extent.  The applicant is highly educated, and he has the benefit of a family network in a relatively secure district.  The Tribunal is therefore not satisfied that he faces any real risk of harm by reason of being a returnee.

   Cumulative claims

9. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of his or his relatives’ claimed membership of the Revolutionary Committees, his actual or imputed political opinion, his status as a scholarship recipient, his tribal affiliation or any other reason if he returns to Libya now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion, or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Libya. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

   Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?

10. The Tribunal has considered the applicant’s claims under complementary protection.

11. The Tribunal notes that extra-judicial killings and deaths in custody have been attributed to the various armed groups and military forces active in parts of Libya. The Tribunal also notes country information to the effect that enforced or involuntary disappearances are common in parts of Libya but considers that the applicant’s profile does not present a real risk of exposure to harm of this nature.  The Tribunal further notes that the death penalty, torture, and cruel, inhuman or degrading treatment or punishment have been reported in respect of Libyan law enforcement and prisons.

12. The Tribunal notes, in particular, the following country information from the Department of Foreign Affairs and Trade’s latest country information report on Libya[18]:

    2.9 As of October 2018, Libya has three governments competing for control and legitimacy. Two governments based in the capital, Tripoli: the Government of National Accord (backed by the United Nations and International Community), and the less influential, General National Congress (GNC), and in the eastern city of Tobruk, the third government that grew out of the House of Representatives (splitting from the GNC 2014). In 2017, elections were agreed to by the leaders of the GNA and HoR for 2018.

    4.2 Numerous reports claim that pro-GNA militias, anti-GNA militias, LNA units, ISIS fighters, and other extremist groups have committed arbitrary or unlawful killings. Human Rights Watch reported that, in May 2017, forces aligned with the UN-backed GNA attacked an airbase controlled by the LNA, summarily executing 51 individuals, mostly captured fighters. On 15 August 2017, the International Criminal Court (ICC) prosecutor issued an arrest warrant - the ICC’s first for crimes committed since the 2011 uprising - against LNA Special Forces commander Mahmoud Mustafa Busayf al-Werfalli for allegedly directly participating in seven incidents in which 33 individuals were killed. On 26 October 2017, local police forces discovered the bodies of 36 men, all of them executed, close to a main road south east of al-Abyar, 50 kilometres east of Benghazi. Relatives reportedly told Human Rights Watch that armed groups loyal to the LNA had arrested the men on various dates in Benghazi or in other areas controlled by the LNA.

    [18] [18] DFAT Report pp 10, 33.

13. The Tribunal also notes and places weight upon:

    a.the report to the to the UNHRC, set out at paragraph [35] above;

    b.the DFAT Report at paragraph 5.1, set out at paragraph [37] above; and

    c.the Australian Government Travel Advice on Libya, set out at paragraph [38] above.

14. Finally, the Tribunal notes and places weight upon the information from the United States State Department’s 2021 Country Reports on Human Rights Practices: Libya extracted at paragraph [36] above.

15. While the Tribunal, for the reasons given above, does not consider that there is a real chance that the applicant will suffer persecution for the reasons he claims, and that he could live safely with his family in Tripoli, the Tribunal does accept that the general political and security situation in Libya is so fluid, and the armed groups so numerous, that there are substantial grounds for believing that, should the applicant be removed from Australia to Libya, there is a real risk that he will suffer significant harm.   Thus, while the evidence suggests that his family in Libya are currently safe and may very well continue to be so, the Tribunal considers that transit from any point of entry to Tripoli carries a real risk of the applicant suffering significant harm.  There is no information available to the Tribunal to suggest when travel into Libya might be sufficiently safe to discount that risk.

    Conclusion: Refugee Criterion

16. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion, or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.

    Conclusion: Complementary Protection

17. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Libya that there is a real risk that he will suffer significant harm.

    Overall conclusion:

18. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

19. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

    decision

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

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

    (ii)that the other applicants satisfy s.36(2)(c)(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.

    …