1719952 (Refugee)

1719952 (Refugee) [2023] AATA 2331 (23 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Raheel Umer (MARN: 1679332)
CASE NUMBER:  1719952
COUNTRY OF REFERENCE:                   Libya
MEMBER:Damian Creedon
DATE:23 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 23 April 2023 at 11:13am
CATCHWORDS
REFUGEE – protection visa – Libya – political opinion – fear of kidnapping for ransom by militia groups – returnees perceived as wealthy and holding anti-Gaddafist opinions – political instability, lack of security, generalised violence and socio-economic conditions –generalised and unconvincing claims and evidence on refugee criteria – transit from any point of entry to applicant’s home city carries real risk of significant harm – complementary protection – members of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), 36(2)(a), (aa), (c)(i), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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:
The first-named applicant (applicant), a [Age]-year-old citizen of Libya, applied for the visa on 27 January 2017. The second-named applicant is the applicant’s wife; the third-named applicant is the couple’s son.[1]
[1] The Tribunal notes the third-named applicant’s Birth Certificate Registration [Number] issued by the Registrar of Births, Deaths and Marriages for Western Australia.
The applicant first arrived in Australia [in] July 2010 as the holder of a Student visa. The applicant is presently onshore holding a bridging visa pending the outcome of his application for a Protection visa.[2]
[2] The visa status of the second- and third-named applicants effectively “mirrors” that of the first-named applicant as secondary visa holders/applicants.
Protection visa application:
The applicant’s claims for protection are summarised by the delegate in the following terms (uncorrected):
·He is a married, Arab Libyan [Occupation 1] with one child, from [Town 1], [City 1], Alkhums province.
·He claims he, his wife, and his child are at risk of being ransomed by pro-Gaddafi (Gaddafist) militia groups, due to being viewed as wealthy as returnees and his family holding anti-Qaddafi views.
·The area in which he lives is a majority Gaddafist supporters, where it is known his family are anti-Gaddafi. Gaddafists are also becoming more powerful in Libya, and targeting revolutionaries.
·There is a lack of health and educational facilities in the country.
·The authorities are unable to protect his family or the population.
·He fears being killed while employed as [an Occupation 1] due to a lack of workplace safety on return by [specified people], if he [follows his normal work practices].
·He and his family are at risk of generalised violence and the lack of security throughout the country.
·Applicant 1’s eldest brother, [Mr A], was kidnapped and ransomed for three days [in] July 2016 for 3 days by Gaddafist militia, releasing him on payment.
·Applicant 1’s second eldest brother, [Mr B], was kidnapped by the same Qaddafist militia in December 2016, however since his family are unable to pay the ransom, he remains in their custody.
·His two cousins were kidnapped by militia, however as the ransom was not paid, they were both found dead on the side of a road in a rural area.
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.
The applicant applied for a review of the delegate’s decision on 30 August 2017.
Application for review:
In pre-hearing submissions filed with the Tribunal on 3 April 2023 the applicant made the following claims (uncorrected):
If [the applicant] return to Libya after 7 years in Australia, he will be at high risk of being harmed because of his political view or might get targeted some militant group and get kidnapped for ransom as these people consider people returning for a developed countries as wealthy. Other potential risks are:
- Political instability: Libya is known for its political instability, with ongoing conflicts between different factions. If [the applicant] is forced to return to Libya, he will find himself caught up in political violence, civil unrest, or military clashes.
- Security concerns: Libya has a high level of violence and crime, with widespread instances of robbery, kidnapping, and terrorism. If [the applicant] returns to Libya, He will be at risk of being targeted by criminals or extremist groups, Kidnapped, held for a ransom or killed.
- Discrimination: [the applicant] will face discrimination due to his return from a from Australia after 7 years and his perceived cultural differences. It will be extremely difficult for [the applicant] to access employment, healthcare, and other essential services.
- Economic challenges: Libya's economy has been severely impacted by years of political instability, with high levels of unemployment and poverty. If [the applicant] returns to Libya, he will struggle to find employment or to support himself and his family financially.
- Social challenges: If [the applicant] return to Libya after he got used to the Australian culture and freedom, he will face challenges in adjusting to Libyan societal norms and expectations. He will experience difficulty fitting in with his peers. There is no evidence of any of the applicants having participated in an interview with the delegate of the Minister.
The applicant appeared before the Tribunal on 20 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law:
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.
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.
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).
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.
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
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:
The Tribunal has before it a range of material, including, relevantly:
(a)the applicant’s protection visa application forms, which were lodged on 2 February 2017;
(b)the applicant’s identity documents, being his Libyan passport;
(c)the protection visa decision dated 11 August 2017 (delegate’s decision);
(d)the application for review form dated 30 August 2017, which includes a copy of the delegate’s decision;
(e)Department file [Reference] concerning the applicant’s protection visa application, which includes all documents submitted to the Department in support of his protection visa application.
The Tribunal has read and had regard to the following documents and articles:
·Libya as a Failed State: Causes, Consequences, Options, Research Notes Number 24, The Washington Institute for Near East Policy, November 2014.
·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 of origin information report on Libya, Ministry of Foreign Affairs of the Netherlands, June 2020.
·ZMM (Article 15(c)) Libya CG [2017] UKUT 263 (IAC), 28 June 2017.
·Ten Years Later. Militias Still Control Libya, Libya Review, 29 December 2021.
·Abuse Behind Bars: Arbitrary and unlawful detention in Libya, UNHCHR, April 2018.
·Libya Security Monitor, 17 June 2016.
The Tribunal has also read and had regard to other sources of country information including the following:
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).[3]
[3] Advance Edited Version
Country of reference:
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.
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
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).
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.
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.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
Hearing
The applicant’s oral evidence to the Tribunal may be summarised as follows:
a.The applicant is one of [Number] children; his parents and siblings all reside in Libya. His hometown is [Town 1] in [City 1], Alkhums province.[4] His tribal identity is “[Town 1/Tribe]”.
b.The applicant completed his education in [City 1], obtaining a bachelor’s degree in [Subject 1] from [University 1] in July 2007. The applicant obtained a scholarship to study in Australia and has since obtained a Master of [Subject 1] and a Doctorate in [Subject 2] from [University 2]. When pressed the applicant stated that he obtained his scholarship on the basis of merit and not through political connections in Libya.
c.When asked by the Tribunal what it is that he fears about returning to Libya, the applicant stated to the effect that his home area had “changed a lot”; he stated that although a peaceful area in his childhood, it had become riven with militant and Islamist groups vying for power.
d.The applicant stated that his family had “suffered a lot since 2016”. When pressed, the applicant stated that two of his brothers had been kidnapped, and then freed, by rival groups, and that the family home had been invaded on four occasions and ransacked; he stated that:
[At any given time you] don’t know who is in control and who will attack next.
Country information
[4] [Detailed information about City 1 redacted]
It is convenient to consider relevant country information prior to an analysis of the applicant’s circumstances.
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.
A 2014 report from Amnesty International entitled Libya: ‘Rule of the gun’ amid mounting war crimes by rival militias[5] 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.]
[5] See: < p.5

Amnesty International further notes that:[6]
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.]
[6] Ibid. p.10, 13.
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.[7] 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.
[7] 26 February 2015 >
A more contemporary outline of the origins and continuation of violence in Libya is provided in the DFAT Report:[8]
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.]
[8] DFAT Report p 18.
The Tribunal also notes the following information from a more recent report to the UNHRC, dated 27 June 2022[9]:
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.]
[9] >
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.]
The DFAT Report notes the following on state protection in Libya:^[10]
[10] 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.
Remarks made on 18 April 2023 by Mr Abdoulaye Bathily, Special Representative of the Secretary-General for Libya and Head of the United Nations Support Mission in Libya, to the UN Security Council meeting on Libya suggest that, while there is some positive signs for a return of political stability in the future, the human rights landscape in Libya remains “tense”:[11]
[11] See: < President,
Distinguished Members of the Security Council,
Since my last briefing on 27 February 2023, where I announced our elections enabling initiative to allow the Libyans to choose their leaders in 2023, I launched its implementation along multiple parallel axes which, together, make up a comprehensive approach to achieve this goal.
As indicated, our proposal is meant to enable elections in Libya this year by widening the scope of actors involved in this national issue of paramount importance. The active mobilisation of all stakeholders, including the Presidential Council, the Government, the House of Representatives and the High Council of State, is key to achieving consensus on political matters, security issues as well as questions pertaining to the participation of women and youth. The electoral process offers a unique opportunity to mobilise the entire national community so that elections are peaceful, inclusive, free and fair and pave the way for a new dispensation for the Libyans.
Lessons learnt elsewhere are true, that inclusive and consensus based election are the driver of peace and stability. In this spirit, and because of the difficulty to bring them all together face-to-face in one place at this point, I have engaged key Libyan political leaders through shuttle diplomacy to seek common ground and encourage them to make compromises that will clear the path for elections. I held separate meetings with President of the Presidential Council Mohamed al-Mnefi, Vice President Abdallah Al-Lafi, Speaker of the House of Representatives Agila Saleh, Prime Minister Abdelhamid Dbaibah, High State Council President Khaled Al-Mishri, Field Marshall Khalifa Haftar and HoR-appointed Prime Minister Fathi Bashagha. I have also engaged individual political parties and coalitions of political forces, traditional leaders and notables, women and youth group leaders from all regions. They all expressed their readiness to discuss the parameters of the organisation of elections. This action will continue and intensify as relevant actors will need to negotiate and agree on the most contentious issues pertaining to the holding of inclusive elections this year. I welcome the commitment of these actors and call for the translation of their engagement into concrete steps on the ground.
For purposes of promoting the country’s territorial integrity, furthering national reconciliation, strengthening the cease-fire and mobilising all armed actors for election security, I facilitated the 5+5 Joint Military Commission’s engagement with Libyan security and military actors, including armed groups from all three regions of Libya. At the invitation of the 5+5 Joint Military Commission, I facilitated meetings in Tunis, Tripoli, Benghazi and Sebha on 15 and 26 March as well as on 7 and 9 April. On these occasions, leaders and representatives of military units and security formations operating in western, eastern and southern Libya committed to support all stages of elections, reject violence throughout Libya, take practical steps for the safe return of the internally displaced persons, release detainees and address the missing persons issue in the context of national reconciliation.
The meetings between military units and security formations from the east, west and south represent a breakthrough. These meetings were of great symbolic value on the path to reconciliation and unifying the country. As a result of these consultations, on 8 April 2023, Libyan National Army authorities released six detainees from western Libya as a confidence-building measure. In the same vein, on 13 April the two Chiefs of Staff of the armies, General Haddad and General Naduri, met in Benghazi and affirmed their commitments to furthering the reunification of the military and support the electoral process. I welcome the patriotism of the 5+5 JMC and of the two Chiefs of Staff and encourage them to continue promoting national unity. I urge political actors to follow the example set by military and security leaders.
Furthermore, I held several rounds of consultations in Tripoli, Benghazi and Sebha, with Libyans from all three regions representing civil society, women, youth, political parties, notables and cultural components, to hear and amplify their views on elections and their demands for greater inclusion in Libya’s leaders and institutions. This axis of engagement also aims to ensure the adoption of a Code of conduct that commits all candidates and elections stakeholders to engage in the electoral process in a constructive manner and accept the results. I particularly encouraged women and youth to continue their engagement with all actors so that their concerns are addressed in the roadmap to elections. It is vital for the success of elections that all parts of Libyan society are involved and have their voices heard, and that the electoral campaign provides an opportunity for a peaceful competition of visions and programmes and not an occasion that triggers hate speech and violence.
Last but not the least, I have offered UNSMIL's technical expertise and logistical support to the 6+6 Committee of the House of Representatives (HoR) and High Council of State Council (HCS) to enable its work in preparing the electoral laws. Both Chambers have announced their respective members to the Committee based on regional representation. Regrettably however, the Committee does not include any women. Although the committee as a whole has yet to convene, on 5 April its six HCS members met for the first time with three of their six HoR counterparts to discuss their workplans and identify priority issues to be tackled by the Committee.
I am pleased to announce that in the course of the last days, I received a positive answer from both the HoR and HCS designated committees to accept the support from UNSMIL. I hope that genuine political will and wisdom will guide their deliberations.
I urge the leaders of the two chambers to expedite the work of the 6+6 Committee and publish a timebound work programme. For elections to take place this year, the electoral laws must be completed in time for the High National Elections Commission to begin implementing the electoral process by early July. Gaps and concerns being raised about Constitutional Amendment no. 13 will also need to be addressed by this time for a viable electoral process. The Chairperson of the High National Elections Commission informed me that, while awaiting the electoral laws and the provision of necessary funds, the Commission has started initial preparations for implementing the electoral process. I call on the Government to provide HNEC with all necessary resources to complete its mandated tasks in a timely manner. For their part, UNSMIL and UNHQ are considering the Government’s request for electoral assistance.
Mr. President,
Besides finalizing the constitutional and legal framework for elections, a level playing field is needed that does not give undue advantage to particular candidates and that engenders trust in elections among all sides. I call on Libya’s leaders and all relevant actors to follow their stated commitment to elections with tangible, mutually acceptable solutions to achieve this. I commend the Presidential Council for its efforts to establish a national financial oversight mechanism for transparent and equitable spending of Libya’s vast public resources, an important element to ensure that public funds are not used to the advantage of any side.
Mr. President,
While the overall security situation remains tense, the ceasefire continues to hold and there were positive developments on cooperation between the Libyan Army and the Libyan National Army and on the withdrawal of foreign fighters and mercenaries.
On 16 March, I co-chaired security working group of the Berlin Process, attended by the Chiefs of Staff of the Libyan Army and the 5+5 Joint Military Commission. The Chiefs of Staff asked for international support to equip a planned joint military brigade to secure Libya’s southern borders, as a step towards the reunification of the armed forces.
In the margins of this meeting, Liaison Committees from Libya, Sudan, Chad, and Niger met to discuss strengthening cooperation and exchange of information on mercenaries and fighters from Libya’s southern neighbours present in the country. UNSMIL also convened Libyan ceasefire monitors from both sides together with focal points from the Joint Military Commission to highlight capacity building needs for the Libyan monitors and discuss activating their joint operations centre.
From 29 March to 4 April, I travelled to Sudan, Chad and Niger to discuss with the leaders of those countries how to improve conditions for the return of foreign fighters and mercenaries from Libya. My interlocutors offered their support to this goal while highlighting challenges, including porous borders, local and national dynamics in their countries, and varying motivations for the presence of these armed elements in Libya. The withdrawal of foreign fighters should be conducted in a coordinated, sequenced and synchronised manner to ensure that they do not become a threat to the security of their home countries. This process should also contribute to combatting terrorism, illegal gold mining, human and drug trafficking and all forms of criminality that affect the border areas.
Mr. President,
Turning to the human rights situation, it continues to be tense. During the reporting period, civic space has been further restricted, and operations of civil society organisations deemed illegal. On 27 March, the Independent Fact-Finding Mission on Libya issued its final report, which expressed concern on the situation and recommended further efforts to combat impunity. Also, the Berlin Process Working Group on International Humanitarian Law and Human Rights presented, on 15 March, a set of principles resulting from human rights dialogues to the Presidential Council, to address the Libyans’ concerns. I urge Libyan authorities to rise to their human rights obligations, end impunity and provide more space for the action of civil society organisations.
In conclusion, since my 27 February briefing to your august body, there has been a new dynamic in Libya. Intensive consultations have taken place amongst security actors. Institutional and political leaders have also taken action to move the political process forward. I urge Libyan leaders to meet the people’s expectation to choose leaders this year by delivering on all their commitments.
My interactions with the majority of the stakeholders, citizens of Libya and their initiatives offer a new national dynamic which needs to be sustained and amplified. The international community should also remain mobilised and vigilant to further enable the activity of Libya’s institutions and political actors towards elections. All international partners should support the current momentum and speak with one voice on Libyan matters.
UNSMIL will intensify its facilitation and mediation, through the multiple, interdependent, and mutually reinforcing axes of our comprehensive approach, to support the realisation of all political, legal and security requirements so elections can be held this year.
The people of Libya are eager to enter a new dawn for peace, stability and prosperity in their collective lives. Let us support them in achieving this legitimate aspiration.
Thank you.
[Tribunal’s emphasis.]

The Tribunal also notes the current Australian Government Travel Advice on Libya, issued 28 October 2021[12], 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.]
[12] Libya Travel Advice & Safety | Smartraveller
Analysis:
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.[13]
[13] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[14]
Refugee criterion
[14] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
The Tribunal found the applicant’s evidence as to his fears of returning to Libya to be generalised in nature. Although expressed in written form to attach to certain immutable personal characteristics, in substance the applicant’s oral evidence was vague and unpersuasive when pressed to provide examples of his concerns.
Overall, the applicant made no convincing claim that his fears of persecution would result from one or more than one of the five reasons enumerated in s.5J(1)(a) namely race, religion, nationality, political opinion, or membership of a particular social group.
Without a link between one of the characteristics of an individual enumerated in in s.5J(1)(a) and the persecution they fear, a nexus between the persecution of that individual and the Act is simply not established. Put differently, to fall within the ambit of s.5J(1)(a) of the Act, the harm feared must be for one or more than one of the five reasons, which are race, religion, nationality, membership of a particular social group or political opinion. None of these reasons apply to the applicant’s claim. Even where an applicant may have a particular vulnerability, harsh conditions of general application in a receiving country in, and of, themselves do not give rise to a well-founded fear of persecution for the purposes of the refugee criteria. The applicant made no persuasive claim to having a particular vulnerability in this regard.
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?
The Tribunal has considered the applicant’s claims under complementary protection.
The Tribunal notes, in particular, the following country information from the Department of Foreign Affairs and Trade’s latest country information report on Libya[15]:
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.
[15] [15] DFAT Report pp 10, 33.
The Tribunal also notes and places weight upon:
a.the report to the to the UNHRC, set out at paragraph [32] above;
b.the United States State Department’s 2021 Country Reports on Human Rights Practices: Libya extracted at paragraph [33] above;
c.the DFAT Report at paragraph 5.1, set out at paragraph [34] above; and
d.the remarks of Mr Abdoulaye Bathily, Special Representative of the Secretary-General for Libya and Head of the United Nations Support Mission in Libya, set out at paragraph [35] above.
Finally, and conclusively, the Tribunal notes the Australian Government Travel Advice on Libya, set out at paragraph [36] above.
From the country information reviewed the Tribunal is satisfied 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.
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 [City 1], 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 [City 1] 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
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
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:
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).
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
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.
…

[2023] AATA 2331

23 April 2023

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