1806569 (Refugee)

1806569 (Refugee) [2022] AATA 1446 (21 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1806569
COUNTRY OF REFERENCE:                   Libya
MEMBER:Joseph Lindsay
DATE:21 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a)of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i)of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 21 March 2022 at 2:39pm
CATCHWORDS
REFUGEE – protection visa – Libya – particular social group – pro-Gaddafi supporter – active member of the Revolutionary Committee – feared harm from forces opposed to Muammar Gaddafi – members of the same family unit as the first named applicant – political opinion – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2

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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 February 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who are citizens of Libya, applied for the visas on 2 April 2015. The applicant, [Mr A], appeared before the Tribunal on 6 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
For the purposes of clarification, the Tribunal accepts that in the original visa application, [Mr A], his spouse and three children were applicants. Circumstances have changed since that time. [Mr A] has separated from his spouse, and [Mr A]’s spouse is not an applicant in this matter.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
CONSIDERATION OF CLAIMS AND EVIDENCE
In his written protection application, [Mr A] gave reasons why he left Libya and came to Australia. In summary, [Mr A] claimed that he was a supporter of the former leader of Libya, Muammar Gaddafi. [Mr A] claimed that he was a supporter of Gaddafi’s government. Moreover, [Mr A] indicated that he was a member of “[Organisation 1]” in order to keep his position as a [Occupation 1]. [Mr A] claimed he was able to obtain a scholarship from the Libyan government to study in Australia. [Mr A] stated that just before he came to Australia in 2008, he attended a meeting in Benghazi with Saif al-Islam Gaddafi, who is one of Muammar Gaddafi’s sons.
[Mr A] claimed that he feared harm to himself and his family from forces opposed to Muammar Gaddafi. [Mr A] also claimed that he feared harm to himself and his family from extremists who might consider him to be a disbeliever or a “non-Muslim.” [Mr A] claimed that his house was “shelled” by the militia, and that his house was not only attacked but was also used by the militia to hide. [Mr A] stated that the militia had killed one of his relatives in 2015.
In the hearing, the Tribunal spoke to the witness, [Mr B] by phone. [Mr B] said to the Tribunal that he had known [Mr A] since they were young children. He said they also studied at the same university together. [Mr B] stated that [Mr A] was an active member in the committee of the old regime. He said that after the fall of the regime, the committee members became persecuted. He said that [Mr A] had been subjected to a kidnapping attempt at the end of 2013. He said [Mr A] was travelling that day. He said [Mr A] was able to escape from his assailants. [Mr B] said he contacted one of his relatives to host [Mr A] at his house.
[Mr A] then gave evidence to the Tribunal about his claims. [Mr A] spoke about his support for Gaddafi’s government, and that he had been an active member of the Revolutionary Committee. When asked why he took such an active and direct role in the Revolutionary Committee, [Mr A] explained that he did it in order to advance his studies and himself. He said he wanted the scholarship and thought that he would not have been granted the scholarship without his role in the Revolutionary Committee. [Mr A] also spoke about his work as an [occupation], and he spoke about his ability to travel and study abroad because he was a “trusted” person by the previous Libyan government. [Mr A] conceded that he had been the recipient of educational and career opportunities, and in that sense, he had a privileged background.
When asked why he would fear returning to Libya now, [Mr A] said he was still concerned about his time in Libya when he was an active member of the Revolutionary Committee and his support for Gaddafi’s government.
The Tribunal referred to DFAT Country Information Report for Libya dated 14 December 2018 and noted that the security situation appeared to have improved since [Mr A] had left Libya. However, [Mr A] again expressed his concerns about the “revolutionists.” [Mr A] said he felt that Libya would be totally unsafe for him. [Mr A] also expressed concern about the Libyan authorities, as well as certain individuals who he believed may have an interest in causing harm to him. [Mr A] referred to an incident in 2013, but he could not say with any certainty exactly who was behind the 2013 incident. [Mr A] conceded, however, that the incident could have been a random incident of violence. [Mr A] said he was never directly threatened by any of his former students.
[Mr A] said some of his family members in Libya are pro-Gaddafi supporters, but he said the militia were more interested in those who were involved with the previous government rather than people who were just supporters of Gaddafi.
The Tribunal spoke to [Mr A] about written material that the representative had provided to the Tribunal on 30 July 2021. The Tribunal discussed the text message from [Mr A]’s acquaintance in reference to the potential for kidnapping in Libya. This message was not in respect to [Mr A]. The Tribunal spoke about a photo, who [Mr A] said was his niece.
[Mr A] said that, in respect to his other family members, they have already been granted protection, but he is in the process of going through a divorce.
The Tribunal spoke to [Mr A] about his updated statutory declaration dated 30 July 2021. The Tribunal noted that [Mr A] discussed his return trips to Libya and noted that the trip back in 2009 was before Gaddafi was killed in 2011 and the subsequent fall of the Gaddafi regime. The Tribunal noted that [Mr A] spoke about his trip back to Libya in 2013. The Tribunal asked [Mr A] to give an explanation to the Tribunal as to why he went back to Libya in 2013, noting the significant security situation at the time. In response, [Mr A] said his wife was pregnant at that time and wanted the support of her mother at the time, and this was the reason for returning to Libya at that time. [Mr A] indicated that while he was in Libya at that time, he maintained a low profile and spent most of the time in his hometown. However, [Mr A] indicated that 2015 was the start of the big problems in Libya.
The Tribunal asked [Mr A] to explain why he waited so long to make an application for a protection visa, given he went back to Libya in 2013 and the subsequent deteriorating security situation in Libya. In response, [Mr A] said he arrived in Australia [in] January 2014, but there was a delay caused by his previous representative. [Mr A] said that sometime later he left Australia to go to Europe for a conference.
When asked why he was travelling overseas when he was seeking protection in Australia, [Mr A] said he wanted to attend a work conference and for study purposes.
[Mr A] maintained that he is still a Gaddafi supporter. He said he did not agree with everything Gaddafi did. However, [Mr A] indicated that Libya’s security situation is very poor, and he felt that Libya was safer under Gaddafi’s rule.
When asked what he would do if he returned to Libya in the foreseeable future, [Mr A] said he has not thought about this possibility. [Mr A] said he thought he would “disappear” if he returned to Libya.
[Mr A] then made admissions that, as part of his role in the Revolutionary Committee, he would make reports on various people who spoke out against Gaddafi.
[Mr A] also said he had an association with Saif al-Islam Gaddafi, who is one of Muammar Gaddafi’s sons.
The Tribunal then spoke to another witness, [Mr C]. [Mr C] said he was at the university in Libya with [Mr A]. When asked what he personally saw or experienced in respect to [Mr A], [Mr C] said he saw [Mr A] in 2007 and he indicated knew that [Mr A] was associated with the Revolutionary Committee.
The Tribunal discussed the DFAT report and put to [Mr A] that his involvement in the Revolutionary Committee may not necessarily place him at the same level of risk as high ranking officials or people who have a close association with the Gaddafi family. In response, [Mr A] said he believed he did have a close relationship with the Gaddafi family. He said he also attended a meeting with Gaddafi himself, and he had a close relationship with Saif al-Islam Gaddafi.
In respect to a threat from ISIS, [Mr A] said he felt there was a threat to him from ISIS. [Mr A] said he came from a Muslim culture, but he said he had given up his faith. He said he feared ISIS.
The Tribunal referred to articles indicating the pro-Gaddafi supporters appeared to be coming back to Libya. The Tribunal put to [Mr A] that if other pro-Gaddafi supporters were returning to Libya, perhaps he could also return. In response, [Mr A] indicated that there would be pro-Gaddafi supporters who would probably not attract any adverse attention because they were ordinary people who did not have their name in the “system.” He also indicated that Khalifa Haftar, who he feared, was preparing his forces for conflict. He also indicated that there was no real agency in Libya to report the real situation.
ANALYSIS AND FINDINGS
The Tribunal has carefully considered [Mr A]’s claims and the evidence available to the Tribunal in respect to those claims.
The Tribunal accepts that:
-[Mr A] was a pro-Gaddafi supporter and that he was involved with the Revolutionary Council when he was in Libya.
-[Mr A] remains a pro-Gaddafi supporter at the present time.
-In 2008, [Mr A] attended a meeting in Benghazi with Saif al-Islam Gaddafi, who is one of Muammar Gaddafi’s sons.
-[Mr A] was a member of “[Organisation 1]” in order to keep his position as a [Occupation 1].
-[Mr A] was a recipient of a Gaddafi based scholarship.
-[Mr A]’s house was “shelled” by the militia, and that his house was not only attacked but was also used by the militia to hide.
-One of [Mr A]’s relatives was killed in 2015.
The Tribunal has considered [Mr A]’s claim that he was subjected to an attempted kidnapping in 2013. The Tribunal has considered [Mr A]’s evidence in this respect, as well as the testimony provided from [Mr B]. In balancing the evidence, the Tribunal accepts that [Mr A] was the subject of an attempted, but unsuccessful, act of kidnapping in 2013. However, the Tribunal is not satisfied that this act against [Mr A] was necessarily as a result of a specific targeting of [Mr A]. Rather, given the country information as to the chaotic circumstances in Libya in 2013, the Tribunal is satisfied that the incident in which [Mr A] was involved in 2013 was more likely to be a result of generalised criminal activity at the time.
In any event, given the Tribunal’s findings above, the Tribunal has given deep consideration to its assessment of [Mr A]’s risk profile should he return to Libya in the reasonably foreseeable future.
As indicated above, the relevant DFAT country information report is now quite outdated. There have been significant changes since that time.
More recent events in Libya are indicative of just how changeable the situation is in Libya. In September 2021, Saif al-Islam Gaddafi announced that he would run for the Libyan presidential election that was to have been held on 24 December 2021.[1] This announcement attracted widespread media reporting and the reporting from an article in The Spectator is noted as follows[2]:
[1] Middle East Monitor, 3 September 2021, Saif Al-Islam Gaddafi to run for Libya's president, accessed 18 March 2022.
[2] The Spectator, 21 November 2021, The strange resurrection of Saif al-Islam Gaddafi, accessed 18 March 2022.
Last week Saif al-Islam Gaddafi, the son and onetime heir apparent of the former dictator Muammar Gaddafi, appeared in the southern desert city of Sebha. A furtive, uneasy, and aged Gaddafi, who had been missing for several years, was dressed in robes that mirrored his father’s trademark look and if you squinted, it almost looked like Gaddafi himself had risen from his unmarked Saharan grave.
Gaddafi junior, who has been in hiding for four years, was back to take part in the Libyan presidential elections which are scheduled to take place on Christmas Eve this year. Since Libya’s last civil war formally ended with a ceasefire in October 2020, the UN has been forging ahead with a peace process to allow Libyans to hold their first national elections in seven years.
The UN roadmap was designed to prevent Libya’s status quo-oriented political elite, who have long acted as spoilers, from exerting influence over the electoral process. Yet UN mismanagement has seen the Libyan Political Dialogue Forum hamstrung. This has left the window open for the House of Representatives (HoR), Libya’s eastern-based parliament, to unilaterally push through a highly contested electoral framework.
Under this legislation, the first round of presidential elections on 24 December will be followed by a second round and parliamentary elections early next year, with the HoR retaining complete control over the timeline. This staggered approach means that the Libyan elite will be able to intervene and undermine the elections if things aren’t going the way they want.
Despite strong condemnation in many quarters and uncertainty over whether voting will actually take place, Libya’s powerbrokers are hedging their bets. Former ministers, businessmen, diplomats, and military commanders have thrown their hats in the presidential ring. This includes Khalifa Haftar, the controversial military commander who led the failed offensive on Tripoli in 2019-2020 and who has previously made his autocratic ambitions clear.
Yet Haftar’s presidential run is nowhere near as controversial as the candidacy of Saif al-Islam Gaddafi – the second son of Gaddafi who backed his father during Libya’s revolution. Saif was captured by an anti-Gaddafi brigade based in the city of Zintan in 2011. He was held in the mountains for years, even though the International Criminal Court (ICC) wanted to try him in the Hague on war crimes charges and a Tripoli court sentenced him to death in absentia. Gaddafi reportedly survived an assassination attempt while in prison and then in 2017 the Zintan authorities claimed they had released him, but he was not seen in public for years. There were whisperings of a Saif comeback, but nobody knew for sure whether he was dead or alive. That was until the New York Times published an interview with him this year, in which he used choice language to outline his political strategy: ‘I've been away from the Libyan people for ten years. You need to come back slowly, slowly. Like a striptease… You need to play with their minds a little.’
Saif has some backing from Gaddafi supporting communities in Libya, even though he has been out of politics for almost a decade. But his chances of winning the election are slim. Despite the chaos of the last ten years, the broader Libyan public has limited nostalgia for the Gaddafi era and revolutionary ideologies generally remain strong. When news of his candidacy broke, armed groups in key western cities such as Tripoli, Zawiyya and Misrata, took up their weapons, headed to the polling stations, and straight-up refused to hold December’s elections.
While Saif’s eligibility to stand as president under Libyan and international law will continue to be hotly contested, much of the anger over his candidacy is driven by moral outrage that a figure who terrorised civilians in the 2011 revolution is being allowed to run as president. Westerners might remember Gaddafi senior as being an essentially ridiculous figure, flanked by his enormous female ‘Amazonian’ bodyguards and sashaying around the UN giving 90-minute speeches about how the Israelis killed JFK. But for Libyans he was the capricious architect of a reign of terror from which no one was safe. If his son were to take over Libya once more, this would represent a return to those dark days for many.
In reality, Saif is not a presidential contestant but the plaything of powerful actors who wish to torpedo the electoral process. Those in the Libyan electoral race, such as Haftar and other regime figures, see him as someone they can co-opt for polling advantage. Outside of Libya, Russia has been suspected of grooming him for the presidency for years. In 2019 two Russian election consultants arrived in Libya with polling analysis suggesting that Saif was one of the most popular candidates in the country. They presented to Saif their slideshow: ‘Saif Gaddafi. Revival of Libya. Strategy’. In turn, Saif reportedly informed them of the kompromat he had on western politicians who had received campaign contributions from his family. It is not clear whether anything happened with the Russians and their PowerPoint. Shortly after they headed back to their apartment in Tripoli they were arrested by the then-government. But for Moscow, Saif is not a serious contender – instead he’s a ‘useful idiot’ through which they can manage and control events in the country.
Saif’s candidacy has poured gasoline on the election bonfire. Libyan and foreign actors who were already seeking to delay or derail the elections will use this as a justification for why they cannot go ahead on 24 December.
But whether or not elections occur, and whether Saif does well in them or not, the odds are against Libya achieving political or economic stability. It cannot until a consensus is reached on how best to handle the chaotic and dangerous maze of semi-sovereign institutions, roving militias, and bifurcated financial entities that is the Libyan state.

On 24 November 2021, it was reported that Libya’s electoral commission had disqualified him from running for the presidency.[3] The report stated:
[3] Al Jazeera, 24 November 2021, Libya election commission says Saif Gaddafi ineligible to run, accessed 18 March 2022.
Gaddafi was one of 25 candidates disqualified by the commission on Wednesday, in an initial decision pending an appeals process that will ultimately be decided by the judiciary. Some 98 Libyans had registered as candidates.
The military prosecutor in Tripoli had urged the commission to rule out Gaddafi after his conviction in absentia on war crimes charges in 2015 for his part in fighting the uprising that removed his late father in 2011.
Gaddafi at the time appeared via videolink from Zintan where he was being held by fighters who captured him as he tried to escape Libya after his father’s overthrow. He denied wrongdoing.
Two other well-known candidates, Ali Zeidan and Nouri Abusahmain, were also excluded.
Disputes over the election rules, including the legal basis of the December 24 vote and who should be eligible to stand, threaten to derail an internationally backed peace process aimed at ending a decade of chaos.
Some of the other candidates initially approved by the commission had also been accused of possible violations by political rivals.
Interim Prime Minister Abdul Hamid Dbeibah promised not to run for president as a condition of taking on his present role, and did not stand down from it three months before the vote as is required by a contested election law.
Another prominent candidate, eastern-based renegade military commander Khalifa Haftar, is said to have United States nationality, which could also rule him out. Many people in western Libya also accuse him of war crimes committed during his 2019-20 assault on Tripoli.
Haftar denies war crimes and says he is not a US citizen. Dbeibah has described as “flawed” the election rules issued in September by the parliamentary speaker Aguila Saleh, who is also a candidate.
United Nations Libya envoy Jan Kubis, who is stepping down from his post, told the UN Security Council on Wednesday that Libya’s judiciary would make the final decision on the rules and on whether candidates were eligible.
Kubis told the Security Council on Wednesday he would remain in the job until after the election next month.
In an interesting twist, on 2 December 2021 it was reported that a Libyan court had overturned the Libyan electrical commission’s decision to disqualify Saif al-Islam Gaddafi from running in the presidential elections.[4]
[4] Al Jazeera, 2 December 2021, Libyan court reinstates Saif Gaddafi as presidential candidate, accessed 18 March 2022.
The son of Libya’s longtime ruler Muammar Gaddafi has been given the go-ahead to run in the country’s upcoming presidential election, his lawyer said, a week after being disqualified for what Libyan authorities said were war crimes committed during the uprising against his father more than 10 years ago.
Saif al-Islam Gaddafi’s lawyer, Khaled al-Zaydi, confirmed to Al Jazeera on Thursday that the court in Sebha accepted his client’s appeal, lodged earlier in the day, and that he would therefore be reinstated in the presidential election scheduled to take part later this month.
In disqualifying Gaddafi, Libya’s electoral commission had pointed to articles of the electoral law stipulating that candidates “must not have been sentenced for a dishonourable crime” and must present a clean criminal record.
Western officials have talked up a United Nations-led peace process and insist on “inclusive” and “credible” elections starting on December 24 in the North African country, despite serious disputes over how they should be held, and their credibility.
Libya is seeking to move beyond a decade of violence that has rocked the oil-rich nation since a NATO-backed uprising that toppled and killed Gaddafi senior in 2011.
Gaddafi, who is wanted by the International Criminal Court for alleged war crimes, had registered to run on November 14 but was among 25 candidates whose bids have were rejected by the elections board last week.
It said the 25 had been rejected on legal grounds as well as information from officials including the public prosecutor, a police chief and the head of the passports and citizenship department.
Gaddafi had lodged an appeal in Sebha, but last week a “group of outlaws” launched an “odious” attack on the court, forcing it to shut hours before the appeal hearing, the government in Tripoli said.
He was the first heavyweight candidate to sign up for the election, after emerging from years in the shadows and telling The New York Times in July that he was planning a political comeback.
In the rare interview, Gaddafi said he wanted to “restore the lost unity” of Libya after a decade of chaos.
A rival administration in eastern Libya later pardoned him.
Analysts fear a contested vote, or one with clear violations, could derail a peace process that this year led to the formation of a unity government in an effort to bridge the rift between warring eastern and western factions.
A final list of candidates for the election has not yet been released amid a chaotic appeals process.
Gaddafi, who was sentenced to death by a Tripoli court in absentia in 2015 for war crimes committed during the failed battle to save his father’s 40-year rule from a NATO-backed uprising, is one of several divisive candidates in the race.
He is a figurehead for Libyans still loyal to the former government of his father, whose toppling and death in 2011 heralded a decade of strife. After his lawyer announced the decision, his supporters celebrated in the streets across Sebha, witnesses said.
However, many other Libyans, including in the armed groups that hold the balance of power across swaths of the country, view his presence on the ballot as unacceptable after the bloody struggle to remove his father.
Another divisive candidate who has joined the poll fray is eastern-based renegade military commander Khalifa Haftar, whose Libyan National Army (LNA) controls much of eastern and southern Libya. Haftar, a former CIA asset, has also been accused of war crimes.
Anas El Gomati, a Libyan researcher and founder of the Sadeq Institute, told Al Jazeera that Gaddafi’s reinstatement in the presidential race would erode people’s trust in the electoral process.
“When we look at the process over the last several days, we’ve seen candidates that have been declared ineligible … then reinstated without any legal argument,” El Gomati told Al Jazeera.
“I think it is going to puzzle many Libyans today who have protested the candidacy of individuals like Saif al-Islam Gaddafi and Khalifa Haftar but who are now on the ballot box.”
“It’s a major plot twist but it’s not the last one. I think there’s still a few more to come.”
In any event, Libya’s presidential elections have been postposed and, at the present time, there are calls to have the election conducted as soon as possible.[5] The Washington Post reported:
[5] The Washington Post, 17 March 2022, UN warns Libya could be divided again, urges 2022 elections, accessed 18 March 2022.
The United Nations’ political chief warned Wednesday that Libya could again see two rival administrations and a return to instability, calling for elections as soon as possible to unify the oil-rich North African nation.
Undersecretary-General Rosemary DiCarlo told the U.N. Security Council she is encouraged by support for a U.N. initiative to convene a joint committee from Libya’s rival House of Representatives and High State Council with a goal of reaching agreement by both bodies “on a constitutional basis that would lead to elections this year.”
The crisis erupted after Libya failed to hold its first presidential elections on Dec. 24 under a U.N.-led reconciliation effort.
The country’s east-based House of Representatives named a new prime minister, former interior minister Fathi Bashagha, to lead a new interim government in February. The lawmakers claimed the mandate of interim Prime Minister Abdul Hamid Dbeibah, who is based in the capital, Tripoli, expired when the election failed to take place.
But Dbeibah insists he will remain prime minister until elections are held, and the High State Council, which advises the interim government, called parliament’s decision to name a new prime minister “incorrect” before holding elections.
DiCarlo said U.N. special adviser on Libya, Stephanie Williams, on March 3 asked the House of Representatives speaker and High State Council president to appoint six members to the joint committee and both responded favorably. She said the council nominated its representatives on Tuesday and the U.N. expects the House of Representatives to do the same in the coming days.
Separately, DiCarlo said, Williams has offered to mediate between Dbeibah and Bashagha “to overcome the current political impasse.”
Libya plunged into chaos after a NATO-backed 2011 uprising toppled longtime dictator Moammar Gadhafi. For years, it has been split between rival administrations in the east and the west, each supported by an array of militias and foreign governments.
In April 2019, east-based military commander Khalifa Hifter and his forces, backed by Egypt and the United Arab Emirates, launched an offensive to capture Tripoli. Hifter’s campaign collapsed after Turkey and Qatar stepped up their military support for the Tripoli government with hundreds of Turkish soldiers and thousands of Syrian mercenaries.
Mediated by Williams, then the acting U.N. envoy, an October 2020 cease-fire agreement led to the formation of a transitional government with Dbeibah as prime minister and scheduled elections for Dec. 24 which are now postponed.
DiCarlo warned that the continuing standoff over “executive legitimacy” could again lead to two parallel administrations, “instability and possibly unrest and deal a severe blow to the prospect of elections.”
She said there have been “worrying developments” since March 1, when the House of Representatives held a vote of confidence on Bashagha’s new government. The vote was marred by “procedural flaws and threats of violence against some members of the chamber and their families” according to reports received by the United Nations.
DiCarlo pointed to the continuing suspension of airline flights between cities in the east and Tripoli and “forces in western Libya supporting either side moving on March 9-10 towards the capital.” She said Williams engaged both sides “and managed to reduce tensions.”
But the U.N. political chief warned that “Libya is now facing a new phase of political polarization, which risks dividing its institutions once again and reversing the gains achieved over the past two years.”
“We remain convinced that credible, transparent and inclusive elections based on a sound constitutional and legal framework are the only solution to the current stalemate,” she said.
The United States and United Kingdom strongly supported Williams’ efforts to promote dialogue among the feuding parties that leads to elections, but Russia did not.
U.S. deputy ambassador Jeffrey DeLaurentis said the United States strongly urges the House of Representatives and High State Council to participate in the U.N.-facilitated dialogue.
“Free and fair elections are the sole path to stability and prosperity for the Libyan people, and we have an obligation to support the Libyan people’s desire for elections,” he told the council.
UK deputy ambassador James Kariuki also urged those on both sides to accept Williams’ offer and “set aside narrow interests and engage seriously to address the underlying conditions that prevented elections from going ahead last December.”
He said 2.8 million Libyans who registered to vote have made their aspirations clear and “all actors, internal and external, should refrain from any moves that could undermine stability or deepen divisions in Libya and threaten to undo the hard-won progress achieved over the last two years.”
But Russia’s deputy ambassador, Dmitry Polyansky, said, “We respect the wishes of Libyans to solve their domestic problems themselves.”
“It is from this standpoint that we perceive the endorsement by the Libyan House of Representatives of a new composition of the government led by prime minister Bashagha,” he told the council. “This is an important step towards overcoming the protracted crisis.”
The Tribunal has had regard to more recent analysis from an article in Foreign Policy[6] as follows:
[6] Foreign Policy, 18 February 2022, What Went Wrong With Libya’s Failed Elections, accessed 18 March 2022.
Elections in Libya, envisioned by the United Nations-facilitated political dialogue and scheduled to take place on Dec. 24, 2021, failed to materialize.
This was the predictable outcome of a process riddled with built-in self-defeating factors and whose implementation favored legal, constitutional, and political acrobatics. The process was beleaguered by two interrelated issues: differences over the idea of holding a presidential election in the current context, and the resulting failure to reach the required consensus on a framework for elections.
The collapse of this process is likely to trigger political disintegration, including the emergence of rival governments and a credible risk of military escalation. As a result, the widely supported elections that were meant to instill the country with unified, legitimate institutions and rid it of the currently competing assemblies will be relegated to the distant horizon.
The current political process stems from attempts to overcome the 2014 post-electoral crisis that resulted in competing claims for legitimacy by two houses: the newly elected House of Representatives, based in the country’s east, which eventually saw its election annulled by the supreme court, and the previous parliament, the General National Congress in the west, which claimed continued legitimacy.
To overcome this conflict, both houses signed a U.N.-brokered compact known as the Libyan Political Agreement in Morocco in December 2015. The agreement maintained both bodies and made them co-legislators on all laws and constitutional arrangements necessary for the transitional process.
The two houses dramatically failed to reach a consensus, though, and the country continued having two competing governments through 2019. U.N. efforts to move the process forward via a national conference were then frustrated by Gen. Khalifa Haftar’s attempts to settle the conflict militarily through his war on Tripoli. Following his defeat, an international and regional consensus allowed for renewed U.N. efforts to reinvigorate the political process. This was reflected in the Berlin Conference of January 2020.
The conference’s conclusions called for the establishment of a presidency council, the formation of a government, and the resumption of a political process “paving the way to end the transitional period through … parliamentary and presidential elections.”
To operationalize the Berlin conclusions, the U.N. mission created a Libyan Political Dialogue Forum (LPDF) made up of 75 members. This forum met in Tunis, Tunisia, in November 2020 and adopted a road map envisioning a new transitional phase of 18 months, to be led by a newly selected presidency council and a government of national unity, and to culminate in the holding of simultaneous presidential and parliamentary elections on Dec. 24, 2021.
The road map provided that the two houses, the House of Representatives and the High Council of State, must agree on a framework for the elections within 60 days, failing which the LPDF would decide on the matter. However, both the two houses and the LPDF failed to adopt a framework. In both forums, differences centered on the presidential election.
Holding a presidential election has been controversial in Libya since 2011, when longtime dictator Muammar al-Qaddafi was overthrown. It was ruled out by representative bodies in 2012 and in 2013 ahead of national elections scheduled for 2014, and again that year. The rationale, mainly put forward by the revolutionaries, known as the February camp, was that electing a president during the interim period would prejudge the nature of the political system to be established by the permanent constitution. In addition, they were concerned that imposing a strong president on a weak state could pave the way for authoritarian rule.
When the various bodies set out to adopt a framework for the Dec. 24 elections, this issue surfaced again. The terms of the debate revolved around two points: whether the country should have a presidential election at all, and, if so, who gets to run for election.
On the first question, House of Representatives Speaker Aguila Saleh, Haftar, and former Interior Minister Fathi Bashagha each believed they had a high chance of winning the presidential poll and insisted that a presidential election was the only way the country could be effectively governed. Supporters of the former regime also promoted the idea of a presidential election, believing their candidate, the former dictator’s son Saif al-Qaddafi, stood a good chance of winning.
The February camp, on the other hand, generally reiterated its opposition to a presidential election ahead of a permanent constitution, using the same rationale laid out in 2012 and in 2013. They also rejected Haftar’s and Qaddafi’s candidacies, seeing both as convicted criminals and fugitives.
On the second question, with Haftar being an active-duty military officer and a U.S. citizen, his supporters insisted that conditions for eligibility should be adjusted accordingly. Libyan ordinary laws would indeed ban him on both grounds. Likewise, supporters of the former regime insisted that enjoyment of political rights and criminal procedures short of final judicial ruling should not be an eligibility condition.
These disagreements prevented the LPDF from agreeing on a framework for elections. The U.N. mediator also abstained from putting forward any bridging proposals. Yet the international community was desperately trying to achieve what seemed to be its only agenda for Libya: simultaneous presidential and parliamentary elections on Dec. 24.
Exploiting this international despair, on Sept. 8, 2021, Saleh unilaterally issued a “presidential electoral law” without holding a vote in the House. The law amended the agreed-upon electoral sequencing by providing for presidential elections to take place ahead of parliamentary elections, included provisions of a constitutional nature such as presidential powers and terms, and loosened eligibility criteria to allow military personnel and dual-citizenship holders to run for election.
The U.N. Support Mission in Libya and other international actors in Libya supported this supposed law. This was a turning point, as the mission’s mandate is precisely to “further the continued implementation of the” Libyan Political Agreement, which requires a consensus between the two houses on such a law. Expectedly, international support emboldened the speaker, who one month later, and again without any vote, issued a “parliamentary electoral law.”
By supporting laws that violated the Libyan Political Agreement, the international community weakened the standing and authority of the internationally endorsed framework and, consequently, deprived the process of an authoritative source to refer to in case of disputes. This made it easier, in the implementation stage, to disregard any related rules.
During the candidacy process, for instance, it appeared that supporters of the disputed electoral laws intended to abide by them only to the extent that their political rivals would be effectively prevented from running. These included in particular the current prime minister, Abdul Hamid Dbeibah, who had indeed signed a pledge not to run for election, and Qaddafi, who was under arrest warrants from Libyan courts and the International Criminal Court.
Both Dbeibah and Qaddafi submitted their candidacies and were approved by the courts, and they soon emerged as the likely front-runners in a presidential election. Consequently, supporters of a presidential election rejected the relevant courts’ decisions and called on the country’s electoral body to suspend preparation for elections. The latter eventually declared that a force majeure, resulting notably from a political rejection of some candidates, prevented the holding of elections.
However, the elections’ failure was also predictable in light of other self-defeating factors in the very design of the process itself.
First, there is the framework established by the Libyan Political Agreement, which granted the two houses a veto power on elections that would spell their own demise. The LPDF road map did little to address this, which it could have done by using an alternative route offered by the 2015 agreement.
Second, the decision to rush elections was problematic. Lessons learned from comparative experiences, including Iraq, Afghanistan, Angola in 1992, Liberia in 1997, and South Sudan since 2010, show that early elections in post-conflict societies entail risks of conflict resumption. Libya still has three foreign armies and 10 foreign mercenary groups operating on its soil in addition to terrorist groups and countless local militias. Its current prime minister cannot visit large parts of the country, and critical state institutions are yet to be unified. This suggests that a conducive environment for elections does not yet exist.
Third, a number of items that were to help build that conducive environment such as national reconciliation, decentralization, and unification of state institutions were neglected or at best dealt with as secondary technical issues. Merely setting a firm election date was not sufficient to create the necessary environment on its own.
Fourth, the LPDF road map provided for two mutually exclusive dates: Dec. 24, 2021, for elections, and an 18-month preparatory phase that would culminate in elections. The date of Dec. 24 was adopted in an improvised manner and juxtaposed with the already existing 18-month timeline. This confusion was reflected only in the Arabic version of the road map, the one Libyans negotiated and agreed to, while the English version, which the diplomatic community worked from, referred only to Dec. 24—causing misunderstandings between Libyans and their international partners.
Fifth, and finally, precedents established while selecting the executive authority in February 2021 proved to be fatal. It was then allowed for active military personnel, and even sitting judges, to run, in violation of Libyan laws. This diluted the rules on eligibility and deprived the process of strong precedents rooted in Libyan law and practice.
In sum, the rush to hold an election based on a disputed legal framework undermined the standing and authority of the governing framework of the process, including Security Council resolutions. It also set poor precedents for laws being issued by one individual, undermined the credibility of the country’s independent electoral body, and, ultimately, endangered Libya’s fragile peace.
The elections’ failure reflects existential fears among many constituencies and is a reminder that elections in Libya need to contribute to a peaceful process and outcome—rather than being treated as an end goal themselves. They need to be framed in a nonpolarizing manner and unfold in a conducive environment. Timelines are important but need to flow from thorough context-based assessments. They do not make a process by themselves, nor can they be a substitute for credible and accepted mediation.
As Libya continues its downward trajectory with the emergence of rival governments and risks of military escalation (Tribunal emphasis), international mediation should focus on keeping the country’s institutions unified and building the environment for an agreed-upon and well-prepared election.

As Ambassador Jeffrey DeLaurentis, Senior Advisor for Special Political Affairs, said in his remarks to Briefing on Libya at the UN Security Council on 16 March 2022[7]:
Clearly, the current situation in Libya is deeply concerning. Multiple actors, whose political legitimacy is in question, are vying for control of the government, raising the risk of escalating violence and further delaying the prospect for presidential and parliamentary elections (Tribunal emphasis).
…
Foreign actors exploiting the conflict pose grave threats to regional stability and global commerce. The continuing presence of Private Military Companies supporting both sides is deeply concerning. This is especially the case for Russian Wagner forces, whose destabilizing role has now taken on a dangerous regional dimension.
[7] United States Mission to the United Nations, 16 March 2022, Remarks at a UN Security Council Briefing on Libya, accessed 18 March 2022.
In considering the country information above, the Tribunal is satisfied that the current security situation in Libya is, at best, fragile and appears likely to deteriorate in the foreseeable future. In considering the applicant’s risk profile, the Tribunal is satisfied that, in spite of the lapse of time since the applicant has last been in Libya, the applicant faces a real chance of serious harm based on his political opinion should he return to Libya in the foreseeable future. The Tribunal is not satisfied that the applicant necessarily faces a real chance of serious harm from Muslim extremists. Rather, given the applicant’s heavy, previous involvement in the Revolutionary Committee and previous association with Saif al-Islam Gaddafi and support of the Gaddafi regime, the Tribunal is satisfied that the chance of harm is likely to come from forces opposed to Saif al-Islam Gaddafi and his attempts to be elected as Libyan president.
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a) of the Act.
The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that first named applicant’s three children are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i) of the Act. As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Joseph Lindsay
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.
…

[2022] AATA 1446

21 March 2022

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