2302701 (Refugee)

2302701 (Refugee) [2023] AATA 4505 (18 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr David Kenneth Brooks
CASE NUMBER:  2302701
COUNTRY OF REFERENCE:                   Libya
MEMBER:Melissa McAdam
DATE:18 October 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 18 October 2023 at 8:54am
CATCHWORDS
REFUGEE – protection visa – Libya – Federal Circuit and Family Court remittal – ethnicity and imputed political opinion – tribe known as Gaddafi loyalists, and relatives worked for regime or army – fear of harm by militias – relatives killed or detained – one return to check family during quiet period of conflict – membership of particular social group – homosexual man – claim not included in application but made shortly before departmental interview – discreet general activities and relationships – supporting statements and oral evidence expressing genuine concern – mental health and treatment – practicing Muslim – country information – criminalisation and political, religious and societal attitudes – real chance of harm heightened by tribal identity and imputed political opinion – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulation 1994 (Cth), 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 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 22 June 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Libya, applied for the visa on 13 April 2015.
The Tribunal affirmed the delegate’s decision, and that decision was set aside by consent of the parties by the Federal Circuit and Family Court. The matter is now before the Tribunal pursuant to an order of the Court.
The applicant was represented in relation to the review.
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.
Protection visa application
The following is a summary of the claims and information the applicant provided in his Protection visa application:
a.He was born in Bani Walid in Libya in [Year]. He submitted a copy of his Libyan passport.
b.He is single.
c.He first arrived in Australia on a Student visa in 2010.
d.His parents, [sisters] and [brothers] are living in Libya. He is in contact with them by phone.
e.He served in the military in Libya in [Year].
f.He worked as [an Occupation 1] at a [Workplace] in Bani Walid and as [an Occupation 2] at [a] company in Tripoli.
g.His tribe is persecuted by Misrata tribes and other extremist religious and political groups. He is from a family that was involved with the previous government and in the Army. He was an Army volunteer and [Occupation 1]. His tribe is known to be Gaddafi loyal and anti-current militias. His family has been targeted and persecuted.
He attached a typed statement in English with his application in which he outlined the following:
… I was born in [Year] in bani waleed. I graduated from [university] in [Year] as [an Occupation 1] and I used to work as volunteer in the army places with my cousins once a year. Also, I was [an Occupation 1] in [a workplace] in my hometown.
As my hometown (bani waleed) is the last bastion of Gadffie regime, it is too danger for people like me to go back because most of my relative who were studying abroad in 2012 they were captured by gang people from Musrata and the gang kept them in jails since they arrived and I do not know if my relatives are still alive or died, you know that we don’t have airport in Tripoli anymore, so people land in Musrata.
Also, my uncle has been in the jail since 2012 and I do not know if he died or not .Also, some relatives who travel by car from place to place, they disappeared and we found them died and gang people threw them in the sea or somewhere discreet.
In 2012, gang people (Musrata) attacked my hometown with heavy weapons which are forbidden to use against civilian people, and they killed heaps of people like kids and old people who could not defend themselves, some of them from my tribe.
My sister was in my hometown and she lost her house because when gang people controlled my hometown after 25 days fighting, they burnt her house and it was like a month we do not know if she was alive or not and she has 3 kids, after a while, her husband found her in a valley and she was in a bad condition because she was pregnant. It was a really tough time for me to think about all of these things with my study and I was like devastated as well as I lost a lot of my cousins and friends.
My hometown still suffers from gang people and they kidnapped many of young people and killed them in the prisons. My hometown is humiliated by gang people and the new government as well.
Recently, gang people dig a big hole in the road to prevent other people to visit my hometown to collect some evidence about what is happening. all my family live with fears and they wish they could go somewhere to live peacefully without seeing blood and dead people and my mum is getting sick because of the bad news and she got diabetes.
some people from Musrata are threatening my brothers from time to time because my brothers were fighting with [a] group for a year against Musrata and my two brothers can ’t leave bani Waleed anymore because there is another gang people in Tripoli who their job just to capture innocent people theses people captured my cousin as well just because he was passing in front of them and they steal his car, mobile phone, lap top and money.
My brother mostly are detained in bani waleed and they can’t commute from bani waleed to Tripoli as there are heaps of gang people located in many spots who follow Musrata commands.
My father on day, he was travelling to bani waleed and gang people shot his car wheels and my father now isn’t able to walk and move like before, just because his car plate was carrying the name of my hometown.
I have another immediate [relative] ([Mr A]), who was shot and got [Medical condition 1] and now he is disable and he lost his car and he was kept in the custody for a year as the gang was ordering $100,000 to release him, this was just because he is from bani waleed.
Another immediate [relative] ([Mr B]), he was attacked in his house and they raped him and stole from him money and golds.
Also, I have many relatives, one of them his name is [Mr C] and he is in a very high rank in Al gadaffi military and most of my relatives were working with Al Gadaffi for a long time and now most of them exile aboard to safe their life and their houses and properties were stolen.
There is another man who is the boss of the gang people in tripoli, he killed a lot of my friends and neighbours just because they don’t like the new regime, he burns any house , kidnapping many youths, destroy a place called Hy alkwak completely, People in libya now can’t stand living in it any more as weapons were spreading everywhere and expect yourself will be died at any time .
For me, going back to libya is so dangerous and it will cost me my life for sure as I will land to
Musrata airport and straight away to the slammer and die slowly by torturing me, they are not human. Last month my brother, [Mr D], was kidnapped from our house and he remains imprisoned.
The applicant later submitted the following materials in support of his application:
- a copy of the Human Rights Watch, 2015 World Report section on Libya.
- articles about attacks on homosexuals in Libya.
- articles about ISIS in Libya.
- articles about detention and torture in Libya.
- articles about rebels in Bani Walid.
- articles about post-Gaddafi Libya.
- emails from several men who claimed to have had sex with the applicant in Australia.
- a copy of the applicant’s Libyan Military Reserve Demobilisation Form and Evidence of Enlistment card.
- photographs of the applicant with other people at [Venue] in Sydney.
The applicant’s then representative also submitted a letter in which she describes the applicant disclosing to her that he is gay.
Departmental Interview, 22 December 2015
The following is a summary of the information provided by the applicant in his Department interview:
a.The applicant’s family are all still in Libya. Some are in Bani Walid and some are in Tripoli. One of his brothers is working. He [does work tasks]. Another brother was kicked out of a company because he is from Bani Walid.
b.He talked to his mother briefly about one month ago. She is sick.
c.Libya is a tribal place where grudges are held. When Gaddafi died the Misrata wanted to take revenge on Bani Walid boys by kidnapping and killing them. The applicant belongs to the Bani Walid tribe. It is a tribe and a city. This is the only reason they will try to hurt him.
d.When he was in Libya it was the regime of Gaddafi. It took four years to finalise everything for the applicant’s travel to Australia. This is because he was from Bani Walid and they did not want to prioritise him.
e.Now there is no government in Libya.
f.His family in Bani Walid are having issues. The applicant’s [brother] was kidnapped by a militia in Tripoli and he is in prison and the family do not know where he is. It was the [Name] militia. They kidnapped him to enlist him and fight against other militia. The applicant’s family tried to pay money for his release but they would not even let the applicant’s father meet with him.
g.It is not safe outside Bani Walid so his other brothers returned there. It is not really safe in Bani Walid but at least it is far from the militia.
h.If the applicant returns they will know he is from Bani Walid and put him in the prison. They will ask him where he has been and what he has been doing as they will know he did not protest against the Gaddafi regime. This happened to two of his friends who returned. People don’t return to Libya anymore.
i.The Delegate put to the applicant that he will not be considered to have harmed anyone so no one will want revenge upon him. The applicant responded he is from Bani Walid, a small tribe, and he was in Australia during the time of the conflict.
j.The Delegate put to the applicant that during the Gaddafi regime, most people in Libya were linked to the regime. The Delegate put further that people are targeted for revenge in Libya if they did something against others during the conflict, but the applicant was in Australia at the time.
k.The applicant responded he will have to travel by car to Bani Walid and he will encounter at least ten militia groups on the way who will detain him and keep him in the prison. Three of his cousins and his brother are in the prison.
l.He served in the military in [Year] but there was no conflict at the time. He was just a soldier, he did not have any rank.
m.In [City] a man for Misrata told the applicant when he went back to Libya he will tell his friends. He did this because the applicant did not go out and protest against Gaddafi here.
n.The applicant’s brother [Mr D] was kidnapped last year at night from his house by a militia.
o.The applicant’s tribe can’t protect the applicant and his family because there is a split now in the tribe. The split was about money and power. Everything is chaotic in Libya.
p.The applicant realised he was gay as a teenager. He would hang out with two close friends. They would interact with each other and were attracted to each other.
q.The applicant could not tell his family he is gay. He lived a stressful life. He could not tell anyone except his two close friends. They would do stuff with each other. The applicant apologised to the interpreter for what he was saying
r.The applicant feels a chemistry towards boys, higher than he feels towards girls. When he was 15 or 16 he first slept with a girl but he did not feel any strong chemistry and wondered what was wrong with him. But when he saw movies with boys his interaction was very high. He had two friends and they would go to a remote area and they would talk about things. He slept with his two friends and felt high about this.
s.In Australia he has slept with men. He has been very discrete, he is not out. He went to bars like [Venues] in Sydney. He went to these with [Mr E]. He has some photographs of himself at the bars.
t.The applicant hangs out with gay men but he is not a member of any association. In Sydney people have encouraged him to come out and express his feelings. He feels more secure. The first time he went to a gay bar he felt suspicious and scared.
u.Before Sydney he lived in [City] where there is a big Libyan community. In [City] he looked for gay clubs where gay men would meet each other but he didn’t want people from the Libyan community to see him.
v.He came to Sydney in August 2014. He attended the Mardi Gras with [Mr E]. He had messages with [Mr E] about this but no photographs. He meets men through an application on his phone.
w.The applicant returned to Libya in 2011 because the war was finished and it was stable and he missed his family and wanted to check on them. The militias and gangs didn’t exist then. There was just one group. Now it is divided into many militia.
Delegate’s Decision
The Delegate did not find the applicant’s claims regarding past harm in Libya credible. The Delegate did not accept the applicant is homosexual. The Delegate was not satisfied that the applicant had a well-founded fear of persecution in Libya, or that he was owed complementary protection.
Information to the Tribunal
Tribunal Hearing, 21 February 2019
The applicant appeared before the Tribunal (as previously constituted) on 21 February 2019 to give evidence and present arguments. The following is a summary of the information provided by the applicant at the hearing:
a.The applicant submitted copies of Death Certificates for family members.
b.He will be killed and tortured by militia in Libya. They targeted three members of the applicant’s family and killed them, his dad, his mother and his brother. His family are considered to support the Gaddafi regime.
c.He will also be harmed because of his sexual orientation. He is gay. He is in the middle of coming out. He fears he will be killed in Libya. The police, militia, army, ISIS will all do this to him.
d.Libya is in a chaotic situation. There are no rules, no police, no government. If he returns people will ask him why he has been so long overseas. People may report the applicant’s former support of Gaddafi to the militia. In the beginning of the revolution people went outside to protest against Gaddafi but the applicant did not go. He is also from Bani Walid which is the biggest place of support for Gaddafi.
e.Two or three people from Misrata told him they will remember this and they are not happy with him. This was in 2011 in [City]. They returned to Libya because they finished their studies, in about 2012. Since then there have been no more threats from anyone.
f.The applicant moved to Sydney. There is not such a big Libyan community in Sydney.
g.The applicant is a Gaddafi supporter, because he is from Bani Walid. His brother and others worked for the Gaddafi regime. They were like [Occupation]s and [did a job task]. The applicant’s father was [with Employer] for a long, long time. Other relatives were [Occupation]s. The applicant’s father retired from [Employer] in the 1980s and got lots of rewards for his service, like an apartment and a car.
h.It doesn’t matter he was just a soldier and not ranked because he was involved with the Gaddafi regime he will be targeted.
i.The applicant has a famous [relative] who lives in [Country 1]. He was [an Occupation]. He is from the Bani Walid tribe. The Bani Walid tribe has three groups. There are hundreds of thousands in the tribe.
j.The applicant’s [relative] involved the applicant and his brother in the Gaddafi regime. The applicant did his one year compulsory military service and then served in the military voluntarily once a month. He was a volunteer between [Year] and [Year]. It helped him get advantages like buying properties etc.
k.Immediately after the war finished the applicant returned to Libya like many other Libyans, to check on his family. There were no militia groups or ISIS then. It was calm and relaxed. Gaddafi had been killed and his regime had escaped. It was very quiet at the time. His parents advised him he should leave as it would get worse. The applicant has a big family, [so] it was a bit hard for them to travel to another country like [Country 2] to meet the applicant. When he found his family alive at the time it was such a big relief. They had not known he was coming because the communications were still cut from the war.
l.The applicant’s parents and brother were killed in [2016] on the border between Tripoli and Bani Walid. [Details deleted]. They were killed by a gang on the road. The applicant has the Death Certificates. This is a daily story in Libya. People drive by car and they are stopped and asked lots of questions. People are always being found dead on the road. It is very risky to travel. People are either stuck in Bani Walid or they are stuck in Tripoli.
m.The applicant found out from his cousin and relative about his family’s deaths. Maybe his father confronted the guy. [Details deleted].
n.His other brother [Mr D] was kidnapped at night because he used to fight with [a] group.
o.There is ongoing conflict between militia groups. There was a big fight between militia in Tripoli two months ago.
p.The applicant’s [relative] [Mr F] was [an Occupation] in the Gaddafi regime. [Details redacted.]
q.Two of the applicant’s sisters have [Medical condition 2] because of the loud shocks and noise and stress of the explosions and attacks. Slowly, slowly they developed [a Medical condition 2].
r.When the applicant was 14 or 15 he felt different from others. He felt something wrong. An instance happened with his neighbour when he was 15. She approached him and tried to kiss him but he didn’t feel anything so he thought something was wrong.
s.When he was 16 or 17 he lived in a very close street with many neighbours. A neighbour [Mr G] would hang out with the applicant a lot to study and watch movies and tv. They got familiar with each other. They started to watch porn together and it built up slowly and they started to practice sexual relationships but not too serious. It later became serious. Between 16 and 19 he was in a relationship with [Mr G]. The applicant also hung out with another friend [Mr H], who lived next door. When he was 17 he slept in a tent with him. They started to talk about sex and they started to sexually interact. So the applicant had a relationship with both of them. They would sleep at each other’s houses. [Mr H] and his family moved away but [Mr G] stayed. Their families didn’t suspect them.
t.The applicant tried to find a gay community in Libya but it was very, very hard. He knew this activity was very serious and he would be punished.
u.When he came to Australia to [City] he googled gay bars and how to approach these people. He started chasing people on [Social media] and sending them a message. He met someone who advised him to use a phone application for hook ups. He met people. He used [a dating app]. The Tribunal member asked to look at the applicant’s phone and the applicant gave his phone to the member.
v.The applicant tried to have a relationship with [Mr E] but he was a bit scared. Other men like [Mr I] did not want to commit to the applicant because he is not settled and may go back to his country, and they were worried that the applicant may be a strict Muslim.
w.No one came to the Tribunal hearing because the applicant was not told to bring anyone.
x.The applicant went to the Fair Day last week. He goes to clubs like [Venues].
y.He has not been involved with any gay organisations in Australia. He is not interested in Arabic associations.
z.His first lawyer grew up with the applicant so the applicant did not mention being gay to him. When he told his other lawyer he was nervous and shaking. He did not put it in his initial Protection visa application because he was scared they would contact his embassy. It was just fear.
aa.His friends in Sydney encourage him. Every night they go out they encourage him not to be ashamed.
bb.He is no longer studying. He [completed his course requirements] last year.
Post-Hearing Submission, 22 February 2019

On 27 February 2019 the applicant submitted the following materials to the Tribunal:
-Articles about the Arab Spring and Internet censorship.
-The Libyan Death Certificate for the applicant’s father who died in Bani Walid [in] 2016.
-The Libyan Death Certificate for the applicant’s mother who died in Bani Walid [in] 2016.
-The Libyan Death Certificate for the applicant’s brother, [Mr J], who died in Bani Walid [in] 2016.
Pre-Hearing Submission, 15 September 2023
On 15 September 2023 the applicant’s representative submitted the following materials to the Tribunal:
·Legal submissions by the representative. The representative argues that the applicant is at risk of serious and significant harm in Libya:
-As a gay man; and
- Because he is from [Tribe name] tribe of Bani Walid and would be imputed as a Gaddafi loyalist. There continues to be significant support for the Gaddafi regime in Bani Walid.
·Several Statutory Declarations from men in Australia attesting that the applicant is gay, with some stating that they have had sexual relations with the applicant.
·Photographs of the applicant with friends at gay venues and events, including the Sydney Gay and Lesbian Mardi Gras and the Sydney Gay And Lesbian Fair day, on different occasions.
·A letter dated 8 September 2023 from [Dr K] stating that the applicant has regularly attended his medical practice since 2014. On [date] 2016 following news his parents and brother had been killed, the applicant was referred to a Psychiatric Emergency Care Centre for some days due to the risk of self-harm. The applicant was again referred to the emergency department of [a] hospital, as a suicide risk, on 11 January 2017. In July 2017 following the breakdown of his relationship with his male partner he was referred for counselling with the Mental Health Nurse. The applicant became upset again at the news of his sister’s death from [Medical condition 2] in or around November 2021. Since then the applicant’s mental state has much improved. [Dr K] writes also that the applicant has been frank about his sexual preferences for men. [Dr K] provides some further details about this.
·Medical documents in respect of the applicant’s sister, referring to her having [Medical condition 2].
·The Death Certificate for the applicant’s sister stating her date of death to be [September] 2021.
·An OMARA record of the suspension from registration of the applicant’s former Migration Agent.
·DFAT’s December 2018 Country Information report on Libya.
·Extracts from the 2022 US Department of State Human Rights Report, Libya.
·A compilation of other country information relevant to the situation for gay men in Libya and the situation in Bani Walid.
Tribunal Hearing, 21 September 2023
The applicant appeared before the Tribunal on 21 September 2023 to give evidence and present arguments. The following is a summary of the information provided by the applicant at the hearing:
a.The applicant completed his [Qualification] in Australia in [Specialised subject].
b.His brother [Mr L] is still living in Bani Walid. Three brothers, [Mr M], [Mr N] and [Mr D] live in Tripoli as does the applicant’s surviving sister. [Mr M] takes care of the applicant’s sister who suffers with [Medical condition 2]. [Mr N] was working for a [company] but the company has closed because of the conflict in Libya. [Mr D] does not work because he suffers trauma from his experiences in prison. He stays at home and won’t talk about his experiences.
c.The applicant’s parents and his other brother were killed when they were travelling by car to Bani Walid. A gang shot out the car tyres so the vehicle rolled and they were killed in the crash. The gang were not tyring to kill them but wanted to rob them. The applicant remembers seeing a message about the incident on [Social media] and fearing his family were involved because he knew they were traveling to Bani Walid that day. He called a friend [in] Tripoli who confirmed it was his parents and brother who were killed. The applicant was unable to call anyone in Bani Walid because there is no Internet access in Bani Walid. When his friend told the applicant his parents and brother were killed he became very distressed and cried loudly, grabbed a knife to hurt himself. His housemates stopped him. He then ran to his university barefoot where his department administrator calmed him down and arranged a clinic session for him.
d.His brother [Mr M] sent the applicant the Death Certificates for his parents and brother.
e.The applicant does not associate with anyone from the Libyan community in Australia. When his parents and brother died [some] representatives from the Libyan community came to visit the applicant at his home here to give their condolences. The applicant did not know any of them. He thinks the Embassy may have contacted them to tell them to visit him. He never saw them again. He thinks they may have suspected he is gay. He had long hair and was dressed in a tight t-shirt and tight shorts at the time.
f.The applicant lived with six other international students in the house. One of them was bisexual and they both moved to a house together in [Suburb] later.
g.The applicant still practices Islam and identifies as Muslim. Previously he had a dilemma about his religion and being gay. His life was not going well and he believed he was disappointing God and should stop being gay. But he learned from [Muhammad] Shahrur who was of Syrian background. Muhammad Shahrur talked about being gay or lesbian and about the Koran being mistranslated. The applicant thought God would put him in the fire for being gay but Muhammad Shahrur showed him that God had made him and put this inside him so God would not put the applicant in the fire. Muhammad Shahrur said there was nothing explicit in the Koran about being gay. There were sections about having sex in public which had been misinterpreted and translated in the wrong way.
h.He was partly out about his sexuality at university to his close friends there.
i.He was not out at his work place as there were people from many countries there so the applicant did not feel secure to disclose his sexuality. For example, one of his colleagues from [Country 3] said nasty things about a gay man at the applicant’s work.
j.The applicant did not tell his friends in Australia about [Mr G]and [Mr H], he just told them he had a few experiences in Libya. [Mr G]has a problem with drugs now and the applicant has long lost contact with [Mr H].
k.Dr [K] wrote of the applicant’s depression after a relationship with another man ended in July 2017. The applicant had been with him for three months but he was young and inexperienced. They broke up because they were together at a shopping centre and the applicant wanted to buy them both a matching [ring]. His partner didn’t understand and got angry at the applicant for trying to force commitment on him when he was not ready. A few years later the man got into contact with the applicant and apologised for getting angry because he was young at the time.
l.The applicant knows of a singer from Libya who is based in Turkey, Khaled Zarouq. After the recent floods in Derna in Libya he posted a message to Tik Tok to try to raise assistance for the rescue and recovery efforts. But because he looks a bit feminine people responded to his post with curses and abuse.
m.People suspect the applicant is gay because he is almost [Age] and has not had any relationships with women. His cousins always ask him why he is not getting married.
n.The applicant is not currently interested in making contact with other Arab and Muslim gay men in Australia. He is worried that he does not have permanent residence here so could have problems if he has to leave Australia. He also had some previous bad experiences with gay Arab men - [a Country 1] man and a [Country 5] man.
o.Kidnappings are still happening in Libya. If the applicant returns there he will be targeted because people think he is wealthy from living in Australia. The applicant’s cousins talk about him being wealthy just because he is here. If he was not gay he thinks he could live in Tripoli like his brothers do but it is not yet secure there. His brothers don’t go out of their house early in the morning or late in the day as it is not safe when there are not many people around.
p.The applicant’s full name is [name]. He will be asked this when he arrives at the airport in Libya so it will be known he is from Bani Walid.
The following is a summary of the information provided by the witness, [Mr P], at the hearing:
a.He is definite that the applicant is gay. He has no doubt about this. The applicant has always expressed interest in men. The applicant wanted to continue his relationship with [Mr P] but [Mr P] did not want this. He thinks the applicant is attracted to [Mr P]’s [physical appearance].
The following is a summary of the information provided by the witness, [Mr Q], at the hearing:
a.He and the applicant met through hook ups on [a dating app]. They became good friends and went to events together such as Mardi Gras and Fair Day and [a Venue] on Oxford Street. They would talk about their relationships and interests together. He thinks the applicant was dating men who were too young for him and advised the applicant to go for older men. He is 100% sure the applicant is gay. It would be impossible for the applicant to fake this. They had sex together a few times and then formed a really nice friendship.
The following is a summary of the information provided by the witness, [Mr R], at the hearing:
a.He and the applicant have had very open discussions together about the applicant’s sexuality. Their conversations about sexuality are very natural. They met in 2020. They have maintained contact and continue to meet up. The applicant was at [Mr R’s] place last week. The previous week he was also there helping with spring gardening. The applicant told [Mr R] that he thinks his parents suspected he was gay and this is why they pushed him to study overseas. The applicant also had a gay friend in Libya who was a bit more flamboyant and who disappeared which worried the applicant and helped motivate him to leave there.
The following is a summary of the information provided by the witness, [Mr S], at the hearing:
a.He and the applicant met and connected with each other. They would talk about society and how they were not seen as the norm as gay men. They would talk about their interests and attractions to different men. They met in 2019 and had sex then became friends. They chat regularly, every week and usually meet up in person. [Mr S] considers the applicant a support person to him.
Country Information
DFAT’s most recent Country Information Report on Libya, published in December 2018, contains the following:
Actual or Perceived Gaddafi Regime Loyalists
3.51 A generalised attitude of resentment towards Gaddafi supporters and fighters is widespread throughout Libya. This animosity derives from the conduct of the regime following the outbreak of conflict in 2011. Between February 2011 and the fall of Tripoli in August 2011, pro-Gaddafi forces committed murder, enforced disappearance and torture. Gaddafi forces launched indiscriminate attacks into civilian areas using mortars, artillery and rockets and laid anti-personnel and anti-vehicle mines.
3.52 In June 2017, unidentified armed groups killed 12 detainees upon their conditional release from prison in Tripoli. All 12 were members of the former Gaddafi government and were accused of taking part in violence against anti-government protesters in 2011. On 29 July 2015, a mass trial of 28 senior regime figures resulted in 24 being convicted of crimes relating to the Gaddafi regime’s conduct during the 2011 conflict. Nine of the defendants, including Gaddafi’s son, Saif al-Islam al Gaddafi, were sentenced to death in a trial widely criticised by international observers. In the aftermath of the verdict, small scale pro-Gaddafi rallies took place in several Libyan cities, including Benghazi. Gaddafi loyalists retain influence but do not hold official positions in Libya, and tend to align with the LNA bloc. A Zintani militia released Saif al-Islam from house arrest in June 2017. Saif al-Islam’s house arrest had shielded him from both the death sentence handed down by an interim government in Tripoli and extradition to the International Criminal Court on war crime charges. In a televised interview, Ghassan Salame, head of UNSMIL said that the political reconstruction process ‘may include’ Saif al-Islam. While some, limited, re-grouping of support for Gaddafi has emerged, a generalised attitude of resentment continues toward perceived Gaddafi supporters and fighters.
3.53 DFAT assesses that those who were, or are perceived to have been, high-ranking officials in the Gaddafi regime (including ministers, senior bureaucrats, military personnel or diplomats), or who had close associations with the Gaddafi family, or those associated with the Libyan security forces during the 2011 conflict, face a high risk of both societal and official discrimination throughout Libya. This may include being illegally detained, beaten or tortured; having death threats made against themselves or their families; or being killed. The Gaddafi regime was in power in Libya for 42 years, from 1969 to 2011. Over such a long period of time, the majority of the population would have either worked for, had some association with, or had a member of the family who worked for, or had an association with the regime. DFAT assesses it is unlikely that a Libyan with a low-level association with the regime would face discrimination as a result of this association.
…
LGBTI
3.67 The Penal Code prohibits all sexual acts outside of marriage, which can include sex between unmarried individuals, adultery and same-sex relations. Under the Penal Code of 1953, (as amended by Law 70 of 1976), Article 407 (4) provides ‘If anyone has sexual intercourse with a person with that person’s consent, both he and his partner shall be punished by imprisonment for a period not exceeding five years’, and Article 408 (4) of 1953 mandates that anyone who commits an ‘indecent act’ with that person’s consent will be punished with his partner with imprisonment of an unspecified term. In addition, Article 421 of 1953 punishes ‘indecent acts’ in public space with detention of up to one year and a fine of up to LYD 50, and the same penalty for distribution or sale of ‘indecent letters, pictures, or other articles’. The US State Department found in 2017 that the punishment for consensual same-sex sexual activity under the Penal Code was ‘three to five years’ in prison. The International Gay, Lesbian, Bisexual Trans and Intersex Association (ILGA) reported that laws regulating non-governmental organisations caused difficulties for organisations working on issues of sexual orientation and gender identity.
3.68 Homosexuality is a strict taboo in Libya, both officially and societally. Sources reported LGBTI rights were ‘not on the table’, that Libyans were not ready to admit the existence of LGBTI communities, and that citizens held negative views of LGBTI persons and stigmatised homosexuality. US Department of State reported militias often enforced compliance with their commanders’ understanding of ‘Islamic behaviours’, and harassed and threatened with impunity individuals believe to be LGBTI and their families. LGBTI activists and citizens are targeted for violence with relative impunity and reports are widespread of physical violence, harassment, and blackmail based on sexual orientation and gender identity. Human Rights Watch reported that militia with quasi-official status, linked to the GNA, arrested, beat and detained men suspected of being gay. By June 2016, ISIL had reportedly executed at least three people for alleged sodomy.
3.69 DFAT is aware of reports of social stigmatisation of persons with HIV/AIDS due to an association with drug use, sex outside marriage, and homosexuality. Detainees suspected of having HIV/AIDS have reportedly been segregated from other detainees, often in overcrowded spaces, and have reportedly been accorded the lowest priority for medical treatment.
3.70 DFAT assesses that LGBTI individuals face a high level of official discrimination and violence due to their actual or perceived sexual orientation and gender identity, by police or militia. They are at high risk of societal discrimination and risk of violence in the form of detention, assault and torture, or threats made against themselves or their families.
A 2021 article in the journal Al Monitor states:
Libyan LGBTQ+ activists told Al-Monitor that members of their community have been victims of beatings, imprisonment and murder by the armed militia groups. “We risk kidnapping, torture or forced disappearance by militias. Most people of the LGBTQ+ community in Libya don’t have any hope that things will change for the better,” said an LGBTQ+ activist who asked to speak on condition of anonymity for security reasons.
…
At that time [2019], the Libyan civil war reached a new climax, and a surge of extreme violence ensured toward LGBTQ+ individuals, she said. “People from our communities were one of the main targets of militias that had been given free rein because of the civil war. A list of cafes accused by militias of being LGBTQ+ friendly circulated. People disappeared, their phones were confiscated and tapped. But the violence remained invisible to the international community,” the activist said.[1]
[1] Al Monitor, 2021, ‘Libyan LGBTQ+ activists speak out on violence by extremist militias’, 20 May.
The 2022 US DOS Country Human Rights Report for Libya includes the following:
Criminalization: Same-sex sexual activity between consenting adults is criminalized with a penalty of three to five years’ imprisonment. It was enforced. Human Rights Watch reported that punishment can include flogging in addition to imprisonment.
Violence against LGBTQI+ Persons: There were reports of physical violence, harassment (including by government agents), and blackmail based on sexual orientation and gender identity. Armed groups often policed communities to enforce compliance with their commanders’ understanding of “Islamic” behavior, harassing and threatening with impunity individuals believed to have lesbian, gay, bisexual, transgender, queer, or intersex (LGBTQI+) orientations and their families.
According to 2021 information, the most recent available, from the FFM, individuals were targeted for arrest and abuse, including sexual violence, solely because of their sexual orientation, gender identity or gender expression. In at least one case documented by the FFM, a young detainee had to undergo forced anal examination. FFM observers added that such reports, which they received from different parts of the country, revealed “grave and endemic sexual and gender-based violence.”
Discrimination: Societal discrimination against LGBTQI+ persons was widespread, and official discrimination was codified in local interpretations of sharia. Disproportionate enforcement of public order laws against LGBTQI+ persons reportedly served to justify arbitrary arrest. Human rights groups reported that punishment could include flogging and up to five years’ imprisonment.
Little information existed on discrimination based on sexual orientation, gender identity in employment, housing, access to education, or health care. Observers noted that the threat of possible violence or abuse could dissuade persons from reporting such discrimination.

A 2012 Human Rights Watch report references Bani Walid as follows:
Many Libyans have considered Bani Walid a safe haven for supporters and former officials of Muammar Gaddafi, Libya’s former leader. …
Bani Walid, about 170 kilometers southwest of Tripoli, is home to Libya’s largest tribe, the Warfalla. Many consider Bani Walid a pro-Gaddafi town, though one militia from the Warfalla fought against Gaddafi in last year’s revolt and has participated in the current siege. In 1993, a group of Warfalla was among those who staged a failed attempt to overthrow Gaddafi.
Bani Walid officials have said that the population is loyal to Libya’s new government. But they say that they refuse to surrender people wanted for crimes before or during the 2011 conflict in which Gaddafi was ousted until Libya has a functioning judicial system and hundreds of Warfalla members held without charge are released from detention, especially in Misrata. Bani Walid and Misrata have a history of antagonistic relations. [2]
[2] Human Rights Watch, 2012, ‘Libya: Residents of Bani Walid at risk’, 24 October.
A 2015 study on the Bani Walid states:
… Bani Walid’s decision to stay loyal to Qadhafi in 2011 followed a strong community narrative and identity rooted in the historical tribal confederations against the Ottomans and Italians which on independence formed the bedrock of the Libyan state in the west, and which believed themselves protectors of independent Libyan statehood against foreign incursions. Qadhafi’s manipulation of this narrative and the tribal leadership, following a failed coup by Bani Walid officers in 1993 ensured its loyalism in 2011, and allowed Qadhafi to rapidly expand private militias staffed with loyal tribes and communities, thus creating the security apparatus that defended him during the 17 February Revolution. Community identity and state security were thus intimately entwined in Qadhafi’s security state, explaining why most in Bani Walid fought to the end to support Qadhafi, while others joined the revolution. Qadhafi’s death created a reversion to this older identity and “political isolation”, the lack of any national reconciliation programme or state control over the justice sector, fostered it, giving Bani Walid a new political direction.[3]
[3] Cole P, 2015, ‘Bani Walid: Loyalism in a Time of Revolution’.
There are references to ‘[name]’ and tribal affiliations in Libya in located sources, as follows:
[Deleted].[4]
[4] [SOURCE DELETED].
A 2015 report by the Malaysian Department of Islamic Development[5] references the Syrian Islamic Scholar and writer Muhammad Shahrur’s 2009 work, The Quran Morality and Critical Reason, and states:
He [Muhammad Shahrur] emphasized that the Qur'an does not clearly state the prohibition of homosexual behaviour that are carried out secretly. He even feels that it is rightful for couple of same gender to have feelings and relationship with one another, as long as the sexual behaviour are not being done in public.
[5] Department of Islamic Development (Malaysia), 2015, ‘Hadith Sahih on Behaviour of LGBT”.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant submitted his Libyan passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied he is a citizen of Libya. The Tribunal assesses the applicant’s claims against Libya as his country of nationality and receiving country.
Credibility
The applicant claims to fear harm in Libya because he is from Bani Walid, a region and tribe associated with support for former Libyan leader, Muammar Gaddafi; and because he is gay.
Bani Walid
The applicant has consistently maintained he and his family are from and lived in Bani Walid in Libya. He was able to describe the region and its history in detail. His Libyan passport records it was issued in ‘Bani Walid’. There is no information to contradict the applicant’s claim he is from Bani Walid in Libya. In view of the supportive evidence the Tribunal accepts the applicant is from Bani Walid.
The Tribunal also accepts the available country information and the applicant’s evidence that people from Bani Walid are associated with pro-Gaddafi support.
The applicant claims his parents and brother were killed by robbers when travelling between Tripoli and Bani Walid in 2016. He has submitted their Death Certificates. His doctor provided information about the acute distress caused to the applicant upon hearing the news of their deaths. The Tribunal accepts this has occurred.
Applicant’s sexual orientation
Just prior to the applicant’s department interview his then representative submitted that the applicant claimed to be gay. At his interview the applicant provided oral evidence about growing up gay in Libya and his exploration of his sexual orientation in Australia.
The applicant provided further written and oral evidence about being gay to the Tribunal. He submitted photographs of himself with others at various gay events and venues in Sydney, at different times over several years. He submitted numerous statements from men in Sydney who claimed to have had sex and/or relationships with the applicant in Sydney. Several men also came to the applicant’s recent Tribunal hearing and gave evidence about their relationships with the applicant. They each seemed to have a genuine concern and friendship with the applicant and each readily identified as gay themselves. In the Tribunal’s view the numerous people who have come forward to express their knowledge of, and support for, the applicant and his sexual orientation over recent years would be difficult to orchestrate to falsify evidence on behalf of the applicant.
The applicant also submitted a letter from his doctor at the university health centre, who has treated the applicant over a number of years. He provided a detailed and reasoned opinion of the applicant’s mental and physical health history in support of the applicant’s claim to be gay.
The photographs the applicant submitted have a variety and naturalness about them which do not suggest they have been intentionally staged for the purpose of his refugee application. At hearing the applicant spoke frankly about his sexuality and his experiences, including his personal mental health difficulties, as he has become more open and accepting of his identity as a gay man in Australia. He also readily offered details of his efforts to reconcile his sexual orientation with his religious faith, noting a renowned Islamic scholar who helped him believe that Muslim faith does not necessarily prohibit or condemn same sex relationships.
The Tribunal considers that there is a substantial weight of evidence in support of the applicant’s claim to be gay. There is also little indication that the applicant is fabricating his claim to be gay. The Tribunal therefore accepts that the applicant is gay.
Fear of Harm in Libya
The Tribunal has accepted that the applicant is from Bani Walid in Libya and that he is gay.
According to DFAT’s latest assessment of the human rights situation in Libya, published in 2018:
LGBTI individuals face a high level of official discrimination and violence due to their actual or perceived sexual orientation and gender identity, by police or militia. They are at high risk of societal discrimination and risk of violence in the form of detention, assault and torture, or threats made against themselves or their families.
This assessment is supported by more recent country information, as referred to above, which also indicates that the situation is worsening for the LGBTQI communities there. The recent information highlights the occurrence of imprisonment, physical beatings and even murder by the authorities and by right wing militia groups who operate broadly in Libya.
Based upon this information the Tribunal is satisfied there is a real chance of the applicant facing serious harm, in the form of physical violence, arrest, imprisonment, extortion and high level discrimination, as a gay man in Libya.
The Tribunal considers that the applicant’s Bani Walid provenance, imputing him to be pro-Gaddafi, heightens his vulnerability to adverse attention and acts of violence, as a gay man.
The Tribunal notes that the applicant returned to Libya in 2011 for two months following the end of the war against the former regime. The Tribunal accepts that at the time he had grave concerns for the welfare of his family which motivated him to return to find them there. The Tribunal also accepts that it was a brief transitional period of relative calm in Libya following the end of the war, before armed groups started vying for power and control in the country. The applicant’s return to Libya was brief and over ten years ago. The Tribunal does not consider it indicates he does not hold a genuine fear of serious harm now.
The Tribunal is satisfied that the harm the applicant faces involves systematic and discriminatory conduct in that it will be done to him intentionally and selectively. Given the state and militia groups are the perpetrators of the harm the Tribunal is not satisfied there is effective protection available to the applicant in Libya. The Tribunal is satisfied that the risk of harm to the applicant relates to all areas of Libya.
The Tribunal is therefore satisfied the applicant has a well-founded fear of persecution in Libya as defined by s 5J of the Act.
Section 36(3)
There is no evidence or indication that the applicant has a right to enter and reside in any other country. The Tribunal accordingly finds he has no such right and that he is not excluded from Australia’s protection by s 36(3) of the Act.
Conclusion
For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Melissa McAdam
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 4505

18 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Statutory Construction