2302701 (Refugee)

The applicant, a citizen of Libya, sought a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution or significant harm upon return to Libya, based on his tribal affiliation and imputed political opinion, as well as his sexual orientation. The matter was before the Federal Circuit and Family Court of Australia following a remittal from the Tribunal.

The court was required to determine whether the applicant met the criteria for a protection visa, specifically whether he had a well-founded fear of persecution under section 36(2)(a) of the Migration Act 1958 (Cth) or, alternatively, whether he faced a real risk of significant harm as a necessary and foreseeable consequence of removal, engaging the complementary protection criterion under section 36(2)(aa). The court also had to consider the applicant's claims regarding his ethnicity, his family's association with the former Gaddafi regime, and the risks posed by various militias, as well as his claim of being a homosexual man and the potential harm he might face due to this identity.

The court considered extensive evidence, including the applicant's oral testimony, documentary evidence such as death certificates and his Libyan passport, and numerous supporting statements and oral evidence from individuals who knew the applicant in Australia and attested to his sexual orientation. Country information regarding the volatile situation in Libya, the persecution of those associated with the Gaddafi regime, and the criminalisation and societal attitudes towards homosexual individuals was also taken into account. The court found that the applicant was from Bani Walid, a region and tribe associated with support for the former leader, and that this identity, combined with imputed political opinion, heightened the real chance of harm. Furthermore, the court accepted the applicant's evidence regarding his sexual orientation, noting the numerous individuals who provided statements and evidence, which would be difficult to fabricate. The court concluded that the applicant had established a well-founded fear of harm.

The decision under review was remitted.