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Tribunal: Member Jane Marquard

An application made by a family of three for Protection visas was refused by a delegate of the Minister for Immigration and Border Protection. Applicant 1 made a claim for protection and applicants 2 and 3 applied as members of the family unit. On 15 February 2018, the Administrative Appeals Tribunal remitted the matter for reconsideration.

The applicants were a husband, wife and their child who arrived in Australia in 2011 from Libya. The applicant claimed he would be persecuted if returned to Libya because of his association with the Gaddafi regime and his active participation in revolutionary activities.

Section 36 of the Migration Act 1958 (the Act) sets out the criteria to be satisfied for a Protection visa. Broadly, it requires the applicant to be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds. In basic terms, this arises when a person is found to have a ‘well-founded fear of persecution’ or there is a ‘real risk of significant harm,’ respectively.

This decision concerned the ‘refugee’ criterion, which requires the Tribunal to determine whether Australia owed the applicant protection obligations under the 1951 Refugees Convention.[1] The Tribunal explained that the applicant must have a well-founded fear of persecution under one of the reasons provided for in the Refugees Convention. This would be satisfied if they have a ‘genuine fear’ founded upon a ‘real chance’ of being persecuted for a Convention-stipulated reason.

The Tribunal first considered whether the applicant held a ‘genuine fear’. This required findings of fact concerning the applicant’s claims and the credibility of the evidence provided. The applicant provided a number of documents to support his claims. The Tribunal accepted that the documents were genuine, as the applicant’s account of his experiences appeared credible and consistent with country information about Libya at the time. The Tribunal had some concerns as to whether the applicant had a genuine fear of serious harm given that he returned to Libya in 2012 for 10 weeks. After discussing this with the applicant in some detail the Tribunal accepted his submissions that he returned for his father’s funeral and that he was very afraid at the time, but was determined to attend the funeral. The Tribunal accepted that he stayed at home under the protection of his family. The Tribunal also accepted that some country sources suggest that there was an interim period of civil rule. This may have provided a window of opportunity for people such as the applicant to return without repercussion. The Tribunal was satisfied, on balance, that the applicant had a genuine fear of serious harm.

The Tribunal then considered whether the applicant had a ‘real chance’ of serious harm for reasons of his imputed political opinion, which was a reason provided by the Refugees Convention. After viewing numerous reports including those issued by the Department of Foreign Affairs and Trade (DFAT) and the United Nations High Commission for Refugees (UNHCR), the Tribunal found that the security situation in Libya was extremely poor, and militias, who had undertaken numerous attacks on former Gaddafi supporters, were in control in large parts of the country. Further, the applicant came from a family of pro-Gaddafi supporters. His father was an officer in the military, who lost his life to the militia. One of his brothers fought in the civil war and another brother was active, as was the applicant, in the Revolutionary Committee and People’s Guard. The Tribunal also found that the applicant was the recipient of a government scholarship under Gaddafi, and there was evidence that those who were on scholarships had been targeted by the authorities and militia. The Tribunal also accepted the applicant’s indication that if he returned to Libya, he would continue to take part in political activity, if he was able to do so freely.

Considering all the factors cumulatively, the Tribunal was satisfied that the applicant had a well-founded fear of persecution for reasons of political opinion were he to return to Libya in the reasonably foreseeable future. The Tribunal remitted the matter for reconsideration and provided the following directions. The applicant satisfied the criterion in section 36(2)(a) and was a person in respect of whom Australia had protection obligations. The Tribunal was satisfied that applicants 2 and 3 were members of the same family unit as the first applicant for the purposes of section 36(2)(b)(i).

Read the full written decision on Austlii.