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1210757 [2012] RRTA  1111  (14 November 2012)

Last Updated: 18 February 2013

1210757  [2012] RRTA 1111  (14 November 2012)

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DECISION RECORD

RRT CASE NUMBER: 1210757

DIAC REFERENCE(S): CLF2011/129950 CLF2011/191032

COUNTRY OF REFERENCE: Libya

TRIBUNAL MEMBER: Stuart Webb

DATE: 14 November 2012

PLACE OF DECISION: Melbourne

DECISION: The Tribunal affirms the decision not to grant the applicants Protection (Class XA) visas.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection (Class XA) visas under s.65 of the Migration Act 1958 (the Act).
2. The applicants who claim to be citizens of Libya, applied to the Department of Immigration for the visas on [date deleted under s.431(2) of the Migration Act 1958 as this information may identify the applicant] August 2011. The first named applicant (hereafter the applicant) lodged a protection visa application. The second named applicant (hereafter the ‘applicant’s husband’) and the third and fourth applicants (hereafter the ‘applicant’s sons’) lodges member of the family unit applications.
3. The delegate refused to grant the visas [in] June 2012, and the applicants applied to the Tribunal for review of that decision.

RELEVANT LAW

4. Under s.65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. The criteria for a protection visa are set out in s.36 of the Act and Part 866 of Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention), or on other ‘complementary protection’ grounds, or is a member of the same family unit as a person in respect of whom Australia has protection obligations under s.36(2) and that person holds a protection visa.

Refugee criterion

5. 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 under the Refugees Convention.
6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. The High Court has considered this definition in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA [2000] HCA 19; (2000) 201 CLR 293, MIMA v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1, Applicant S v MIMA [2004] HCA 25; (2004) 217 CLR 387, Appellant S395/2002 v MIMA [2003] HCA 71; (2003) 216 CLR 473, SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC [2007] HCA 41; (2007) 233 CLR 51.
8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person.
9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). The expression ‘serious harm’ includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

16. 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 a protection 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 the applicant 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’).
17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Member of the same family unit

19. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include the spouse and children of the applicant.

CLAIMS AND EVIDENCE

20. The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. A copy of the delegate’s decision was provided by the applicants to the Tribunal.

Application

21. The applicants lodged their protection visa application [in] August 2011, with copies of passports, birth certificates, marriage certificate and education documents. The applicant claimed that she feared returning to Libya because of the civil war that was occurring at that time, that the war had caused significant damage and the ability to subsist could not be satisfied. The scholarship that enabled the applicant to study had ceased and the applicant wanted to remain in Australia to continue her study.
22. Due to the fluid situation in Libya in 2011, DIAC decided to postpone the interview regarding the claims until a future date. DIAC invited the applicants to attend an interview [in] June 2012.
23. At the start of the interview the applicants provided materials, including statements of claims, an email purportedly from the nephew of the applicant’s husband dated [in] June 2012, a photocopy and certified translation of a document purported to confirm that the applicant’s husband was a member of the Revolutionary Committee of [Suburb 1], and photographs of a burnt car, purportedly owned by the applicant’s husband.
24. The statement from the applicant is as follows.

The situation in Libya is bad, bleeding occurs every day and weapons increase every day. The people there cannot control it. The weapons are sold in shops without surveillance. It is very hard to describe what happened there. Mines are implanted in the areas and every day the people "get risk due to the mines especially for children. Furthermore, the education became too bad and teachers cannot teach after they saw what happens in Libya (Ruin and destruction and killing). Also schools became bad places for studying and the students cannot accept the education in these places. It is very hard to find jobs there and a lot of people do not work and they live without work. The government does not give people money.
In my case, my husband receives threats from unknown people by his family. The threats from two sides; the first side from the people who was with the revolution and they believed that [Applicant 2] with Gaddafi. This is because my husband was with a group for Gaddafi and this grope was doing something like meeting and discussion the opinions but the people think this grope support Gaddafi. We are sure some people of these groups were with Gaddafi but [Applicant 2] and all my family were with the revolution because we need Freedom and justice and equality. The second, [Applicant 2]’s family receive calls and messages from unknown people who were with Gaddafi and they tell his family that [Applicant 2] lives in western country and studies in this country and this country contributed to kill Gaddafi. They say that they will assault on [Applicant 2] and me if we back to our country. Also my family ([family members]) receive the threats in the same situation; I study in Western country and my husband was with grope for Gaddafi. All my family worries about these threats.
The important thing in this situation is our children; I cannot imagine that my children see their father is killed, because if we go back to Libya we are sure these people will kill my husband and assault on me or kill me. Really, my children are in hard situation because if they back to Libya they will have dark future, especially after they live in Australia, live in a safety country. I am sure that if they go back to Libya they will have Mental illness because they will see blood, weapons every day, and see their father and mother killed. We cannot imagine my children's situation at that time, they are small and they need father and mother and also they need security and tenderness which are not available in Libya.
We cannot go back to Libya due to this situation, we do not know what we will do if we back. We worry about our children because they have dark future there, they will live without father and mother. It is impossible that we live safely in Libya. We do not know how we can protect ourselves and our children if Australian government does not help us. Our children are very young and they cannot understand this situation and we cannot tell them that.

25. The statement from the applicant’s husband is as follows.

What is the real situation in Libya? Bleeding, killing, steal, and increasing weapons are the right answer. Libyan people worry about their future, as crime increases every day because of lack of polices. Drugs, expired food and medicines could be seen in Libya. What was worse, expired babies' food is available in Libya, which leads to the rising rate of Death of babies there. The new government doesn't care about this. In addition, the level of education is very low and the students cannot get good education, which will have negative effect on their future. Furthermore, the rate of accidents rises due to the movements of cars on the streets. There is no polices to organize the cars so that the cars come anywhere. Today the majority of people in Libya do not respect the low strata and any one of them does any things without care. In general, the life in Libya is extremely bad and the quality of life decreases everyday there.
In my case, since years, I was in a group for Gaddafi and this grope does normal things such as meeting and discussion some opinions. In addition, I and all my family were with the revolution because we need freedom and Justice. I have a hard situation after the revolution finished because my family receive message from unknown people and they say to my family they will kill me. Also, some people who were with the revolution came to my house in Libya and born my car. This is because these people believed that I am with Gaddafi and I supported Gaddafi but this is a wrong idea about me. Also, these people said to my brother if I come to Libya they will kill me and assaulted on my wife. After that my brother called me and told me about this. My mother was sick after hearing this. Also, my sister received another call from another people and they told her that I live in western country and I and my wife study in this country (Australia), this country contributed to kill Gaddafi and finish his government. We are sure that these people were with Gaddafi and supported him in the war. Now I am in a hard situation. When my visa expires and I go back to Libya, what I could do to these people. And how I could protect my wife and my children. These people will kill me in front my children because these people do not care about that, this picture is in my mind every day. If I am back to Libya, this would be my end, and my children and my wife will certainly get risk from these people.
As you now I have [children] and they will get mental illness from this panic situation. They will see their father's blood and their mother's blood. If I go back to Libya they will live without security and they will see the blood and hear the voice of weapons every day.
My situation lead to that I cannot go back to Libya after my visa expires. Back to Libya would mean my children will live in a life with risks. I have bad health due to that. We are living safety life in Australia, we need this life in Libya but we cannot live the same life there. The important thing is my children; I want my kids to live a good life with us. Really, we are in hard situation and we wish that the people here hear us and help us.

26. In summary, the email from the nephew of the applicant’s husband discusses the burning of the car and threats made by rebels against the applicants. Those threats were received from unknown people accusing the applicant’s husband as anti-Gaddafi and threatening to kill him. That there are many weapons, food was in short supply, the security situation is bad and there is unreliable power. There is no effective police force. The family do not want them to return.
27. The Tribunal has listened to the recording of the hearing. In summary, the applicants gave the following evidence. The respective families of the applicants live in [Town 2] in Libya. The family was not affected during the fighting. The applicant’s husband’s family has received threats against the applicant’s husband, both personally and in phone messages. The threats are of two different forms, because he had been part of a Gaddafi committee, and because he has been in a Western nation opposed to Gaddafi and been to protests. The threats were frequent in September 2011, around the time his car was burnt, but he is unsure how often they are occurring now, he is too shocked to ask for more details. The threats are made by militia and also unknown people. The applicant’s family have received threats due to her relationship with her husband. He joined the Revolutionary Committee for access to training meetings, it was a normal thing to do in the community. He was a standard member, did some minor duties. Other members of the committee have fled [Town 2]. They went to the protests in Melbourne when they saw unfair killings and the lack of items that Libyans have. They were seen at the protests. The media does not report the truth of what is happening in Libya. It is very dangerous. They are concerned for their family. The delegate noted that the applicant had indicated to her representative during the processing of her student visa application in April 2012 that, regardless of the outcome of her protection visa application, she and her husband intend to return to Libya once the country is safer. The delegate raised this with the applicant at interview. The applicant responded that, if they were refused a protection visa, they would have no choice but to return to Libya. The student visas last until February 2014.
28. The delegate determined that the applicants had three stated fears. These were that the applicant’s husband had been a member of the Revolutionary Committee; that they had been involved with the anti Gaddafi protests; and the general instability in Libya. The delegate accepted that the applicant’s husband was a member of the Revolutionary Committee. The delegate accepted that they may have imputed anti-Gaddafi political opinions by just being abroad at the time of the revolution. The delegate had concerns about the depth of the applicants’ stated fears. The applicants had difficulty recounting the content and frequency of the threats allegedly made against them, as well as the source of the particular threats. There was also a possible contradiction in the evidence of the applicant’s husband's nephew’s e-mail as to the source of particular threats. The delegate was not satisfied that the applicants had been specifically threatened by any armed group and that it is unlikely that the people who had issued threats would have an ongoing interest in seriously harming the applicants. The delegate considered that the applicants do not face a specific and imminent threat of harm on return to Libya. No family members had been harmed in Libya. The applicant’s husband's role with the Revolutionary Committee was of a minor nature. The applicant's home town [Town 2] has been the scene of less violence relative to other parts of the country. The delegate did not consider that the loyalists were in a position to seek to harm the applicant for the reason of their anti-Gaddafi opinion. The delegate considered the applicant's circumstances in totality. He stated that the applicants are a young family that had no political profile prior to the revolution. They benefited from the applicant’ husband's membership of the Revolutionary Committee, as did thousands of other Libyans. They attended demonstrations in Australia in support of the uprising. Their families remained in [Town 2] during the revolution and kept a low profile. Their families have continued their normal lives, albeit they are anxious about the general instability in the country and the availability of essential items like food and gas. The delegate acknowledged the applicants preference to avoid any possibility of harm, particularly for their children, by remaining in Australia. However he was not satisfied from the country information that there is a general situation of persecution for former, low level Gaddafi loyalists for those who protested against the Gaddafi regime during the uprising. The delegate was not satisfied that any of the harm that the applicants faced reach the threshold of being significant harm for the purposes of the complementary protection provisions of the Migration Act.
29. The applicants appeared before the Tribunal [in] October 2012 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicants were represented in the hearing by a migration agent. The following is a summary of the evidence provided at the hearing.
30. The applicant and her husband are from [Town 2]. They lived in a [flat]. [Further family details deleted: s.431(2)]. The applicant has [siblings deleted: s.431(2)], while the applicant’s husband has [siblings deleted: s.431(2)]. All family members live in [Town 2]. Some family members work, while others are commencing or completing studies. The applicant speaks to her family once a week.
31. The applicant is completing a [degree at university]. [Further educational information deleted: s.431(2)].
32. The applicant had worked as a [employment details of first and second applicant deleted: s.431(2)].
33. The Tribunal asked the applicant’s husband about his involvement in the Revolutionary Committee in [Suburb 1, Town 2]. He joined the committee in 2004 having applied some months earlier, and then was vouched for by people who had known him as a loyal Gaddafi supporter. As he had a clean record and no history of anti-Gaddafi activities in the applicant's husband was permitted to join the Revolutionary Committee. The applicant's husband stated that he joined the Revolutionary Committee as the committee can support gaining better employment.
34. The applicant’s husband attended meetings at the committee offices on ongoing basis. His committee was at the lowest end of the Revolutionary Committee hierarchy. The applicant's husband stated that he would attend to meetings, assisting clerical work at the committee including receiving and sending on letters, taking phone calls from other offices, assisting in organising lectures at schools for using individuals, though he did not speak himself. The lectures were about the Green Book, a document expanding the wisdom and virtues of the Gaddafi regime. The applicant described himself as a [role deleted: s.431(2)], but stated that this did not mean he had any position of influence or responsibility in the committee. The applicant’s husband stated that about 20 people worked within his Revolutionary Committee office, he could not say exactly because sometimes people resigned from the committee. The Tribunal asked if there were any implications of resigning from the committee. The applicant husband stated that this occurred when people moved to other parts of Libya for employment purposes.
35. The Tribunal asked the applicant’s husband as to what benefits he got out of being a member of the committee. He reiterated that it could assist with some employment opportunities. He also stated that if he wanted to buy a new car or get a personal loan, but without being a member of the Revolutionary Committee this could be quite difficult.
36. The Tribunal asked the applicant’s husband as to what had occurred to members of his Revolutionary Committee arising out of the revolution in Libya. He stated that members of the committee have become persecuted and chased by insurgents because of their belonging to the Revolutionary Committee. Insurgents had come to their homes and sought to kill them, so many of them had fled to Egypt, where the applicant described poor living conditions. The applicant’s husband have not spoken to any of his college from the committee has he did not have any contacts.
37. The applicant’s husband stated that because he had been a member of the Revolutionary Committee he was now unable to get employment. Revolutionary Committee members were denied the right to vote in the recent elections. He stated that his family members had received threats, both over the phone and in person at shopping centres due to his involvement with the Revolutionary Committee. Some of the calls come after midnight. The applicant’s husband also stated that he would be harmed by those insurgents who were searching for Revolutionary Committee members. The applicant provided pictures of his car which he claimed had been destroyed in September 2011 by insurgents.
38. The Tribunal asked how frequent the threats were. The applicant said quite frequent, though they had lessened recently. However whenever they speak to their family over the phone they discuss the issue of the threats and he is advised not to come home. The applicant’s husband confirmed that the email from his nephew [in] June 2012 talked about these threats.
39. The applicant’s husband stated that he had received information from a friend in Libya to advise that his name was on a list at the airport, and that he would be arrested on return to Libya. The applicant’s husband stated that it was the insurgents who had this list. The Tribunal asked if he could provide evidence of this list, but the applicant’s husband said he did not think so.
40. The Tribunal asked the applicants about their involvement in the protests in Melbourne in [2011]. The applicant’s husband stated that he had attended three protests, while the applicant and her children had attended none. The applicant provided a photograph of the [applicant’s husband] at one protest. The Tribunal asked why the applicant’s husband had attended the protests, seeing he was a member of the Revolutionary Committee, and had only recently arrived in Australia. The applicant’s husband stated that he had not attended the first protest, but that after seeing the shelling of civilians by the Gaddafi forces he was moved to attend the protest to mark its concern about the violence and the killing of innocent civilians. He had no formal role at the demonstration and was just one of the attendees.
41. The applicant’s husband claimed that pro-Gaddafi militants are present in Australia. He stated that these people had collected list of people who had attended demonstrations and reported back to Libya. The applicant’s husband stated that he feared his name was on this list, though he was not sure that his name was passed on. He believes that anyone who participated in demonstrations had been named.
42. The Tribunal asked why there was any concern for the applicant’s husband, given that any reports made in the first few months of 2011 would be made to the Libyan authorities as they were then, who have now been overthrown. The applicant’s husband stated that the loyalists still have their weapons, are still undertaking violent activities, and have a grudge against the people who assisted in the downfall of the Gaddafi regime. The Tribunal put country information to the applicants that many thousands of people had attended rallies against the Gaddafi regime across the Western world and that not all of them were targeted for retribution by the loyalists. The applicant’s husband stated that he had been a member of the Revolutionary Committee, he was associated with the Gaddafi regime, who had assisted him to travel abroad and to support him in his study, his actions in attending the protests would be seen as treason.
43. The Tribunal asked the applicants about their claims that they would be persecuted because they were studying in Australia, a country that had supported the overthrow of the Gaddafi regime. The applicant stated that the loyalists were angry at nations that had been active in the overthrow of Gaddafi, and felt that they would be targeted because they had been studying in such a country.
44. The applicant then provided the Tribunal with information about the general situation in Libya, including the ongoing violence, the recent kidnapping of a Minister and the recent difficulties faced by two Australian nationals, the destruction of infrastructure, that the country was split in two between the Gaddafi loyalists and the present authorities, that the militia were in control and could not be held accountable. When the Tribunal put country information that some things were improving, the applicant stated that these media reports were not correct, that it does not describe what is going on on the ground, as was being told to them by their parents, that her mother had told them not to return.
45. The applicant described the situation of living in Libya, that schools were infested by rats, rotten milk was sold, there was no proper health supervision on medicines, and medicine was in very short supply, that militias had raided hospitals looking for medical supplies and injured enemies, that drugs were coming across the unguarded border and that it was a far worse place to live than Australia. The applicant stated she was very concerned for her children returning to such a country with such low standards.
46. The Tribunal asked if there was any other part of Libya the applicants could return to. The applicant said all of Libya was unsafe.
47. The Tribunal put to the applicants some information under S424AA of the Migration Act. The applicant responded to this information directly at the hearing.
48. The Tribunal raised the issue that the applicant has a valid visa granted to February 2014. The advisor clarified and said that the applicant had fears in the future, that her children and husband will be harmed if they return. The Tribunal asked the applicant directly about whether the circumstances that facing her now, in 2012, will continue through to 2014, noting that it was difficult to predict the future. The applicant stated that certainly, it will continue. Because everybody has weapons, these things cannot be changed Anybody who worked with the Gaddafi regime would be seen as a very low standard.
49. At the end of the hearing the Tribunal summarised the claims of the applicants; that they feared return due to the applicant’s husband involvement with the Revolutionary Committee, and implications of this for returning; the applicant’s husbands involvement with the anti-Gaddafi demonstrations in Melbourne, and the implications for this; and the fear that they will be persecuted because they are returning from an anti-Gaddafi nation – Australia. The Tribunal also noted some more general claims, which the Tribunal stated may be best considered in the context of complementary protection, including the generalised violence in Libya, and the daily living difficulties. The applicants agreed with this summary.
    

Country Information

Treatment of ex – Gaddafi loyalists

50. A significant report was prepared by the International Crisis Group in December 2011, called Holding Libya Together: Security Challenges After Gaddafi This included a discussion of what would happen to those who were seen as being involved in the systems of power that kept the Gaddafi regime going for many years.

Old versus new order
A third dynamic contributing to the fragmented militia landscape relates to tensions between newly-empowered rebels who had been powerless or persecuted under the former regime on the one hand, and the elite political, bureaucratic and military leaders who had long careers under Qadhafi and have either supported or, at a minimum, survived the revolution on the other. This issue has become entangled with the question of how to deal with former Qadhafi loyalists.
The new authorities repeatedly have insisted on distinguishing between those who have “blood on their hands” and who should be tried and punished, and those who do not. Militia leaders assert that they too will adhere to this distinction – though it is not entirely clear where the boundary is, and the former category arguably includes many who played a relatively minor part in the 42 year-long regime.
Qadhafi’s jamahiriya system consisted formally of “popular committees”, functioning as ministries and mostly staffed by technocrats, which reported to the General People’s Assembly. But real power lay in the hands of a parallel, more informal structure: Revolutionary Committees and regime security forces that policed the system and enforced the Leader’s will through a combination of violence and other coercive measures. When Libyans refer to those with “blood on their hands”, they primarily – albeit not exclusively – mean members of this security apparatus, as distinguished from those who worked for internal security (amn ad-dakhla) and who were equally subject to coercion, some of whom defected during the uprising. They also include neighbourhood informants accused of cooperating with Qadhafi’s forces.
In the period following Tripoli’s fall, the task of uncovering and dealing with loyalists considered to have “blood on their hands” fell partly on neighbourhood rebel militias in cooperation with rebel brigades. They were identified based on community memory and knowledge built up over four decades of Qadhafi’s rule and, more recently, the months of uprising. The question of the procedures used to identify such persons typically is brushed aside by Libyans as being self-evident. As more than one put it, after all these years, “We just know who they are” – a conviction neither particularly objective nor entirely reassuring.
That said, and at a broader level, Libyans so far evince little appetite for mass revenge against other categories of former regime loyalists, even if they switched sides late in the day, as long as they are not armed and do not present a security threat. An NTC official said, “Who really cares if someone supported Qadhafi? I don’t, unless that person has blood on their hands. Then they must be brought to justice. Otherwise, let them go”. A Tripoli resident added: “We still have some people who say that they preferred things under Qadhafi. I say, that’s fine, you can think whatever you like. That’s freedom. Just don’t hurt others”.
There is good reason for such a cautious stance. Given the nature of the jamahiriya, in which people were compelled in one manner or another to participate in regime activities, many were swept into the system, out of conviction, fear or sheer economic necessity. A former Western diplomat who dealt with senior technocrats under the old regime argued that “most senior officials I knew were motivated by the idea of ‘service’ to Libya. Many were willing to switch sides so quickly not so much out of opportunism but with a feeling of relief. I am willing to be challenged on this point, but it is what I saw from those I knew”.
Sheikh Khalifa az-Zawawi, a former judge and head of the Misratan local council, explained: “Of course we can’t know how many in Libya truly supported Qadhafi in their hearts. Do you know how many people in Britain truly support the British Conservative party?” The view was echoed by the former Western diplomat: “My experience of Libya is that everyone had a variety of context-determined postures, including vis-à-vis Qadhafi. I don’t reject the idea that people think they know who a true loyalist is, but I thoroughly reject the idea that they really know”.
As a result, and to the extent possible, the NTC – facing the delicate task of ensuring continued work by ministries, state companies and other institutions and keen to avoid Iraqi-style de-Baathification or a breakdown in services – opted for stability. It called people back to work in early September; virtually all but the most sensitive institutions (most specifically those that had been involved in internal espionage such as the national telecommunications company) were operating to some degree within two to four weeks of Tripoli’s fall. Although those presumed to be the most prominent or notorious regime enforcers either stayed at home or fled, others who had supported Qadhafi simply showed up at work and continued on as before.
None of this is to say that tensions have evaporated between individuals who worked with and/or enforced Qadhafi’s rule and those who suffered from it. The way in which individuals who cooperated with the regime belatedly switched loyalties and sought to carry on with their work has been cause for considerable anger and resentment. Referred to as mutasalliqeen (“climbers”, or opportunists), they are depicted on Tripoli posters as chameleons exchanging Qadhafi’s green flag for the rebels’ tricolour banner. As mentioned, Jibril himself was denounced by some rebel groups for this reason. Strikes have occurred, notably in the oil and telecommunications sectors, on the grounds that an excessive number of loyalist employees were allowed to retain positions.
The problem of senior management is particularly sensitive. Invariably, they earned their position by cooperating with regime insiders and Qadhafi’s family. An NTC official remarked: “You’re talking about an entire system. We have to change the whole thing”111 Tensions could well rise with time, as more information comes to light, new accusations are levelled or younger employees demand promotion to the detriment of regime holdovers.112 For example, on 4 December the NTC began investigating Qadhafi-era corruption in the oil sector.
Such suspicions and struggles are present in the security sector as well, where irregular militias that emerged from the civilian population or from previously outlawed opposition groups such as the Libyan Islamic Fighting Group, resist attempts by the rebel National Army – whose leaderships spent their entire careers serving Qadhafi’s army – to assert their control.
The job of dealing with individuals deemed overly tainted by their former association for the most part has been performed by employees themselves, with NTC ministers essentially playing a limited and hands-off oversight role.114 Rebel militias also so far have largely stayed out of the process. In the early days, the result was somewhat chaotic, as institutions, ministries and companies began to vet and re-organise themselves according to their own criteria while at the same time trying to get back to work.
In some cases, employees closely tied to the former regime stayed in their positions; in others, they were barred. Grounds for dismissal ranged from corruption to, in some instances, accusations of complicity in killings or cover-ups.115 However, where loyalists have not been deemed to have committed grievous offenses, a more common response has been to engage them in dialogue via family or peers. An academic at Tripoli’s medical college described how his faculty had held meetings designed to initiate discussions with colleagues who still supported Qadhafi.116 A customs official, whose house still had a picture of Qadhafi as late as September 2011 and for whom “the rebels are just different men in uniform, but they do the same things that Qadhafi’s troops did”, evoked divisions within his family, with both his son and his parents supporting the rebels and trying to persuade him and his wife to come to their view. As the official put it, “we need time to accept the changes”.[1]
The Revolutionary Committees

51. The Gaddafi regime maintained an extensive security apparatus of police and military units, multiple intelligence services, local “Revolutionary Committees,” “people’s committees,” and “purification committees.” The result was a multilayered, pervasive surveillance system that monitored and controlled the activities and everyday lives of individuals. In theory military and internal security forces were under direct civilian control through the Jamahiriya, or “sovereignty of the masses” system. In practice an inner circle of elites close to Gaddafi wielded total control. The police and ISO shared responsibility for internal security. The armed forces and External Security Service were responsible for external security.
52. Since the beginning of the armed conflict, opposition forces--including independent militias and armed protesters--reportedly killed actual and suspected Gaddafi loyalists, sub-Saharan alleged mercenaries, and security force members, as well as persons who were accused of being Gaddafi supporters by virtue of their location or darker skin colour. As the conflict progressed, NGOs reported that a pattern of targeted attacks appeared against regime loyalists, including members of Revolutionary Committees, and Revolutionary Guard and ISA members.[2]
53. Human Rights Watch, investigating in Libya during April and May 2011, found that significant numbers of suspected Gaddafi supporters had been arbitrarily detained by opposition authorities. They also found that at least ten former Gaddafi security officials and Revolutionary Committee members had been killed in eastern Libya.[3]

Pro Gaddafi Militia in Libya

54. Reports indicate that there are pro-Gaddafi elements operating in Libya, but exact details about the motivations and allegiances of different groups are unclear and could be subject to disinformation.[4] Over recent months, Libya has witnessed a spate of bombings, assassinations and kidnappings which the authorities have attributed to Gaddafi loyalists and militias.[5] On 18 August 2012, The Telegraph reported that Gaddafi loyalists who escaped to Algeria and Egypt with ‘billions’ had in recent weeks been blamed for bomb attacks.[6] Further, the Libyan authorities reportedly believe that exiled Gaddafi supporters ‘have attempted to spring or bribe jailed friends from prison’[7]
55. The 28 August 2012 NATO Civil-Military Fusion Centre Mediterranean Review provides a news summary, reporting on recent incidents in Libya that have been attributed to pro-Gaddafi militia or loyalists:

Two car bombs exploded in Tripoli on 19 August, killing at least two people and wounding three others, reports the New York Times Following an initial blast near the Interior Ministry, the two car bombs went off outside a former police headquarters currently used by the Defence Ministry. An unexploded bomb was found near the Interior Ministry. Libyan authorities arrested 32 people who are members of a network loyal to former leader Muammar Gaddafi, reports BBC, after having established a link between the group and the bombing incidents. Only a day after the twin car bombings in Tripoli, a bomb exploded under the car of the Egyptian consulate’s first secretary Abdul Hamid Rifai; however, no one was injured, according to Reuters In addition, nearly 30 rocket launchers and over 100 tanks were seized on 23 August during a raid on the camp of the “Brigade of the Faithful Loyalist” Gaddafi group. One person was killed and a number of others were injured, while 13 were arrested and three militants managed to escape. Officials said the group was behind the 19 August car bombings.[8]

56. The tanks and rocket launchers seized from the ‘Brigade of the Faithful’ (the al-Awfiya militia) were located at a military barracks near Tarhouna, 60 km southeast of Tripoli.[9] According to the Libya Herald, the Under Secretary for the Interior Ministry said that the barrack was assumed to be under the control of the National Army.[10] The same militia group took control of Tripoli airport in early June and demanded the release of their leader, Abu-Ajilah Habshi, whom the militia believed had been kidnapped by unidentified assailants.[11] A Libyan Interior Ministry spokesman stated that the authorities had believed that the militia group “defended Libya and the revolution, but it turned out to be contrary”.[12] The spokesman also said that the ministry believed that Libya’s security forces had been infiltrated by supporters of the former regime and that a committee had been formed to investigate this situation.[13]
57. Country information suggests that the children of Gaddafi are behind some of the loyalist activities. The following excerpt discusses the activity of Saadi, currently in Niger.

Last week a number of Tahloob were killed when Libyan security forces raided a farm where loyalists were hiding out after they were said to have coordinated the car bombing outside the headquarters of Tripoli's military police.
One of the members who survived was alleged to have set up sleeper cells in Libya and to have been criss-crossing Libya's border with Tunisia from where he and several comrades were allegedly smuggling weapons into Libya to "destabilise the country post-Gaddafi".
Libyan intelligence also allege the group were in possession of another seven bombs, one of them intended for another Tripoli hotel. Documents linking them with one of Gaddafi's sons, Saadi, who is under house arrest in Niger, were also said to have been found on the survivor. Saadi warned earlier in the year that he was in contact with sleeper cells who were organising underground resistance.[14]

58. This country information does indicate that the situation in Libya is dangerous, and that there is a level of generalised violence that is destabilising Libya,
59. However there are positive steps being taken. The following excerpt is taken from Time Magazine, who interviewed the Prime Minister of Libya.

LIBYA: What lies ahead for Libya: An interview with the Prime Minister
Several rounds of ethnic clashes and a string of bombings were not enough to dampen the spirits of Abdurrahim El-Keib, Libya's outgoing Prime Minister. "We are seeing the birth of a new Libya that is as beautiful as the waves of the sea," he told TIME.
In the wide-ranging interview, Keib said that recent bombings that struck the country's three largest cities - including the latest attack on Tripoli - were the work not of jihadists but of loyalists of the late Libyan dictator Muammar Gaddafi - with help from neighbouring countries. He said he was not overly concerned by the loyalists. "They are a nuisance and they are living in a state of denial," he said.
Rather than focusing on the actions of a disgruntled few, Keib spoke of Libya's "social mosaic." Though approximately 90% of the country's residents are Arabs, a number of ethnic groups populate the fringes of the desert and the coastal mountain chain west of Tripoli. "I am hoping that someday all of these groups will come out with their own folk dances, dancing in the streets." He wants to extend this social mosaic to Libyans Gaddafi expelled when he took power in 1969. "When I was growing up, we had Italians and Jews in my neighbourhood. We had churches there, synagogues. It was part of our cultural heritage."
He pointed to the country's recent elections - in which a secular coalition beat a number of Islamist parties - as proof that Libya is on track to become the newest member of the world's democratic community. (The new parliament was installed on Thursday and would get to work on picking a new Prime Minister; no party holds an outright majority.) "We are making progress," he said.
And Keib was all business as he rambled off a list of the successes of the interim government he ran since the fall of Gaddafi's regime last October. He detailed the $6 billion in contracts the National Transitional Council (NTC) has signed with foreign firms and the $650 million it allocated for reconstruction projects. He recounted efforts to enhance border security and reduce the smuggling of Libyan weapons that have reached jihadists from Mali to Gaza. "The road is tough, but there is some light ahead," he said.
Today, as Libya tries to rebuild and reconcile with its past, Keib is as pragmatic as he is optimistic. He does not shy away from discussing the challenges Libya faces. Chief among them is the need to disarm the 100,000 militiamen who spearheaded the drive to overthrow Gaddafi by either integrating them into the security forces or finding them jobs. A budding federalist movement in the country's eastern province of Cyrenaica has the support of Libyans long neglected by a distant central government and frustrated with the NTC's inability to deliver on its promises.
Disbanding the myriad militias that roam the country's streets with heavy weapons and control highway checkpoints consistently ranks at the top of Libyans' grievances. But Keib advocates a piecemeal approach to dealing with the problem. "We need to bring them in as individuals and not brigades. There is a process here and we can't move too fast," he said. But a recent report by the Washington Institute for Near East Policy noted that the interim government has been slow to move on the issue, saying that "the NTC has thus far been unable and unwilling to disarm these militias, integrate their elite fighters into formal military brigades or demobilize those wishing to return to civilian life."
As for the movement for regional autonomy, Keib said, "This is democracy in practice," referring to the Cyrenaicans, who have increasingly clamoured for the return of the loose federation that prevailed in Libya between 1951 and '63, when the country's three provinces controlled revenue disbursement. "In Texas we have people like that, right?" he asked, referring to the secession movement in the Lone Star State.
Keib suggested the best way to defuse the burgeoning crisis was to increase decentralization by empowering municipalities and provinces, and moving a number of government companies to marginalized regions. "People must feel that they are a part of the whole process and they are getting their share," he explained.
His decentralized vision sounds much like the one Gaddafi tried and failed to implement in the late 1980s. In the wake of a 1986 American bombing, a vulnerable Gaddafi sought to spread out his government, bent on preventing a repeat of the devastating attack that paralyzed the capital. But after a few years, he returned the ministries back to Tripoli, when he realized that little work could be accomplished with institutions spread out over the vast desert country. Some analysts believe instituting a decentralized model today would undermine the fragile Libyan state rather than strengthening peripheral support. "It would weaken the central government, making it difficult to improve security and secure the nation's borders," explained Jason Pack, a researcher of Libyan history at Cambridge University.
Keib does not discount his country's problems, but he remains optimistic. "Libya is going through a lot of very difficult times now," he said as he headed out for his last meal before sunrise. "But overall it's O.K. I guarantee you it will be much better in the near future."[15]

60. The head of the UN Support Mission in Libya (UNSMIL), Ian Martin, discussed a number of the challenges faced by Libya. In an interview given on 6 August 2012 he stated that:

...we’ve seen the outbreak of a number of local conflicts – which is not surprising, they’re conflicts that have long roots – and, indeed, were there during the al-Qadhafi period and in many ways were exacerbated by the al-Qadhafi [regime's] actions, but that’s going to need the attention of an elected government and elected representatives.
UN News Centre: What are underlying issues behind those security concerns?
Ian Martin: It’s the question of how one moves [on] from the revolutionary brigades, which have continued to be an important provider of security... ever since the end of the conflict, much of the security in towns and cities, in the absence of a robust police force or a sizable neutral army, has been provided by the brigades.
Now, there are some who are ill-disciplined and there have been serious abuses that continue – abductions, detentions, ill treatment by some of those brigades – but the leadership of the local military councils, the majority of the brigades, is a responsible leadership, which does not, I think, want to challenge state authority. Indeed [they] want to see the transformation that they fought for last year – but will only be ready to disarm and disband when sensible decisions are taken about the future of those who make up the brigades, and when the State capacity is there to hand over to.
UN News Centre: What has the role of UNSMIL been up until now and how will it change in the immediate future?
...the development of the police force – we have had a police advisory team working with the Ministry of Interior and the police from the beginning. We’ve been doing a good deal of work with the army as well, coordinating international expertise, helping the Libyans draw up a first defence white paper, to conceive of security forces being under proper democratic control. That also includes the areas of border security and management of arms and ammunition, and the eventual demobilization and reintegration of the members of the brigades.
UN News Centre: Do you see problems with public acceptance of people such as politician Mahmoud Jibril, who had prior links to the al-Qadhafi regime?
Ian Martin: There will go on being a debate for a long time, about the records of different individuals who worked for periods inside the al-Qadhafi regime – although, in general, those who made an immediate break in February last year are regarded as having made an important contribution to the revolution. Certainly he [Mahmoud Jibril] did so, as a major mobilizer of the international support to Libya during last year.
What role do tribal rivalries and loyalties play in Libya today?
Ian Martin: That’s a question that Libya experts disagree on! There are many ways in which the tribes play a positive role, in social networks, and indeed, while on the one hand tribal divisions can be part of local conflicts, the tribes actually have considerable mediation capacity and issues are worked out between them. And, of course, the bulk of Libya’s population now is young and lives in the mixed cities of the coastal strip. So I think there’s a tendency on the outside to exaggerate the view of Libya as a place of warring tribes. I hope we’ll see that tribes will be playing a positive role in the new Libya, but the form of democracy will be – as this election shows – a modern, representative democracy.[16]

Treatment of Women in Libya

61. According to a Freedom House report, most women will not travel unless accompanied by a husband or male relative. Those who do choose to travel alone or with other women are generally members of the elite, and are still expected to secure the permission of their families in order to travel. In addition, travelling within Libya is difficult, as Libyan hotels generally do not rent rooms to unaccompanied women, due to cultural and traditional requirements. Women rarely walk in the street in the evenings, unless accompanied by a male family member or another woman. There are a range of related cultural and social restrictions which are generally stronger in rural areas and small towns.[17] This is supported by a SIGI report describing the same cultural and religious restrictions.[18]
62. USA Today in an article of 1 December 2011, Women frustrated by lack of representation in Libya, stated:

Libya is a deeply conservative, male-dominated country. In a 2009 index on gender equality published by the Organization for Economic Cooperation and Development, it ranked 91st out of 102 countries.
Outside the capital and major cities, most women wear head scarves and hide their bodies under long layers of loose clothing. Unaccompanied women do not go out after dark, and many do not drive.
Libya's legal system theoretically allows women an unusual degree of freedom in the region. Gadhafi's Green Book, in which the dictator set out his philosophies, states that a woman's place is in the home, but Gadhafi travelled with a band of female bodyguards.
During his 42 years in power, women attended universities and made careers as lawyers, doctors and teachers. But politics remained off limits to many women during his time in power.[19]

63. A Human Rights Watch report of 24 November 2011, called The Women’s Lib movement in Libya sees a surprising twist, noted:

A few hundred Libyan women gathered this month for the first women‘s rights conference since the fall of Muammar Gaddafi. They argued about how to facilitate participation in a new government, about the role of Sharia law, and about how to abolish laws discriminating against women in marriage...
Abdeljalil [chairman of the governing National Transitional Council, Mustafa Abdeljalil who attended the meeting] asserted that Libyan women can expect to have the same rights as men and to play an important role in government, stating, ‘We expect women to be important figures in the future of this country.‘ This time, unlike his infamous speech on the day of the Declaration of Liberation - in which he failed to acknowledge the role of women in the revolution and stated that Libya would re-introduce polygamy –A bdeljalil took care to enumerate the many ways that women had supported and led the revolution.
Then women, old and young, from Tripoli, Benghazi and the western mountains, some with headscarves, some dressed in jeans and sneakers, jostled for position at the microphone to pepper Abdeljalil with questions. For almost an hour, they took the leader of their newly liberated country to task for his comments on polygamy, asked him whether he would include a quota for women in the new constitution and reminded him, repeatedly, that women have a key role to play in the rebuilding of Libya. Abdeljalil listened quietly and patiently, took notes, and answered many of the questions. He explained that he did not particularly support polygamy, and that he wanted to hear women‘s views before any decisions were made.
As he answered questions, a commotion broke out in the back of the hall. The new prime minister, Abdulrahmin el-Keeb, had arrived. He was followed into the hall, in rapid succession, by the minister of justice, the security minister and the information minister, all of whom talked about the vital role women played in the revolution and affirmed the role that they must now play. The Minister of Justice, Mohammed AIlagi, went so far as to say that he would support a quota for women in government and that at least one of the top three positions in government should go to a woman. By now, the entire National Transitional Council was sitting at a hastily placed table in the front of the room. Then former Prime Minister Mahmoud Jibril arrived.
Singing and chanting broke out as women cheered the significance of what was taking place in an ordinary conference room on this November evening. Libyan women crowded around the table to listen as Jibril affirmed his personal commitment to women‘s rights, posing for photographs on mobile phones, and listening as the women called family and friends to share what was taking place.
At the end of the conference, the women presented a list of recommendations for the National Transitional Council leaders, enumerating key challenges that Libya faces today. They urged leaders to enact new laws to protect women from violence, and guarantee access to justice, health care and psychological support. They asked the NTC to promote women‘s equality and back their ability to participate in public life. And they reminded the government about the necessity of investing in women‘s economic empowerment. Finally, the participants asked Libya‘s new leaders to sign major international human-rights agreements.
What started out as a modest attempt to bring women together had turned into a moment when a new Libya was briefly visible, where rights for all could be protected and respected. Libya‘s women had laid out their vision for a fresh beginning, and their leaders had come to listen. Now they must press those leaders to make their words a reality.[20]

64. Insert discussion of the claims and evidence.

FINDINGS AND REASONS

65. The applicants claim to be Libyan nationals. The applicants have provided documentary evidence pertaining to their citizenship of Libya, they spoke in detail about the situation in Libya and their previous experience in Libya. The Tribunal accepts this evidence and finds that the applicants are citizens of Libya for the purpose of considering their refugee claims, and that Libya is their receiving country for the purposes of the complementary protection claims.
66. In relation to the information put to the applicants under s424AA of the Migration Act, the Tribunal was satisfied by the response of the applicant to that information, and has not had regard to that information in its findings.

Involvement with the Revolutionary Committee / perceived pro-Gaddafi political opinion

67. The applicant’s husband discussed his claims for protection due to his membership of the Revolutionary Committee in [Suburb 1, Town 2]. The applicant’s husband explained that his role was at a fairly low level, he had some responsibility in relation to the organising of lecture events at schools, though he would not conduct the lecture, and the processing of clerical materials in the local office. Occasionally he would be invited to a meeting at higher up office. The applicant’s husband joined the Revolutionary Committee in 2004 as he believed that it may give him opportunities he would otherwise not receive, such as employment and financial opportunities. He continued in this voluntary role until arriving in Australia in February 2011.
68. The applicant stated that she had heard of terrible things happening to Revolutionary Committee members since the fall of the Gaddafi regime, including the killing of some members, and the fleeing of others to refugee camps on the Egyptian border. The applicant stated that she had been told by family members about the difficult circumstances back in Libya for people associated with the Gaddafi regime. The applicant provided evidence of a burnt out vehicle, destroyed during the fighting in 2011, and a series of reports from family members that the applicants have been threatened on return. The applicant’s husband claimed that he feared reprisal on return to Libya due to his involvement in the Revolutionary Committee and his imputed political opinion arising out of his involvement with this committee.
69. The Tribunal does not accept this claim. The applicant’s husband was a low level clerical functionary in the Revolutionary Committee. His role was limited to organisational duties, he was not involved in or participated in any of the activities that led to violent crackdowns on the general population of Libya. The country information considered by the Tribunal noted that there had been some retribution against Revolutionary Committee members, the Human Rights Watch report stated that 15 had been killed in an incident in 2011. However considering that the estimated number of Revolutionary Committee members was between 60 000 to 100 000, there are no reports of widespread reprisal against such members. Those that have been targeted for their previous activities have been shown to be involved in violent activities, as stated in the country information, with ‘blood on their hands’. The applicant’s husband does not have blood on his hands, his activities with the Revolutionary Committee were limited and low level, and not at a level that others would seek to harm him because of this involvement.
70. The applicants may be imputed by others to have a pro-Gaddafi political opinion due to the applicant’s husband’s involvement with the Revolutionary Committee. However the fact that they had this relationship to the previous regime does not mean that they continue to face a risk of serious harm because of it. Many people were part of the system of governance that Gaddafi put in place to ensure his four decades of rule. Many people remain in positions of influence that they previously held, as there is recognition by the new government and the international systems supporting the new regime that skills and experience held by previously ‘loyal’ Gaddafi individuals are necessary for the running of a stable society. Those individuals who have been identified as being involved in the atrocities against the Libyan people, or held responsible for maintaining oppressive security systems, have faced reprisal, either violent or legal. However low level functionaries, of which the applicant’s husband is one, have not been systematically harmed or individually targeted for reprisal in post-revolutionary Libya.
71. The Tribunal does not accept that people who knew that the applicant’s husband was involved in the Revolutionary Committee would be seeking the applicant’s husband or his family for this reason. They would not be seeking the applicants arising out of the applicants’ previous involvement with the Gaddafi regime.
72. The Tribunal finds that there is not a real chance of serious harm now or in the reasonably foreseeable future due to their involvement in the Revolutionary Committee or pro-Gaddafi political opinion, imputed or otherwise.

Anti-Gaddafi Political Opinion

73. The applicant’s husband has claimed that he will be considered as having an anti Gaddafi political opinion due to his involvement with the demonstrations in Melbourne in 2011. The applicant’s husband attended but did not have any particular role in organising or presenting at the rallies. The applicant’s husband attended these rallies as he was concerned and dismayed by the violence that the Libyan regime was conducting against its population, including the shelling of peaceful demonstrators. This was despite his previous support for the regime and his limited experience in Australia prior to the uprising. The Tribunal considers that the applicant’s husband attended these protests out of a genuine concern regarding the violence in Libya in 2011, and was not done for any other reason, as per s91R(3) of the Migration Act.
74. The applicant’s husband stated that he had heard rumours that his name was on a list of wanted people for attending the rally. The applicant had not seen any of this information. He has provided an email from, his nephew that people are asking after him as an ‘anti-Gaddafi individual.’ The Tribunal asked why the applicant would be at risk because of his anti-Gaddafi activities, and who would be seeking to harm him because of this. The applicant’s husband stated that loyalists, who knew he had been a member of the Revolutionary Committee, would see him as a traitor for attending such a rally, and would seek to harm him because of these anti-Gaddafi activities.
75. The Tribunal considers the presence of the applicant’s husband at the protests in Melbourne in 2011 to be a demonstration of his concern at what was happening in Libya. The Tribunal notes that the protests in Australia were part of a world-wide demonstration at the time against the Gaddafi regime, and that there were many thousands involved in these protests. The Tribunal considers it plausible that the Gaddafi regime had people in Australia who were willing and able to provide reports back to agencies in Libya. However with the downfall of the Gaddafi regime, these agencies are no longer in power or a position of influence, and not able to take reprisal against those considered to have assisted in the downfall of the Gaddafi regime by protesting overseas.
76. The Tribunal does not accept that the applicant’s husband has a significant profile due to his activities in Australia. The Tribunal accepts that he has an imputed anti-Gaddafi opinion arising out of his attendance at the rallies, but it does not accept that the applicant will face a real chance of serious harm for his holding of this opinion or his actions in support of it The Tribunal considers that the loyalists who may seek reprisals against those people they hold responsible for their loss of power and influence, would not consider the applicant as being in any way significant or responsible for their change of circumstance in Libya. The Tribunal does not accept that the applicant’s husband faces any risk of identification back in Libya for his activities in Melbourne. The Tribunal does not accept that the loyalists who had received information about anti-Gaddafi activities in Melbourne would have any interest in the applicant. The Tribunal, in finding that the applicant’s husband will not be targeted because he was marginally involved in the protests in Melbourne, finds that the applicants will not be persecuted because the applicant’s husband was involved in protests against the Gaddafi regime in a Western nation. There is no evidence to show that people returning to Libya after the fall of the Gaddafi regime have been targeted for reprisal on this basis.
77. The Tribunal finds that the applicants will not face a real chance of serious harm now or in the reasonably foreseeable future due to their imputed anti-Gaddafi political opinion arising from the rallies in Melbourne.

Returnee from the West

78. The applicants claimed that the loyalists were angry at nations that had been active in the overthrow of Gaddafi, and felt that they would be targeted because they had been studying in such a country. This is a similar argument to the one as put above re anti-Gaddafi political opinion, that the applicant has in some way come to the attention of loyalists because of his activities, or in this claim, his location in a Western nation.
79. The Tribunal put to the applicants the country information that there were significant numbers of protesters across the Western world who were concerned by the violence against the Libyan people by the Gaddafi regime. The Tribunal does not accept that the applicants will be singled out for reprisal by loyalists to the Gaddafi regime due to their mere presence in a country that had protested against the violence. The Tribunal does not accept that the loyalists would have any interest in harming any person due to their whereabouts during the revolution.
80. Accordingly, the Tribunal finds that the applicants will not face a real chance of serious harm now or in the reasonably foreseeable future due to their imputed anti-Gaddafi political opinion arising out the applicants’ presence in Australia during the revolution.
81. The applicant has made claims in relation to the generalised violence and daily living issues in relation to current day Libya. The Tribunal stated at the hearing that these matters were best considered under the purview of complementary protection, and the applicant and advisor concurred with this view. However the Tribunal is aware that the applicants have not disavowed the claim itself in the refugee context, and thus it is incumbent on the Tribunal to consider these claims in the context of the Refugee Convention.
82. The Tribunal has considered these claims of a fear of generalised violence and daily living deprivations as put by the applicants in the context of s91R(1) of the Migration Act.
83. Under s.91R(1)(c) of the Act, persecution must involve systematic and discriminatory conduct. Section 91R(1)(c) provides:

For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
...
(c) the persecution involves systematic and discriminatory conduct.

84. The reference to ‘systematic... conduct’ in s.91R(1)(c) reflects judicially developed law as to the meaning of persecution.
85. In Chan v MIEA, McHugh J stated:

The notion of persecution involves selective harassment ... [It is not] a necessary element of “persecution” that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, she is “being persecuted” for the purposes of the Convention. (emphasis added)

86. Since then, a body of case law has developed around his Honour’s use of the expression ‘systematic conduct’ in that case. These cases have made it clear that in the Convention context the expression should be used with care.
87. In MIMA v Haji Ibrahim, McHugh J explained that his use of the expression ‘systematic conduct’ in Chan was not intended to mean that there can be no persecution for the purposes of the Convention unless there is a systematic course of conduct by the oppressor; rather it was used as a synonym for non-random.[21] His Honour held that:

It is an error to suggest that the use of the expression “systematic conduct” in either Murugasu or Chan was intended to require, as a matter of law, that an applicant had to fear organised or methodical conduct, akin to the atrocities committed by the Nazis in the Second World War. Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or “must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic”.[22]

88. The Tribunal considers that the conduct as claimed by the applicants falls into the unsystemic or random acts that are non-selective. The generalised violence and disruption to daily life are events that occur across the population and do not direct convention nexus for the applicants. Accordingly the Tribunal finds that this claim is not made out.

Complementary Protection

89. Having considered that the applicants do not have a well-founded fear under the Refugee Convention, the Tribunal must consider whether Australia has protection obligations due to there being substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm. The receiving country in this instance remains Libya.
90. Significant harm for these purposes is exhaustively defined in s.36(2A) and s.5(1) of the Migration Act. This states that a person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
91. The final type of significant harm listed in s.36(2A) is degrading treatment or punishment: s.36(2A)(e). Degrading treatment or punishment is exhaustively defined in s.5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
92. However, ‘degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
93. The Tribunal has to consider whether any of the claims as raised by the applicants show substantial grounds that there is a real risk that they will suffer significant harm. In relation to the political opinion and activity of the applicants, the Tribunal has considered the evidence of the applicants and the country information in relation to the current treatment of pro Gaddafi and anti-Gaddafi activists in Libya.
94. In relation to the applicants’ pro – Gaddafi opinion, the Tribunal has taken into consideration the country information that shows that many people in positions of influence prior to the fall of the Gaddafi regime remain in positions that are influential in the new regime. This is stated in the country information as seeking to avoid the ‘de-Baathification’ of the country, a reference to the activities in the post Saddam Hussain Iraq, which saw people from his political party hounded out of power, removing significant experience from the bureaucracy and created a basis for a new insurgent movement. The reports cited above regarding Libya state that those members of the regime who had ‘blood of their hands’ would not be tolerated in the new regime, however those who had been part of the Gaddafi government and systems of power who had not been implicated in the suppression of the people were remaining in positions of power and influence.
95. The applicant’s husband does not have ‘blood on his hands’, his clerical role with the Revolutionary Committee did not involve him in positions where he was involved in or responsible for acts of violence against the people of Libya. While he may be perceived as having some role in supporting the Gaddafi political manifesto, specifically the ‘Green Book’, this did not go beyond the organising of meetings and lectures. The Tribunal finds that the applicant would be able to return to his education position, and other miscellaneous employment activities that he was involved in, on return to Libya, and would not face a real risk of significant harm due to his pro-Gaddafi opinion.
96. The Tribunal does not accept that the applicant’s husband, and through him, the remaining applicants, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm for this reason.
97. The Tribunal notes that the anti-Gaddafi supporters were successful in their aim to remove the Gaddafi regime and supporting apparatus from power, and have created a democratically elected government to replace it. This action had the effect of removing individuals who had previously held positions of power and influence, which has caused some difficulty in the rebuilding of Libya. Some Gaddafi loyalists have taken steps to destabilise the new regime and represent an ongoing threat to the daily lives of Libyan nationals. The country information cited above demonstrates that there is ongoing violence arising out of the displacement of individuals from power due to the uprising of 2011.
98. The Tribunal has to consider whether the actions of these loyalists in destabilising the current government and systems put in place post Gaddafi constitutes substantial grounds for believing that there is a real risk that the applicants will suffer significant harm.
99. The Tribunal does not consider that the applicants themselves face a real risk of significant harm in terms of arbitrary loss of life, cruel or inhuman treatment or punishment, degrading treatment or punishment, or are likely to subjected to torture, or the death penalty. While violence does occur at present in Libya, there is nothing to suggest that the applicants are likely to face any of these circumstances with regard to the activism that they have been involved with. Significant numbers of Libyans were involved in the overthrow of the Gaddafi regime. Thousands of Libyans who fled during the fighting have returned to their towns and villages since the overthrow of Gaddafi. There is no evidence of widespread or targeted harm against these anti-Gaddafi individuals. Ordinary individuals, including family members of the applicants, have returned to ordinary lives, albeit with a heightened degree of vigilance for their personal safety.
100. The Explanatory Memorandum to the Migration Amendment (Complementary Protection ) Bill states that:

[a] real risk of significant harm is one where the harm is a necessary and foreseeable consequence of removal. The risk must be assessed on grounds that go beyond mere theory and suspicion but does not have to meet the test of being highly probable. The danger of harm must be personal and present.

101. The Tribunal considers that the fact that the applicants may be in a location in Libya that may be attacked by loyalists of the Gaddafi regime does not, having considered all the circumstances, present substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Libya, that there is a real risk that the applicants will suffer significant harm.
102. The Tribunal finds that the applicants do not face a real risk of significant harm for this reason.
103. The applicants have claimed that they fear the generalised violence that is occurring in Libya, and the general lack of law and order. They claim that their children will suffer mental harm from witnessing this generalised violence. They have provided the email from the applicant husband’s nephew in support of this random violence and loss of amenities. The Tribunal does take into account the evidence that there are sounds of gunfire, some checkpoints, land mined areas, and random acts of violence that every person in Libya can recount. The civil war that ended in late 2011 remains a prominent memory in Libyan society, such was the monumental change in the country. The Tribunal takes into account the evidence of the applicants that family members remain in jobs that they have held prior to, during and after the uprising against Gaddafi. The applicant also gave evidence children attend school, and that in many regards life goes on as it had done previously. The Tribunal does not consider that the children will face mental harm on return to a familial environment, where schools operate and employment opportunities for their parents are available. The Tribunal does not believe that, having considered all the circumstances, that there are substantial grounds for believing that these constitute a real risk as envisaged that the applicants face significant harm for this reason.
104. The Tribunal finds that the applicants do not face a real risk of significant harm for this reason.
105. The applicants have raised a claim that they will not be able to survive in Libya, with reduced levels of medical supplies, limited amounts of food and drink, and the poor quality of these products, and the growing presence of illicit drugs in the community.
106. The Tribunal has considered these claims in light of country information about Libya. While there have been shortages of some food stuffs arising out of the breakdown and destruction of infrastructure in Libya after the revolution, there is no information to suggest there are widespread deficiencies in food, medicine and other necessities such that the people of Libya cannot survive or prosper. Schools are continuing to operate, utility services and fuel supplies are still being provided, with some limited disruption, but not to a level as envisaged as degrading treatment or punishment. Accordingly, the Tribunal finds that this ground is not made out.
107. Accordingly, the applicants’ claims for complementary protection both singularly and cumulatively, are not made out.

CONCLUSIONS

108. The Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

DECISION

109. The Tribunal affirms the decision not to grant the applicants Protection (Class XA) visas.
     

[1] Holding Libya Together: Security Challenges after Qadhafi
Crisis Group Middle East/North Africa Report N°115, 14 December 2011
[2] US Country Report on Human Rights Practices for 2011 – Libya: EXECUTIVE SUMMARY http://www.ecoi.net/local_link/217710/324340_en.html
[3] OPERATIONAL GUIDANCE NOTE: Libya – UK Border Agency 7 September 2012
[4] Meo, N 2012, ‘Tripoli one year later: 'The loss of my five sons is the price I have had to pay’, The Telegraph, 25 August <http://www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/9499196/Tripoli-one-year-later-The-loss-of-my-five-sons-is-the-price-I-have-had-to-pay.html> ‘Libya seizes tanks from pro-Gaddafi militia’ 2012, Al Jazeera, 24 August, http://www.aljazeera.com/news/africa/2012/08/201282415813211951.html, Quinn, B 2012, ‘Gaddafi loyalists held over deadly blasts in Libyan capital’ 2012, The Guardian, 20 August http://www.guardian.co.uk/world/2012/aug/20/gaddafi-loyalists-held-blasts-libya, Zapita, S 2012, ‘Ministry of Interior condemns Eid car bombs as ‘cowardly and terrorist’’, Libya Herald, 25 August <http://www.libyaherald.com/?p=13197; Kirkpatrick, D and Nordland, R 2011, ‘Waves of Disinformation and Confusion Swamp the Truth in Libya’, The New York Times, 23 August <http://www.nytimes.com/2011/08/24/world/africa/24fog.html?pagewanted=all
[5] Meo, N 2012, ‘Tripoli one year later: 'The loss of my five sons is the price I have had to pay’, The Telegraph, 25 August <http://www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/9499196/Tripoli-one-year-later-The-loss-of-my-five-sons-is-the-price-I-have-had-to-pay.html> ‘Libya seizes tanks from pro-Gaddafi militia’ 2012, Al Jazeera, 24 August <http://www.aljazeera.com/news/africa/2012/08/201282415813211951.html; Quinn, B 2012, ‘Gaddafi loyalists held over deadly blasts in Libyan capital’ 2012, The Guardian, 20 August <http://www.guardian.co.uk/world/2012/aug/20/gaddafi-loyalists-held-blasts-libya
[6] Meo, N 2012, ‘Libya: Saif Gaddafi to go on trial next month’, The Telegraph, 18 August <http://www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/9484459/Libya-Saif-Gaddafi-to-go-on-trial-next-month.html
[7] Meo, N 2012, ‘Libya: Saif Gaddafi to go on trial next month’, The Telegraph, 18 August <http://www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/9484459/Libya-Saif-Gaddafi-to-go-on-trial-next-month.html
[8] NATO Civil-Military Fusion Centre 2012, Mediterranean Review, 28 August, p.2
[9] ‘Libya seizes tanks from pro-Gaddafi militia’ 2012, Al Jazeera, 24 August <http://www.aljazeera.com/news/africa/2012/08/201282415813211951.html; Zapita, S 2012, ‘Ministry of Interior condemns Eid car bombs as ‘cowardly and terrorist’’, Libya Herald, 25 August <http://www.libyaherald.com/?p=13197
[10] Zapita, S 2012, ‘Ministry of Interior condemns Eid car bombs as ‘cowardly and terrorist’’, Libya Herald, 25 August <http://www.libyaherald.com/?p=13197
[11] ‘Libya seizes tanks from pro-Gaddafi militia’ 2012, Al Jazeera, <http://www.aljazeera.com/news/africa/2012/08/201282415813211951.html; ‘Tarhouna military leader kidnapped’ 2012, Libya Herald, 3 June <http://www.libyaherald.com/?p=8497; ‘Libyan government regains control of Tripoli airport’ 2012, BBC News, 4 June <http://www.bbc.co.uk/news/world-africa-18324501> [12] ‘Libya seizes tanks from pro-Gaddafi militia’ 2012, Al Jazeera <http://www.aljazeera.com/news/africa/2012/08/201282415813211951.html> [13] ‘Libya seizes tanks from pro-Gaddafi militia’ 2012, Al Jazeera, 24 August <http://www.aljazeera.com/news/africa/2012/08/201282415813211951.html> [14] http://www.ipsnews.net/2012/08/gaddafi-loyalists-up-in-arm s/
[15] http://world.time.com/ 2012/08/09/what-lies-ahead-for-libya-an-interview-with-the-prime-minister/
[16] Libya: Interview with Ian Martin, Secretary-general’s Special Representative for Libya, UN News Service
[17] Freedom House: Women's Rights in the Middle East and North Africa 2010 – Libya, 3 March 2010
[18] Social Institutions & Gender Index: genderindex.org/country/libya undated,
[19] USA Today, Women frustrated by lack of representation in Libya 1 December 2011 http://www.usatoday.com/news/world/story/2011-12-01/libya-women-government/51555266/1?csp=34news
[20] HRW The Women’s Lib movement in Libya sees a surprising twist, 24 November 2011
http://www.hrw.org/news/2011/11/24/womens-lib-movement-libya-sees-surprising-twist
[21] MIMA v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1 at [95].
[22] MIMA v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1 at [99].