1509054 (Refugee)

1509054 (Refugee) [2018] AATA 2239 (25 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1509054
COUNTRY OF REFERENCE:                  Algeria
MEMBER:Louise Nicholls
DATE:25 June 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 25 June 2018 at 2:55pm

CATCHWORDS
Refugee – Protection visa – Algeria – Fears serious harm from terrorist groups – Father kidnapped – No detailed evidence to support claim – Religion – Atheist – No public declaration of atheism – Returned to Algeria – Vague evidence – No real risk of serious harm – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant claims to be a citizen of Algeria and he is [age] years of age. He was born in [Town 1], in the Jijel area of Algeria and speaks English, Arabic and French. He entered Australia on 16 July 2013 as the holder of [a temporary] visa.
On 14 November 2013 applied for a Protection visa and provided a number of documents with his application, including:
·A photocopy of the applicant’s Algerian passport.
·[Country 1] government certificate of good conduct.
·An Algerian media report on a terrorist incident in the Jijel area dated 24 April 2012. (as an example of the nature of terrorist incidents)
·Extracts from Refworld (UNHCR website) and other sources- country information on terrorism, religious freedom and military service in Algeria.
·Translation of applicant’s national service enlistment order dated [September] 2013.
·Translation of certificate attesting to the applicant’s [several] sisters not drawing wages or any family allowance dated 21 November 2013.
·Applicant’s residence and family relationship statement dated 21 November 2013.
·Death certificate for [Mr A] dated 4 June [2006].
The applicant attended an interview with the delegate of the Minister for Immigration and Border Protection on 16 March 2018.
On 16 June 2015 the delegate refused to grant a Protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for the visa.
There are no certificates on the Departmental file restricting the disclosure of any information on that file.
This is an application for review of the decision to refuse the visa and it was made on 6 July 2015. The applicant provided a number documents to support his application for review, including,
·The first page of the delegate’s decision record.
·Several items of country information from various sources.
·The biodata page of the applicant’s Algerian passport issued by the Algerian Embassy on [date] 2017 in Canberra.
·Summons addressed to the applicant to attend National Defence transit centre of Constantine on [date] September 2009.
·Translation of Algerian exemption card from National Service issued on [date] December 2016.
·Translation of media message issued by the Qaedat Al Jihad Organisation in Islamic Maghreb Countries.18 July 2015.
·Translation of identity details for [a named person].
·Photograph of an individual said to be the applicant’s father sitting in a [chair] with a mark on his [body].
The applicant appeared before the Tribunal on 15 March 2018 to give evidence and present arguments. The applicant gave evidence about his background, his claims for protection and his current circumstances. As a general comment, despite the applicant being well educated and generally articulate, the Tribunal found the applicant’s evidence on significant issues to be vague and unfocussed. He was either unwilling or unable to provide any detailed evidence relating to his current claims and the context in which they arose.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION
The relevant law is set out in Attachment A.
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection.
What is the country of reference?
The applicant claims he was born in the Jijel area of Algeria and is a citizen of Algeria. He provided a copy of his current Algerian passport which was issued in June 2017 as well as other identity documents. He has consistently claimed that he is of Algerian nationality and at the hearing he was familiar with the geography and culture of Algeria.
There is no suggestion that he is a citizen of any other country and the Tribunal accepts, on the evidence before it, that the applicant is a citizen of Algeria and that Algeria is the receiving country for the purposes of s.36(2)(aa).
What are the applicant’s claims?
The applicant’s claims are contained his application for a protection visa lodged on 14 November 2013. The applicant discussed his claims with delegate at the interview held on 16 March 2015.
At the Tribunal hearing held on 15 March 2018 the applicant gave evidence outlining his current claims and discussed those claims.
The applicant initially claimed that he feared returning to Algeria because he had been summoned to enlist in compulsory military service and he believed that if he completed his military service he would be targeted for harm by terrorist groups operating in Algeria and more particularly near his home. He referred to the killing of a friend in his area in 2006 and how that had affected him. He also claimed he feared the military authorities because he had failed to answer his summons for enlistment and he also feared the terrorist groups because they will think he is supporting the Algerian government.
In his original claims he stated that if he returned he would be detained at the airport and taken to a military base where he would be gaoled, then trained, and then put on the frontline fighting against terrorists. After he completed his military service he would then return home and be targeted by terrorists because of his forced military service. He also referred to the economic difficulties his family would experience if he were killed.
However, the applicant’s circumstances have significantly changed since he originally applied for protection. He has returned for a visit to Algeria in 2017 and during his visit he married. Prior to his visit he obtained exemption from military service.
Essentially his current claims are that he fears returning because he no longer believes in Islam and Islamic extremists in his local area will target him if it becomes known that he is no longer a Muslim.
Background
The applicant was born on [date] and is now [age] years of age. He was born in [Town 1], in the Jijel area of Algeria and speaks English, Arabic and French. He describes himself as a Berber. At the time he made his application he was not married but in later documents he advised that he married in 2017.
The applicant was born and grew up in a rural area of Algeria near the town of Jijel. He explained that the area he came from was a [rural] area with a number of small villages and the family had some economic constraints.
He lived in Algeria from birth and attended school in the town of Jijel and then university in Setif, Algeria. He then studied tourism and languages in [Country 1] from April 2011 to December 2012. He completed his studies in [Country 1] in 2012 and returned to Algeria where he worked a [occupation] in Algiers and in a number of different jobs.
The applicant entered Australia as the holder of a [temporary] visa in July 2013 and undertook an internship in [Australian city 1], Australia. He joined a friend from [Country 1] in Australia and the friends currently share their accommodation in [Australian city 1]. He is working as a [occupation] in [Australian city 1].
In September 2017 the applicant advised the Department that he had married during his July/September 2017 visit to Algeria.
The applicant gave evidence that he has a large family; he has [several siblings]. He told the Tribunal that his father has abandoned the family and the family does not know his whereabouts. The applicant stated that his [sisters] and mother lived at the family home in the village and were not working. He stated that his only brother had [a medical condition] and had limited capacity to work and his mother and sisters relied on the applicant for much of their financial support.
Assessment of claims and evidence.
Claims made in the protection visa application - November 2013
In the applicant’s application for protection he claimed that he left Algeria because he knew that the military would send the final notice to enlist in compulsory military service. If he took part, it would lead to his death. His family had ordered him to leave the country to save his life.
He lived in a poor family; [several children] and his parents. The only income was his father’s pension which was about 150 AUD a month which was not sufficient for [several] persons. The family rely on the applicant to improve their life.
He experienced psychological harm when a group of terrorists killed a friend and [killed] him in the applicant’s presence. They killed his friend because they knew that he had undertaken military service. The terrorists consider those who do their military service as their first enemy and they will execute them immediately.
He lives in [a rural area] far from security coverage and the terrorists will take him as their hostage. He claimed they can easily find him if he engages in military service and they will kill him, his brother and his family. As he is from a poor family, he cannot afford to move to a safe region.
He claimed he feared both the military and the terrorists. The military will consider he has disobeyed the summons for enlistment and will put him in the first line to fight the terrorists. The terrorists will consider him as an enemy because they think he is supporting the government.
He claimed that if he returned to Algeria he would be wanted by the military. If he goes back they will catch him at the airport and take him to a military base straightaway. He fears they will put him in a military gaol, then he will have training using weapons and then they will put him on the frontline fighting terrorists. This will last for 18 months and when he finishes his service he will be obliged to go back to his home and there the terrorists will easily find him and kill him immediately.
If he dies the government will give nothing to his family and supporting his family is a very important issue to him because they rely on him. Since his family have two boys and his brother is suffering from [a medical condition] and has [another physical impairment], it is hard for him to work. He has [several] sisters and none of them are working because in his community it is preferred that girls do not work. His father is [age] years old and has a pension of just AU$150 a month so if he dies no one can take care of his family.
At the interview in March 2015 the applicant elaborated on some of the claims he made in his application. He stated that he and his friend [Mr A] were taken by terrorists in 2006 and that his friend [Mr A] was killed because he had undertaken military service. The applicant claimed he was unharmed because he had not been involved in military service.
The applicant claimed that some members of a terrorist group visited him at home and have spoken to him. He claimed they would be aware if he did his military service and he would be killed. The applicant claimed that the terrorists knew he was an atheist and this would increase his profile as a target. He claimed a [friend] joined the terrorists in 2014 and told them about his atheism.
Claims made at the Tribunal hearing
The applicant told the Tribunal that his mother was living in his home village in [a rural] area near Jijel. His father has abandoned the family and they have no contact with him. He is [retired]. He claimed his father has changed his telephone number and his family do not know his exact whereabouts.
His mother does not work, his [sisters] are unmarried and do not work and his brother did not finish high school and has just started to learn [a trade skill]. His youngest sister is studying to become a [occupation].
He told the Tribunal he returned to Algeria in July 2017 for a period of about five weeks. His mother had a [health] condition and he went to visit her and make sure that she was well. During the time he was in Algeria he married. He explained that the marriage was arranged and couple were second cousins. His wife works in [a certain] department and is completing her [university studies].
He stated that he applied for protection in Australia in 2013 because he was concerned that if he returned to Algeria he would be called up for military service. The Tribunal pointed out that he had provided a military service exemption card which indicated that he no longer had any military services obligations. He stated that his father had left the family and there was no money to support his mother and sisters. His mother sought military exemption for the applicant on the basis that her husband had left the family and the applicant needed to support the family; the request was granted. The applicant stated when he returned to Algeria in 2017 he was granted the exemption and nothing adverse happened to him. He did not encounter any problems with the authorities.
The applicant told the Tribunal the reason he now feared returning to Algeria was because he was an atheist. He stated that the area in which he lived was a conservative area and that the Islamists in the area would target him for his atheist views if he returned. He claimed that Islamists in his area would be aware of his views because one or more of his cousins would have told them about him. He explained during the hearing that he came from a large extended family who had lived in [a rural] area near Jijel. They all knew each other and some of his cousins had joined the Islamists. They used to come home from time to time and chat and this is how they would know he is an atheist.
He grew up as a normal Muslim but he has changed and is not practising as a Muslim.He also stated a close friend from his youth had joined the Islamists in 2014 (Al Qaeda in the Islamic Maghreb -AQIM). He claimed that members of the group had come to his home whilst he was in Australia and asked about him. He claimed they would accuse him of apostasy if he returned and he would be killed.
The Tribunal put it to the applicant that if the kidnappers were known to the family they would be aware he went to [Country 1] and then later to Australia.
The Tribunal put it to him that as he claimed the fear was local to his area he could relocate to Algiers and would be able to live there safely. It noted that he had lived and worked in Algiers in the past. He stated the terrorists knew him and will find it easy to find him.
The Tribunal put it to him that despite his claims that he faced serious harm if he returned to Algeria, he had returned in 2017 and stayed in Algeria for five weeks without facing any problems. He claimed he stayed in Algiers and kept a low profile. He claimed that when he returned his mother was ill and had to have surgery in Algiers and she stayed with his uncle. He stayed in a different place.
The applicant stated that they had the marriage registered at the local council. He showed the Tribunal the original marriage registration in Arabic. He stated that his wedding was a small affair between the two families with only about 15 people attending the wedding reception. His wife lives in Algiers and they speak every day.
The Tribunal asked the applicant what he feared if he returned to Algeria and he stated that if the terrorists found him that there was a 100% certainty he would be killed.
He claimed his father was kidnapped by terrorists about two years ago. As far as he knew, the kidnappers referred to the applicant not being a Muslim; his father stated that it was not true but they could kill the applicant if they wanted and his father was then released. He claimed the kidnappers took him away but later released him. His father returned to Algiers to the [shop] where [one] of the applicant’s friends took photographs of his father. The applicant explained he used to work in this [shop] before he left Algeria. Since his release, his father has not had any contact with his family. The applicant stated that he was not a good father and did not care for the applicant or the family.
The Tribunal told the applicant it had difficulty with his account of events; he was vague and the account lacked detail. It noted the photographs which he claimed showed injuries sustained by his father had been sent to the Tribunal after his application for protection had been refused. The Tribunal pointed out the photographs showed a person with [marks] but there was nothing in the photographs which indicated how he sustained these [marks].
The Tribunal put it to him that Algiers was a large city with a population of three million and the chances of being located by a group of Islamists from his local area was remote. Further the applicant had not satisfactorily explained why they would particularly target the applicant. He stated that they knew he was an atheist.
The Tribunal discussed country information with the applicant. It put it to him that the Algerian security forces have been successful in removing terrorist groups. It also noted the security situation had changed significantly in the last twenty years. Whilst he acknowledged that things had been worse during his childhood he stated that the terrorists were still operating in Algeria and in his local area. He stated that there was a military base about four kilometres from his home village. He stated that government reports were not reliable. The Tribunal put it to him that it had consulted a variety of reports on the security situation in Algeria.
The Tribunal noted country information which indicated that the security forces have destroyed AQIM. The latest country information indicates that the Algerian government has been so successful that AQIM has left Algeria and mainly operates in Libya and Mali. The emir of AQIM was reported in saying the support for the cause is very good except for Algeria where scarcity and lack of support has had a significant impact on the group. AQIM have left Algeria and moved to other north African countries.
The applicant claimed that there were different groups; some in the mountains and some in the desert but they still come home.
The Tribunal noted the latest UK Home Office guidance information on Algeria which was produced in August 2017. That report noted in its summary of risk that some groups were operating in the rural areas in the south of Algeria and mostly targeted security and local government forces, energy facilities and had in the past kidnapped foreign individuals. However the report noted there had been no kidnappings reported since 2014. The report stated that Algerian civilians were not targeted by terrorists groups and an ordinary person would not be at risk.
The applicant stated that the problem was that he had changed his religion. The Tribunal put to him that he had not changed his religion but was not practising Islam and no longer believed in that religion. He stated that the terrorists wanted people to follow Islam.
The UK Home Office report also stated that Algerian authorities exercise effective control of security, that police are professional and responsive to calls for assistance. It noted most people live in Algiers and Oran and those cities were safe. The applicant stated he could live in Algiers but it would be easy for the terrorists to find him due to family networks. He stated he came from a large family group living in the area near Jijel. The Tribunal put it to him that he had returned for five weeks in 2017 and was married during that time so that his family networks would have been aware of his return. He stated he kept a low profile.

At the end of the hearing he stated terrorism still exists in Algeria and whilst he is happy to go back and see his mother from time to time, he cannot return to live there permanently.
Algeria’s insurgency and recent history
The CIA Factbook provided a snap shot of Algeria’s recent history[1]:
‘After more than a century of rule by France, Algerians fought through much of the 1950s to achieve independence in 1962. Algeria's primary political party, the National Liberation Front (FLN), was established in 1954 as part of the struggle for independence and has since largely dominated politics. The Government of Algeria in 1988 instituted a multi-party system in response to public unrest, but the surprising first round success of the Islamic Salvation Front (FIS) in the December 1991 balloting led the Algerian army to intervene and postpone the second round of elections to prevent what the secular elite feared would be an extremist-led government from assuming power. The army began a crackdown on the FIS that spurred FIS supporters to begin attacking government targets. Fighting escalated into an insurgency, which saw intense violence from 1992-98, resulting in over 100,000 deaths - many attributed to indiscriminate massacres of villagers by extremists. The government gained the upper hand by the late-1990s, and FIS's armed wing, the Islamic Salvation Army, disbanded in January 2000.
‘Abdelaziz Bouteflika, with the backing of the military, won the presidency in 1999 in an election widely viewed as fraudulent and won subsequent elections in 2004, 2009, and 2014. The government in 2011 introduced some political reforms in response to the Arab Spring, including lifting the 19-year-old state of emergency restrictions and increasing women's quotas for elected assemblies, while also increasing subsidies to the populace. Since 2014, Algeria’s reliance on hydrocarbon revenues to fund the government and finance the large subsidies for the population has fallen under stress because of declining oil prices.
[1] CIA, ‘World Factbook’, Algeria, updated 19 June 2017,
The US International Religious Freedom Report for 2017 notes that the Algerian constitution allows for freedom of conscience and worship, however, Islam is the state religion and the constitution prohibits state institutions from acting in a manner incompatible with Islam. Individuals have the right to practice their religion as long as they respect public order and regulations. Insulting any religion is a crime.
With respect to religion Janes Sentinel reports[2]
‘The vast majority of people in Algeria are Muslim, and consequently cultural and religious differences are few. Very small numbers of Christians and Jews (1%) complement the majority Muslim population (99%).
‘Sunni Islam is the official state religion. Radical religious revivalism is a major concern for the government, and the rise in the influence of Islamist groups led to the declaration of a state of emergency in 1992 and the banning of the Islamic Salvation Front. Extremist forms of Islam are now restricted to the political fringes.’
Does the applicant face harm from as a result of his failure to complete national service in Algeria?
[2] Janes (IHS Market), ‘Sentinel Security Risk Assessments’ (Algeria – Demography), posted 3 February 2017,
The applicant’s initial claims were that he feared harm from the military authorities on the basis that he had failed to answer an enlistment summons to complete military service in 2013. He also stated that if he was forced to do military service he would then face serious harm from terrorist groups in his local area due to the perception that he was a supporter of government authorities.
The applicant gave evidence that he has now been provided with military exemption from national service, he also provided a copy of the military exemption certificate and at the hearing told the Tribunal that he no longer feared the military authorities because he has obtained exemption from national military service. He explained that his mother initiated the request for exemption on the basis that he was required to provide support for the family.
The Tribunal notes that the applicant continues to make claims regarding his fear of serious harm from terrorist groups. However, he does not claim that this fear arises from any requirement to complete military service.
Accordingly the Tribunal does not accept that the applicant faces any harm from military authorities for reasons of his previous refusal to answer the summons for military service and does not accept that he will face serious harm from any Islamic extremist or terrorist groups for reasons of a perception that he supports the Algerian military authorities or the Algerian government.
Does the applicant face harm from Islamic terrorist groups as a result of the loss of his Islamic faith?
The Tribunal does not accept the applicant will face serious harm from terrorist groups in Algeria area because they have become aware that he is no longer a Muslim.
The evidence before the Tribunal indicates, and the Tribunal accepts, that whilst the applicant grew up in a relatively isolated rural area he attended university in Setif, Algeria and then lived and worked in Algiers. After he worked in Algiers in a [shop] with his father, he travelled to attend a course of study in [Country 1] (2011/2012) before he came to Australia to complete an internship in 2013. The Tribunal considers that if the applicant returned to Algeria he would return to live in Algiers where he has lived and worked in the past and where his wife is currently working and living.
The Tribunal accepts that the applicant no longer practices his Muslim faith. However, the Tribunal considers that the applicant has not made any public declarations of atheism and has not done anything publicly to attract attention to his loss of faith. He claims that his extended family group or clan would be aware of his loss of faith; however, his account of how this knowledge would have become known or shared was vague and unsatisfactory. The Tribunal considers he is a non-practising Muslim but has not done anything to draw attention to his lack of religious belief.
He claimed his close friend joined Al Qaeda in the Islamic Mahgreb (AQIM) in 2014 and that he would have conveyed information about his lack of faith to others in the group. The Tribunal does not accept this claim. The applicant did not explain how his friend in Algeria would be aware of his religious beliefs whilst the applicant was living in Australia from 2013. Further as discussed with the applicant, the current country information indicates that AQIM no longer operates in Algeria and that the emir of the group admitted that popular support in Algeria was almost zero and that Algeria was a dead zone for the group.
In his April 2017 interview for Inspire[3], the propaganda sheet of al-Qaeda in the Arabian Peninsula, Abdelmalek Droukdel, the "emir" of al-Qaeda in the Islamic Maghreb, or AQIM, stated:
- Abdelmalek Droukdel, 'emir' of AQIM
"Support for the cause is generally good, with the exception of the Algerian front," he said.
"We are bogged down in a long war. The Algerian front suffers from scarcity, and sometimes an almost complete lack of support - inside and out.
"This has had a terrible impact."
[3] ANALYSIS: The slow death of al-Qaeda in Algeria” 1 February 2018 >
Middle East Eye[4] reports that
AQIM has failed to carry out major attacks in Algeria for several months. The Algerian army says it eliminates an average of 200 militants each year and armed groups are finding it increasingly difficult to maintain their numbers.
So much so that last October, according to an Algerian security source, militant leaders pleaded for reinforcements from its allies in Tunisia and Libya.
How can the change in fortunes be explained? According to a retired Algerian major general, the state is "reaping the benefits of an anti-terrorism policy it has been pursuing for more than 20 years".
"This terrorism, we have always understood as both a security problem but also psychological, economic and cultural," he said.
Military operations, he said, were being run in tandem with efforts to marginalise armed groups' influence on the population.
As a result, "an almost complete absence of support inside", to use Droukdel's expression, is now manifest.
[4] “ANALYSIS: The slow death of al-Qaeda in Algeria” 1 February 2018 >
The UK Home Office reported in August 2017 [5]
[5] UK Home Office Country Policy and Information Note Algeria; Fear of Islamic Terrorist Groups August 2017
2.3.1 Islamic terrorist groups operating in Algeria are generally affiliated to Al Qa’ida in the Maghreb (AQIM) or Daesh. These groups advocate a strict interpretation of Islamic Law and their aim is to create an Islamic state in the region, using all necessary means, including violence (see Armed groups).
2.3.2 Sources report that Islamic terrorist groups operate in the north eastern Kabylie region and along Algeria’s borders but as a result of the government’s counter-terrorism measures they do not control any territory and do not have the capacity to undertake an attack in a major city (see Spheres of influence, capacity and targets).
2.3.3 Islamic terrorist groups operating in Algeria are generally affiliated to Al Qa’ida in the Maghreb (AQIM) or Daesh. These groups advocate a strict interpretation of Islamic Law and their aim is to create an Islamic state in the region, using all necessary means, including violence (see Armed groups).
2.3.4 Civilians generally are not targeted by terrorist groups. Available data indicated that in 2016 there were 10 incidents of violence against civilians, causing the deaths of four civilians in one incident. As of August 2017, there were no credible reports of attacks on civilians during the year (see Terrorist incidents in 2016/17 and Spheres of influence, capacity and targets).
2.3.5 It is therefore unlikely that an ordinary civilian returning to Algeria will be at real risk of persecution or serious harm because of Islamic terrorist activity.
2.4.1 The government purses an aggressive campaign to eliminate terrorist activity and has a large, robust security apparatus to thwart terrorism threats. It has been largely successful in limiting the reach and impact of terrorist groups, and has severely impeded the terrorists’ ability to operate (see Government counter-terrorism operations).
2.4.2 The government has virtually eradicated one Daesh affiliated group and claimed in 2016 that there was no Daesh presence in Algeria (see Government counter-terrorism operations).
2.4.3 The government has significantly increased border security measures, including working jointly with the Tunisian government, in an attempt to prevent terrorist incursions. These operations have had some success, although due to the length of the borders in the desert, plus the instability in Libya, they have not been able to prevent all infiltration, particularly in the south east of the country (see Security forces and Government counter-terrorism operations).
2.4.4 Civilians living in the main urban areas in the populated north of the country would be able to seek government protection against a terrorist threat and the government is in general able and willing to provide it. The onus will be on the person to show that their circumstances are such that they would be unable to seek and obtain effective state protection.
3.1.1 Although Islamic terrorist groups operate in Algeria they are limited in size and capacity by the government and ordinary civilians living in the northern populated part of Algeria are not generally targeted.
3.1.2 There have been occasional attacks aimed at the security forces in rural areas which have resulted in civilian casualties. However considering the size of the general population against the capabilities of terrorist groups and the relatively low number of reported attacks, the risk of civilians being subject to serious harm by terrorist groups is statistically very low.
3.1.3 The government has a robust security apparatus and is able and willing to provide effective protection.
The Tribunal does not accept the applicant’s claim that his father was kidnapped and questioned by members of an Islamic terrorist group two years ago (2016). His account of events was confused and lacked plausible detail.
On the applicant’s own evidence, such persons would have been aware that he had left Algeria in 2013 and not returned at the time of the claimed kidnapping.
The applicant did not state how long his father had been kidnapped and where he had been taken.
The Tribunal also does not accept that that his father had allegedly told the terrorists that their claim that the applicant did not believe in Islam was not true, but they could kill him if they wished.
It also does not accept that following this alleged incident the applicant’s father returned to the [shop], satt in one of the [chairs] and had his [body part] photographed by a friend of the applicant’s and then disappeared, changed his telephone number and abandoned his wife and [children] living in Algeria. The photographs provided by the applicant were sent to the Tribunal after the delegate’s refusal decision and showed a person sitting in a [chair] with an apparent [mark] on his [body]. The photographs do not show the nature of the claimed injuries or how and when they were sustained. The Tribunal has not given the photographs any weight in coming to its conclusion that the applicant’s father was not kidnapped and questioned as claimed.
Further, despite claiming to fear serious harm from members of terrorist groups from his local area, the applicant returned to Algeria in 2017 for a period of five weeks to visit his mother who was unwell. During this visit he married his current wife but claimed that during his visit he kept a low profile in Algiers.
However, his evidence that he kept a low profile cannot be reconciled with evidence he gave that that if he returned to Algeria to live, his whereabouts and activities becoming easily known to members of the terrorist groups due to his family and clan networks and that he would consequently be at risk of serious harm from members of those groups. If this was the case, given the dire consequences he predicted if he returned to live in Algeria, the Tribunal does not accept he would have willingly returned for a period of five weeks and certainly would not have gone through a marriage with a second cousin which would have become well known as a result of communication through family and clan networks. The Tribunal finds that the applicant’s conduct in returning and going through a marriage arranged by family members is not consistent with the applicant having a genuine fear that he will face serious harm if he returns to Algeria.
Taking into account the evidence before it, including the country information, the Tribunal does not accept the applicant’s claim that terrorist groups are operating in the local area of Jijel and that they will harm him if he returns to live in Algeria in the foreseeable future because he no longer believes in Islam. It considers if he returns he will live in Algiers because he has lived and worked there before he departed Algeria and his wife is living and studying in Algiers. The country information discussed with the applicant indicates that the northern coastal cities are secure and that authorities provide effective state protection against any threats of harm from terrorist attacks.
Berber ethnicity
The applicant has not at any time made any claims that he will face serious or significant harm if he returns to Algeria as a result of his Berber ethnicity. However, notwithstanding the absence of specific claims, the Tribunal has considered country information on the situation of Berbers in Algeria.
The country information indicates that Berbers are the largest ethnic minority in Algeria.
The CIA Factbook stated that the population of Algeria is 99% mixed Arab-Berber and less than 1% European. It further observed that:
‘… although almost all Algerians are Berber in origin (not Arab), only a minority identify themselves as Berber, about 15% of the total population; these people live mostly in the mountainous region of Kabylie east of Algiers; the Berbers are also Muslim but identify with their Berber rather than Arab cultural heritage; Berbers have long agitated, sometimes violently, for autonomy; the government is unlikely to grant autonomy but has offered to begin sponsoring teaching Berber language in schools’.[6]
[6] CIA, ‘World Factbook’, Algeria, updated 19 June 2017 (ibid.)
A research response by the Canadian Immigration and Refugee Board of Canada in 2013[7] noted
According to Freedom House, the Berbers [also called Amazighs (CMA Nov. 2011, intro.)] comprise the largest ethnic group in Algeria (Freedom House 2011).
Sources note that the Kabyle constitute just one of Algeria's Berber groups (Director, Feb. 25, 2013; Jeune Afrique Nov. 25, 2009). Jeune Afrique, a weekly reporting African news, explains: (translation)
The Berber language, Tamazight, has at least six variations in Algeria, and fragments the Berber entity into six offshoots: the Kabyle, Chaouis, Touaregs, Mozabites, Zénètes (black Berbers) and Chenouis. (Jeune Afrique 25 Nov. 2009)
According to AFP, Berberophones, who include residents of the Aurès and Mzab region in addition to residents of Kabylie, account for 25 to 30 percent of the Algerian population (June 3, 2010). L'aménagement linguistique dans le monde, a Université Laval website outlining the linguistic situation and policies in 195 countries (L'aménagement linguistique n.d.), indicates that the Berbers make up about a third of Algeria's population (ibid. May 3, 2010). For its part, the MRG claims that about a quarter of the Algerian population consider themselves Berber (2011, 212).
According to Freedom House, the Berber language Tamazigh [also written as Amazigh] is spoken by some 14% of the Algerian population (Freedom House 2011). Certain sources indicate that Tamazight was officially recognized as a national language in 2002 (MRG 2011, 212; L'aménagement linguistique, May 3, 2010; AFP June 3, 2010). L'aménagement linguistique dans le monde states that with its recognition as a national language, (translation) "the Algerian State can no longer, at least not openly, combat Tamazight" (May 3, 2010). L'aménagement linguistique dans le monde explains, however, that in recognizing Tamazight as a (translation) "national language" but not an "official language," the State is committed to "promoting" Tamazight, "but not to using it (contrary to Arabic)" (May 3, 2010). But Berber activists want Tamazight recognized as one of Algeria's official languages, like Arabic (Algérie 1 20 Apr. 2013; Jeune Afrique 25 Nov. 2009).
[7] Algeria: information on the Mouvement pour l'autonomie de la Kabylie (MAK), including its activities and the treatment of MAK members at the hands of the authorities and Islamists; treatment of Berbers by the authorities and Islamists (2009 - March 2013)Research Directorate, Immigration and Refugee Board of Canada, Ottawa DZA104327.FE 16 August 2013 >
The report also notes that, in the past, Berber activists have agitated for greater recognition of the Berber language and identity which has been occasionally marked by violent demonstrations. Freedom House noted that in recent years the authorities have made efforts to respond to Berber’s cultural demands by promoting the Berber language but that activist groups claim that these attempts do not go far enough. However, Berbers occupy or have occupied major posts within government including the former prime minister, the prime minister serving in February 2013, the chief of military intelligence and several high placed generals.

The applicant has not claimed to face any harm for reasons of his Berber ethnicity. The Tribunal notes that the applicant attended school and university in Algeria and was able to find work in Algiers prior to his departure for a further course of study in [Country 1]. He was also able to secure a tourism internship in Australia. In his application he noted that he completed the Baccalaureate Diploma and a university degree and was fluent in Arabic, French and English. Members of his family have also lived in the Jijel area and in Algiers.
The Tribunal accepts that there have been past conflicts between those who identify as Berbers and government authorities over the promotion of Berber language and cultural identity. However, there is no information before the Tribunal that members of this large ethnic minority face serious or significant harm for reasons of their ethnicity and the Tribunal does not consider that the applicant will face harm for this reason if he returns to Algeria now or in the foreseeable future.
Does the applicant meet the refugee criterion?
Taking into account the findings set out above and having considered the claims, singularly and cumulatively, the Tribunal does not accept that if the applicant returns to Algeria now or in the foreseeable future there is a real chance the applicant will face serious harm for reasons of his failure to enlist for military service, because he does not practice Islam or for reasons of his Berber ethnicity. Accordingly, it does not accept he faces a real chance of persecution for imputed political opinion, religion or ethnicity.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any Convention related reason.
Does the applicant meet the complementary protection criterion?
The Tribunal has considered whether on the evidence before it, that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Algeria.
The Tribunal considers that the applicant has been exempted from military service and as a consequence he will not face significant harm from the military authorities or government or this reason if he returns to Algeria. His visit in 2017 for five weeks demonstrates that he will not face harm for this reason.
It has also considered that he no longer considers practices as a Muslim but for reasons set out above does not accept he will face significant harm from government authorities or members of the community for this reason.
The Tribunal accepts that the applicant identifies as a Berber and that as an ethnic group that Berbers have in the past felt marginalised due to lack of respect for their language and culture. Some years ago Berbers and government authorities were involved in violent demonstrations regarding this issue but in recent years the government has attempted to address the language and cultural concerns of the Berber community. There is no information which suggests that if the applicant was removed from Australia to Algeria that he would face arbitrary deprivation of life, the death penalty, torture or inhuman or degrading treatment or punishment for reasons of his Berber ethnicity.
Having considered the applicant’s circumstances singularly, and on a cumulative basis, and for all the reasons set out above the Tribunal is not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Algeria that there is a real risk he will be arbitrarily deprived of his life, will suffer the death penalty, or be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Louise Nicholls

Senior Member
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and 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 ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
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 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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

100. 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)). Examples of ‘serious harm’ are set out in 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.
101. 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.
102. 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.
103. 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 ‘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.
104. 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.
105. 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
106. 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’).
107. ‘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.
108. 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.
Section 499 Ministerial Direction
109. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

[2018] AATA 2239

25 June 2018

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