1910838 (Refugee)

[2024] AATA 4144

1910838 (Refugee) [2024] AATA 4144 (8 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Sophie Roden

CASE NUMBER:  1910838

MEMBER:Rosa Gagliardi

DATE:8 October 2024

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal remits the matter for reconsideration, with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 08 October 2024 at 12:32pm

CATCHWORDS

REFUGEE – protection visa – Algeria – political opinion – opposition to terrorism – police officer – particular social group – love relationship – failed asylum seeker from the West – fear of killing – Islamic fundamentalists – attacks by Al Qaeda in the Maghreb – defamation charges – mental health issues – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Safe Haven Enterprise Visa (Class XE) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on

   
   

   20 September 2017. The delegate refused to grant the visa on 10 April 2019.

2. The delegate made the decision on the basis that evidence provided by the applicant appeared to be inconsistent and less than cogent, and as such did not satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations), being s.36(2)(a) or s.36(2)(aa) in that he did not meet the refugee or the complementary protection criteria.

3. The applicant appeared before the Tribunal on 4 October 2024 to give evidence and present arguments.

   Claims at the time of application

   ·The applicant entered an emotional love relationship with a young woman whose brother ([Brother A]) happened to be part of a terrorist organisation, being the Islamic Party of Algeria (FIS) (which was later to morph into Al-Qa’ida in the Lands of the Islamic Maghreb) and was a radical religious Islamist.  The applicant was in his late teens at the time, as was the girl involved.

   ·One day the applicant’s brother found them together standing in a public street talking.  Their traditions did not permit such closeness between women and men.

   ·[Brother A] went to his sister and started hitting her and the applicant tried to intervene and tried to make him understand his relationship with his sister was an honourable one but given [Brother A’s] strict Islamic perspective he also assaulted the applicant.

   ·[Brother A] then did not permit the applicant’s girlfriend to attend school and forbade her from contacting the applicant.  The applicant went to [Brother A’s] home stating he wanted to marry his sister but [Brother A] refused.  The two were locked in animosity since that time.

   ·In around 1994 the applicant joined the police force due to a lack of stable jobs in the area but also because he considered that as someone who was against terrorism, he had a role to play in protecting the state. He therefore joined the [specialist section].

   ·In 1992 the president and generals of the government decided to disband the Islamic Party to which [Brother A] belonged and to arrest all the leaders.  The disbandment of the Islamic party of which [Brother A] was a member, had led to the appearance of the armed wing, which undertook armed activities and terrorist acts in Algeria.  The armed wing included all hardline and radical fighters, including [Brother A].  The armed wing targeted educated people, police, army personnel and unarmed civilians.

   ·Many people were gaoled, and many fled the country.  [Brother A] was on a wanted list and he disappeared for several years, before returning to the applicant’s home area.  People thought he might have been killed and in 1994 it was found he had been in Afghanistan.

   ·The applicant received threats from terrorist organisations at the behest of [Brother A] who was then a commander with one of these armed wings of the terrorist organisation. 

   ·Because of his role in the police in fighting [terrorists] the applicant was pursued by [Brother A] and his fellow terrorists who warned the applicant to stop his [specialist police] activities.  [In] April 1996, the applicant was in a car with a friend, and they were shot by a shower of bullets, killing his friend and [injuring the applicant]. 

   ·The applicant’s home was raided by a terrorist organisation searching his house threatening him to leave his work.  As a result of the trauma the applicant’s mother was [injured] and his sister-in-law suffered a [medical condition].

   ·In February 1999 the applicant was exposed to another assassination attempt as he felt someone behind him with a cleaver of some sort.  The applicant drew his pistol and started firing randomly which caused them to escape.

   ·In 2000 the President issued a degree (the National Accord) which included measures to pardon terrorists who surrendered themselves to the government.  This granted the terrorists immunity from state or non-state harassment.  [Brother A] surrendered and availed himself of the amnesty which then meant he could act with impunity, and he would not be subjected to punishment.

   ·The applicant was an officer by this time in the [specialist] section.  This involved work in the “dirty unit” which involved torturing people.  When the applicant refused to undertake some of the barbaric acts required of him to force false confessions from detainees, the applicant was sent to traffic duties on the streets as punishment.  This placed the applicant’s life in greater danger because he would be widely physically exposed to terrorists. 

   ·The applicant was sacked, however, because he had also joined [an] organisation [supporting victims of terrorism] and received an honorary certificate from them.  He was locked out of his police accommodation and felt victimised.  The applicant was seen as an enemy of the state.

   ·[Brother A] fuelled by his hatred of the applicant continued to provoke the applicant and made false allegations against him to the police.  One day an official took the complaint against the applicant seriously and pursued the matter via the courts.  A [period] gaol sentence was issued against the applicant.  The applicant appealed the decision, but his lawyer told him there was no point in pursuing the appeal because he would fail.

   ·The applicant initially fled Algeria on his brother’s passport to go to [Country 1] and on return to Algeria to tie up his affairs, did not go back to his home area.

   Evidence at hearing

4. The applicant confirmed he had a secular outlook on life and was not a strict adherent of Islam.  He did not pray and was alienated by members of the community who did not consider he dressed appropriately or conducted himself in a manner consistent with a fervent Muslim.  His open outlook is what led to the applicant rejecting religious radicalism in all its forms and deciding to take a stance against it via his work within the police.

5. He also explained that [Brother A] and he clashed because of the applicant’s approach to religion but importantly because he had acted outside the bounds of Islamic tradition by being seen in public close to a female, even though they had had no intimacy and the applicant’s intention had been to marry her.  [Brother A] who was then a leader of a cell of what later became Al Qaeda in the Maghreb (AQIM).

6. The Tribunal pressed the applicant to explain precisely what he had been charged with and he responded it was “defamation” as he was seen as being anti-President and anti-state because he did not agree with the amnesty that had allowed terrorists to go unpunished for their abuses.  As an officer he had also refused to carry out orders in relation to methods used to obtain false confessions to give the appearance of an effective and efficient police force.  The charges were two pronged and involved [Brother A’s] statement that the applicant had defamed him. 

7. The applicant explained that he was able to leave and enter the country initially because he was using his brother’s passport and because at that stage the trial against him had not progressed. 

8. The applicant stated he was afraid to return to Algeria because he would be intercepted at the border.  [Brother A] was still alive and active in current extremist terrorist cells and continued to present a threat to him.  However, the outstanding defamation case was still extant, and the applicant feared the consequences of being convicted.  He was afraid of the state that had turned against him as well as [Brother A], and his related terrorist henchmen.

   FINDINGS AND REASONS

9. In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70).

10. In determining whether an applicant is entitled to protection in Australia the Tribunal must at first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.

11. On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) R 547).

12. The applicant’s adverse experiences in Algeria as claimed by the applicant were various and over the years his account became more detailed.  This was seen by the Department as going against the applicant’s credibility.  The Tribunal considers, however, that it is not remarkable that the applicant’s account became more detailed over time as he would not necessarily have recalled events in a linear fashion.  Instead, it appears that during a particular interview he focussed on some events, and then during other interviews these memories receded with others emerging in his consciousness.

13. In considering any apparent anomalies in the applicant’s account, the Tribunal has also had regard to the fact that he has had a lengthy immigration history in Australia, involving periods of detention both in Algeria and Australia, which together with his traumatic experiences in Algeria, and the lengthy separation from his wife and [children], means he has developed serious mental health issues affecting, at times, his ability to recount his narrative in a coherent and logical manner.

14. In this regard, the Tribunal has had regard to the psychologist’s report by [Psychologist A], a reputable clinical psychologist who has worked in public mental health facilities and specialist psychological trauma services, relating to the applicant.[1]  This report is dated 17 April 2016 and explains that the applicant was not someone who inherently was mentally unwell but that his experiences had led to his illnesses and that “owing to a variety of situational stressors” the applicant developed a major depressive disorder and that he “had felt a keen, almost excoriating sense of injustice which he believed he had an imperative to resolve for the sake of his family’s well-being”.  The Tribunal has also been privy to some information regarding the consequences of the applicant’s reactive illness which placed his well-being in danger.

    [1] [Source deleted.]

15. Fuelling the applicant’s sense of injustice is that on 17 November 2011, an independent merits review of the applicant’s claims to be owed protection were conducted and the applicant was found to meet the criterion for a protection visa set out in s.36(2) of Migration Act. The reviewer at that time, despite finding the applicant tended to go “on tangents” in the interview, found his testimony was credible and recommended that the claimant be recognised as a person to whom Australia has protection obligations.  As such, resolution of the applicant’s status has been in abeyance for a considerable period further compounding the applicant’s mental health difficulties.

16. The Tribunal has had regard to the Tribunal’s Guidelines on Vulnerable Persons which set out that impairments in the form of thought involve disruption to the flow of thought, described as flight of ideas and loosening of associations; and over-inclusive or tangential thinking where the individual cannot confine their thoughts to the topic under consideration.  At hearing the Tribunal found the applicant notwithstanding his difficulties did attempt to focus on the Tribunal’s line of questioning to give a believable account of the harm he had suffered in the past as well as the harm he considered he would face on return to Algeria now and in the reasonably foreseeable future, on account of his political opinion (anti-State, anti-president, anti-amnesty for terrorists, human rights supporter) and membership of the particular social groups:

    -Men born into the Islamic faith who do not display overt adherence to a strict form of Islam.

    -Former police officers who take a stand against terrorism.

    -Men who are unable to provide for their families due to mental health issues.

17. The Tribunal notes that the applicant has also raised the claim that as a returning failed asylum seeker from the West to Algeria he will be perceived as a traitor and that this aspect of his profile alone will attract persecution.  In the Departmental decision, albeit, now also dated, reference is made to Country of Return Information Project 2009 Country Sheet for Algeria, which states that returning as a failed asylum seeker has no bearing on how the state of Algeria will perceive returnees.  The Tribunal is inclined to accept that this is the current situation as it has not been able to find any information that would indicate that circumstances in this regard have changed.  Hence, were the applicant claiming that his profile as a returnee from a Western country who has failed in their bid for asylum, were the only claim the applicant were making, the Tribunal would find it difficult to see that there is any supporting material for the contention the applicant would face serious harm on the basis of this feature of his profile alone.

18. Nonetheless, the Tribunal will consider the applicant’s claims cumulatively to assess whether the applicant’s profile as a political dissident who is wanted by the state to be prosecuted will attract serious harm on account of being perceived as a “traitor” and someone who is perceived to have tried to escape punishment via the courts.

    Real chance test

19. It is not enough that the Tribunal accept that the applicant has faced serious harm in the past, however.  Whether a person has a well-founded fear of persecution also carries with it the inherent principle that on return to their home country now or in the reasonably foreseeable future, the applicant faces a real chance of serious harm.  The test, therefore, is future-focussed.  The Tribunal is required to take into account that there has been a significant lapse in time since the applicant experienced the events he did, and that country information may indicate there has been an ameliorated in country circumstances.

20. The country information referred to by the reviewer in 2011 in its positive recommendation is now outdated and requires revision.  In terms of the overall current human rights situation and the conditions the applicant would face in any trial and detention were he returned to Algeria now or in the reasonably foreseeable future:

    Algerian authorities have intensified their repression of freedoms of expression, the press, association, assembly, and movement, as part of their continued efforts to crush organized contestation.

    They have dissolved major civil society organizations, suspended opposition political parties and independent media outlets, and continued to use restrictive legislation to prosecute—including on dubious charges of terrorism and receiving funding to harm state security—human rights defenders, activists, journalists, and lawyers, pushing some of them to flee into exile.

    Between March and April, the authorities also adopted new legislation that tightens government control on the media and a new law on unions that could further limit workers’ ability to organize freely.

    Political repression

    In an example of wielding manifestly political charges to imprison critics, a Constantine court sentenced journalist Mustapha Bendjama and researcher Raouf Farrah on August 29 to two years of imprisonment for “receiving funding to commit actions undermining state security,” under article 95 bis of the penal code, and “publishing classified information on electronic networks,” under article 38 of Ordinance 09-21 on data protection. On October 26, an appeals court reduced their prison sentence to 20 months, 12 of them suspended. Both of them, along with several others, were detained in February, apparently in retribution for the irregular departure from Algeria of activist Amira Bouraoui, whom authorities have forbidden from leaving the country since August 2021. Farrah was released in October.

    On November 7, a Constantine court sentenced Bendjama to six months of imprisonment in a second case for allegedly assisting Bouraoui to leave Algeria. Bendjama, who is the editor-in-chief of regional newspaper, Le Provincial, had previously faced police and judicial harassment for his work and involvement in the Hirak protest movement. After receiving an initial sentence of one year in prison, he was sentenced on appeal on July 16 to a fine for defamation and “undermining the public interest” in connection with an article denouncing the enforcement of Covid-related restrictions.

    On July 4, Algiers’ Court of Appeal confirmed the sentencing of Slimane Bouhafs to three years in prison and a fine for “insulting Islam” and terrorism-related charges. In August 2021, Bouhafs—a Christian convert, an Amazigh (Berber) activist, and a refugee recognized by the United Nations refugee agency (UNHCR) living in Tunisia—was abducted from his home and forcibly returned to Algeria, where he reappeared in detention.

    On March 2, an Algiers court sentenced Zaki Hannache, a human rights defender and refugee living in Tunisia since 2022, to three years in prison in absentia in relation to his peaceful activism. Hannache has been closely monitoring the arrests and trials of peaceful activists and protesters since the Hirak protest movement began in 2019.

    The authorities have also increasingly imposed arbitrary travel bans on activists and perceived critics because of their associative activities or opinions, sometimes without any legal basis or time limitation. At least a dozen activists, including Bendjama and Bouraoui, have been under travel bans.

    Freedoms of Assembly and Association

    On March 7, Parliament adopted a new law on unions that forbids union members from participating in political activities and unions from having any ties with political parties. The law also conditions the right to strike on “not harming the principles of the continuity of public service, the protection of people’s and property’s security,” vague concepts that authorities could interpret to arbitrarily restrict strikes.

    On February 23, the State Council, Algeria’s highest administrative jurisdiction, confirmed the October 2021 decision by the Algiers Administrative Court to dissolve the Rassemblement Action Jeunesse (RAJ), on the grounds that the 30-year-old association, which had supported the Hirak protest movement, had violated the law on associations. As of September, three RAJ members, including its president, Abdelouahab Fersaoui, were still facing prosecution for their activism.[2]

    [2] ‘Algeria, Events of 2023, Human Rights Watch, World Report 2024, World Report 2024: Algeria | Human Rights Watch (hrw.org).

1. And:

   Once upon a time, Zaki Hannache, a young Algerian activist, marched in the streets of Algiers chanting with tens of thousands of his compatriots to oust the two-decade-long regime of Abdelaziz Bouteflika.

   That was only four years ago, but it feels like a fever dream for Zaki, who now lives in exile in Tunisia, running from one shelter to another in fear of being found by Algerian and Tunisian intelligence agencies, who work together in a witch hunt of their critics.

   “It was a real revolution with real requests. But it failed because the authoritarian state managed to rebuild itself quickly and become stronger,” Zaki told The New Arab

   On 22 February 2019, millions of Algerians marched through the North African country’s key cities to oppose a fifth term for the state’s President Bouteflika, who had been in power for two decades. 

   Algeria's revolutionary wave came eight years later than its Arab Spring neighbours, but Algerians believed that they would write its ending differently. 

   Each Friday, a symbolic day for revolutions in the region, Algerian protesters marched through the streets chanting in one voice, 'Jibu El Bri ou zidou Saa’iqa, makach el khamssa ya Bouteflika', in English, 'Bring the Intervention Brigades and the Special Forces, there will no fifth term for Bouteflika.be no fifth term for Bouteflika'.

   Two months later, the Hirak movement forced Bouteflika’s resignation. Still, the weekly protests continued to sweep the country’s streets calling for the dismantlement of the “deep state” and the arrest of “the mafia”, the oligarchy that surrounded Bouteflika. However, authorities decided to hold presidential elections in the same year without first putting reforms in place.

   Algerian police soon started arresting the perceived leaders of the informal movement, putting more than sixty activists in custody for Hirak-related charges. The crackdown intensified after the election of Abdelmadjid Tebboune as president in December 2019, who quickly proved to be a new authoritarian president in the making. 

   Tebboune, a member of the National Liberation Front Central Committee (FDI), Bouteflika’s party, is the first non-military president of Algeria. However, the ex-PM and loyalist of the former leader was immediately rejected by Hirak leaders after his election.

   While Tebboune first hailed the Hirak movement as an opportunity for reform, he quickly began arresting its leaders on charges of terrorism. 

   For protesters, the 77-year-old politician’s election was a badly written sequel of Bouteflika’s era: a civilian facade on the ruling military system. 

   “Many people boycotted the election day. Tebboune’s election was a calculated move from the state to legitimise its rule,” Zaki Hannache explained to The New Arab.

   A state within a state: The role of the military

   Since its independence, the Algerian military has exercised a great influence on political power in the country, and is often described as a state within a state. Many believe that, despite having an officially civilian president, the military continues to be the real ruling power in the country.

   The legitimacy and supremacy of the Algerian army’s legacy in the political sphere are due to the legacy of its role in fighting French colonisation. Reports say the presidency and the intelligence service have always competed with military elites in Algerian politics.

   Today, Tebboune lacks the influence and the power to fight the military's well-established authority.

   The power wielded by Algeria's military leadership is seen by experts as one of the biggest obstacles to Algeria's transition to a democratic model and its emergence from the vortex of internal economic crises that are often accompanied by corruption.

   Conflating activism with terrorism

   Emboldened by an overly broad definition of terrorism, in the aftermath of Hirak the state arrested hundreds of activists, journalists, and supporters of the movement. As of March 2022, 280 people were still in jail on terrorism charges.

   In June 2021, President Tebboune expanded Algeria's already overbroad definition of "terrorism" in article 87 of the penal code to include "to work for or to incite by any means, to accede to power or change the system of governance by non-constitutional means" and to "harm the integrity of national territory or to incite doing so, by any means."

   Last April, Hakim Debbazi, a 55-year-old Algerian man, died in police custody after being arrested for sharing pro-Hirak posts with his 91 Facebook friends, according to local Radio M and the Algerian League for the Defense of Human Rights (LADDH).

   Later last year, authorities dissolved LADDH, driving its leaders to seek refuge in other countries. Meanwhile, Ihsane El-Kadi, director of Radio M, was arrested on 24 December and put in custody for the cliché charges of terrorism and undermining state security.

   “Today, we are in a worse era than during Bouteflika. Before [the Hirak] there was no independence, but there was some space to speak up. Today, [...] a post can get you sentenced to up to life imprisonment or the death penalty, and all that because of the exploitation of the terrorism article in the penal code," said Rachid Aouine, the director of Shoaa for Human Rights, to The New Arab.

   Spending years in prison, dying of maltreatment or escaping to a foreign country are a few of the choices that anti-state activists have today in Algeria.

   "I never wanted to leave Algeria. It is my country, my land. It is where I fought. It is the circumstances that forced me to leave. The pressure became unbearable,” Amira Bouraoui told the press upon her arrival to France after a chaotic escape from Tunisia.[3]

   [3] ‘’Everyone is afraid’: In Algeria, state repression has extinguished Hirak’, The NewArab, Basma el Atti – Rabat, 22 February 2023,

2. The report by Human Rights Watch is corroborated by the Amnesty International report for Algeria, 2024:

   Authorities escalated their closure of civic space by convicting at least one activist, five journalists and a researcher for exercising their right to freedom of expression. Authorities shut down at least two online outlets and two affiliates of the League for the Defence of Human Rights (LADDH), ordered the closure of two human rights groups, and suspended at least one political party. Judicial authorities also closed down at least two churches. At least 36 femicides were reported. At least 18,302 migrants were summarily expelled from Algeria between January and December.
   ….
   Torture and other ill-treatment

   Judicial authorities continued to ignore testimonies of torture given in court.
   In July, a court in Algiers sentenced former military officer and whistle-blower Mohamed Benhlima to seven years’ imprisonment and a fine. Mohamed Benhlima had sought asylum in Spain in 2019, before he was extradited to Algeria in 2021. During a court hearing on 12 July, he told the judge that law enforcement officers had tortured him by stripping him naked, tying his legs and hands, and pouring cold water on him. He said he had also been sexually harassed, beaten and threatened. The judge did not order an investigation into these allegations.

   Freedom of religion and belief

   Authorities continued to use Decree Law 06-3, which restricts religions other than Sunni Islam. They closed at least two churches, bringing to 31 the number closed since 2018.

   Death penalty

   Courts continued to hand down death sentences. The last execution was in 1993.[4]

   [4]

3. Further a recent NewsArab article states:

   A UN envoy to Algeria has released a grim report on human rights in the North African state after meeting with several local activists, journalists, and human rights defenders.

   "I have been disturbed to hear from many journalists, bloggers and social media users who publish information on human rights violations that they feel they take great risks each time they make a post or write an article," wrote Mary Lawlor, a UN Special Rapporteur on the situation of human rights, in her end-of-mission statement.

   On 25 November, Lawlor kicked off her visit to Algeria upon an official invitation from the country's government. 

   Over ten days, the UN special envoy met with fifty human rights defenders in Algiers, Tizi Ouzou and Oran, with many cancelling their meeting at the last minute for fear of reprisals or after getting arrested on their way to the meeting.

   "My visit was also overshadowed by a number of human rights defenders and victims of human rights violations being prevented from reaching Tizi Ouzou while I was there," said Lawlor in her report, published on Tuesday, 5 December.

   "As they travelled to the city, they were either stopped at checkpoints or detained in a police station for over ten hours," she added.

   The visit focused on assessing the human rights situation in Algeria in light of reports indicating harassment and judicial pursuits targetting several human rights defenders and journalists.

   The UN envoy's report cited four methods the Algerian government employed to restrict the activities of human rights defenders in Algeria, including continuous judicial harassment, dissolution of human rights organisations, restrictions on their freedom of movement and travel bans.

   The report also urged the Algerian Minister of Justice, Hafidh Al-Akram, to review and amend the infamous Article 87 of the penal code,  a broad anti-terrorism law "loosely" interpreted over the past years to trial journalists and activists in the North African country.

   "To the government of Algeria: Release all human rights defenders imprisoned for the exercise of their freedom of expression, opinion and association," added Lawlor in her report.

   There are some 250 prisoners of conscience in the country, and many of them are facing terrorism charges for criticising politicians or supporting online anti-regime protests.

   Last November, world-leading powers lambasted the North African state at the Human Rights Council (HRC) for prosecuting activists and journalists under an "overbroad" terrorism law.

   Lawlor's visit is the third UN envoy visit to Algeria this year. A fourth one is scheduled before the end of this year as UN Special Rapporteur on Freedom of Expression Ahmed Shaheed is preparing to visit Algeria in December.

   Despite previously shunning visits from international observers, Algeria opened its doors to UN envoys after its recent election as a UN Human Rights Council member for next year.[5]

   [5] ‘ UN envoy paints a grim scene of human rights in Algeria’, Basma El Atti – Rabat, 7 December 2023, The NewArab, UN envoy paints a grim scene of human rights in Algeria (newarab.com).

4. In terms of prison conditions on 24 April 2022, Hakim Debbazi, a Hirak dentainee, died in custody under unclear circumstances.  Debazzi is a 55-year-old father of three children held in pretrial detention since February 2022.[6]  It has been reported that Debbazi suffered chest pains and breathing difficulties and was held in a small, smoke-filled room that lacked ventilation.[7]

   [6] ‘Algeria: Over 260 Hirak detainees languishing in prison must be released’, 30 June 2022, Amnesty International, Algeria: Over 260 Hirak detainees languishing in prison must be released - Amnesty International.

   [7] Ibid.

5. The Tribunal has also asked itself whether the applicant continues to face a well-founded fear of persecution on return to Algeria from terrorist organisations such as Al Qaeda. An Australian National Security Report discusses how Al-Qai’ida in the Lands of the Islamic Maghreb has come to be listed as a terrorist organisation under the Criminal Code in Australia. The information was last updated on 22 September 2024 and clearly indicates that the organisation is currently active in Algeria and would continue to be a threat to the applicant:

   Al-Qa’ida in the Lands of the Islamic Maghreb (AQIM) is an affiliate of al-Qa’ida and shares its Sunni Islamist religiously-motivated violent extremist (RMVE) ideology, seeking to create an Islamic state in North and West Africa ruled by Sharia law.  To this end, AQIM has declared war against foreigners and foreign interests through North and West Africa and Europe, and used violence to bring about its objectives.
   ….
   Advocates the doing of a terrorist act
   
   AQIM leaders have publicly advocated terrorism in order to further the group’s objectives.  Recent examples include:

   ·On 12 May 2021, AQIM released a statement urging Palestinians to attack Jewish people to ‘cause pain and exhaustion to the Jews’.

   ·On 3 November 2020, AQIM released a statement which instructed Muslims to kill any person who insults the Prophet Mohammed.  The statement also praised a lone-actor attack in Conflans Sainte-Honorine, France, on
   16 October 2020 for perceived insults the victim had made against the Prophet Mohammed.  There is a substantial risk that the glorification of the
   16 October 2020 attack could inspire others to undertake similar attacks.

   ·On 7 February 2020, AQIM released a statement advising Muslims to support existing ‘jihad operations’ and target US interests as a means of ending US support to Israel. In this context, jihad’ likely refers to undertaking terrorist acts [8].

   [8] ‘Al-Qa’ida in the Lands of the Islamic Maghreb’, Australian Government,, Australian National Security, 22 September 2024, Al-Qa’ida in the Lands of the Islamic Maghreb (nationalsecurity.gov.au).

6. In the current climate in Algeria the Tribunal accepts that the applicant would continue to be vocal about his anti-state and anti-terrorist stance, the lack of human rights and would come to the attention of the authorities on return to Algeria due to the outstanding court matters relating to [Brother A] and associated terrorist organisations, and there is a real chance he would be detained if not killed.  Given the way the state continues to view any opposition to its authority, the Tribunal is satisfied that there is a real chance that the applicant has a well-founded fear of persecution on return to Algeria and that he will face serious harm on account of his political and imputed political opinion, and membership of the particular social groups as enumerated above.

7. The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

8. NB: The Tribunal would like place on record the quality of the submissions put forward by the representative from RACS which have assisted the Tribunal to gauge the history of this matter and distil the facts of this lengthy and complex case expeditiously. 

   DECISION

9. The Tribunal remits matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   Rosa Gagliardi
   Member

   
   
   

‘Algeria 2023’, Amnesty International, Human rights in Algeria Amnesty International.