2418966 (Refugee) - [2025] ARTA 1448

2418966 (REFUGEE) [2025] ARTA 1448 (4 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2418966

Tribunal:Denis Dragovic
Date:4 February 2025

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Senior Member D. Dragovic

Statement made on 4 February 2025 at 8:39 AM
CATCHWORDS
REFUGEE – protection visa – Algeria – political opinion – opposition to the government – protests – temporary closure of business – non-payment of a fine – detention – conditions in Algerian prisons – exit procedures – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 June 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Algeria. He applied for the visa on 27 April 2024.
The delegate refused to grant the visa and the applicant appealed that decision to the then Administrative Appeals Tribunal.
The applicant appeared before the Administrative Review Tribunal (‘the Tribunal’) on 6 November 2024 and 20 December 2024 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review, but the representative did not attend the first hearing.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is [an age]-year-old male from Algeria. He has [specified siblings] as well as both parents still living in Algeria.
The applicant married a [Country 1] woman he met on-line. They have a child together. Both the wife and child are currently living in [Country 1].
Prior to coming to Australia in 2024 the applicant owned a [shop] with his brother and was studying [subject 1]. He described studying in Tebessa through the week but returning to where his family were living and where his business was located, in Algiers, during the weekends.
The applicant claimed that he had been arrested twice in the past including being held in detention for 24 hours on both occasions. Both arrests coming within weeks of each other during the Hirak protests of August 2019. He said that he would join the student protests every Tuesday and the general public protests every Friday. The protests were in Algiers. The applicant said that he didn’t attend every class at university and that is why he was able to be in Algiers for the protests.
He said that he was identified by police who looked for what he described as the influencers or leaders of the protests. They wouldn’t arrest everyone, he claimed, but just chose one or two people and put them in a truck. He believes he was taken on both occasions because the police thought he was a ‘clever person’ and that he had ‘influence’. He thought they knew this through observation and surveillance. He said that he was identified as he had the audacity to speak with people and tell them about their rights. He described speaking with people at the protests as well as in his shop. The applicant clarified that at no stage did he speak publicly at any protest.
In a written statement after the hearing the applicant claimed that he had to sign a statement providing his personal details and make a commitment to not to participate in future protests otherwise he would be imprisoned for up to two years. He claimed that he had to sign the document twice. He said that the two times that he was arrested he was taken to a different police station and that is why there were no additional consequences the second time as he claimed that they don’t coordinate such things.
With regards to the applicant’s past political activities, he was detained twice in 2019 during the Hirak protests although he was protesting regularly. He initially said that the last time he protested was before COVID. The applicant said that he sometimes videoed the 2019 protests and posted them on his own social media account. He said that sometimes others would re-post these videos on their accounts to spread the message. These were posted onto his [social media] account which was subsequently shut down by [social media].
At the second hearing he claimed that he resumed participation in protests after COVID.
He claimed that in 2023 he protested every Friday for a few weeks. He said that many people were intimidated and scared at this stage. He said that the protests were smaller with fewer people and the level of mobilisation was diminished. He said that in part they were smaller because many people had been arrested and sent to prison.
He said that they would post posters after Friday prayers with the intent to spread their views to the outside world. He said that he would speak to his family, friends, and neighbours to encourage them to attend. He said that he would speak with others about his views as some would attend with differing motivations.
He said that he would encourage his family members not to vote in the presidential elections as low turnout would hurt the government.
He said that the authorities didn’t react in 2023 in the same way they did earlier because the United Nations, human rights groups and other parties were monitoring the situation. He said that another reason was because everyone had a phone and could video the authorities.
Subsequently the applicant completed his studies and continued to run a business including travelling repeatedly outside of Algeria and returning.
Regarding the shop that he and his brother owned, he claimed that it was temporarily closed 15 days prior to the hearing. His brother told him that the order was for it to be closed for twenty days.
The applicant said that in the past the authorities would come to their shop and carry out searches and people would be scared.
I asked why he thought that they were closing it down years after he had participated in protests. He said that people were continuing to talk on social media against the lack of rights in Algeria. He added that people who were once in prison continue to be harassed by the authorities even after many years.
The applicant had also provided two court related documents prior to the hearing which were discussed. The first was a judgement by [Court 1]. He explained that the case was related to an incident from [November] 2021 where he and a group of others had moved against a group of [specified people] who were squatting in government housing in their neighbourhood. He said they wanted to clean out the town of such people, but the police instead arrested them. He said that he was taken to the police station and detained for one day. He was subsequently convicted in the judgement dated [in] January 2023 provided to the Department and given a one-year sentence and a fine, but he appealed the decision. The outcome of the appeal, according to the applicant’s evidence at the hearing, was that the sentence was reduced to a good behaviour bond for six months and a payment of about [amount] euro. This reduced sentence was handed down at the end of 2023.
Noting that the applicant had applied for the protection visa in April 2024, the evidence in his written submission appears incomplete in that the outcome of the appeal was not mentioned. In considering this discrepancy, I accept the applicant’s narration of the court processes as provided at the hearing rather than in his application for the reason of the ability of the applicant to explain his circumstances freely in conversation with the support of an interpreter.
The applicant believes that he was targeted by the authorities in the November 2021 incident for reasons of his participation in the political rallies. Though he clarified that everyone involved in the 2021 incident was also involved in the rallies.
Furthermore, he acknowledged that the law does not allow him and others to do what they did to the squatters.
The applicant claims that he has not paid the fine. He claims that he faces a court order to pay and if he doesn’t then he will have to undertake ‘stringent work’ or face imprisonment.
The applicant provided a summons dated [in] June 2024 that requests the applicant to attend a police station. The document does not state the reason for the summons. He said that it is the norm not to explain more in the summons and that you learn what the issue is after arriving to the police offices.
I asked if the summons could be related to his lack of payment of the fine. He said that he doesn’t believe that it is because the fine would come with a letter relating to the fine but he didn’t receive such a letter. I suggested that maybe the letter was sent to some other address. He refuted this possibility by saying that his registered address was where his father lived.
I noted to the applicant that he had left Algeria 8 times according to his application form since the November 2021 incident and 2 times since the first judgement, first to [Country 2] and then to [Country 3]. I asked whether that suggested that the government wasn’t interested in him. He said that the authorities know where you are going and can extradite you at any time. I put to him that if they wanted him, they would stop him and arrest him rather than go through the process of extradition. He said that he used to go outside of Algeria but would always come back. The applicant claimed that when he left Algeria the last time, he told them at immigration that he was headed to [Country 3] for business and would return, as he had in the past.
The applicant confirmed that he has not participated in any political activity relating to Algeria while in Australia.
The applicant claimed in a written statement that his [Country 1] wife being searched and questioned in 2019 at the airport when arriving to Algeria was intentional on the part of the government as a way to intimidate the applicant after participating in the Hirak protests. He said that the authorities called him when she was at the airport asking if she is a journalist the like. He said that he had guaranteed her. I put to him that it didn’t sound like the authorities were targeting him. He said that a wife in his culture is sacrosanct and that others cannot breach that cultural norm by searching her. He said that it affected him.
Without further independent evidence of such actions occurring I find that the applicant’s wife received a visa to enter Algeria, she was questioned and searched as many others are in airports around the world, and that this occurred regardless of her relationship to the applicant.
The applicant’s evidence has largely been consistent across his application and oral evidence. Without reasons to doubt the applicant, I accept his narration with the limited caveats identified above.
Considerations
The applicant fears harm for reasons arising from his political views and past activities, for not having paid a fine. While the applicant’s separation from his wife and child has clearly caused considerable emotional difficulties there are no claims relevant to the criteria to be considered that arise from the relationship.
Regarding the political situation, he said that nobody realises the lack of security to express an opinion. He noted that there is no independent news agency and that even criticising general living conditions can lead to imprisonment and that there are 300 political opponents currently in prison. He added that only those who aren’t talking are safe.
I put to him that the president has pardoned a couple hundred political prisoners. He said that this happens on 1 November of each year as an anniversary of the revolution, but it was only people convicted of stealing. This claim is not aligned with information presented by Amnesty International:
On more than one occasion, the president of Algeria has issued pardons and clemency measures for thousands of prisoners and detainees, including some 160 detainees and prisoners linked to the Hirak movement in February 2021 and April 2022, according to media reports. According to the CNLD, the Algerian authorities have released another 107 detainees linked to the Hirak since January 2023.[1]
[1] >
I note that the CNLD is the National Committee for the Liberation of Detainees, a non-governmental group created to monitor politically motivated detentions[2], and as such place considerable weight on their information and of the ability of Amnesty International to vet media reports.
[2] >
The applicant responded that even though they were released they will be subjected to monitoring and face restrictions on their movement and constant follow up. He believes that they can be rearrested at any time even years later.
Noting that the applicant was detained twice in 2019 and yet moved freely including travelling abroad for the next five years without any indication of any surveillance or harassment by the authorities, I find that the applicant will not be under surveillance or harassed by the authorities upon return to Algeria. As such, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from the state authorities for the reason of his past political activities whether in the form of imprisonment, harassment or being under surveillance.
With regards to future political activity, the applicant has not been active in Australia.
I find that the applicant is a participant in political activities but not a leader, I find that he only engages when there is a wide-spread movement. I accept that the applicant has political hopes for his country, but I find that his political profile can best be described as low or as an intermittent participant in the political process.
I asked the applicant how he used his social media while living in Algeria. He said that he would share his opinion about everything such as his lifestyle and the government. He said that he criticized the government. He said that when he travelled outside of his country and saw how it was, he would comment on that relative to his own country.
He said that his [social media] account was closed. He said that because he didn’t have a lot of followers it’s easy for his page to be closed. He said that the ‘electronic flies’, those he described as being government supporters, report you to [social media] and label you as a scammer and [social media] closes the account.
After the [social media] was closed, he opened a new account.
Yet, despite this activity the applicant was not targeted by the authorities.
Since he has been in Australia, he said that he participates less often on social media. He gave the example that he would comment on posts that lie such as a parliamentarian who claimed that Algeria as a country was one of the best countries and other pages that push such misleading claims.
The applicant’s representative referenced a Human Rights Watch report from 2023 that she claimed suggests that the authorities arbitrarily detain and imprison anti-government persons ‘whether they hold a prominent role in the society or not.’ I noted that this quote is not in either report. The representative explained that the reports speak of people such as doctors and other educated people hence her reference to prominent roles whereas it was the applicant’s evidence that provided the source for the claim that even those who are not prominent are being imprisoned.
I accept that activists, leaders, and prominent people are being imprisoned. I also accept that the applicant’s lived experience was that as a low-profile person he was also detained twice in 2019. But as the applicant has noted, the government has taken a different approach to the post COVID protests due in part to the presence and attention of the non-government and international communities.
With regards to the level of his future political activity, I note that the applicant attended protests that were organised and didn’t organise any himself and while in Australia he did not organise any political activity. While I accept that he speaks to people about politics including at protests that he attended, at his shop and to his family, none of this led to any undue attention to him in the years after 2019. Nor did his social media activity. Accepting that he will continue to speak with people as he has on the past and participate in some political activities if they are organised and post commentary online, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for such political activities.

With regards to the summons, the applicant fears that it is related to his past activities. This is possible. The applicant’s shop was shuttered for twenty days this year. But it is also possible that the summons is related to his knowledge or witnessing some relevant event or as is more likely his lack of payment of the court ordered fine.
When considering the evidence before me including the timeline of events, I find that the actions against him are all related to the unpaid fine including the temporary closure of the shop and the summons. The two occurring around the same time adds to this conclusion.
Accepting that the applicant has not paid the fine and that the authorities are aware of this and are pursuing him for this, it is reasonable to conclude that due to the presence of the suspended sentence he would be arrested and imprisoned upon return.
It is not clear what term of imprisonment he would receive due to the nuances of Algerian laws, as such I will consider the worst-case scenario of one year as that was the original sentence before it was appealed and reduced. I accept that imprisonment for one-year amounts to serious and significant harm.
But there are provisions under both s 36(2)(a) and (aa) that engage with the concepts of laws of general application and lawful sanctions respectively which may limit the applicant meeting the threshold for protection as detailed in the Act. These were discussed with the applicant at the second hearing.
Refugee Law and Laws of General Application
In the context of refugee law in the case of Applicant A Dawson J agreed with the observations of the Full Federal Court in MIEA v Respondent A and B[3] that,
Since a person must establish [a] well-founded fear of persecution for certain specified reasons in order to be a refugee within the meaning of the Convention, it follows that not all persons at risk of persecution are refugees. And that must be so even if the persecution is harsh and totally repugnant to the fundamental values of our society and the international community. For example, a country might have laws of general application which punish severely, perhaps even with the death penalty, conduct which would not be criminal at all in Australia. The enforcement of such laws would doubtless be persecution, but without more it would not be persecution for one of the reasons stated in the Convention.
[3] Applicant A v MIEA (1997) 190 CLR 225 at [245]
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook) similarly but more succinctly states:
56. Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim - or potential victim - of injustice, not a fugitive from justice.
The harm the applicant faces arises because he did not comply with the condition of the court, namely paying the bond (or what was interpreted as a fine). It is relevant to recall that the bond/fine was imposed for reasons of, according to the applicant, illegally attempting to evict people from a property that the applicant did not own or according to the judgement, for trespassing.
In either instance there is no evidence to suggest that the laws discriminatorily target or are being discriminatorily applied for the reasons of race, religion, nationality, political opinion, or membership of a particular social group.
While the applicant claims that he is being targeted for participating in protests the evidence he provided was that he had broken a law that is a law of general application which was not discriminatory nor was it applied discriminatorily as everyone who was involved was detained. When this was put to the applicant, he said that there was discrimination against him because the authorities were supposed to ‘chase the criminals’ and not people like him who had participated in protests. When I clarified that everyone who participated in the actions were prosecuted he said that there was discrimination because he was targeted for wanting to change something that was wrong.
While it is possible that the authorities targeted the entire group for the reason that they had all participated in the protests, I find this possibility to be extremely unlikely because had the authorities wanted to target those individuals, they would not need to go through the charade of waiting two years and then using the breach of the law as a cover for political persecution. Instead, I find the nature of the applicant’s actions, what amounts to vigilante justice, is what triggered the authorities’ actions rather than a desire to punish someone or a group of people who had two years earlier participated in protests. Based on the evidence before me, I do not accept that the authorities had contrived the charge and conviction for discriminatory reasons.
For this reason, were the applicant to be arrested at the airport and face incarceration, I find that such harm does not meet the threshold requirements of s 36(2)(a).
Complementary Protection and Lawful Sanction
I now turn my mind to consider whether the applicant’s incarceration would lead to the applicant meeting the criteria in s 36(2)(aa). Section 5(1) of the Migration Act defines the constituted acts of harm identified in s 36(2A) as constituting significant harm including torture, cruel or inhuman treatment or punishment and degrading treatment or punishment explicitly exclude acts or omissions ‘arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.’ Relevant to this consideration is Article 7 of the ICCPR:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
This is somewhat circular as the complementary protection guidelines were established, in part, from the ICCPR. Setting aside the circularity, the question to be considered is whether the conditions in Algerian prisons amount to torture, cruel, inhuman or degrading treatment or punishment.
The United States Department of State Human Rights Report 2023 for Algeria[4] describes the prison conditions as ‘sometimes harsh and life threatening due to physical abuse and inadequate medical care.’ This is a shift in language from the 2022 report which stated that prison conditions ‘were harsh and life threatening’. The 2023 report does not provide any further information regarding the basis upon which the assessment was made. There is no other information in the report that may be the basis for such a finding.
[4] >
The US State Department 2023 report notes how the authorities investigated abuse and acted against those found to have committed abuses. In addition, it notes that the Algerian authorities have provided human rights focused training for thousands of police officers. Furthermore, the report noted:
During the year the Ministry of Justice reported several improvements to prison conditions, including adding public telephones to three new prisons, the opening of two new prisons to decrease prison overcrowding, and improving medical facilities associated with several prisons throughout the country. Authorities also instituted training programs for prison officials on national and international legal protections for detainees, as well as training for special protections for women and minors in prisons.
The UK government has produced some information for citizens who may be imprisoned in Algeria. Regarding medical care writing:
While you are detained, the local authorities are responsible for ensuring your basic medical needs are met.
The right to access health care is guaranteed to all prisoners.
You can benefit from the medical services inside the prison and when necessary, outside the prison.
You will be seen by a general doctor and a psychologist upon your entry to prison, you will have the same checks when you finish your sentence and getting ready to leave the prison.
You will also receive Mandatory Vaccinations against contagious diseases, and medical tests routinely.[5]
[5] >
The United Nations Report of the Working Group on the Universal Periodic Review: Algeria tabled in 2023 recorded the Algerian government responding to questions about prison conditions: ‘Efforts had been made to improve conditions of detention. Over the previous four years, 21 new prisons had been opened and 13 prisons had been closed.’
Relevantly, there are no findings on prison conditions by the working group and the recommendations relating to prisons focus on encouraging the continuation of ongoing training of prison staff.[6]
[6] See Recommendations 43.93 and 43.99 >
The above information was put to the applicant. He said that this is not true. He said human rights violations are breached beginning with how the police in the streets treat people. He said that the reports I referred to are obtained by information provided by Algeria rather than what is the situation on the ground.
The applicant was given an opportunity to provide further post-hearing submissions regarding prison conditions. In post hearing submissions the applicant’s representative summarised country information with some descriptors that do not appear in the source material (in the first footnote referencing scarcity of food, there is no mention in the source document of scarcity of food in Algerian prisons). Rather than relying on the summaries in the submissions, I have reviewed the source material and extracted where relevant the specific language used in the sources.
Freedom House in its 2024 Algeria[7] report notes:
Prison conditions are poor, with some inmates reportedly facing significant overcrowding and poor sanitation.
[7] Freedom House, Freedom in the World 2024: Algeria
The same report indicates along with an Amnesty International report[8] details of how some inmates have been tortured with those who were tortured being imprisoned for reasons of their anti-government political activities.
[8] Amnesty International, Algeria 2023
The representative referenced a detailed narration of life in an Algerian prison in the nineteen-nineties and suggested that conditions have not improved.[9]
[9] Algeria: a month (almost) like any other, 10 May 2022
There have been 168 allegations of mistreatment in prisons in 2023.
Are the conditions in Algerian prisons such that they amount to significant harm?[10]
[10] The reasoning in this section is borrowed from an earlier decision of mine: 1917647 (Refugee) [2024] AATA 4091 (11 July 2024)
For the applicant to be found to face significant harm arising from prison conditions the Act requires that the circumstances he faces would be such that they impose an act or omission by which either:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
Or
that causes, and is intended to cause, extreme humiliation which is unreasonable
Or
by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person [for particular reasons defined as torture]
In addition, the Migration Act specifically defines these forms of significant harm as being acts or omissions that must not be ‘inconsistent with Article 7 of the Covenant’ referring to the International Covenant on Civil and Political Rights (ICCPR).
Article 7 of the ICCPR states ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.’
The Department of Immigration’s Complementary Protection Guidelines engage with the question of whether detention, imprisonment and prison conditions can amount to significant harm. The Guidelines describe instances that the United Nations Human Rights Committee have found breaches of Article 7 including:
·extremely cramped, overcrowded or unsanitary conditions
·exposure to cold
·inadequate ventilation or lighting
·lack of adequately nutritious food or water, adequate clothing or a separate bed, or opportunity for adequate exercise
·threats of torture or death
·prolonged solitary confinement or total isolation, including being held incommunicado
·denial of medical treatment
·inadequate medical services
·harsh rules of conduct and discipline restricting fundamental rights of prisoners, for example: the use of harsh punitive measures such as frequent resort to solitary confinement or being forced to maintain a certain position for prolonged periods of time, unfair procedures for deciding on disciplinary measures, inadequate protection against reprisals by warders, lack of a credible complaints mechanisms and frequent use of protective measures such as leather handcuffs
·violent treatment in detention, including acts such as beatings or assaults by prison warders, mock executions, theft or destruction of personal possessions, or displaying prisoners in a cage to the press.
In the context of detention, force may be used by authorities to enforce discipline, but that use of force must be proportionate in light of the circumstances.
The reference case for extremely cramped, overcrowded, or unsanitary conditions is a 1984 case in which Views of the Committee were that the Dominican Republic had breached Article 7 when the alleged victim was:
taken to a cell at the secret service police headquarters, from where he was transferred to another cell measuring 20 by 5 metres, where approximately 125 persons accused of common crimes were being held, and where, owing to lack of space, some detainees had to sit on excrement. He received no food or water until the following day. On 16 June 1984, after 50 hours of detention, he was released.[11]
[11] UN Human Rights Committee, Views: Communication No 188/1984, 31st sess, UN Doc CCPR/C/31/D/188/1984 (5 November 1987) (‘Martinez Portorreal v Dominican Republic’) [9.2]. See >
As a reference to inadequate ventilation and lighting the matter of UN Human Rights Committee, Views: Communication No 577/1994, 61st sess, UN Doc CCPR/C/61/D/577/1994 (6 November 1997) (‘Polay Campos v Peru’)[12]:
The author further submits that her husband is held in a subterranean cell where sunlight only penetrates for 10 minutes a day, through a small opening in the ceiling. During the first year of his prison sentence, he was not permitted visits by any friends or relatives, nor was he allowed to write to anyone or to receive correspondence. A delegation of the International Committee of the Red Cross has been allowed to visit him.
The Committee finds that the conditions of Mr. Polay Campos' detention, especially his isolation for 23 hours a day in a small cell and the fact that he cannot have more than 10 minutes' sunlight a day, constitute treatment contrary to article 7 and article 10, paragraph 1, of the Covenant.
[12] >
As an example of a finding of a breach of Article 7 with regards to a lack of adequate nutritious food or water, adequate clothing or a separate bed, or opportunity for adequate exercise the Guidelines reference UN Human Rights Committee, Views: Communication No 458/1991, 51st sess, UN Doc CCPR/C/51/D/458/1991 (21 July 1994) (‘Mukong v Cameroon’) [9.4]
He was continuously held in a cell…measuring approximately 25 square metres, together with 25 to 30 other detainees. The cell did not have sanitary facilities. As the authorities refused to feed him initially, the author was without food for several days, until his friends and family managed to locate him.[13]
[13] >
In the matter of Mukong v Cameroon the committee notes that certain minimum standards of detention must be observed and specifically referenced Rules 10, 12, 17, 19 and 20 from the UN Standard for the Minimum Rules for the Treatment of Prisoners. In summary, the document states that accommodation should meet the requirements for health including minimum floor space, lighting, heating and ventilation; that sanitary installations shall be adequate; that appropriate clothing is accessible; that each prisoner shall have their own bed; and that the food provided should have a sufficient nutritional value.
I note that the Departmental Guidelines and the views of the Human Rights Committee are only guidelines and views. I do not place any greater weight on them than that. Nevertheless, the Act specifically references Article 7 of the ICCPR in that it cannot be breached and as such the views of the Human Rights Committee on what constitutes breaches of Article 7 are informative. The examples of breaches of Article 7 include situations in which there is targeted ill-treatment which is compounded by poor facilities or extremely poor conditions.
The circumstances that the applicant faces in an Algerian prison would be harsh and as such challenging for him. The US State Department report refers to the conditions as being ‘sometimes harsh and life threatening due to physical abuse and inadequate medical care’ whereas the UN periodical review does not make any findings on the conditions despite the Working Group engaging on the issue of prisons. That there are 168 allegations of mistreatment suggests that even if some are unfounded there is a degree of mistreatment in Algerian prisons. Spain has been investing in modernising Algerian prisons, which requires the cooperation of the Algerian government, and Algeria has clearly undertaken efforts to improve conditions including by training prison staff through to building new prisons. While the US State Department report refers to a lack of medical care as one of two reasons for their finding on ‘sometimes harsh and life threatening’ conditions, the UK government notes that it is a known obligation of the Algerian government to provide medical care without mentioning that it is unlikely to be made available or providing any other warning. The US report also refers to ‘physical abuse’ but there is no information in their own report that indicates what that could entail, by whom, and the circumstances of such abuse. Is it only political prisoners? The whole general prison population? Does it occur in certain prisons and not others? The reports referenced by the representative in her submissions provide details of those who have experienced physical abuse and as noted, they are people who have been imprisoned for reasons of acting or being perceived to be acting against the government. I acknowledge Freedom House’s description of Algerian prisons as, ‘poor, with some inmates reportedly facing significant overcrowding and poor sanitation.’ I also note that although 168 complaints of mistreatment is a large number, but that it is publicly reported acknowledges a positive transparency.
The applicant faces imprisonment for a non-political reason. Noting that the applicant’s evidence regarding his earlier detention in 2019 was that the police don’t share such information and that it remains contained to the police stations, I find that he will not bear the mark of a past protestor. I find that there is no circumstance in which the applicant will have conversations with prison officials about politics such that his past actions or his political views would be brought to light.

In considering the applicant’s case and the circumstances he will encounter in prison and specifically whether detention in Algerian prisons meets the threshold of significant harm, I note that this is a highly subjective assessment with incomplete information available to the Tribunal. Nevertheless, in this instance, I find that it does not.
As such, I find that the applicant does not face a real risk of significant harm as defined in the Act for the purposes of s 36(2)(aa).
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 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 under review.
Date of the hearing:  6 November 2024 and 20 December 2024
Representative:  Ms Anna Emad (MARN: 1680386)
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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