CAT/C/27/D/154/2000

Communication No 154/2000 : Australia. 23/11/2001.

Convention Abbreviation: CAT

Committee Against Torture

Twenty-seventh session

12 - 23 November 2001

[PART OF ANNEX VII OF DOCUMENT A/57/44]

Views of the Committee Against Torture under article 22 of the

Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment

- Twenty-seventh session -

Communication No. 154/2000

Submitted by: M.S. (name withheld) [represented by counsel]

Alleged victim: The petitioner

State party: Australia

Date of communication: 25 January 2000

The Committee against Torture, established under article 17 of the Convention against Torture

and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Meeting on 23 November 2001,

Having concluded its consideration of communication No. 154/2000, submitted to the

Committee against Torture under article 22 of the Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment,

Having taken into account all information made available to it by the petitioner and the State

party,

Adopts its Views under article 22, paragraph 7, of the Convention.

1.1 The petitioner is M.S., an Algerian national, currently detained in the Immigration

CAT/C/27/D/154/2000. (Jurisprudence)

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Detention Centre in Chester Hill, Australia. He claims that his removal to Algeria would entail

a violation of article 3 of the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment by Australia. He is represented by the Refugee Advice

and Casework Service (Australia) Inc.

1.2 In accordance with article 22, paragraph 3, of the Convention, the Committee brought the

Communication to the attention of the State party on 28 January 2000. At the same time,

acting under rule 108, paragraph 9, of its rules of procedure, the Committee requested the State

party not to expel the petitioner to Algeria while his communication was being considered.

The facts as submitted by the petitioner

2.1 On 24 August 1998, coming from South Africa, the petitioner arrived in Australia without

valid travel documents. In his interview at the airport he requested the State party's protection

as a refugee.

2.2 On 3 September 1998, the petitioner made an application for refugee status (protection

visa) with the Department of Immigration and Multicultural Affairs under the Migration Act.

On 2 October 1998, a delegate of the Minister for Immigration and Multicultural Affairs

delivered a decision denying a protection visa. On 14 December 1998, the Refugee Review

Tribunal RRT) affirmed this decision. On 30 April 1999, the Federal Court of Australia

dismissed the petitioner's request for judicial review.

2.3 On 22 March 1999, the petitioner requested the Minister for Immigration and Multicultural

Affairs to intervene and set aside the decision of the RRT in the public interest, pursuant to

section 417 of the Migration Act. In an undated letter, the Minister responded that he decided

not to exercise this power. On 13 September 1999, counsel again wrote to the Minister

requesting that the petitioner be permitted to submit a second application for a protection visa

pursuant to section 48B of the Migration Act. Counsel has not received a response to this

request.

2.4 The petitioner submits that he was involved in the social assistance activities of the Front

islamique du salut (FIS) since 1990, i.e. after work, the petitioner sued to go to the local FIS

office and assess what to give to families in need. In January 1992, after the results of the

general election for the National Peoples' Assembly were cancelled, the local FIS office was

closed and the petitioner was called by the police (gendarmerie) and questioned for more than

two hours. The petitioner submits that after his release, he was required to report to the

gendarmerie on a daily basis and not to leave his hometown, Ngaos. On 16 September 1994,

supported by a friend, he left Algeria for the Syrian Arab Republic by plane. The day after his

departure, and again in October, the gendarmerie questioned his father about the residence of

the alleged victim. It is further submitted that the petitioner's father subsequently advised him

not to return to Algeria because the police accused him of avoiding his military recall.

2.5 The petitioner submits that he left Algeria in 1994 after he heard of an official decree

calling up reservists who had only served 18 months of military service for an extra six

months. The petitioner had served in the National Republic Army from May 1988 to March

1990. The petitioner submits that in March 1994 it was reported that the Algerian Minister of

the Interior announced the Government's intention to draft thousands of army reservists and

that these reports were not before the RRT when it reviewed the case.

2.6 The petitioner submits that, in 1996, he obtained a copy of a court verdict, dated 17

November 1996, convicting him of forming a terrorist group and, in absentia, sentencing him

to death. (1)

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The complaint

3.1 The petitioner contends that his deportation to Algeria would violate article 3 of the

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The petitioner argues that there are substantive grounds for believing that he would be in

danger of being subjected to torture when deported to Algeria, because he has been perceived

as an FIS sympathiser.

3.2 The petitioner claims that, upon his return, he would be targeted as a draft-evader and anti-

Government opinions would automatically be attributed to him for avoiding military service.

3.3 The petitioner claims further that upon his return he would be arrested and tortured in

connection with the court verdict of 1996. It is submitted that the judgement is consistent with

counsel's knowledge of penalties for desertion in connection with perceived affiliation with the

Islamists.

3.4 The petitioner claims that, upon his return, he will be interviewed at the airport about his

time spent outside Algeria and his activities. He may be questioned on whether he applied for

refugee status outside Algeria. The petitioner quotes a British newspaper report of June 1997

on the death of a refused asylum-seeker deported to Algeria.

3.5 The petitioner claims that Algeria is committing gross violations of human rights, which

take place not only with total immunity, but are also sanctioned at the highest level. Recalling

events that have occurred in Algeria since 1992, he further claims that there is a customary

disregard by Algeria of its obligations under international human rights treaties.

3.6 The petitioner claims that all available domestic remedies have been exhausted.

Notwithstanding the outstanding response from the Minister for Immigration and Multicultural

Affairs and pursuant to the Migration Act, the alleged victim could be deported from Australia

as soon as reasonably practical.

State party's observations on admissibility and merits

4.1 In its reply of 14 November 2000, the State party submits that the application is

inadmissible, because it lacks the minimum substantiation as required by article 22 of the

Convention.

4.2 Should the Committee find that the application is admissible, the State party submits that it

lacks merit, as grounds for believing that the alleged victim would be subject to torture upon

his return to Algeria are neither substantial, personal nor present.

4.3 While the State party acknowledges the seriousness of the human rights situation in

Algeria, it submits that recent reports indicate that the situation has improved. The State party

refers to the adoption of the Civil Harmony Law in 1999 and the agreement of the Algerian

Ministry of the Interior to investigate cases of disappearances. The State party submits that

Amnesty International, Human Rights Watch and the United States Department of State

reported ad idem that the number of disappearances, arrests, torture, and extrajudicial killings

carried out by agents of Algeria declined in 1999. The State party notes that Algeria acceded

to the International Covenant on Civil and Political Rights, the Convention against Torture,

with the declaration under articles 21 and 22, and the African Charter on Human and Peoples'

Rights.

4.4 The State party submits that there is no substantial reason for believing that the petitioner

will be subjected to torture upon his return to Algeria resulting from his claimed involvement

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with the FIS. The State party requests the Committee to accord appropriate weight to the

findings of the RRT in this regard, since the petitioner did not provide new information in

respect to this claim. The State party recalls the findings of the RRT that the petitioner has

never been a member of the FIS and had no interest or involvement in its political activities

and that the Algerian police had no interest in him whatsoever. The RRT argued that the

petitioner's submission that he was required to report to the police and restricted in his travel

was not plausible in the light of the evidence of the treatment of FIS members during the time

in question. Furthermore, in the light of recent developments in Algeria, the State party

submits that sympathy with the FIS is unlikely to draw the attention of the Algerian

authorities.

4.5 With regard to the military recall of the petitioner, the State party points at the findings by

RRT that there was no military recall until March 1995. Country information received by the

State party indicates that there was an earlier recall of reservists in 1991, but no further recall

until March 1995. The State party recalls further that there was no evidence that the petitioner

was recalled at all, while independent evidence indicated that a notice would have been sent to

the petitioner's home. Even in the event that the petitioner had failed to respond to a recall of

reservists, the alleged victim did not produce any specific information that he is likely to be

subjected to torture. The State party points to UNHCR guidelines in respect of Algerian

asylum-seekers and submits that the likelihood of arrest alone does not support allegations of

the likelihood of torture.

4.6 The State party submits that the copy of the court verdict presented by the petitioner is

unlikely to be genuine, given that the petitioner's own account of when the order was issued is

inconsistent with the date of the order and the sentence imposed is inconsistent with

information received concerning penalties imposed on reservists for the failure to respond to

recall, i.e. arrest and imprisonment for a period of between 3 months and up to 10 years,

depending on the circumstances. The State party further recalls Amnesty International's

reports that Algeria has had a moratorium on carrying out death sentences since December

1994 and that none has been carried out since that time.

4.7 Insofar as the petitioner claims that he is at risk of being subjected to torture because of a

suspicion that he has applied for refugee status or sought asylum, it is submitted that the

alleged victim did not provide any evidence to support the observation that Algerian

authorities have been made aware of his applications in Australia or South Africa. Country

information received by the State party indicates that, even if the Algerian authorities were

aware of the petitioner's applications, there is no substantial reason for believing that he would

be subjected to torture.

Comments by the petitioner

5.1 The petitioner submits that the human rights situation in Algeria remains critical. He

argues that Algeria continues to ignore or is unable to respond to allegations of torture and ill-

treatment of those people arrested on suspicion of having links with armed groups. The

petitioner recalls the note in the concluding observations of the Human Rights Committee in

1998 that there were numerous sources of information that torture, disappearances and

summary executions occurred in Algeria. In addition, the petitioner notes Amnesty

International's continuing concern regarding torture of those, who have been interrogated

about possible contacts with members of armed groups.

5.2 The petitioner submits that the distinction made between his involvement with FIS and

active membership in the organization is artificial. In addition, no evidentiary basis is

presented for the conclusion that social assistance activities, which have obvious political

significance, are not regarded as political by the Algerian authorities.

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5.3 The petitioner submits that, in the light of recent developments, it is too simplistic to argue

that the petitioner's sympathy with the FIS is unlikely to draw the attention of the Algerian

gendarmerie to his case. It is argued that those who have not claimed the amnesty or who fall

outside its terms as provided for by the Civil Harmony Law are likely to be pursued

rigorously.

Issues and proceedings before the Committee

6.1 The Committee notes the information from the State party that the deportation of the

petitioner has been suspended, in accordance with the Committee's request under rule 108,

paragraph 9, of its rules of procedure.

6.2 Before considering any claims contained in a communication, the Committee against

Torture must decide whether the communication is admissible under article 22 of the

Convention. The Committee has ascertained, as it is required to do under article 22, paragraph

5 (a), of the Convention, that the same matter has not been and is not being examined under

another procedure of international investigation or settlement. The Committee notes that the

State party considers the communication inadmissible for lack of sufficient substantiation.

However, the State party did not submit further arguments in this regard, but arguments on the

merits should the Committee find the communication admissible. The Committee, therefore, is

of the opinion that the State party's arguments raise only substantive issues, which should be

dealt with at the merits and not the admissibility stage. Since the Committee sees no further

obstacles to admissibility, it declares the communication admissible.

6.3 The Committee must decide, pursuant to article 3, paragraph 1, of the Convention, whether

there are substantial grounds for believing that the petitioner would be in danger of being

subjected to torture upon return to Algeria. In reaching this decision, the Committee must take

into account all relevant considerations, pursuant to article 3, paragraph 2, of the Convention,

including the existence of a consistent pattern of gross, flagrant or mass violations of human

rights. The aim of the determination, however, is to establish whether the individual concerned

would be personally at risk of being subjected to torture in the country to which he or she

would return. It follows that the existence of a consistent pattern of gross, flagrant or mass

violations of human rights in a country does not as such constitute a sufficient ground for

determining that a particular person would be in danger of being subjected to torture upon his

return to that country; additional grounds must exist to show that the individual concerned

would be personally at risk. Similarly, the absence of a consistent pattern of gross violations of

human rights does not mean that a person cannot be considered to be in danger of being

subjected to torture in his or her specific circumstances.

6.4 In the present case, the Committee notes that the petitioner's social activities for the FIS

date back to the beginning of 1992, at which time he was detained and interrogated for two

hours. It is not submitted that the petitioner was tortured or prosecuted for his activities for FIS

before leaving for Syria.

6.5 The Committee notes that the petitioner invokes the protection of article 3 on the grounds

that he is personally in danger of being arrested and tortured in connection with the disputed

court verdict of 1996. However, the petitioner does not submit any information supporting the

claim that the petitioner will be exposed to the risk of torture. The Committee considers that,

even if it were certain that the petitioner would be arrested on his return to Algeria because of

a prior conviction, the mere fact that he would be arrested and retried would not constitute

substantial grounds for believing that he would personally be in danger of being subjected to

torture. (2)

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6.6 With regard to the claim that the petitioner will be targeted and that an anti-Government

opinion will automatically be attributed to him, the Committee notes that the petitioner did not

present evidence that there was, in fact, a military recall of the petitioner at all. From the

evidence before the Committee, it also cannot be established that the petitioner is at risk of

being tortured if interviewed at the airport upon his return to Algeria.

6.7 The Committee recalls that, for the purposes of article 3 of the Convention, a foreseeable,

real and personal risk must exist of being tortured in the country to which a person is returned.

On the basis of the considerations above, the Committee considers that the petitioner has not

presented sufficient evidence to convince the Committee that he faces a personal risk of being

subjected to torture if returned to Algeria.

7. The Committee against Torture, acting under article 22, paragraph 7, of the Convention

against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, concludes

that the removal of the petitioner to Algeria, on the basis of the information submitted, would

not entail a breach of article 3 of the Convention.

Notes

1. The translated text of the decision submitted by the petitioner reads in its relevant part: "The

Court has in default sentenced accused 'M.S.' to death …."

2. See P.Q.L. v. Canada, communication No. 57/1996, para. 10.5.

©1996-2001

Office of the United Nations High Commissioner for Human Rights

Geneva, Switzerland

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