against Torture, established under Article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 11 November 2003,
Having concluded its consideration of complaint No. 153/2000, submitted to
the Committee against Torture by Ms. Z. T. under article 22 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
Having taken into account all information made available to it by the author
of the complaint, his counsel and the State party,
Adopts the following:
Decision of the Committee Against Torture Under Article 22 of the Convention
1.1 The complainant in the case dated 4 January 2000 is Z. T. She submits
the case on behalf of her brother, R. T., an Algerian citizen born on 16
July 1967. She claims that her brother is a victim of violations by
Australia of article 3 of the Convention against Torture and Other Cruel
Inhuman or Degrading Treatment or Punishment. She is represented by counsel.
1.2 On 26 January 2000, the Committee forwarded the complaint to the State
party for comments and requested it, under Rule 108, paragraph 1, of the
Committee's rules of procedure, not to return the complainant to Algeria
while his complaint was under consideration by the Committee. The State
party, however, expelled the complainant the same day without having had
time to consider the request.
The Facts as Submitted by the Complainant:
2.1 On 27 November 1997, the complainant, who held a visitors visa, visited
Mecca in Saudi Arabia. He stayed there for 7 months. He then "purchased" an
Australian visa and left for South Africa, to collect the Australian visa.
2.2 On 21 August 1998, the complainant arrived in Australia from South
Africa. He destroyed his travel documents at the airport of arrival. He
immediately applied for refugee status at the airport, where he was
interviewed by an officer of the Department of Immigration and Multicultural
Affairs (DIMA). As undocumented arrival, he was refused immigration
clearance under s172 of the Australian Immigration Act. On the same day, he
was detained and escorted to Westbridge Immigration Detention Centre.
2.3 On 26 August 1998, the complainant applied for a Protection Visa. He was
assisted by a solicitor from the Legal Aid Commission of New South Wales. On
16 October 1998, his application was rejected by DIMA. On 16 October 1998,
he appealed to the Refugee Review Tribunal. The appeal was rejected on 11
November 1998. He further appealed to the Federal Court of Australia, which
dismissed his appeal on 10 March 1999.
2.4 The complainant did not appeal the decision of the Federal Court of
Australia to the Full Federal Court because his representatives were of the
view that, in light of the narrow grounds of review available in the Federal
Court, an appeal did not have any prospect of success and therefore did not
fall within the guidelines which determine whether legal aid can be granted.
He alleges that without legal aid it would had been likely that he would
have been unrepresented in his appeal.
2.5 The complainant sent three subsequent appeals to the Minister of
Immigration and Multicultural Affairs on 17 March 1999, 6 July 1999, and 26
August 1999. He requested the Minister exercise his discretion and allow him
to stay in Australia on humanitarian grounds. The Minister declined to
exercise his discretion in an undated letter received by counsel on 22 July
1999, and a further letter dated 23 August 1999.
The Minister's decision was not subject to appeal. On 29 October 1999, an
immigration agent from the South Brisbane Immigration and Community Legal
Service appealed to the Minister asking to allow the complainant to remain
in Australia on humanitarian grounds; the director of Amnesty International
Australia also submitted a letter, requesting that the complainant would not
be returned "in the foreseeable future".
2.6 The complainant and another two asylum seekers thereupon started a
hunger strike in September 1999. On 8 October 1999, they were removed from
Westbridge. They were denied the opportunity to consult with their legal
advisors and were not permitted to pack their own belongings. On 16 October
1999, they submitted a complaint to the Minister for Immigration and
2.7 The complainant alleges that he was not notified of the decision to
remove him from Australia. He was effectively removed to South Africa on 26
2.8 In an additional letter dated 12 April 2000, Ms. T. provides further
information about her brother. She states that her brother, after his
expulsion from Australia, was held for 1 or 2 days at an airport hotel in
Johannesburg. He was then handed over to South African government officials
and was detained as an illegal arrival in the Lindela detention centre for
more than 30 days.
2.9 On or about 7 February 2000 he filed an asylum application and was
granted a temporary visa, which allowed him to be released from detention.
2.10 On or about 30 January 2000, the complainant was told to expect a visit
from the Algerian Ambassador to South Africa. The purpose of the visit was
to provide documentation for onwards travel to Algeria. The visit did not
take place, after interventions from the complainant's lawyer.
2.11 The complainant claims that he does not feel safe in South Africa after
his expulsion from Australia. He argues that there is no guarantee under
South African law that he cannot be expelled at any time. His concern about
the actions of the South African government include the notification of the
Algerian Ambassador of his presence in South Africa; accepting and then
revoking acceptance of an asylum application and revoking the grant of
temporary visa; his detention beyond the statutory limit of 30 days in the
Lindela detention centre. He claims that because of arms trade between the
governments of South Africa and Algeria, he fears his application will be
rejected in deference to trade imperatives.
2.12 It is submitted that the complaint has not been submitted to any other
procedure of international investigation or settlement.
3.1 The complainant claims that there are substantial grounds for believing
that he would be in danger of being subjected to torture upon return to
Algeria and that, therefore, Australia would be violating article 3 of the
Convention if he were returned there. He claims that he fears prosecution in
Algeria on account of his political opinions and membership of the Islamic
Salvation Front (FIS). He also fears having to serve in the Algerian army,
and claims that members of his family were accused by the Algerian
authorities of supporting armed Islamic groups. As a consequence he and
other members of his family were targeted by the Algerian army.
3.2 It is submitted that the complainant is personally at risk of being
subjected to torture because of his support of the FIS and his close family
relationship with several people who have been targeted because of their
membership of the FIS and, in some cases, their history of standing as FIS
3.3 Finally, it is submitted that the complainant is personally at risk of
being subjected to torture due to the publication of the decision of the
Federal Court. The decision provides personal details and family details,
his claims, and the process of his application for protection in Australia.
The complainant claims that such publication rendered him personally at risk
if he is forcibly returned to Algeria because of the probability that the
Algerian authorities are aware of the published decision and of the details
of his application for protection.
3.4 The author argues that Algeria remains an authoritarian state with a
consistently poor record of gross and flagrant human rights abuses. It is
submitted that those detained on national security grounds in Algeria are
routinely subjected to torture, and the reports of several organizations are
invoked in support of this argument. This evidence is said to establish
"substantial grounds" for believing that the complainant would be in danger
of being subjected to torture on return to Algeria.
3.5 The complainant seeks a finding that his expulsion from Australia, in
circumstances where he does not have the right to return or go to any other
country except Algeria, constitutes a violation of article 3 of the
The State Party's Submission on the Admissibility and Merits of the
4.1 On 14 November 2000, the State party submitted its observations on the
admissibility and merits of the case. It explains that it was unable to
comply with the Committee's request for interim measures of protection
because no written request from the Committee had been received by the time
of the complainant's removal from Australia on 26 January 2000. The State
party adds that UNHCR's office in Australia was notified of the
complainant's imminent removal and did not object, and that all potential
risks of return had been fully assessed based on available country
4.2 For the State party, the complaint is inadmissible as incompatible with
the provisions of the Convention. Further, the State party alleges that the
complainant has failed to make out a prima facie case that there are
substantial grounds for believing that he would be subjected to torture, on
the event of his return to Algeria. The State party adds that the
complainant has failed to disclose any reasonable basis for his belief that
he is at risk of torture.
4.3 The State party observed that there is no evidence that Algerian
authorities have ever tortured the complainant in the past, and evidence
that he has actually been involved in the political activities of the FIS is
very scant. It argues that the account of the complainant's activities
contains many inconsistencies, which casts doubts on his credibility. On the
strength of the evidence, the State party does not accept that the
complainant is a FIS supporter.
4.4 On the possibility that the complainant may be required to undergo
military service upon his return to Algeria, the State party argues that the
complainant was unlikely to be required to undergo further military service
either because he has already completed the service, or because he is too
old to be drafted into military service. The State party states that, in any
event, any requirement to pertain military service does not constitute
torture. In addition, the State party invokes the Refugee Review Tribunal's
(RRT) finding that the complainant has fabricated his claim to have
outstanding military service obligations. The RRT stated that the
complainant had exaggerated his claims in comparison to when he first raised
them on arrival in Australia.
4.5 As to the publication of the judgment of the Federal Court of Australia,
the State party denies that this might prompt the Algerian authorities to
torture the complainant upon his return to Algeria. There is no evidence to
suggest that the Algerian authorities have shown any interest in the
complainant's activities since 1992, when he claims to have been arrested
and detained for 45 minutes. The State party notes that the suggestion that
the Algerian authorities would be scanning internet legal databases in
Australia to determine his whereabouts, strains credulity. For the State
party, it is highly unlikely that that the publication, on Internet, to
refuse him a protection visa would have come to the Algerian authorities'
attention. Accordingly, there are no substantial grounds for believing that
the complainant is in danger of torture on this count.
4.6 The State party concedes that DIMA had noted that the author's relatives
who had experienced harm or mistreatment had been active members of the FIS
or Islamic clerics, but his own evidence, the complainant was neither of
these, and had not attracted the attention of the authorities, except once
in 1992, when he claimed to have been detained for 45 minutes. Further, the
State Party cites the RRT's finding that the complainant was able to depart
from Algeria on three occasions and to return twice without any problems.
This indicates that the complainant does not attract the authorities'
4.7 Moreover, the State party claims that during the hearing, the
complainant admitted that none of his immediate family had problems with the
authorities (with the exception of his brother-in-law, in 1995), and that he
personally had had no problems since his detention in 1992. This again
indicates that the complainant does not attract adverse attention from the
4.8 The State party observes that the complainant has a general fear of harm
as a result of civil conflict in Algeria; this fear however is not
sufficient to bring him under the Convention's protection. The State party
adds that the Minister of Immigration and Multicultural Affairs considered
information received from the French and United Kingdom authorities to the
effect that they were unaware of any instance in which a person returning to
Algeria from those countries had met with violence upon return. The State
party also refers to recent reports that indicate that the human rights
situation in Algeria has improved.
4.9 The State party also invokes DIMA's opinion, which noted that the
Algerian authorities are aware that many citizens who travel to foreign
countries make refugee applications to escape from the civil strife and
adverse economic situation in Algeria. It is noted that a mere asylum
application by an Algerian citizen in another country is not a reason for
the Algerian authorities to attempt to persecute or torture that person.
4.10 The State party notes that by letter of 25 January 2000, the
complainant was advised that arrangements had been made for him to leave
Australia on South African Airways flight SA281, departing Sydney for
Johannesburg at 9:40 pm on 26 January 2000. He was accompanied by 3 escorts
on the flight to South Africa. Further, the State party adds that the
complainant's current whereabouts are unknown to Australian authorities.
Issues and Proceedings Before the Committee :
Consideration of Admissibility:
5.1 The Committee has noted the State party's information that the return of
the complainant was not suspended and that it had not received in time the
Committee's request for interim measures under rule 108, paragraph 1, of its
rules of procedure. The complainant was returned to Johannesburg on 26
January 2000. He stayed in South Africa for some time, but his current
whereabouts are unknown.
5.2 Before considering any claims contained in a complaint, the Committee
against Torture must decide whether or not it is admissible under article 22
of the Convention. In this respect 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 also notes that
the State party has not contested that domestic remedies have been
exhausted. The State party further submits that the complainant has not
substantiated his case for purposes of admissibility. It refers to the
Committee's Views in G.R.B. v. Sweden, [FN1] in which the Committee held
that "A State's party's obligation to refrain from forcibly returning a
person to another State where there are substantial grounds to believe that
he or she would be in danger of being subjected to torture is directly
linked to the definition of torture as found in the article 1 of the
Convention". The State party also notes that the Committee stated that the
burden is on the author to present an arguable case. The State party
explains that this means establishing a factual basis for the author's
position sufficient to require a response from the State party. It argues
that the facts relating to the complainant are not such as to warrant any
response from Australia, and reiterates that the Committee noted that the
risk of torture must be assessed on grounds that go beyond mere theory or
suspicion. For the State party, there are no substantial grounds for
believing that the complainant will be subjected to torture.
[FN1] Case No. 083/1997, Views adopted 15 May 1998.
5.3 Notwithstanding the State party's observations, the Committee considers
that the complainant has provided sufficient information on the danger the
complainant claims to run in the event of his return to Algeria to warrant
consideration of his complaint on the merits. As the Committee sees no
further obstacles to admissibility, it declares the complaint admissible and
proceeds to the consideration of the merits.
Consideration of the Merits:
6.1 The Committee must decide whether the forced return of the complainant
to Algeria would violate the State party's obligation, under article 3,
paragraph 1 of the Convention, not to expel or return (refouler) an
individual to another State where there are substantial grounds for
believing that he would be in danger of being subjected to torture. In order
to reach its conclusion the Committee must take into account all relevant
considerations, including the existence in the State concerned of a
consistent pattern of gross, flagrant or mass violations of human rights.
The aim, however, is to determine whether the individual concerned would
personally risk torture in the country to which he or she would return. It
follows that, in conformity with the Committee's jurisprudence and despite
the allegations of the complainant in regard to the situation in Algeria
outlined in paragraph 3.4 above, the existence of a consistent pattern of
gross, flagrant or mass violations of human rights in a country does not as
such constitute sufficient grounds for determining whether the particular
person would be in danger of being subjected to torture upon his return to
that country; additional grounds must be adduced to show that the individual
concerned would be personally at risk. Conversely, 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.
6.2 The Committee notes that the petitioner invokes protection under article
3 of the Convention on the ground that he is personally at danger of being
arrested and tortured in connection with his and his relatives' support for
the FIS. His alleged connections with the FIS date back to 1992, when he was
detained and interrogated for 45 minutes. It is not submitted that the
complainant was tortured or prosecuted for his connections with the FIS
before leaving for Saudi Arabia. The complainant has not satisfied the
burden placed upon him to support his claim that there are substantial
grounds for believing that he would be in danger of being subjected to
torture, and that Algeria is a country, where a consistent pattern of gross,
flagrant or mass violations of human rights exist.
6.3 In the present case, the Committee also notes that the political
activities of the complainant's brother-in-law took place about 10 years
ago, and that they may not in themselves constitute a risk for the
complainant himself to be subjected to torture, should he be returned to
Algeria. It further observes that the complainant's alleged fear for
military recall is not relevant to the issue under consideration.
6.4 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 or, as in this case, a
third country where it is foreseeable that he subsecuently may be expelled.
On the basis of the above considerations, the Committee considers that the
complainant has not presented sufficient evidence to convince it that he
would face a personal risk of being subjected to torture in the event of his
return to Algeria.
6.5 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 complainant to
South Africa, on the basis of the information submitted, did not entail a
breach of article 3 of the Convention.
[Adopted in English, French, Spanish and Russian, the English text being the
original version. Subsequently to be issued in Arabic and Chinese as part of
the Committee's annual report to the General Assembly.]