Other aspects of Particular 1A(b) and Particular 1B
42 As noted above, Mr Tully submitted that Direction 75 does not address those aspects of BCR16 which deal with the qualitative difference between the assessments to be made under s 36(2)(a)/s 36(2)(aa) and s 501CA(4). He also submitted that Direction 75 does not address the fact that the harm comprehended by non-refoulement obligations does not describe the universe of harm which could be suffered and failure of the Assistant Minister to consider harm which was not subject to non-refoulement obligations leads to jurisdictional error. Those propositions must be accepted. The question to be determined is whether they have application in this case.
43 Mr Tully acknowledged that the Assistant Minister did consider the impediments that Mr Turay would face upon his return to Sierra Leone. Counsel submitted that it is inconsistent for the Assistant Minister to fail to consider non-refoulement obligations which arise out of those same circumstances and it is not sufficient for the Assistant Minister to consider adequately non-refoulement obligations only by reference to those impediments: T 24.
44 In relation to particular 1B, Mr Tully noted representations made by Mr Turay about medical assessments concerning his depression, anxiety and PTSD and inability to access required medications in Sierra Leone. Mr Tully relied on representations made by Salvos Legal on Mr Turay's behalf on 29 November 2017 which appear at CB 322 as follows (emphasis added):
We submit that Mr Turay will face severe impediments if he is forced to return to Sierra Leone, which would amount to a breach of Australia's non-refoulement obligations. We note that Mr Turay has written about his concerns in detail in his personal statement dated 30 October 2017 and he has included a number of relevant and authoritative annexures to support his concerns. We note that the Department is required to consider Mr Turay's protection claims, the impediments if he's forced to return to Sierra Leone and any international non-refoulement obligations owing to Mr Turay (see BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96).
In summary:
…
• Mr Turay struggled with untreated PTSD, depression and anxiety for many years in Australia. He now relies on his daily medication, which includes [named medications] to manage the symptoms of these mental health issues. It is unlikely that he would be able to readily access these medications in Sierra Leone. At paragraph 62 of his personal statement he provides evidence that the majority of people with mental health issues in Sierra Leone remain untreated as there is only basic access to medications.
• Mr Turay attends regular appointments with his psychologist to manage his mental health issues. At paragraph 62 of his personal statement, Mr Turay provides evidence that there are only two psychiatrists in Sierra Leone and only one psychiatric institution with little funding. Should Mr Turay's mental health conditions become untreated and he were to have his PTSD triggered in that environment, it is our concern that he may become unwell again and he will face a real risk of degrading treatment in Sierra Leone because he won't have access to the specialist medical services he requires to manage his psychological illnesses, pursuant to section 36(2)(a) of the Migration Act (see SBTF v Minister for Immigration and Citizenship [2007] FCA 1816 which found that psychological harm can in some circumstances amount to persecution);
45 Mr Tully noted that in his reasons, the Assistant Minister:
(1) Identified those conditions arising from Mr Turay's traumatic early life in Sierra Leone and referred to the poor medical facilities there which would cause hardship upon Mr Turay's return there (at R[12]);
(2) Noted that Mr Turay was receiving medication and seeking mental health interventions (at R[15]);
(3) Accepted that Mr Turay has mental health issues (at R[21]) and "acknowledged" evidence that he suffered from PTSD, trauma, anxiety and major depression which caused significant difficulties in functioning and required daily medication (at R[43]);
(4) Repeated Mr Turay's concerns that his mental health issues would worsen if he returned to Sierra Leone because he would be exposed to traumatic triggers and lack access to health treatment and medication to continue the rehabilitative process (at R[44]);
(5) Noted Mr Turay's representations that he would face harm in Sierra Leone for various reasons (at R[25]-[26], [47]) and that hardship would be exacerbated by lack of access to appropriate mental health treatment, medication and ongoing support, that he would likely suffer deteriorating mental health and that access to health care was not at a comparable level to that available in Australia (at R[49]-[50]);
(6) "Acknowledged" that Mr Turay's traumatic experiences in Sierra Leone had an ongoing impact on his mental health (at R[70]), he was diagnosed with psychosis, treated for PTSD and had struggled with his mental health for a long time (at R[72]) and his untreated PTSD and relationship breakdown played a significant role in his offending behaviour (at R[73]-[74]);
(7) Accepted as a mitigating factor that Mr Turay's past traumatic experiences contributed to his offending and mental health issues (at R[75]) and that he accepted the need to seek professional help (at R[87]);
(8) Indicated that considerations included Mr Turay's claims of harm he feared if he returned to Sierra Leone and the hardship he would endure (at R[106]).
46 Mr Tully submitted that, in the attachment to the reasons outlining evidence and material, the Assistant Minister listed a psychological report about Mr Turay dated August 2017, information about PTSD and three country information reports addressing the availability of mental health services in Sierra Leone. Counsel then submitted that discrimination exists for persons with mental disabilities with limited access to medical or rehabilitative care (based on the US Department of State's Human Rights Report for Sierra Leone (2016) set out at CB 249-281). Relevantly under the heading "Persons with Disabilities", that Report (at CB 272) notes that notwithstanding the enactment of a Persons With Disabilities Act and a government-funded Commission on Persons with Disabilities, given the high rate of general unemployment, work opportunities for persons with disabilities are few and begging by them was commonplace. It also states that there is "considerable discrimination" against persons with mental disabilities, noting that there is only one institution serving persons with mental disabilities, the government did not provide adequate funding and it relied on private donations, the hospital had only one consulting psychiatrist, patients did not have enough food and restraint was primitive and dehumanising. While basic drugs are available, specific drugs are not so that the vast number of persons with mental disabilities remain untreated and receive no public services.
47 Mr Tully submitted that the Assistant Minister only considered discrimination with respect to employment (at R[45]), but contends that the Assistant Minister failed to consider that, given Mr Turay's circumstances, severe mental and physical pain can amount to "significant harm" within s 36(2A) of the Migration Act or expose him to cruel or inhuman treatment or punishment, and exposing Mr Turay to that would breach Australia's non-refoulement obligations under the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) and the Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2009). He relied on YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [70]-[71] in which a Tribunal was found to have erred because it failed to determine the nature and extent of any impediments an individual with PTSD would face if removed to South Sudan where medication or counselling would be unavailable. Counsel submitted that the Global Humanitarian Visa (Subclass 202) which had been cancelled by the delegate was granted to applicants subjected to discrimination amounting to gross violation of human rights and Mr Turay was therefore recognised by Australia as a refugee and that had significance for the obligation of the Assistant Minister to consider non-refoulement obligations. Mr Tully relied on the finding in Le v Minister for Immigration and Border Protection (2015) 237 FCR 516; [2015] FCA 1473 at [54] that Australia's non-refoulement obligations amounted to a relevant consideration for the exercise of the Assistant Minister's powers under s 501 in similar circumstances: T 23. Mr Tully submitted that, having regard to these authorities, the Assistant Minister in this case was obliged to consider Australia's non-refoulement obligations as they applied to Mr Turay.
48 Mr Reilly noted that the decision in Le (2015) 237 FCR 516; [2015] FCA 1473 was reversed in Minister for Immigration and Border Protection v Le (2016) 244 FCR 56; [2016] FCAFC 120 (Le Full Court) and that at [65], the Full Court found that Australia's non-refoulement obligations are not a mandatory consideration in the exercise of the Assistant Minister's power under s 501(2) in circumstances where Ms Le was able to apply for a protection visa. Insofar as the Full Court did not deal with the grounds successfully raised in BCR16 at [72] based on whether the claims made revealed "another reason" for the exercise of discretion under s 501CA(4) and whether the Assistant Minister misunderstood the nature of the claim made, they are addressed below.
49 Mr Reilly also drew to the Court's attention the decision of the Full Court in Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68, in particular at [78]-[80]. There, the Full Court accepted that there was "some force" to the submission that BHA17's case was distinguishable from BCR16 because BHA17's representations were framed as refugee claims. The Full Court found it unnecessary to decide that issue because it allowed the appeal on other grounds.
50 Mr Reilly submitted that Mr Turay had put his claims in the alternative: the first being fear of being killed and, in relation to his health claims, suffering degrading treatment upon his return to Sierra Leone, clearly refugee claims or complementary protection claims correctly identified by the Assistant Minister as raising issues of non-refoulement. The second basis was the impediments which Mr Turay would face if he returns to Sierra Leone, including that as a result of his mental health issues he would be exposed to degrading treatment, which might also fall outside non-refoulement obligations. Mr Reilly submitted that, insofar as the claims related to non-refoulement, the Assistant Minister correctly found that they could be dealt with as part of a protection visa application having regard to Direction 75 and the decision in Ali at [19]-[35]. Importantly, the Minster specifically addressed the remainder of the health claims and came to the conclusion, at R[50], that Mr Turay would be unable to access the required treatment and that that would exacerbate his hardship in establishing his life in Sierra Leone in determining whether there was "another reason" to revoke the original decision, so it cannot be said that there was anything not addressed in this case.
51 I accept Mr Reilly's submissions. The Salvos Legal representations quoted at [44] above expressly stated that Mr Turay's claims to fear harm if he was returned to Sierra Leone gave rise to non-refoulement obligations and that the Department would have to address his protection claims and Australia's non-refoulement obligations as well as the impediments he would face if returned to Sierra Leone. It is clear that the Assistant Minister was satisfied that, having regard to Direction 75, the non-refoulement claims identified in submissions filed by or on behalf of Mr Turay would be considered if a protection visa application was made. Accordingly, the Assistant Minister did not make the error identified in BCR16 at [72], that of identifying the claims made as non-refoulement claims when they had not been made in those terms. Insofar as Mr Tully seeks to draw an analogy with Le on the basis that consideration of non-refoulement obligations is a mandatory consideration in the context of s 501 of the Migration Act, in Le Full Court at [65] the Court found that "the primary judge [in Le] erred in concluding, in the particular circumstances relating to Ms Le, that Australia's non-refoulement obligations were a mandatory consideration in the exercise of the Minister's power under s 501(2)." Ms Le's circumstance was that she was able to make a protection claim. On the basis of that authority, which was distinguished in BCR16 at [61]-[63], the Assistant Minister did not fall into jurisdictional error by relying on Direction 75 and deferring consideration of whether Australia owed non-refoulement obligations until such time as a protection visa was made.
52 Further, it is plain from the Assistant Minister's reasons that he did not characterise the claims made by Mr Turay in relation to the impediments he would face due to the inadequacy of mental health care (including access to required drugs) in Sierra Leone only in terms of Australia's non-refoulement obligations. The Assistant Minister gave detailed consideration to all material respects of those claims to fear harm in the context of the extent of the impediments Mr Turay would face if he returned to Sierra Leone in determining whether there was "another reason" to revoke the original decision: see R[42]-[50] and [105]. It cannot be said that the Assistant Minister failed to consider the hardship Mr Turay would face because of the scarcity of medical assistance and unavailability of required drugs to treat Mr Turay's mental health issues and the difficulty he would face in finding employment and familial support. The reasons make for bleak reading in a hard case.
53 The substance of the report about Sierra Leone from the US Department of State 2016 is fully reflected in the Assistant Minister's reasons. The Assistant Minister accepted the representations made based on the report and weighed them in the balance with the interests of Mr Turay's son, considerations of the serious nature of Mr Turay's previous offending and the protection of the Australian community having regard to the risk of him reoffending in a similar fashion, which the Assistant Minister could not rule out: see R[101]-[106]. I am satisfied that Mr Turay's claims were given the consideration required under s 501CA(4).
54 It is true that the reasons do not characterise the unavailability of medical assistance and required drugs as "discriminatory" in the same way as the report does. That does not reveal error. First, the Assistant Minister accepted the factual information in the report dealing with access to medical assistance and drugs. Second, to the extent that Mr Turay claims to be a person with disabilities who will face discrimination in Sierra Leone, those claims would be assessed in the context of a protection visa application having regard to Direction 75.