FEDERAL COURT OF AUSTRALIA

Turay v Assistant Minister for Home Affairs [2018] FCA 1487

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant must pay the respondent’s costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FARRELL J

Introduction

1    The applicant, Mr Turay, arrived in Australia from Sierra Leone in 2007. He was then aged 23. He was granted a Class XB (Subclass 202) Global Special Humanitarian visa on 3 April 2007. He has a son who was born in early 2014 to a former partner (Ms C); the boy is an Australian citizen.

2    Mr Turay’s visa was cancelled by a delegate of the Minister for Immigration and Border Protection under s 501(3A) of the Migration Act 1958 (Cth) on 25 January 2017 (original decision). The delegate was not satisfied that Mr Turay passed the character test because of his “substantial criminal record” (as defined in s 501(6)(a) by reason of s 501(7)(c)) arising from a sentence of full-time imprisonment for 15 months for “stalk/intimidate intend fear physical harm (domestic)”. The sentence was imposed on 3 August 2016 by the Local Court of New South Wales. On appeal, it was confirmed by the District Court on 15 September 2016 and a non-parole period of five months was ordered.

3    Under s 501CA(4), the Minister may revoke the original decision if:

(a)    a person whose visa has been cancelled under s 501(3A) makes representations in accordance with an invitation issued by the Minister under s 501CA(3)(b); and

(b)    the Minister is satisfied either (i) that the person passes the “character test” (as defined by s 501), or (ii) that there is another reason why the original decision should be revoked.

4    On 9 February 2017, Mr Turay made representations in connection with an application to revoke the original decision. Further submissions and materials were provided to the Department during 2017 on 19 June, 26 September, 30 October, 29 November and 1 December and on a further unspecified date.

5    On 14 February 2018, the Assistant Minister for Home Affairs, the Hon Alex Hawke MP, decided not to revoke the original decision. Included in the Court Book are (among other things) a copy of the briefing paper prepared for the Assistant Minister, his statement of reasons and a copy of the submissions filed by Mr Turay.

6    The Assistant Minister set out Mr Turay’s background in brief in his reasons at [70]-[72] as follows:

70.    I have taken into account Mr TURAY’s background, which I acknowledge has impacted his mental state on an ongoing basis. On 25 January 1995, when he was 11, anti-government rebels attacked his village of [redacted] and burned his house down. Mr TURAY and his family fled to Guinea, they returned to Sierra Leone later that year and stayed with family in Freetown. Sometime later they returned to [redacted]. In January 1999 rebels returned and Mr TURAY was kidnapped and made to live in the bush with 200-300 other children. Mr TURAY states that they were ‘beaten, tortured, molested and starved’ and that he ‘saw some of the most horrible things being done to other people’. Mr TURAY witnessed the traumatic and violent deaths of others and experience[d] threats to his physical integrity and he states, ‘I am still badly affected by this time in my life’.

71.    Mr TURAY submits that he is not sure how long he was at the camp; he escaped when British soldiers attacked the rebels. He made his way home through the jungle only to discover that the village had been razed and his family had again fled to Guinea. Only his brother [name redacted] and stepbrother [name redacted], plus some aunts and uncles remained. Mr TURAY lived with aunts and uncles for a few months before he and his brother crossed the border into Guinea on foot and reunited with their family through the UNHCR. Mr TURAY describes life in the camp as tough and crowded with poor hygiene but they had access to food and shelter and some limited schooling. In 2000, rebels came and raised the refugee camp. Mr TURAY’s family lost most of their documentation. In 2007 Mr TURAY and his family were granted humanitarian visas to come to Australia.

72.    I note that Mr TURAY has been diagnosed with a history of psychosis with the presence of auditory hallucinations and thoughts of harm to others. Mr TURAY states that he has been diagnosed with and treated for PTSD and that his criminal offending was influenced by his then undiagnosed PTSD and trauma from his experiences in Sierra Leone and Guinea. Mr TURAY states that he has struggled with his mental health ‘for a long time’ and believes that if he had received effective treatment earlier, he would not have offended. He mentions a period in July 2012 when he attended a psychiatric emergency care centre because he was ‘not coping’ – having broken up with his partner [Ms C], he was homeless and unemployed, drinking and smoking too much. Mr TURAY states that he has had mental health plans in the past since 2012 but he did not make it a priority ‘because (he) was so busy working to support [Ms C and his son]’.

7    Mr Turay was convicted of a number of offences between 2012 and 2016. The Assistant Minister found that the majority of those offences involved “repeated domestic violence as well as violence toward law enforcement officers, and overall his offending is very serious”: R[68].

8    One occasion of offending in July 2015 involved Mr Turay attacking Ms C’s mother (Mrs C) while she was assisting her elderly mother (that is, Ms C’s grandmother) out of her car. Mr Turay hit Mrs C in the arm, shoulder and face while shouting “where’s my son, give me my son”. He then smashed a walking frame belonging to Ms C’s grandmother into the windscreen of Mrs C’s car and smashed the window of Ms C’s car which was nearby: R[59]. Another offence committed in May 2015 involved assault on another sexual partner (Ms R). Ms R said that after Mr Turay had spoken to her in a “degrading manner”, she asked him to leave her home and placed his belongings outside. Mr Turay then shouted at Ms R, used both fists to punch her three or four times in the back, then swept his foot under her legs causing her to fall and while she was on the ground, he kicked her in her left thigh two or three times, he then went to kick her near her head area but stopped and walked away: R[61]. Mr Turay has also been convicted twice of assaulting an officer in the execution of his duty: in an incident in May 2015, Mr Turay bit the arm and spat in the face of an officer who was attempting to hold him down while nurses at a hospital attempted to sedate him. In August 2014, Mr Turay was convicted of assault occasioning actual bodily harm in company and damage to property and another officer was assaulted in the execution of their duty in the course of that incident: R[56] and [60]. A judgment of the District Court from 15 September 2016 indicates that in June 2015, Ms C contacted the police after she and Mrs C had been sent text messages by Mr Turay about visiting his son. When the police contacted him to obtain his version of events, Mr Turay threatened to kill Ms C and their son by burning down their home and to kill himself afterwards. The Judge said that courts are obliged to regard these threats as “incredibly serious” and the fact that they were said to a police officer reflects “an unbelievable lack of control and a great concern that he will actually go and do exactly that”: R[65]-[66].

9    Mr Turay was released from prison on 3 June 2017 and has since been held in immigration detention.

Grounds of review

10    Mr Turay claims that the Assistant Minister’s decision involves jurisdictional error on the bases that:

(1)    The Assistant Minister failed to consider “relevant, material and significant” evidence and representations. The particulars of this ground focus on the Assistant Minister’s expression of concern at R[95] that there was “no evidence” that Mr Turay had undertaken rehabilitation specifically for drugs and alcohol to assist him to abstain from those substances in the community;

(2)    The Assistant Minister failed to consider whether there was “another reason” within s 501CA(4)(b)(ii) when assessing Mr Turay’s representations. This ground focuses on the adequacy of consideration of non-refoulement obligations; and

(3)    The Assistant Minister failed to give “proper, genuine and realistic consideration” to “relevant, material and significant” evidence, and failed to consider representations. This ground also claims that the Assistant Minister’s decision was legally unreasonable. The particulars of this ground focus on the representation made by Mr Turay that he would not seek to contact Ms C or her family if he was released but instead go through the Family Court system to obtain access to his son.

Ground 1

11    The particulars to ground 1 are as follows:

a.    In his reasons for decision (at [95]), the respondent was concerned that there was no evidence that the applicant had undertaken the required rehabilitation specifically for alcohol or drugs to assist him to abstain from such substances in the community.

b.    The respondent had available before him:

i.    Evidence that the applicant had completed an EQUIPS Domestic Abuse Program (certificate dated 12 December 2016) and an EQUIPS Foundation Program (certificate dated 5 April 2017).

ii.    Evidence that these programs review, among other matters, lifestyle choices, risk factors related to an individual’s offending and emotional dysregulation or disinhibitors including alcohol and drug abuse (Corrective Services, Compendium of Offender Behaviour Change Programs in New South Wales dated June 2016 at pp 10, 12 & 39).

iii.    A personal submission dated 27 November 2017 in which the applicant had represented (at [42]) that, during the EQUIPS Domestic Abuse program, he “spoke about the use of alcohol and drugs and how badly they affect you.”

iv.    Evidence in the form of a completed New South Wales Corrective Services Pre-Release Home Visit Assessment dated 28 March 2017 (at p 5) which identified substance use/addiction programs and services available to the applicant as including the EQUIPS Addiction program, a variety of drug and alcohol services available in the area, and supervision which could include referrals to suitable services for assessment and/or interventions.

c.    This evidence was relevant, material and significant to assessing the applicant’s representations which the respondent failed to consider.

Evidence

12    In written submissions filed on behalf of Mr Turay, his pro bono counsel, Mr Tully, emphasised that Mr Turay’s representations filed with the Department stated that he was actively participating in courses to address his behaviour. In the submissions, Mr Tully relied on the following documents all of which are recorded as being included as “evidence or material” for Mr Turay in the attachment to the Assistant Minister’s reasons. The materials are

(1)    The “Request for Revocation of a Mandatory Visa Cancellation under s501(3A)” form which Mr Turay signed on 9 February 2017. At page 3 of the form (at CB 81) under the heading “Reasons for Revocation”, Mr Turay said (emphasis added):

Family who remain supportive of me would be devastated if I were to be deported. I want to be an active parent in my son’s life.

I have no family, no support in my country of birth.

I have been actively participating in courses in order to address my behaviour which resulted in my incarceration. This is my first offence, I am not a repeat offender.

I have a full-time job I intend to return to upon release. I also have an address I can reside at, providing parole approve it.

(2)    In his “Personal Circumstances Form” (at CB 90) completed on the same date, Mr Turay said (as written):

CRIMINAL HISTORY AND RISK OF REOFFENDING

Do you believe that there are any factors that help to explain your offences which should be taken into account by the decision-maker?

Although I do not intend to use this as an excuse the main contributing factor would be my problem with [Ms C’s] mother, made worse if I had consumed alcohol. I have completed a Domestic Abuse Program. I have been diagnosed with and being treated for post-traumatic stress disorder. I have learned that I need to start talking about my past traumas and learn how to deal with them in a more positive manner, this will be after release through STARRS – an organisation that specialises in this area. I have learned that alcohol only makes issues worse.

…

Have you completed any courses or programs that will help you to avoid further offending and to make a positive contribution to the community? Please provide evidence e.g. course completion certificates

Health Training Package – TAFE

GMAW Welding – TAFE

EQUIPS DOMESTIC Abuse Program – Dept Corrective Services.

(3)    Paragraph [42] of Mr Turay’s letter to the Department dated 27 November 2017 (CB 328). The letter was written in response to sentencing remarks contained in records sent to Mr Turay for comment on 2 November 2017. It is useful to set out the context in which [42] of the letter occurs (as written):

Steps to improve myself since offences

40.    In the sentencing remarks the judge suggested that it would be hard for me to rehabilitate, as a domestic violence offender. It hit hard to be described this way. I have worked so hard to prove that this isn’t true, that I will never reoffend. I truly believe that I will never reoffend.

41.    In prison, I completed a number of EQUIPS programs, including the EQUIPS Foundation program, the Domestic Abuse program and the Aggression program. The programs involved a lot of teamwork and a lot of time reflecting on our actions that led us to our programs. The programs were 120 hours in total.

42.    The EQUIPS Domestic Abuse program went for 40 hours in total. I spent a lot of this time talking about the incidents with [Ms C] and her mum that led to me being in jail. We spoke about the use of alcohol and drugs and how badly they affect you. I haven’t used drugs or had alcohol since I’ve been in prison and I don’t want to if I am released. I feel so much between without alcohol and drugs. I respect myself now.

43.    I got a lot out of the program. My teachers taught me how to recognise and control my emotions and the stress I was feeling because I didn’t have control over how often I could see [my son]. I learnt that you always need to be a team with your partner and respect and support each other.

44.    I haven’t tried to contact [Ms C] while I’ve been in prison and detention because I respect her and understand the reasons why she doesn’t want contact with me. If I am released, I will not contact [Ms C] or her family. I will take the right approach and go through the family court system to try to arrange access to see [my son] again.

45.    I know that it will take time for [Ms C] to trust me with [my son]. I am willing to see him at a supervised centre for as long as it takes to get her trust back.

46.    The EQUIPS Aggression program also went for 40 hours in total. I spent a lot of time with the teachers discussing my offences and identifying why I used aggressive behaviour. During the program, I realised that I became angry and aggressive because I was hiding my struggles with trauma and PTSD. I was also hanging around with people who were bad influences on my behaviour – I need to stay away from people like that.

…

(4)    A letter dated 29 November 2017 from Salvos Legal to the Department in which the EQUIPS programs undertaken by Mr Turay are discussed (at CB 318 and 319). Certificates of completion of the EQUIPS Domestic Abuse Program and EQUIPS Foundation Program were attached with that letter (CB 113 and 114). The EQUIPS programs undertaken by Mr Turay are discussed under a heading “The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct”. Having regard to Mr Tully’s written and oral submissions in relation to this ground it is useful to set out relevant parts of that letter which appear at CB 318-321 (emphasis added):

Mr Turay instructs us that since his imprisonment, he has taken major steps toward addressing his mental health and behavioural problems that underpinned his offending, demonstrating a newfound commitment to rehabilitating and heavily redressing his risk of re-offending. He has greatly improved his mental health, completed intensive offender behaviour change programs and enrolled in courses to improve his employment prospects in the community. He has also stopped drinking alcohol, using drugs and socialising with people who negatively affect his behaviour. He is medicated for his mental health problems and is compliant with his medication regime. Given this intervention, we submit that Mr Turay had demonstrated that he no longer poses a risk to the Australian community.

Offender behaviour change programs

Mr Turay instructs that he completed three intensive EQUIPS (Explore, Question, Understand, investigate, Practice and Succeed) programs while he was in prison – EQUIPS Foundation (a general offender program), Equips Aggression and Equips Domestic Abuse. We understand that these courses have been specifically developed and implemented by Corrective Services NSW to rehabilitate and reduce reoffending. Two of his completion certificates are annexed and marked Annexure F.

The enclosed excerpts of the Corrective Services NSW ‘Compendium of Offender Behaviour Change Programs in New South Wales’ published in June 2016, annexed and marked as Annexure G, provide the following information about each program:

•    The EQUIPS Foundation program is a 40-hour general therapeutic offender program that “aims to reduce re-offending by addressing criminogenic needs for general offence types”.

•    The EQUIPS Aggression program is a 40-hour program that is “designed to increase participants’ ability to manage difficult life events and minimise aggressive behaviour. It is based on a strong cognitive behaviour therapy approach and is linked to mindfulness and values. It targets both expressive and instrumental aggression”.

•    The EQUIPS Domestic Abuse program is a 40-hour program that “has a strong emphasis on inviting perpetrators to accept responsibility for their offending behaviour. It also encourages them to increase their level of accountability to the wider community”.

As Mr Turay has explained in his statement dated 27 November 2017, he learnt a lot from each of the programs. In particular, he learnt to recognise and control his emotions, to walk away from stressful situations that would otherwise trigger aggressive behaviour and to use mindfulness techniques and exercise to improve his wellbeing and reduce aggression. Mr Turay instructs that he uses the techniques he learnt in the EQUIPS programs on a daily basis to manage his significant levels of stress in detention.

We submit that Mr Turay’s successful completion of three EQUIPS programs demonstrates his self-directed commitment to rehabilitating and reducing his risk of re-offending. As a result of his participation in these programs, Mr Turay has significantly decreased his risk of re-offending and causing harm to the Australian community.

…

Mental Health

...

Drug and alcohol use

Mr Turay now acknowledges that his behaviour and mental health issues were negatively impacted by his drug and alcohol use. Mr Turay instructs that he has not used alcohol and drugs since the start of his term of imprisonment, some two years ago. Given his relatively recent insight into the dysfunction that alcohol and drug use wreaked upon his life, he has no desire to resume consumption of alcohol and drugs should [he] be released into the community. Mr Turay further instructs that he would be willing to consider drug and alcohol courses if he felt that he was struggling to abstain from alcohol in the community. He understands that his family’s wellbeing and his own mental health are incompatible with alcohol and drugs and those goals are his top priorities.

We submit that Mr Turay’s risk of re-offending will be significantly reduced with the support of his brother [name redacted] who he will live with if he is released from detention. Had Mr Turay’s visa not been cancelled, he would have served the remainder of his sentence in the community, under their support and supervision of Corrective Services and [name of brother].

In the enclosed Corrective Services NSW ‘Pre-Release Home Visit Assessment Form’ dated 28 March 2017, which is annexed and marked as Annexure L, we note that [name of brother] has been assessed as a suitable supporter to assist Mr Turay in his transition back into the community. Corrective Services made this finding on the basis that Mr Turay’s brother is aware of Mr Turay’s past issues with drugs and alcohol, his offending behaviour and his obligations whilst on parole, is supportive of the offender in addressing his offending behaviour and willing to fully co-operate with Corrective Services.

(5)    The New South Wales Corrective Services Pre-Release Home Visit Assessment referred to in item b.iv of the first ground relevantly provides as follows:

Programs and services

37.    Based on the information provided in Part A, in the attached reports and on OIMS, what programs and services are available in the area for the offender?

Substance use/Addiction: In addition to EQUIPS Addiction program, there are a variety of drug and alcohol services available in the area and supervision could include referrals to suitable services for assessment and or interventions.

…

13    The Corrective Services Compendium of Offender Behaviour Change Programs (June 2016) is referred to in particular b.ii of the first ground. Express references to drug and alcohol abuse are not prominent in them. References include:

(1)    Page 10 (reproduced at CB 300) relates to the EQUIPS Foundation program describing it as being “available to all offenders, regardless of offence type. While the program is not offence-type specific it does aim to reduce reoffending by addressing criminogenic needs for general offence types therefore all offenders can benefit from it. It specifically caters for the needs of offenders who do not meet the criteria for violent, sexual or addiction interventions.” The “criminogenic needs” targeted do not expressly relate to alcohol and drug abuse. On page 12 (CB 302) under the heading “Program delivery options”, two dot points state:

•    EQUIPS Foundation can be undertaken as a stand-alone program for general offenders to target risk factors related to their offending.

•    Alternatively, offenders can do this as part of an offence-targeted pathway which could include one or all of the EQUIPS offence-specific programs (i.e. EQUIPS Addiction, EQUIPS Aggression and/or EQUIPS Domestic Abuse) to increase the dosage of treatment.

(2)    On page 39 (CB 304) under the heading “Aggression/Violence Programs”, the Compendium states in the opening paragraphs (emphasis added):

Aggressive and violent behaviour can be related to a number of factors including anti-social beliefs about offending behaviour and its impact on others, as well as emotional dysregulation or disinhibitors such as alcohol and drug abuse. Aggression and Violence programs identify and explore the participants’ unhelpful beliefs, thinking patterns and emotions that contribute to their aggressive, abusive and violent behaviour. Participants are encouraged to take responsibility and ownership for the way they think, feel and behave.

Aggression and violence programs attempt to equip participants with pro-social strategies and problem solving skills for use in their relationships with family, friends and the wider community. Participants are also invited to consider the values that motivate their actions and to develop relapse prevention plans and strategies for the future. If alcohol or drug use is found to be a significant factor contributing to aggressive and violent behaviour, the offender should also undertake treatment for this.

There is a list of nine criminogenic needs which are targeted, including “Substance use and related problems”.

(3)    Following pages include specific detail of the EQUIPS Domestic Abuse program in which there is no specific reference to content dealing with drug and alcohol abuse issues.

(4)    Each of the EQUIPS Foundation program, the Aggression and Violence program and the Domestic Abuse program contain an exclusion criterion which applies where an individual suffers from acute intoxication or withdrawal symptoms (CB 301, 306, 309).

Assistant Minister’s reasons

14    Relevantly, the Assistant Minister’s reasons provide as follows:

7.    I have considered the representations made by Mr TURAY and the documents he has submitted in support of his representations.

…

10.    As I am not satisfied that Mr TURAY passes the character test, I have considered, in light of Mr TURAY’s representations, whether I am satisfied that there is another reason why the original mandatory visa cancellation decision (original decision) should be revoked.

11.    In undertaking this task, I assessed all of the information set out in the attachments. In particular, I considered Mr TURAY’s representations and the documents he has submitted in support of his representations regarding why the original decision should be revoked.

12.    In the representations and documents submitted by or on his behalf, Mr TURAY has articulated reasons why the original decision should be revoked, which include:

-    the negative effects of his removal upon his minor Australian citizen child [name redacted]

-    the hardship his removal will cause his mother, who relies on him for support with daily functions, and other family members

-    the mitigating circumstances of his offending, especially his untreated mental health conditions, including PTSD and psychosis arising from his traumatic early life experiences in Sierra Leone

-    his remorse and the rehabilitation he has achieved since being incarcerated, in terms of both stabilising his mental health and undertaking rehabilitative training

-    the hardship he will face in Sierra Leone if forced to return there, including fearing persecution by the government, possible risk of further rebel attacks and the difficulty of living in that country because of low employment, very poor medical facilities and generally depressed economic and social conditions.

…

69.    I have considered whether Mr TURAY poses a risk to the Australian community through reoffending by having regard to any mitigating or causal factors in his offending, and giving consideration to the steps Mr TURAY has undertaken to reform and address his behaviour. I have also taken into account Mr TURAY’s overall conduct in the custodial and non-custodial environment, and his insight into the offending.

Mitigating factors

…

77.    Mr TURAY states that the ‘main contributing factor’ to his offending was his problem with [Ms C’s] mother and that this problem was exacerbated by alcohol. He also submits that he was ‘hanging around with people who were bad influences’ on his behaviour and that he is aware that he needs to stay away from people like that.

…

Rehabilitation

83.    I have taken into account Mr TURAY’s submissions that in prison and in detention he has completed many courses and ‘finally got the help (he) needs with (his) mental health’. He states that he is a much better, stronger person now. Mr TURAY has been attending one on one counselling services in New South Wales since July 2017. Mr TURAY states that he wishes that he had received the trauma and PTSD treatment before but is thankful that he has now put his ‘head up’ and asked for help and learned how to trust the doctors and psychiatrists. Mr TURAY believes he has developed many skills in prison and detention – through the EQUIPS programs and his regular appointments with psychologists – that have given him confidence in his ability to control his emotions and manage his anger and anxiety. Mr TURAY states that he is now rehabilitating and receiving the treatment he needs to recover from his mental health issues and be a better person and he is ‘definitely not a risk to the Australian community’. Mr TURAY states that he has learned that he needs to start talking about his past traumas and learn how to deal with them in a more positive manner, he intends to do this after his release with the help of the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors.

84.    Sentencing remarks from December 2015 refer to Mr TURAY’s ‘very strong views’ (about the victims of his offending) which the Judge described as ‘distressing to listen to’. … I have considered Mr TURAY’s statement that he has been actively participating in courses in order to address his behaviour. He has completed an EQUIPS domestic violence abuse program run by the Department of Corrective Services. During his time in prison he also undertook courses on aggression, first aid and wellbeing. While in detention he has attended a group therapy session called ‘healthy coping strategies’. Mr TURAY’s lawyer submits that since his imprisonment, Mr TURAY has taken major steps toward addressing his mental health and behavioural problems that underpinned his offending, demonstrating a newfound commitment to rehabilitating and heavily redressing his risk of reoffending.

85.    Mr TURAY’s psychological assessment report from July 2017 refers to Mr TURAY as having a ‘tendency to respond with fear, anger and helplessness to everyday situations’. The report also notes his drinking and gambling as a way of coping with his emotional distress from 2012 onwards. I note that his medical records also mention his gambling issue as well as ‘excessive marijuana’ and state that in July 2012 he had no contact with his family. Records from May 2015 describe Mr TURAY as being known to Community Mental Health Emergency Teams across Western Sydney since 2012 and as having a history of poor engagement, refusal to take medications, and ‘longstanding substance abuse’. … Mr TURAY states that he has learned that alcohol ‘only makes issues worse’ and his lawyer submits that he has stopped drinking alcohol, using drugs and socialising with people who negatively affect his behaviour.

86.    I note that Mr TURAY has been mostly well behaved in prison and in immigration detention. He submits that since being medicated in prison he has not offended and his behaviour in jail ‘was always very good’. He is described by IHMS as being ‘consistently polite, cooperative, pleasant and well engaged’ in September 2017 and having a ‘motivation for change’ in October 2017.

…

93.    In assessing Mr TURAY’s risk of reoffending, I take into account all of the noted considerations that are indicative of a lower likelihood of Mr TURAY reoffending, including his submissions that he will not reoffend, his psychological assistance, his being appropriately medicated for his mental health issues, his rehabilitative efforts including the noted courses completed, his remorse, his compliant behaviour whilst detained, and that he has family support and employment prospects in the community, and that he is motivated by his son to not reoffend so he can re-establish contact with and be [a] role model and provide for him.

…

95.    I note his lawyer’s submission that Mr TURAY states he has not used alcohol and drugs for around two years and that he would be willing to consider drug and alcohol courses if he felt that he was struggling to abstain from alcohol in the community. Mr TURAY has submitted that alcohol played a part in his offending behaviour. I am concerned that there is no evidence that Mr TURAY has undertaken required rehabilitation specifically for alcohol or drugs to assist him in abstaining from such substances in the community.

96.    Overall, I find that despite Mr TURAY’s positive efforts and his intentions to continue with his rehabilitation and health and other support in the community into the future, his ability to do so and to resist alcohol and drugs, being factors associated with an increase in the likelihood of him reoffending, and his ability to control his anger in situations involving family or other pressures, are yet to be tested in the community. I consider that Mr TURAY may face increased pressures in his endeavours to have contact with his son [name redacted], particularly should the family again not agree to him having contact with his son.

Submissions

15    Based on these reasons, Mr Tully notes that the Assistant Minister referred to rehabilitative training undertaken by Mr Turay at R[12], considered the steps he had taken to reform his behaviour and his conduct in custodial and non-custodial environments at R[69], the many courses he completed in detention and prison including the EQUIPS programs, courses on aggression and well-being and a group therapy session called healthy coping strategies at R[83]-[84].

16    However, he submits that the Assistant Minister makes no reference to the fact that the EQUIPS programs contained elements which related to drug and alcohol abuse. In oral submissions, Mr Tully noted that the briefing paper also did not refer to that matter. At R[95] the Assistant Minister remained concerned that there was “no evidence” that Mr Turay had undertaken rehabilitation specifically for drugs or alcohol to assist him to abstain in the community and, at R[96], that his ability to resist drugs and alcohol, factors associated with the likelihood of him reoffending, was yet to be tested in the community.

17    Mr Turay submits that the Assistant Minister failed to take into account the documents and matters listed in particular b to the first ground set out at [11] above. He submits that, failing to consider representations which are “worthy of serious consideration” or “critical and relevant” to his case may constitute a failure to exercise jurisdiction, a denial of procedural fairness or failure to carry out the required statutory task. This submission relies on the decision in Coker v Minister for Immigration and Border Protection [2017] FCA 929 per Moshinsky J at [57]. He also relies on that decision for the propositions that statements to the effect that a decision-maker has considered an individual’s representations and documents or assessed all information set out in attachments are insufficient (at [54]) and a failure to refer in reasons to material which is potentially relevant in assessing an individual’s circumstances supports an inference that it was not considered (at [52]).

18    He says that the statutory task under s 501CA(4)(b)(ii) requires consideration of whether there is “another reason” to revoke the original decision. Where a reason is sufficiently identified and advanced in representations, then discharging the statutory task requires it to be considered: Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620 per Thawley J at [52], citing BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; [2017] FCAFC 96 at [62]-[63] and [72] per Bromberg and Mortimer JJ. He relies on the decision in McCutcheon v Minister for Immigration and Border Protection [2018] FCA 828 in which Kerr J (at [59]) found that the Minister had not given proper, genuine and realistic consideration to representations made that the applicant would have no family support and be homeless if he was returned to Scotland. That was an assertion of a specific detriment of sufficient consequence for the Minister to be required to consider it as “another reason” to revoke the original decision.

19    Mr Tully submits that the Assistant Minister did not recognise that Mr Turay had taken courses which included content relating to drug and alcohol abuse. He says it was necessary for the Assistant Minister to consider the detail of the EQUIPS courses that Mr Turay had taken and it was not enough for the Minster to refer to the fact that he had taken those courses. He says that a fair reading of the reasons as a whole does not allow the conclusion that the Assistant Minister rejected a factual premise on which Mr Turay’s representation rested or that the Assistant Minister made findings of greater generality subsuming the representation (see McCutcheon at [56]-[57]). He says the general statements in the reasons quoted at [14] above are insufficient to satisfy the Assistant Minister’s obligation to consider this factor.

20    Counsel for the Assistant Minister, Mr Reilly, filed brief written submissions and relied on them in relation to the first ground. I will refer to these submissions in the consideration of this ground. Mr Reilly’s brief oral submission was that the suggestions in the material before the Assistant Minister that the EQUIPS courses which Mr Turay undertook has some aspects about alcohol and substance abuse were not sufficiently significant to warrant mention in the reasons. Mr Reilly says that, given their objective lack of significance, it cannot follow from the fact that they were not mentioned that the Assistant Minister overlooked anything.

21    Mr Tully accepted that the Corrections Service Pre-Release assessment referred to in particular b.iv contemplated that Mr Turay would need to undertake drug and alcohol treatment in the future. He also accepted that the question of whether or not the Assistant Minister overlooked that the EQUIPS courses undertaken by Mr Turay contained content relevant to drug and alcohol abuse is fact dependent. Counsel submitted that it is necessary for the Court to consider whether the omission of reference to that information reflected a lack of attention to detail or the assessment that the information was not material: see Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 per Katzmann, Griffiths and Wigney JJ at [34], [36]. If the information is significant or important to the issue that troubled the Minister that amounts to jurisdictional error: see SZSRS at [42].

Consideration

22    I accept the Assistant Minister’s submission that this ground fails on a factual basis. I also accept his submissions that the reasons do not establish that he failed to consider material evidence. The Assistant Minister did not need to mention every item of evidence and a failure to do so does not, of itself, necessarily mean that the item has not been considered: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46]; Ali v Minister for Immigration and Border Protection [2018] FCA 650 per Flick J at [42]. Mr Turay bore the onus of showing that evidence which Mr Turay had put before the Assistant Minister material to his decision was in fact overlooked: see SZSRS at [27] and [43]. In this case, he has not discharged that onus.

23    I do not accept Mr Tully’s submission that it was necessary for the Assistant Minister to consider the detail of the EQUIPS courses set out in the Compendium to identify the few references to content related to reducing drug and alcohol abuse or for such consideration to be expressly referred to in the reasons.

24    It is unclear from the evidence before the Assistant Minister how much content dealing with drugs and alcohol the three EQUIPS programs contain and that could not be discovered from a close reading of the Compendium. Further, the submissions made to the Assistant Minister did not direct his attention to that issue. Rather, the tenor of the submissions went to Mr Turay’s general rehabilitation and reduction of the risk of reoffending through participating in EQUIPS programs (which did not include the program, EQUIPS Addiction, which deals specifically with drug and alcohol abuse) and his regular appointments with psychologists that gave him confidence in his ability to control his emotions and manage his anger and anxiety. I am satisfied that the Assistant Minister considered that evidence. The Assistant Minister specifically recognised Mr Turay’s efforts to rehabilitate, including the “noted programs”, that is the EQUIPS programs, as a factor in the reasons at [93].

25    The only reference to content addressing drug and alcohol abuse in the EQUIPS programs in the representations which Mr Turay filed with the Department is at [42] of his submissions dated 27 November 2017: see [12(3)] above. That reference is itself ambiguous as to whether the discussion about drugs and alcohol formed part of the program content or whether it cropped up in the course of the discussion surrounding domestic violence. Reference to the Compendium would not lead to the belief that it formed part of the core content of the EQUIPS Domestic Abuse program, since “substance abuse” is not one of the noted “modules” for that program. Indeed, as noted in the Compendium in relation to the EQUIPS Aggression/Violence program (a program in which “substance abuse” is one of nine “criminogenic needs” targeted) the advice given is that “If alcohol or drug use is found to be a significant factor contributing to aggressive and violent behaviour, the offender should also undertake treatment for this”: see [13(2)] above. It is clear from the evidence that the EQUIPS Addiction course, the only course specifically directed to drug and alcohol abuse, had not been taken by Mr Turay.

26    On a fair reading of the Assistant Minister’s reasons, the Assistant Minister took into account that Mr Turay identified alcohol as an aggravating factor in his offending, that he had taken many steps (including three EQUIPS programs and sessions with a psychologist) towards rehabilitation and intended not to reoffend, that he had not been using drugs or alcohol while in prison and detention, he had learned that alcohol was best avoided and that he was willing to consider drug and alcohol courses in the future if he felt that he was struggling to abstain in the community. Having regard to these matters, the complaint that the Assistant Minister overlooked small references in the Compendium to drug and alcohol abuse (or substance abuse) elements of the EQUIPS programs which he did undertake invites the sort of “parsing and analysing of a submission” to refer to a matter which cannot be characterised sensibly as the thrust of the claims being made: see Ali at [42]. A fair reading of the Assistant Minister’s reasons does not reveal any failure by the Assistant Minister to consider the evidence put before him; it is not necessary to rely on the generalised statements at R[7] and [11] to support that view.

27    On the evidence, Mr Turay had not undertaken rehabilitation specifically for alcohol and drugs to assist him to abstain from those substances in the community. On the evidence, there was a clear basis for the Assistant Minister to consider that such specific treatment might be required having regard to the fact that Mr Turay himself regarded alcohol as an aggravating factor in his offending behaviour (see [12(2)] and [14] above, reasons at [77]), his psychological assessment in May 2015 indicated that he had a “longstanding [history of] substance abuse” (see R[85] at [14] at above), Salvos Legal’s submissions dated 29 November 2017 suggested that Mr Turay “would be willing to consider drug and alcohol courses if he felt that he was struggling to abstain from alcohol in the community” (see [12(4)] and R[95]), the advice given in the Compendium that treatment for substance abuse should be undertaken in addition to the EQUIPS Aggression and Violence program where that was a factor in violence or aggression (see [13(2)] above); and the NSW Corrective Services Pre-Release Home Visit Assessment envisaged the EQUIPS Addiction course (or other courses for that purpose) would be available to be taken if Mr Turay was released under supervision (see [12(5)] above). The fact that specific courses might be available after release or that Mr Turay said that he would be willing to take such a course if he thought it necessary does not contradict the Assistant Minister’s finding that no specific programs had been undertaken while he was in prison or detained.

28    Having regard to the cited authorities, the representations made by Mr Turay or on his behalf and the evidence submitted, it was, without error, open to the Assistant Minister to take into account his concern that Mr Turay had not undertaken programs specifically targeted at drug and alcohol abuse, the need for which was recognised in the Compendium where substance abuse was a factor in aggressive and violent offending and in the Corrective Services Pre-Release Assessment. It was also open to the Assistant Minister to take into account his concern that, despite Mr Turay’s positive efforts towards rehabilitation and abstinence from drugs and alcohol while in prison and detention, Mr Turay’s resolve was untested in the community where he would be exposed to irritants related to access to his son which had been a feature of his previous offending. Consequently, it was open to the Assistant Minister to conclude that there was an ongoing likelihood that Mr Turay would reoffend involving violence of a domestic or other nature with the prospect of physical or psychological damage to a member or members of the Australian community.

Ground 2

29    There are two sets of particulars to the second ground that the Assistant Minister failed to consider “another reason” why the original decision should be revoked so that he failed to reach the state of satisfaction required by s 501CA(b)(ii) of the Migration Act when assessing Mr Turay’s representations. They are as follows:

Particulars 1A

a.    In his reasons for decision, the respondent considered it unnecessary to determine whether non-refoulement obligations were owed to the applicant (at [28]-[29]).

b.    The respondent erred for the reasons given in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 (particularly at [69], [72] & [96]).

c.    Alternatively, for the purposes of assessing Australia’s non-refoulement obligations, the respondent failed to consider that, given the applicant’s circumstances and particular characteristics, severe physical or mental pain or suffering can amount to significant harm under the Act.

Particulars 1B

a.    In his reasons for decision, the respondent concluded that access to health care in Sierra Leone was not at a comparable level to Australia (at [50]).

b.    The respondent had available before him evidence in the nature of a report about Sierra Leone from the US Department of State dated 2016 which indicated the availability of medications and health care services for persons with disabilities in Sierra Leone.

c.    Given this evidence in addition to the claimed and accepted circumstances and personal characteristics of the applicant, Australia’s obligations to prevent persons (including those with disabilities), on an equal basis with others, from being subjected to inhuman treatment was in effect “another reason” which the respondent failed to consider when assessing the applicant’s representations.

Assistant Minister’s reasons

30    The Assistant Minister’s reasons deal with non-refoulement obligations at R[25]-[29] as follows:

International non-refoulement obligations

25.    As part of his representations seeking revocation of the original decision to cancel his visa, Mr TURAY submits that he will face harm if returned to Sierra Leone; he is fearful that he would be unsafe and exposed to threats from the government. He fears that the government and people of Sierra Leone will consider him a ‘traitor’ because he was granted a humanitarian visa and has been living in Australia. He states that the Sierra Leonean government will assume that he has notified the Australian government of the human rights abuses, genocide and war crimes that occurred in Sierra Leone. They will consider this ‘treason’ and will therefore imprison, torture or even kill him. Mr TURAY submits that he is aware of this happening to others in Sierra Leone, from hearing the stories of others and on the media.

26.    Mr TURAY has also submitted that the political situation in Sierra Leona is not stable, militia are still present and are out for revenge. There is extreme poverty, high unemployment and little confidence by the people in the legal justice system. Mr TURAY states he has no identification and would be unable to obtain any.

27.    Mr TURAY’s lawyer has expressed concern that should he ‘become unwell again’ he would face a real risk of degrading treatment in Sierra Leone. Mr TURAY would not have access to the specialist medical services he requires to manage his psychological illnesses. Mr TURAY’s lawyer indicates that psychological harm can in some circumstances amount to persecution.

28.    I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of Mr TURAY for the purposes of the present decision, as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing the application.

29.    A protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Furthermore, I am aware that my Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, I have given a direction under s499 of the Act (Direction 75) which, among other things, requires that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referring the application for consideration under s501. I am therefore confident that Mr TURAY would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.

31    The Assistant Minister’s reasons address the extent of impediments Mr Turay would face if he was removed from Australia at R[42]-[50] as follows:

Extent of impediments if removed

42.    In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the impediments that Mr TURAY will face if removed from Australia to his home country of Sierra Leone in establishing himself and maintaining basic living standards.

43.    Mr TURAY is 33 years old. I acknowledge evidence that he suffers from Post-Traumatic Stress Disorder (PTSD), trauma, anxiety and major depression, which cause him significant difficulties in overall functioning and for which he takes daily medication.

44.    Mr TURAY is very concerned that if he returns to Sierra Leone his mental health issues will severely worsen as he would be exposed to all the triggers that caused his PTSD. Furthermore Mr TURAY is also worried that he would not have access to the appropriate health treatment and medication required to continue his progress and rehabilitation. Some of his medications are not readily available in Sierra Leone. Mental health services in Sierra Leone are limited and outdated. Mr TURAY has submitted evidence that there are only one or two psychiatrists or [sic] and one inpatient psychiatric institution with very little funding and support. The majority of people with mental health issues in Sierra Leone remain untreated.

45.    I have taken into consideration Mr TURAY’s submissions that he would have no home to go to and employment would be impossible to find. There is a significant unemployment problem in Sierra Leone and employers may discriminate against him for having lived outside the country for an extended period. He is fearful that he would be unable to financially support himself.

46.    I have further considered Mr TURAY’s submissions that Sierra Leone does not have a social welfare system. I am conscious of Mr TURAY’s statement that he has no family or support in Sierra Leone. He states that he has not resided in Sierra Leone since he was 16 and he never kept in touch with anyone. Any aunts and uncles are old and they have not had any contact for many years and most of his relatives in Sierra Leone died during the Ebola outbreak. It is possible that his older sister might be living in Sierra Leone, but they last spoke 10 years ago.

47.    Mr TURAY states that he came to Australia because of the civil war in Sierra Leone, he has no support there and his old village is destroyed. He states that in some ‘areas of Africa the tribal wars continue.’ He states that he cannot bear the thought of being returned to Sierra Leone, not only is it very dangerous there, but he would also be far away from his son. He states that even though he has not seen his son in a few years, it would be the worst punishment to be separated from him while he is growing up.

48.    Mr TURAY’s lawyer submits that Mr TURAY will be prevented from establishing a relationship with his only child [name redacted]. I find that Mr TURAY would experience significant emotional hardship, due to leaving his son and other family members behind in Australia.

49.    I have also considered Mr TURAY’s claims of harm upon return to Sierra Leone and I find that Mr TURAY[’s] hardship will be exacerbated by a lack of access to appropriate mental health treatment and medication.

50.    I accept that Mr TURAY would be likely to suffer a deterioration in his mental health and will be unable to access required treatment and on-going support in Sierra Leone. I have also had regard to the fact that, socio-economic conditions and access to general health care, employment, social welfare and housing support in Sierra Leone are not at a comparable level to Australia. I find this would further exacerbate Mr TURAY’s hardship in establishing his life in Sierra Leone.

32    At R[106]-[107], the Assistant Minister found as follows:

106.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr TURAY represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his child as a primary consideration, and any other considerations as described above. These include his lengthy residence and bonds, claims of harm feared if he returns to Sierra Leone, employment, volunteer and family ties to Australia, and the hardship Mr TURAY, his family and social networks will endure in the event the original decision is not revoked.

107.    Having given full consideration to all of these matters, I am not satisfied, for the purposes of s501CA(4)(b)(ii), that there is another reason why the original decision under s501(3A) to cancel Mr TURAY’s visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and Mr TURAY’s Class XB Subclass 202 Global Special Humanitarian visa remains cancelled.

Consideration

33    There is considerable overlap between Mr Tully’s submissions on particulars 1A and 1B, as he conceded in his oral submissions.

34    The passages from BCR16 relied on by Mr Turay in particular 1A state as follows:

69    A person in the appellant’s position would be applying for a protection visa in a very particular set of circumstances. The scheme of the Act intends that a person in his position be subject to automatic cancellation of his current visa on character grounds, and that he be compelled to seek a favourable exercise of discretion to have it reinstated. A person in his position has failed to persuade the Assistant Minister such a course should be taken because the Assistant Minister has given primary weight to character concerns and the risk posed by the appellant, in the Assistant Minister’s opinion, to the Australian community. In order for the scheme of the Act to retain any integrity and consistency, those particular considerations would inevitably intrude on any decision-making process in relation to an application for a protection visa. The Assistant Minister’s reasons disclose no awareness of this.

…

72    Here, as we have noted several times in these reasons, the appellant did not describe the harm he feared by reference to “non-refoulement”. It may well be the case that the harm he identified was not viewed as having a sufficient likelihood to bring him within either kind of international protection obligations. Or, it may be the nature of the harm he feared was necessarily outside either kind of international protection obligations. The Assistant Minister’s reasons disclose no understanding of those possibilities. Rather, her reasons betray two misunderstandings: first that the appellant was identifying non-refoulement obligations as a concept when he had not; and second that the harm he feared was necessarily within that protected by Australia’s international non-refoulement obligations. Whether or not the harm the appellant feared had a “private quality” as the harm identified in Goundar, there were other reasons it might be harm outside the kind covered by Australia’s international non-refoulement obligations. Nevertheless, the harm as the appellant expressed it was put forward by him as a “reason” the Assistant Minister should revoke the cancellation. She did not consider it. Her failure to do so flowed from the misunderstandings we have identified and is properly characterised as an error of a jurisdictional kind because it went to the lawful discharge of her task.

…

96    Although his Honour recognises in that paragraph the appellant might be refused a protection visa on character grounds, this is after his Honour has said “However, it is difficult to see how the applicant could be refused a protection visa without there being an assessment of his non-refoulement claims”. As we have attempted to show, there is nothing in the legislative scheme which compels assessment or decision on the appellant’s claims to fear harm in Lebanon before he is refused a protection visa. As we have also sought to show, on the evidence before the Court, it seems improbable (because it would be wholly inconsistent with the Minister’s decisions about the appellant to date) that the appellant could be found to satisfy the character criteria, and this would lead to a requirement to refuse a protection visa under s 65. Further, his Honour’s reasons do not deal with the points made by Robertson J in Goundar, which stem from the way the appellant in this case put his “reason” to the Minister. Nor does his Honour grapple with the distinction between risk of harm as an ingredient in positive satisfaction of protection obligations criteria in s 36 and risk of harm as a discretionary factor, with no particular threshold to be met, as part of “another reason” put forward by an appellant under s 501CA(4). We have found all those matters persuasive of the existence of jurisdictional error in the Assistant Minister’s reasons.

35    By his references to these paragraphs in the reasons in BCR16, I take Mr Turay to be claiming that the Assistant Minister erred because:

(1)    He misunderstood the course decision-making would take if Mr Turay made a protection visa application in circumstances where he had already failed to persuade the Assistant Minister to revoke the cancellation of his Global Humanitarian visa under s 501(3A). This is said to be the “first misunderstanding”, identified in BCR16 at [69];

(2)    Having regard to BCR16 at [72], either:

(a)    He misunderstood the representations made by or on behalf of Mr Turay as raising non-refoulement grounds when they did not; and/or

(b)    He misunderstood the harm Mr Turay feared as being necessarily within that protected by Australia’s international non-refoulement obligations, when it was not; and/or

(3)    He failed to recognise the distinction between harm as a positive ingredient of satisfaction of protection obligations criteria in s 36 and risk of harm as a discretionary factor, with no particular threshold to be met, as part of “another reason” put forward by an appellant under s 501CA(4).

36    In his written submissions in relation to particular 1A, Mr Tully acknowledged that at R[27], the Assistant Minister noted Mr Turay’s claim that he faced a real risk of degrading treatment in Sierra Leone because he could not get access to medical services to manage his psychological illnesses, and psychological harm could amount to persecution. The reasons (at R[29]) demonstrate that the Assistant Minister was confident that this claim would be assessed during a protection visa application where non-refoulement obligations would be considered because of Direction No 75 – refusal of protection visas relying on s 36(1C) and s 36(2C)(b) made by the Minister for Immigration and Border Protection under s 499 of the Migration Act and dated 5 September 2017 (Direction 75). Mr Tully conceded that Part 2(1) of Direction 75 directs delegates to consider protection specific criteria before ineligibility or character-related criteria are considered.

37    Mr Tully submitted that:

(1)    Direction 75 only applies to delegates. Direction 75 therefore does not deal with how the Minister’s powers might be exercised by him personally;

(2)    Principle 3, which is set out in Part 1 of Direction 75, states that it remains unacceptable to grant protection visas to non-citizens who present serious character or security risks to the Australian community;

(3)    While Direction 75 directs decision-makers to assess refugee and complementary protection criteria claims before ineligibility criteria under s 36(1C) or s 36(2C)(b), individuals who meet the refugee or complementary protection criteria will still be assessed under s 36(1C) or s 36(2C)(b) or the application may be referred for consideration under s 501: Part 2 of Direction 75;

(4)    Principle 4 of Part 2 “merely note[s]” that Australia’s non-refoulement obligations may be engaged when a protection visa is refused on the basis that an individual is a danger to Australia’s national security or the community;

(5)    Direction 75 does not address all of the concerns identified in BCR16 by Bromberg and Mortimer JJ: the nature and quality of the risks that may be considered under s 501CA(4) are broader than those comprehended by s 36(2)(a) or s 36(2)(aa). In the exercise under s 501CA(4), the Minister or his delegate is able to give greater weight to a small risk if, on the material, the decision-maker reasonably determines that is justified. That is quite distinct from the “satisfaction” which must be attained that criteria have been met before a protection visa may be granted under s 65: BCR16 at [49] and [96]; and

(6)    The error in this case, as in BCR16, is a failure to afford Mr Turay procedural fairness or to fulfil the statutory task under s 501CA(4)(b): BCR16 at [62]. The applicant in BCR16, and Mr Turay, put forward harm as a “reason” the original decision should be revoked but this was not considered. To avoid error, it is insufficient that a risk of harm may be addressed during any protection visa application. Mr Tully relies on BCR16 at [72]-[73].

38    The Assistant Minister’s written submissions were that Mr Turay’s case can be distinguished from BCR16 for the same reason as that relied on by Flick J in Ali at [19]-[35], followed in Greene v Assistant Minister for Home Affairs [2018] FCA 919 at [19]. That is, the Assistant Minister was sure that the protection claims would be considered if Mr Turay made a protection visa application because of the terms of Direction 75. Mr Reilly submitted that Ali and Greene are not plainly wrong and they should be followed as a matter of comity.

Course of decision making

39    Ali was not addressed in Mr Tully’s written submissions. In his oral submissions, Mr Tully acknowledged that Ali at [19]-[35] deals with what was said to be the “first misunderstanding” in BCR16. He conceded that Direction 75 is designed to address that issue and that Ali at [19]-[35] is correctly decided insofar as it addresses that aspect of BCR16.

40    In Ali at [21] and [24], Flick J noted that the Assistant Minister was called upon to make a decision under s 501CA(4) and that his reasons demonstrate that the Assistant Minister was fully aware of Direction 75 and that he had no “misunderstanding” concerning the future necessity to first address refugee and complementary protection criteria if a protection visa application was made. At [26], Flick J noted the “initial attraction” of the arguments that there was a “further misunderstanding” because the Minister could make a decision under s 501 to refuse to grant a visa on character grounds without consideration of the criteria in s 36(2) and the lack of utility in “putting off” assessment of whether the criteria in s 36(2) had been satisfied if the inability to satisfy the character test would or could ultimately result in refusal or cancellation of a visa, regardless of the conclusion reached on the protection obligations. However, those arguments and the ground was rejected: Ali at [27], [35]. Justice Flick found that the decision to be made under s 501CA(4) was whether or not there was “another reason” why the original decision should be revoked, and for that purpose, the Assistant Minister considered it unnecessary to determine whether non-refoulement obligations were owed: Ali at [28]-[29]. If an application for a protection visa was made, which might be expected if a Global Special Humanitarian visa had been cancelled by the delegate, that application would then have to be resolved in accordance with Direction 75. If a protection visa, or some other visa application, was made and considered by the Minister rather than a delegate, there would be considerable difficulties confronting the Minister if he sought to refuse the visa on the basis that the applicant did not satisfy the character test (pursuant to s 501(1) and s 501(3) of the Migration Act) rather than grant a visa to regularise the applicant’s presence in Australia, particularly in light of the terms of s 197C and s 198 of the Migration Act. Those are decisions to be made, and if necessary reviewed, in the future. The Assistant Minister made his decision having regard to the facts prevailing at the date of the decision and no misunderstanding of the power then being exercised was exposed: Ali at [30]-[34].

41    Having regard to Mr Tully’s concession, I accept Mr Reilly’s submission that the Assistant Minister’s reasons in this case are relevantly the same as in Ali and that the decisions in Ali at [19]-[35] and Greene at [19] are not plainly wrong and should be followed. Mr Turay’s reliance on BCR16 at [69] in particular 1A is misplaced and that element of the second ground is not made out.

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.

Particular 1A(c)

55    This particular asserts that the Assistant Minister failed to consider that severe physical and mental suffering can amount to “significant harm” for the purposes of the Migration Act. Mr Reilly submitted that this particular appears to have been connected to particular 1B. If it is, it has been considered above. However, for completeness, in my view this particular does not reveal error by the Assistant Minister. Both counsel accepted that the circumstances which prevail in Sierra Leone would give rise to the question of whether returning a person with disability due to mental illness would expose the person to “significant harm” as defined in s 36(2A). At R[27], the Assistant Minister expressly referred to representations made by Mr Turay and on his behalf that he feared that he would “become unwell” in Sierra Leone due to the unavailability of access to specialist medical services for his psychological illnesses and this may amount to “degrading treatment” and that psychological harm can amount to persecution. The Assistant Minister understood these to be non-refoulement claims to be addressed in the consideration of a protection visa application and they were not mandatory considerations in circumstances where an application for a protection visa could be made. Accordingly, for the reasons expressed in Ali at [19]-[35] and in the Full Court’s decision in Le Full Court (2016) 244 FCR 56 at [65], particular 1A(c) is not made out.

56    Ground 2 is not made out.

Ground 3

57    Ground 3 is as follows (as written):

The respondent failed to give proper, genuine and realistic consideration to relevant material and significant evidence, failed to consider the applicant’s representations, made a legally unreasonable decision, or otherwise committed jurisdictional error.

Particulars

a.    In his reasons for decision, the respondent:

i.    regard to the circumstances of domestic violence in which the applicant had committed or allegedly committed offences against [Ms C] (his former partner and mother of their son, [son’s name redacted]), [Mrs C] ([Ms C’s] mother) and [Ms R] (a girlfriend from 2015) (eg at [23], [59], [61], [64]-[65], [68] & [82]);

ii.    considered that the applicant had an “ongoing tendency” to engage in violent behaviour in domestic and other contexts which placed members of the Australian community at risk of harm (at [75]);

iii.    noted that the applicant’s relationship with [Ms C] had ceased (at [72] & [74]);

iv.    took account of certain factors when assessing the applicant’s risk of re-offending (at [93]);

v.    considered that the applicant might face increased pressures when pursuing contact with [son’s name redacted], particularly should the family again not agree to the applicant doing so (at [96]);

vi.    gave “significant” weight to the applicant’s crimes, “many of which relate to domestic violence against or toward family members” (at [103]);

vii.    concluded that there was an “ongoing likelihood” that the applicant would re-offend and should he reoffend involving violence of a domestic or other nature, physical or psychological damage may result to members of the Australian community (at [97] & [104]); and

viii.    was cognisant that other strong countervailing considerations may be insufficient to revoke the visa cancellation decision where harm could be inflicted on the Australian community (at [105]).

b.    The applicant had represented in a personal submission dated 27 November 2017 (at [44]) that he had not sought to contact [Ms C] while in prison and detention, would not contact [Ms C] or her family if he was released and would go through the family court system to try to arrange access to see [son’s name redacted] again (the evidence or representation).

c.    There was no evidence or representation before the respondent that the applicant’s relationship with [Ms R] existed at the time of the respondent’s decision or would continue in the future.

d.    As indicated by his reasons for decision (particularly at [93]), the respondent failed to consider the evidence which was relevant, material and significant or the representation made by the applicant because a lack of future contact between the applicant and [Ms C], her family or [Ms R] affected an assessment of the likelihood of the applicant re-offending against members of the Australian community.

e.    Alternatively, the respondent’s erroneous assessment of the applicant’s risk of re-offending and consequent risk of harm to the Australian community rendered his decision (particularly at [106]) legally unreasonable, considered in light of countervailing considerations.

Assistant Minister’s reasons

58    The passages cited in ground 3 and some other relevant passages are as follows (as written, emphasis in original):

Best interests of minor children

…

22.    I am cognisant that Mr TURAY states that if he is able to remain in Australia, he will not contact [Ms C] or her family, he will take the right approach and go through the Family Court system to try to arrange access to see [son’s name redacted] again. Mr TURAY submits that he is willing to see [son’s name redacted] at a supervised centre ‘for as long as it takes to get her trust back’. Mr TURAY states that he is aware that there will likely be obstacles to re-building trust with [Ms C] and her family before he can be “equally” involved in [son’s name redacted]’s life, but he will be patient.

23.    While I accept that it would be in the best interest of [son’s name redacted] to have his father in his life, I exercise some caution given that Mr TURAY has engaged in violent conduct toward or in the presence of [son’s name redacted]’s mother, grandmother and great grandmother, and on an occasion Mr TURAY voiced threats to police that he would kill the mother and his son, and in that case the Court was not accepting of such threats as being empty.

…

Protecting the Australian Community

51.    In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the consideration of the protection of the Australian community, noting in particular Mr TURAY’s claim he is rehabilitated. I considered the Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens.

Criminal Conduct

…

59.    In relation to the assault, damage and stalking, sentencing remarks show that in July 2015 Mr TURAY attacked [Mrs C] (the mother of his former partner [Ms C]) as she was assisting her elderly mother out of the car after taking her home. He hit her arm, shoulder on the side of her face while yelling ‘where’s my son, give me my son’. [Mrs C] was trying to protect her mother and the Magistrate stated that she was ‘terrified’. [Sic: Mr TURAY] smashed the windscreen of [Mrs C’s] car with her mother’s walking frame, then he smashed the window of [Ms C’s] car, which was parked nearby. The Magistrate called the assault on [Mrs C] ‘appalling’.

…

61.    Sentencing remarks also detail that on 10 December 2015, Mr TURAY was sentenced to six months imprisonment for a conviction of assault that was made in his absence on 5 August 2016. He was also sentenced to a s10a conviction for fail to appear regarding his bail. In relation to the assault, the sentencing Magistrate described that around May 2015, the victim, [Ms R], with whom Mr TURAY had been in a sexual relationship for some time was spoken to by Mr TURAY in a ‘degrading’ manner and she asked him to leave her house and placed his belongings outside. Mr TURAY shouted at her and used both his fists to punch her to the back about three or four times, then swept his foot under the victim’s legs, causing her to fall to the ground. Whilst she was on the ground he kicked her to her left thigh two or three times and he ‘has gone to kick her near the head area’, but stopped and walked away.

…

64.    On 3 August 2016, Mr TURAY was convicted in the Local Court of New South Wales of stalk/intimidate intend fear physical etc harm (domestic) and sentenced to 15 months imprisonment. On 15 September 2016, the District Court of New South Wales confirmed the original base sentence and ordered a five month non-parole period.

65.    The Judgment from 15 September 2016, indicates that in June 2015 [Ms C] contacted police in relation to text messages that Mr TURAY had sent her and her mother [Mrs C], about visiting his 16 month old son. When police contacted Mr TURAY to obtain his version of events, he made threats to harm the mentioned victims, yelling repeatedly:

‘I swear to God, officer I’ve lost everything and have nothing to lose. I am going to kill that bitch and my son. I am going to burn the fucking house down and kill them all and kill myself”.

66.    The appeal court Judge stated that courts were obliged to regard these threats as ‘incredibly serious’ and the fact that they were said to a police officer reflects ‘an unbelievable lack of control and a great concern that he will actually go and do exactly that’.

67.    I find that the sentences Mr TURAY received are a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the court viewed his offending as very serious, taking into account the several sentences of imprisonment for periods ranging from two to 15 months, imposed over several court appearances.

68.    I find that Mr TURAY’s convictions over a period of some five years since 2012 has involved repeated domestic violence as well as violence toward law enforcement officers, and overall his offending is very serious.

Risk to the Australian community

69.    I have considered whether Mr TURAY poses a risk to the Australian community through reoffending by having regard to any mitigating or causal factors in his offending, and giving consideration to the steps Mr TURAY has undertaken to reform and address his behaviour. I have also taken into account Mr TURAY’s overall conduct in the custodial and non-custodial environment, and his insight into the offending.

Mitigating factors

…

74.    Mr TURAY’s lawyer submits that his offending “spree” (from May to July 2015) occurred in the context of his degenerating mental health and the concurrent breakdown of his relationship with [Ms C]. It is submitted that the relationship has now ceased and Mr TURAY has pro-actively sought intervention for his mental health issues. It is further submitted that ‘those unique circumstances cannot recur’ and nor will the attendant conduct.

75.    I take into consideration that Mr TURAY’s past traumatic experiences have contributed to his mental health issues and that these in turn have been a contributing factor to his offending. However, I do not consider this as an excuse for his offending and find that Mr TURAY’s ongoing tendency to engage in violent behaviour in a domestic and other context as shown by his criminal history commencing 2012, is unacceptable and placed members of the community at risk of physical and psychological harm.

…

82.    In relation to the assault of [Ms R], Mr TURAY contends that if he had appeared in court when he was sentenced, he would have pleaded not guilty, and he maintains that he did not physically harm her. Mr TURAY applied to have the conviction annulled and his request was refused. Mr TURAY’s lawyer submits that the Department should not give considerable weight to the incident, given the charges were not proven. However, I note that the sentencing remarks describe a ‘serious assault in which [Ms R] found herself forced to the ground and then kicked.’ Sentencing remarks from December 2015 also state that he ‘acknowledged his guilt’ for this offence. I find that Mr TURAY’s violent offending was again domestic in nature directed toward a victim in circumstances that were unjustified and would likely have caused the victim to be in fear for her life or safety.

Rehabilitation

…

93.    In assessing Mr TURAY’s risk of reoffending, I take into account all of the noted considerations that are indicative of a lower likelihood of Mr TURAY reoffending, including his submissions that he will not reoffend, his psychological assistance, his being appropriately medicated for his mental health issues, his rehabilitative efforts including the noted courses completed, his remorse, his compliant behaviour whilst detained, and that he has family support and employment prospects in the community, and that he is motivated by his son to not reoffend so he can re-establish contact with and be role model and provide for him.

94.    I also consider that certain protective factors including family support and employment and chances given by the court sentences of non-custodial outcomes, have been factors present in the past when Mr TURAY had offended.

…

96.    Overall, I find that despite Mr TURAY’s positive efforts and his intentions to continue with his rehabilitation and health and other support in the community into the future, his ability to do so and to resist alcohol and drugs, being factors associated with an increase in the likelihood of him reoffending, and his ability to control his anger in situations involving family or other pressures are yet to be tested in the community. I consider that Mr TURAY may face increased pressures in his endeavours to have contact with his son [name redacted], particularly should the family again not agree to him having contact with his son.

97.    Overall, I find that there is an ongoing likelihood that Mr TURAY will reoffend and that should he reoffend involving violence of a domestic or other nature, it may result in physical or psychological damage to a member or members of the Australian community.

CONCLUSION

…

103.    On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the serious nature of the violence crimes committed by Mr TURAY, many of which relate to domestic violence against or toward family members.

104.    Further, I find that the Australian community could be exposed to harm should Mr TURAY reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr TURAY.

105.    I am cognisant that where harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa.

Consideration

59    Mr Tully’s written submissions effectively re-iterated the particulars of this ground. In his oral submissions, Mr Tully confirmed that the “nub” of this ground is the claim that, in assessing the risk of Mr Turay reoffending by committing further domestic violence offences:

(a)    The Assistant Minister failed to consider adequately the representation that Mr Turay had not contacted Ms C while in prison and detention and that he would not contact Ms C or her family except through Relationships Australia or (if that was unsuccessful) the Family Court system to arrange contact with his son; and

(b)    The Assistant Minister acted on the basis that there was an existing relationship with Ms R but there was no representation or evidence to that effect.

60    Mr Tully submitted that a lack of future contact between Mr Turay, Ms C and her family or Ms R affected the assessment of the likelihood of Mr Turay reoffending against members of the Australian community. In oral submissions, Mr Tully accepted that the Assistant Minister’s characterisation of much of Mr Turay’s criminal conduct as having occurred in a domestic relationship was fair and submitted that that factor made it critical to determine whether the relationship would be ongoing and the nature and management of the relationship. He submitted that there was no evidence before the Assistant Minister of any continuing relationship and considerations relevant to any future relationship would be merely speculative but any risk of reoffending would need to be considered in the context of Mr Turay’s stated intentions.

61    Mr Tully argued in the alterative that the Assistant Minister’s assessment of Mr Turay’s risk of reoffending and consequential harm considered in light of countervailing considerations was legally unreasonable in the sense discussed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. He relied on the decision in Ogbonna at [48] where Thawley J found that, the Minister having found a low risk of reoffending and in the absence of material which could transform the possibility into a probability, it was legally unreasonable for the Minister to conclude that there was a likelihood of reoffending on the sole basis that the applicant’s accepted state of rehabilitation had not been tested for more than a short period outside a custodial setting.

62    I am not satisfied that ground three has been made out.

63    I accept Mr Reilly’s submissions that:

(a)    There can be no suggestion that the Assistant Minister overlooked Mr Turay’s representations concerning the fact that there had been no contact with Ms C during his incarceration and detention and with respect to his intentions regarding the manner in which he will seek to obtain contact with his son: see R[22] and [23].

(b)    There is nothing in the Assistant Minister’s reasons which suggest that he understood Mr Turay to have an ongoing relationship with Ms R.

64    In my view it was open to the Assistant Minister to reason as he did at [96] that despite Mr Turay’s positive efforts towards rehabilitation, the support that he would have in the community and his expressed intention concerning how he would seek contact with his son, he may become frustrated should Ms C and her family not agree that he should have contact and to have concerns about Mr Turay’s capacity to resist those pressures where it had not been tested in the community. In light of his past conduct in the community and its triggers there was no lack of evidence or lack of logical basis for the finding at R[97] that there was an ongoing likelihood that Mr Turay will reoffend in a manner that involves domestic or other violence. As Ms C and Mr Turay are the parents of a child with whom Mr Turay wishes to maintain contact, that trigger would be ongoing. It was not necessary for the Assistant Minister to act on the basis that his relationship with Ms R would be ongoing. Mr Turay made no representation that he intended to have no other domestic relationships in the future. Domestic violence had been found (by courts) to be a feature of the two relationships which Mr Turay identified in his representations. The Assistant Minister was entitled to speculate as to what might happen in future domestic relationships by reference to what has occurred in the past: see the authorities cited in Ogbonna at [46]. I accept Mr Reilly’s submission that, having found that there was an ongoing risk of reoffending, it was logically and rationally open to the Assistant Minister to consider that the protection of the Australian Community outweighed the considerations in Mr Turay’s favour: see R[106]. The cases of Mr Ogbonna and Mr Turay are plainly distinguishable having regard to the findings made with respect to the risk of reoffending by the respective decision-makers. In my view, Mr Tully’s submission that an “outcome focussed” assessment of the reasonableness of the Assistant Minister’s decision requires a finding of jurisdictional error is, in this case, no more than an invitation to engage in impermissible merit review.

Conclusion

65    As none of the grounds of the application have been made out, the application should be dismissed with costs.

Associate

Dated:    3 October 2018