1816428 (Refugee)

1816428 (Refugee) [2018] AATA 3090 (3 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1816428
COUNTRY OF REFERENCE:                  Sierra Leone
MEMBER:Luke Hardy
DATE:3 July 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 03 July 2018 at 11:04am
CATCHWORDS
Refugee – Protection visa – Cancellation – Sierra Leone – Ethnicity – Temne Tribe – Particular social group – People with a mental illness in Sierra Leone – Imputed political opinion – Societal discrimination – Societal abuse and neglect – Decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J-LA, 5K-LA, 36, 65, 499
Migration Regulations 1994
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 31 May 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant [is] a citizen of Sierra Leone born in [year]. He arrived in Australia from [another country] with his siblings as [age] year-old on 10 December 2004 on a Refugee and Humanitarian (Class XB) Refugee (subclass 202) visa.
This is a potentially very sensitive case for reasons discussed below.
In January 2008, when he was [age] years old, [the applicant] was convicted in [Australia] in the matter of an assault and released on a bond. However, in November 2010, he was convicted in the far more serious [matter]. He was sentenced to [a period] in jail. His imprisonment concluded [in] January 2018.
[In] October 2017 forensic psychiatric report[1] submitted to the Department of Home Affairs states that [the applicant] was diagnosed with paranoid schizophrenia in 2008:
Despite clear indications of active mental illness at the time of his index offence, which took place on [date].7.08, his case was not disposed of under the MHFP Act. He was convicted on [date].10.10 of the offence … and sentenced to prison with a last date of release of [date].1.18 at which point he will be liable to deportation.
[1] DHA file at ff. 61-4
Throughout his imprisonment, [the applicant] continued to be treated for paranoid schizophrenia, which is much-reported to be treatable and manageable in his particular case. Past lapses into paranoid delusion reportedly occurred when medical professionals sought to wean him off medication due to perceptions of his condition having waned.[2] At least since October 2017, [the applicant] has been under close and regular medical and psychiatric monitoring, the prognosis being that his condition was ongoing, and the consulting forensic psychiatrist expressing
serious concerns for the safety of the public if he is released into the community without his full cooperation with mental health services to ensure his compliance with required antipsychotic medication and monitoring.[3]
[2] This is according to oral evidence given by the witness at the Tribunal hearing on 28 June 2018.
[3] DHA file at f.61
Since he was convicted of a serious offence attracting, in his case, a sentence exceeding [a number of] years, [the applicant] became liable in principle to deportation at the end of his sentence. At the time of receiving and responding to a Notice of Intention to Consider Cancellation (NOICC) of his subclass 202 visa in March 2014, [the applicant] had reportedly stopped taking his medication and was reportedly denying he was suffering from any mental illness. An International Treaties Obligations Assessment (ITOA) carried out by the former Immigration Department on 8 May 2014 took [the applicant’s] lack of insight into account, but found that Australia did not have non-refoulement obligations towards him, partly on the basis of concluding that “persons with mental illness in Sierra Leone” do not constitute a “particular social group” for the purposes of the Refugee Convention, as referred to in relevant legislation at the time. This was due to an apparently generalised perception, on the part of the interviewing Immigration Department officer, of mental illness not being an immutable characteristic because mental health patients have a choice to adhere to their treatment regimes and, essentially, leave the group as their conditions ameliorate. This conclusion was arrived at, in the face of detailed expert opinion, on the basis of a questionable assumption about [the applicant], a diagnosed paranoid schizophrenic with no evident insight into his illness, somehow possessing the ability to choose to control it. [The applicant’s] subclass 202 visa was cancelled on 22 April 2015.
Upon release from jail and transfer to [an] Immigration Detention Centre, [the applicant] lodged a protection visa application on 22 January 2018. The bases of his claims were, one, that the tribal-political group that persecuted his family’s Temne tribe, shooting [a family member in] front of him, and has now formed government in Sierra Leone and, two, that people with mental illness are blamed for their own involuntary psychiatric conditions and are accordingly stigmatised, abused and subjected to ongoing discrimination. From the point of view of assessing the application under s.36(2)(a) of the Act, and having regard to s.5J(1)(a), the first set of claims involves relevant factors of “membership of a particular social group” and imputed “political opinion” and the second set of claims is entirely about “membership of a particular social group”.
The delegate interviewed [the applicant] on 19 March 2018. Explicitly disagreeing with the OITA assessor before her, the delegate accepted that “people with mental illness in Sierra Leone” do constitute a “particular social group” for the purposes of s.5J(1)(a) the Migration Act, making explicit his disagreement with the earlier critical assumption about [the applicant’s] conditions. The delegate also acknowledged being in the difficult position of requiring [the applicant] to be the main source of evidence in his case whilst understanding that, due to his health status, he was not capable of being either comprehensive or reliable. The delegate refused to grant the visa on 18 May 2018, relying on evidence of socio-political change since the civil war at the turn of the century and concluding that inadequacies in treatment and monitoring of persons with mental illness in Sierra Leone are entirely due to lack of resources rather than having anything to do with discrimination or and intention to harm such persons.
[The applicant] attended a hearing before the Tribunal on 28 June to give oral evidence and present arguments. He was accompanied by his adviser, a registered migration agent. He was also assisted in the presentation of his evidence by his brother, [a] trainee nurse from [City 1]. In light of side effects of [the applicant’s] medication, described to me as a kind of dizziness and drowsiness sufficient to prevent him from working, and so as not to prejudice the chances of his claims being heard and understood, I allowed his brother and adviser to play a more direct role in the presentation of relevant evidence.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
A person does not meet s.5H(1) if he or she has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations, or has committed a serious non-political crime before entering Australia, or has been guilty of acts contrary to the purposes and principles of the United Nations: s.5H(2)
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the matter should be remitted for reconsideration.
Claims
As noted, [the applicant’s] main claim is that he will be persecuted, at least cumulatively, by authorities and non-state agents including health professionals in Sierra Leone due to ignorant and malevolent misconceptions about “persons with mental illness” generally and “persons with paranoid schizophrenia” in particular. He also claims he cannot avoid persecution by entering and residing in other Organization of African Unity (OAU) countries because of discrimination against his tribe and because those the societies in those countries, particularly those neighbouring Sierra Leone, act harshly on their own traditional prejudices against people with mental illness.
For the purposes of this review, [the applicant] submitted to the Tribunal a copy the primary decision in this case, made by the delegate on 18 May 2018. That decision contains a summary of claims made by [the applicant] in his original protection visa application and of information he gave in response to questions at the protection visa interview on 19 March 2018.
The delegate observed that [the applicant] did not claim at interview he would be denied mental health services for any reason cited in s.5J(1)(a) of the Act. The delegate concluded on the basis of this that there was every reason to believe that [the applicant] would be eligible to receive the same level of treatment available to other Sierra Leonean citizens with mental health issues.
However, citing independent reporting, [the applicant’s] adviser submitted to the Department on his behalf (at verso f.67 of the DHA file) that “any person with mental health problems in Sierra Leone faces high levels of stigma and discrimination.” In this way, societal mistreatment, a separate issue from that of health resources, was flagged in [the applicant’s] protection visa application. I note the report referred to in that submission even argues that resources are lacking in Sierra in small part due prejudices on the part of medical, nursing and paramedical students and professionals:
Sierra Leone has very few mental health workers, a single psychiatrist, two psychiatric nurses, and a handful of social workers and counsellors. There is therefore a desperate need for more mental health workers in Sierra Leone.
But the situation in Sierra Leone is exacerbated by the fact that it is extremely difficult to recruit students into psychiatry, which is frowned upon and stigmatised in all African countries…
In a brief chat, a mental health patient, who prefers anonymity, said this about some of the social problems in post war Sierra Leone and that of the Ebola outbreak: “The dignity of many people with mental health conditions is not respected. People with mental health conditions in Sierra Leone and the world in particular experience stigma, discrimination and wide-ranging violations which strips them of their dignity.”
This mental health patient, who has recovered from the illness, further said that many people suffering from mental illness are subjected to physical, sexual and emotional abuse, and neglect in hospitals and prisons, but also in the communities.
“This is a serious problem, because they need the support of psychiatrists to help combat some of the social problems which emanated from trauma of war and the Ebola outbreak in the country”, he concluded.
A father, whose son is suffering from a mental health condition, says that any person with mental health problem in Sierra Leone faces high level of stigma and discrimination.
“They are tagged as having mental health problem; they experience social deprivation; losing their jobs; losing social prestige and becoming isolated from their families and society,” he said.
But how can the authorities solve this problem of stigmatization and discrimination in order to promote the rights and dignity of people with mental health conditions in the country?
Dr. Nahim says that in the health-care system, the health ministry needs to provide better support and care for people with mental health conditions, by providing community based services, respecting people’s autonomy, including their right to make their own decisions about their treatment and care, and ensuring access to good quality care which promotes their human rights.
When asked what is the World Health Organisation doing to promote dignity for people with mental health conditions globally, Dr. Nahim says that WHO is committed to ensuring that the dignity of people with mental health conditions is respected all around the world.
But a retired civil servant – Abu Kamara is of the opinion that the dignity of many people with mental health conditions is not respected…[4]
[4] “Mental Health – The Silent Crisis in Sierra Leone,” Sierra Leone Telegraph, 9 October 2015,
At the Tribunal hearing, [the applicant’s] ability to give meaningful evidence about societal mistreatment of persons with mental illness in Sierra Leone was affected by the fact that he did not evidently suffer mental illness there before he left in his teens: he has had no personal experience of the stigmatisation alleged in his case. In the circumstances, I have had regard to evidence and arguments presented by his brother and his adviser and also to material that I have located in researching background for this case.
[The applicant’s] brother stated at the outset that [the applicant] has no family in Sierra Leone and would be unable to work or maintain shelter there, and would also be unable to motivate himself to submit to the long-term treatment he requires, were it even to become available in Sierra Leone, making him vulnerable to stigma and socially-accepted prejudices relating to mentally-ill persons and, consequently, to physical harm inflicted by others and prolonged psychological distress caused by neglect and misguided divination as to what help he might need.
Independent country information
Independent reporting[5] available to the Department at the time of the primary decision, though not evidently seen by the delegate, observes:
Stigmatisation is probably the major problem in the area of mental health, and it affects every aspect of the work done by the International Medical Corps, including attendance at clinics, compliance with medication, and particularly the availability of social support for people who are mentally ill. Brief surveys showed that most of the community believed mentally ill people to be evil, violent, lazy, stupid, unable to marry or have children, and unfit to vote.
[5] “Tackling mental health in Sierra Leone,” The BMJ, 29 September 2005,
A more recent report from a local Sierra Leonean non-government health agency states:
There is little awareness of mental health in Sierra Leone and beliefs that mental health problems are a result of witchcraft are prevalent.[6]
[6] “AdvocAid reaches mental health milestone for female detainees in Kenema,” AdvocAid, 5 February 2018, >
The US Department of State recently reported:
The Persons With Disabilities Act prohibits discrimination against persons with physical, sensory, intellectual, and mental disabilities in employment and provision of state services, including judicial services. The government did not effectively implement laws and programs to provide access to buildings, information, and communications. The government-funded Commission on Persons with Disabilities is charged with protecting the rights and promoting the welfare of persons with disabilities. Given the high rate of general unemployment, work opportunities for persons with disabilities were few, and begging by them was commonplace. Children with disabilities were also less likely to attend school than other children.
There was considerable discrimination against persons with mental disabilities. The vast majority of persons with mental disabilities received no treatment or public services. The Sierra Leone Psychiatric Hospital in Kissy, the only inpatient psychiatric institution that served persons with mental disabilities, was underfunded. It had only one consulting psychiatrist, patients were not provided sufficient food, and restraints were primitive and dehumanizing. The hospital lacked running water and only sporadic electricity. Only basic medications were available.[7]
[7] “Sierra Leone 2017 Human Rights Report,” in Country Reports on Human Rights Practices for 2017,

Another NGO in Sierra Leone surveyed attitudes to mentally ill persons in that country:
It has been over a decade since then, but progress has been slow. Despite efforts by international organisations and aid agencies to channel funding towards mental healthcare, there is still only one hospital in the country equipped to treat patients with mental health issues, meaning many have to rely on traditional healers. Meanwhile awareness campaigns aimed at educating people about mental health also still have a long way to go. A study of Sierra Leoneans' perceptions of mental health in 2002 found that 25% thought psychological problems were due to substance abuse, 16% cited "God's will" and 10% believed such conditions were associated with "spirits, curses or demons." Many of these understandings and many of the stigmas around mental health still remain today …
Changing perceptions
Tackling Sierra Leone's mental health issues and stigma will be a major task, not least because many of the true roots of mental illness lie in the population's experience of brutal violence, ongoing poverty, alcohol and drug abuse, and other forms of social disruption.
However, there are hopes that the landscape is slowly beginning to shift. In 2011, the Mental Health Coalition of Sierra Leone was established bringing together a wide range of government organisations, NGOs, religious groups, campaigners, mental health service providers, medical specialists and traditional healers. Jointly, these groups aim to raise awareness, push for a greater national commitment to mental health issues, and are currently petitioning the government to review the Lunacy Act of 1902 and offer greater protections for people with mental illnesses…[8]
[8] “Africa: Nurses Not Curses - Witchcraft Beliefs and Mental Health in Sierra Leone,” WAMM, 29 December 2015,
I have had regard to independent reporting of traditional attitudes that effectively demonise those with serious mental health issues[9] causing serious harm to people who in the absence of such prejudice and antipathy might be better treated:
Sierra Leone, like most African countries, is highly traditional. Sickness especially mental health-related, is often associated with witchcraft or bad juju. Thus, in most cases the first port of call to treat mental illness is traditional healers (herbalists) or spiritualists seeking divine intervention.
While the precise burden of mental and neurological disorders in Sierra Leone is under-researched, it is estimated that one in four people in any low income country has a mental illness. Sierra Leone has a dire shortage of trained mental health specialists with limited availability of mental health services outside of Freetown. There are 19 general mental health nurses and four Child and Adolescent Mental Health Nurses in the country.
In 2016 there was only one retired psychiatrist but two newly qualified psychiatrists have since returned to Sierra Leone.
In Kenema, Mental Health Nurse, Hawanatu Foday, explained, “until recently, awareness about mental health and its treatment was mostly lacking. The community did not consider mental illness to be a medical condition. Instead they attributed it to various causes including witchcraft, ancestral curses or demonic influences. As such, whenever a relative or community member suffers from mental illness, community members would first consider ‘spiritual cleansing’, which almost always ends up with no cure.”
[9] “Traditional treatments impedes [sic] mental health care,” Awoko, 20 April 2017,
The kind of harm discussed here is the harm, by way of preferring “traditional” treatments, of denying a person appropriate medical treatment. As reported, in spite of the stigma and the demonising element that trigger them, “spiritual cleansing” approaches appear to involve a desire to help and heal rather than a desire to harm the person concerned. However, notwithstanding this, the stigmatising of persons with paranoid schizophrenia in Sierra Leone, leading to their being subjected unwillingly to treatments that lead to “no cure”, evidently has the great potential to extend and exacerbate the distress, delusions and terrors that medically untreated paranoid schizophrenics reportedly suffer.
In addition to “social deprivation; losing their jobs; losing social prestige and becoming isolated from their families and society,”[10] persons with serious mental health conditions in Sierra Leone are quite recently reported to suffer arguably inhuman forms of liberty-deprivation under the auspices of an outdated legal framework:
The current legislation on mental health consists of the ‘Lunacy Act’ (1902), which needs to be reviewed in a new legislation protecting confidentiality and informed consent, promoting voluntary admissions and least restrictive alternatives. The National Mental Health Coalition has a committee dedicated to seeing this reform through.
The first Mental Health Policy and plan of the country has been adopted and printed (2010), and launched in 2012 ...
An ethnographic study conducted at the Sierra Leone Psychiatric Hospital in 2008 described that many patients were chained to their beds either to control aggressive behaviour or to stop them from running away. Some patients were kept in isolation cells for months. Facilities were without electricity, suffered from poor sanitation and hygiene and had food shortages wherein patients went without eating for several days ... Many patients are physically restrained with chains and padlocks and the dosages given of psychiatric medications are high.[11]
[10] “Mental Health – The Silent Crisis in Sierra Leone,” Sierra Leone Telegraph, 9 October 2015,
[11] Van Gog, JG, Talking about the Sierra Leone 'Kresyad': An ethnographic exploration of the Sierra Leone psychiatric hospital (unpublished MSc Thesis), 2009, cited in Alemu W., Funk M., Gakurah T., Bash-Taqi D., Bruni A. Sinclair J., Kobie A., Muana A., Samai M., Eaton J., WHO Profile on mental health in development (WHO proMIND): Sierra Leone World Health Organization, Geneva 2012.
Consideration
Although the foregoing report acknowledges the significance of poor health funding, its content puts much into question whether the arguably cruel and degrading business of chaining mental health patients to beds can be accepted purely as a matter of a well-intentioned system suffering lack of resources and acting out of concern for public safety. Taking the evidence before me as a whole, I find that it is to a substantial endemic of discriminatory assumptions about mental health patients and their rights to be treated with dignity. Whereas it is arguable that an under-resourced health system may have limited options when it comes to protecting society from potentially violent mental illness patients, the evidence of chaining such people to beds gives rise quite reasonably to the impression that they are being mistreated because of a perceived unifying characteristic. This logically makes it easier for such persons to be subjected, as reported above, to other manifestations of prejudice and forms of harm such as “physical, sexual and emotional abuse”.
It is evident from reports cited above that state protection from such discrimination is not yet easy to access. Mental health policies and practices in Sierra Leone still operate under the auspices of a reportedly archaic framework called the Lunacy Act of 1902 (as mentioned in one of the citations above). Whereas some improvements in care for more common and general mental health problems like depression and PTSD have reportedly been achieved in Sierra Leone, the independent material located by the Department, the delegate and the Tribunal does not support the proposition that such improvement extends to the appropriate treatment of people with paranoid schizophrenia. For example, the practice of chaining patients with arguably greater intervention needs to beds was still reportedly prevalent in West Africa countries like Sierra Leone in 2015, according to a fairly comprehensive report in The New York Times in that year.[12]
[12] “The Chains of Mental Illness in West Africa,” The New York Times, 11 October 2015,
According to [the applicant’s] brother, his treatment needs to be ongoing although his condition may stabilise and require less treatment over time. The witness said that he will house [the applicant] in his home in [City 1], where he lives with his wife, who is already a trained nurse, and their [children]. The witness said his sister his also a nurse and that she is currently in the process of moving near to them in [City 1].
According to evidence provided at the hearing, the local-tribal composition of Sierra Leonean society makes relocation a harsh, unsafe and impracticable option in the event of the Tribunal finding there is a real chance of [the applicant] being persecuted for a relevant reason in his home region. Attention was drawn at the hearing to [the applicant] being prevented both by both his condition and the side effects of its treatment from being able to work, indicating that this would dramatically affect his ability or avoid abuse and exploitation anywhere in Sierra Leone and, for that matter in any other country where he might be permitted to enter and reside.
I invited those present to give evidence and provide arguments in relation to s.36(3) of the Act, drawing to their attention that Sierra Leone is a member of the OAU which allows for visa free entry and residence in neighbouring and other African states. [The applicant’s] brother spoke to this issue. He said that [the applicant] would suffer similar stigmatism and discrimination in other African countries, particularly due to language differences and the fact that the Temne tribe has no footing in other countries. He said that [the applicant’s] capacity to speak and understand English would not help him overcome tribal prejudices and traditional, phobic attitudes towards people with mental illness that mirror those prevalent in Sierra Leone.
Findings in relation to s.36(2)(a)
I accept on the expert medical evidence before me that [the applicant] suffers chronic paranoid schizophrenia and that for the foreseeable future he requires uninterrupted pharmaceutical and complementary treatment. In view of this case being all about his protection prospects in Sierra Leone, I accept that [the applicant’s] condition places him in a “particular social group” reasonably characterised as “persons in Sierra Leone with serious mental health problems”. He may also reasonably be regarded as having “membership of a particular social group” reasonably characterised as “paranoid schizophrenics in Sierra Leone”. As indicated above, I strongly disagree with the conclusion in [the applicant’s] OITA where the decision-maker found [the applicant] could choose to cease being a member of these cognisable groups simply by opting to be treated for the medical symptoms that characterise them, particularly when one of the most notorious symptoms of the illness is a belief that one is not unwell and requires no treatment. Equally absurd is the finding that one ceases to be a member of these particular social groups when one is being treated, especially since the need for medical treatment is or may well be ongoing and prolonged; it is like proposing that a person stops being an alcoholic when he or she stops drinking, and stops being diabetic by choosing to adhere to a daily dose of insulin.
[The applicant], supported here by his brother, claims he has no close relatives to care for him or monitor the standard of his health care in Sierra Leone. On material already accepted by the delegate, I accept this to be true. He essentially claims that socially-received prejudices about persons with paranoid schizophrenia in Sierra Leone, causing people like him to be shunned as sources or foci of evil, and as candidates for exorcism and administration of useless and potentially harmful potions, will prevent him from receiving appropriate treatment, or even what clinical treatment there might be in the scarce facilities available in the country, so that in turn the severe psychological distress that he suffers as a schizophrenic, when not treated, will endure. I accept that this on its own involves cumulative persecution for a reasons for “membership of a particular social group” and that such harm has the potential not to be alleviated, and perhaps even exacerbated in the event of [the applicant] somehow receiving professional intervention in Sierra Leone, due to a reported lack of education of health professionals, a reported fear on the part of health professionals, starting with medical and nursing students, of having contact with the mentally ill and the reported mistreatment of such patients that probably has much to do with resources and outdated training but is evidently at least partly motivated by fear of and prejudices towards persons with serious mental disorders. even before one formulates a view on whether the lack of resources to provide mental illness patients with adequate care reflects an intention to harm on the part of the state.
I am not satisfied on the evidence before me that effective state protection is available to [the applicant]. Whereas a number of sources either consulted or brought to my attention in this case indicate a lot of work on the part of international bodies to assist the Sierra Leonean government to improve its approach to mental illness, calls for the Lunacy Act of 1902 to be replaced by a more sensitive and responsive framework appear to have been answered with little more than government promises to give the proposals some positive intention. Also, on the evidence before me, information about improvements in the provision of service to persons with mental illness in Sierra Leone is focused mainly on helping the many people suffering depression, anxiety and PTSD due to bereavement, dislocation and homelessness caused by the recent Ebola epidemic and some critical weather events in recent years; [the applicant’s] individual circumstances reportedly still regarded in Sierra Leonean society as having been caused by bad deeds or black magic, differ significantly from theirs.
To sum up, I am satisfied that [the applicant] faces a real chance of societal discrimination amounting cumulatively to persecution for reasons of his “membership of a particular social group” reasonably characterised as “persons in Sierra Leone with serious mental illness” (and/or similar formulations used above). This is on account of evidently common and ongoing social enmity towards such persons due to traditional perceptions that essentially blame them for their own illness. I find that the harm suffered by [the applicant] will include societal abuse and neglect that, either way, strongly risks prolonging the psychological distress that he is liable to suffer as a diagnosed paranoid schizophrenic. I find that traditional medicine and magic, built around purging the sufferer of misplaced stigma, will likely only prolong the suffering concomitant with paranoid schizophrenia. I find that effective state protection is not available to [the applicant], whether or not he is taken under the wing of the state health system, in the latter event not least due to the evidence of a paucity of educated and qualified staff, that paucity itself owing in substantial part to received prejudices about mentally ill persons and reported superstitions about being in contact with them. I am not satisfied on the evidence before me that it is safe or practicable for [the applicant] to relocate in Sierra Leone.
Having considered the evidence before me I am satisfied that [the applicant] meets s.5J(1)(a) of the Act in facing a real chance of being persecuted in Sierra Leone in the reasonably foreseeable future for reasons of being a person with serious mental illness. He thus meets s.5H(1)(a). Notwithstanding that he was convicted of a serious offence in Australia in the past, he is not caught by any part of s.5H(2).
For the reasons given above, I am satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
I am satisfied that [the applicant] is not caught by s.36(3). His grounds for protection are grounds that arose after he was resettled in Australia. The diagnosis was made around the time he was detained in Australia in relation to the offences with which he was charged. There are no possible steps he could have taken to avail himself of a right to enter and reside in a third country, notwithstanding arrangements that exist under the auspices of the OAU.
In addition, I find on the evidence before me that [the applicant] is saved by s.36(4)(a) because discriminatory societal and institutional attitudes to people with mental illnesses, in additional to tribal prejudices, are evidently little different particularly in the countries like Togo, Liberia, Guinea and Ghana that are near neighbours to Sierra Leone: for example bed chains are evidently ubiquitous in West African mental hospitals.[13]
[13] “The Chains of Mental Illness in West Africa,” The New York Times, 11 October 2015,
There may be some potentially relevant public interest questions attending this matter, but they are not matters for the Tribunal to decide as they are subject purely to the non-binding discretion of the Minister.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Luke Hardy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
Meaning of refugee5H
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality--is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
   (b) in a case where the person does not have a nationality--is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:          For the meaning of well-founded fear of persecution , see section 5J.
(2) Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
   (b) the person committed a serious non-political crime before entering Australia; or
(c) the person has been guilty of acts contrary to the purposes and principles of the United Nations.
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

Bureau of Democracy, Human Rights and Labor, United States Department of State, 2018,

[2018] AATA 3090

3 July 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction