Plaintiff M7/2021 v Minister for Home Affairs

Plaintiff M7/2021 v Minister for Home Affairs - [2021] HCA 14 - HCA 2021 case summary — Zoe

[11]

GORDON J. The plaintiff seeks constitutional writs, a writ of certiorari and other relief in respect of a decision made by a delegate of the defendant, the Minister for Home Affairs ("the delegate"), on 12 June 2020 to refuse to grant the plaintiff a protection visa ("the impugned decision"). The plaintiff claimed protection on the basis that he feared persecution in Pakistan on account of his homosexuality. The plaintiff claimed, among other things, that he left Pakistan because he faced torture and violence from his family as a result of his homosexuality; that he had been beaten publicly by his father in Pakistan and that his father has threatened to kill him if he returns; and that he cannot relocate to another area of Pakistan because there is no safe area for members of the LGBT community, who can be whipped or stoned to death under Islamic law in Pakistan.
In the impugned decision, the delegate made a finding, among others, that the evidence, including "open source social media", did not support the view that the plaintiff was a known homosexual in Pakistan. The plaintiff's principal complaint is that the delegate failed to comply with s 57 of the Migration Act 1958 (Cth) because the delegate failed to disclose the open source social media or provide particulars of that information to the plaintiff to enable him to understand why that information was relevant to consideration of his application for a protection visa. The plaintiff submitted that the delegate's failure to comply with s 57 of the Migration Act thereby denied him the opportunity to ascertain the relevant issues and denied him the opportunity to meaningfully respond to that information.
The plaintiff's application in the original jurisdiction of this Court was filed outside of the period of 35 days fixed by s 486A(1) of the Migration Act, as well as the periods of 35 days (to file an application for a writ of certiorari) and two months (to file an application for a writ of mandamus) fixed by r 25.02.2(b) and r 25.02.1 of the High Court Rules 2004 (Cth). The plaintiff applied for an extension of time to prosecute his application for the relief sought. That application, as well as the substantive relief, was opposed by the Minister.
As these reasons will explain, in relation to the open source social media information, the delegate did fail to comply with s 57 of the Migration Act. The plaintiff should be granted the extension of time he seeks to prosecute his application for relief in this Court and, consistent with that application, a writ of certiorari should issue to quash the impugned decision and a writ of mandamus should issue to compel the Minister to consider and determine the application according to law.

[53]

On the face of the delegate's reasons, the ultimate finding that the plaintiff "fabricated his claim to be a homosexual" followed from (and depended upon) his earlier finding, that the evidence before the delegate, "including open source social media, [did] not support the view that the [plaintiff] was a known homosexual in Pakistan who was shunned by his family and local community". That finding was an evident link in the delegate's chain of reasoning which culminated in the rejection of the factual basis for the plaintiff's claim that he feared persecution in Pakistan as a homosexual - namely, that he is a homosexual. That ultimately meant that the delegate considered it unnecessary to consider that claim any further.
Two matters should be noted regarding the delegate's finding that "[t]he evidence before [him], including open source social media, [did] not support the view that the [plaintiff] was a known homosexual in Pakistan who was shunned by his family and local community".
The first is that the specific open source social media information was identified in a footnote in the impugned decision. That open source social media information, which was before the delegate and which the delegate not only referred to but relied on, was in evidence before the Court. It comprised seven screenshots of entries on Facebook in 2012, 2014 and 2015 (before the plaintiff left Pakistan) and a screenshot of an entry on Facebook in June 2016 and another one in January 2017. The screenshots were accompanied by what the plaintiff described as "commentary" on the screenshots which was attributed to an officer within the Department.
The screenshots are mostly photographs of the plaintiff, including photographs posted in 2012 and 2014 of the plaintiff with groups of males in various social contexts; a photograph posted in 2015 of the plaintiff with two men at what appears to be a celebration; and a photograph posted in 2016 of the plaintiff and another male at a gym. The "commentary" accompanying the photographs includes observations such as: "social media indicates [the plaintiff] has a decent relationship with his siblings", noting that "[t]hey frequently comment and 'like' each other's images/posts"; "[g]iven homosexuality is not accepted in Pakistan it's interesting [the plaintiff] has such a large group of understanding male friends"; "[i]t seems unlikely that a known homosexual's involvement in a wedding would be accepted by the grooms [sic] family"; and "[the plaintiff] seems to be acquainted with [an identified individual] well enough for a photo opportunity. I'm curious if his homosexuality was widely known in the community."
The second matter is that the other "evidence" before the delegate on which that particular finding was based was not expressly identified by the delegate, but it seems likely that the delegate was referring to the evidence about the plaintiff's financial transactions to and from his father, his delay in lodging his protection visa application and, perhaps, the delegate's finding that it was implausible that the plaintiff would inform his father of his intention to marry his partner in Australia.

[62]

The principal question for this Court is whether the delegate complied with s 57(2) of the Migration Act. As explained, the plaintiff's submission was that the delegate's failure to disclose to the plaintiff the open source social media information amounted to a failure to comply with s 57(2). The plaintiff submitted that the delegate failed to put this information - being information which the delegate relied on in support of the conclusion that the plaintiff was not a known homosexual in Pakistan and had "fabricated his claim to be a homosexual" - to the plaintiff in the manner required for the delegate to discharge his obligation under s 57(2). The consequence, according to the plaintiff, was that he was denied the opportunity to ascertain the relevant issues and respond to adverse information that was credible, relevant and significant to the decision to be made.
The Minister, however, submitted that the delegate had complied with s 57(2) because the plaintiff was twice asked about open source social media in his interview with the delegate on 25 February 2020 and because it was referred to in the letter of 7 May 2020.
It is necessary to state what it is that s 57 of the Migration Act requires: namely, that (1) where information is before the Minister that would be the reason, or part of the reason, for refusing to grant a visa and the information is specifically about the applicant or another person and was not provided by the applicant ("relevant information")[5], (2) the Minister must "give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances"[6], "ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application"[7], and "invite the applicant to comment on it"[8].
Section 57 was considered by this Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection[9]. As the plurality explained, s 57 deals with "relevant information" and "[s] 57(1) defines that term, subject to an immaterial exclusion, to mean information that the Minister considers meets three conditions"[10]:

[72]

In the present case, neither the interview between the delegate and the plaintiff, nor the letter to the plaintiff dated 7 May 2020, provided particulars of the relevant information - the open source social media information - sufficient to enable the plaintiff to understand why the information was relevant so he could meaningfully respond. It is appropriate to address the interview and then the letter.
Taken at their highest, the questions asked by the delegate at the interview on 25 February 2020 indicated that the delegate, and the Department, were aware of, and had accessed, information about and photographs of the plaintiff that were publicly available on social media[23]. At no time was it stated with sufficient clarity or specificity to the plaintiff during his interview with the delegate that publicly available information on his Facebook page was seen to indicate or support a finding that his claims as to his sexual identity, and associated persecution in Pakistan, may have been fabricated. The delegate's questions about a photograph of what the delegate referred to as a "marri[age]" were directed at ascertaining the nature of the plaintiff's participation in the event depicted[24]; the delegate did not expressly state, or even allude to, any adverse inferences that might be drawn from the photograph. The delegate's question about whether the plaintiff was in contact with a previous partner on social media was open‑ended[25]; the delegate did not suggest the Department had identified social media information exposing that there had been contact between the plaintiff and a previous partner. At one point in the interview, the plaintiff accepted that he was friends with his family members on Facebook and said that his siblings and mother talked to him on Facebook because he is "their blood relation", not because they support him[26]. The delegate also put to the plaintiff that his family are "not obliged to" talk to him on Facebook, or to "like" or comment on his pictures[27]. However, the delegate did not, for example, identify specific examples of communication or photographs that might be relied on to support a conclusion that the plaintiff's family were "supportive" of the plaintiff. Nor did the delegate identify why the plaintiff's engagement with his family as depicted in the open source social media information before the Department might suggest that the plaintiff was not a known homosexual in Pakistan and that he had fabricated his claim to be a homosexual.
Thus, the delegate did not, in the interview, identify the open source social media information (other than possibly the photograph of the "marri[age]") which the Department had collated, what that information disclosed or its relevance to the plaintiff's application. The interview was insufficient to discharge the obligation imposed by s 57(2).
And that position was not remedied by the letter of 7 May 2020. As outlined above, the letter relevantly stated that open source social media information before the Department "may indicate" that the plaintiff "led a normal life in Pakistan with an active group of friends and family", which "may suggest" the plaintiff "[was] not persecuted and ostracized as a result of [his] sexuality in Pakistan". The letter did not comply with s 57(2). Compliance with s 57(2) required the open source social media information before the Department, which was "the reason, or part of the reason" for refusing to grant the visa, to be provided to the plaintiff in order to equip him to meaningfully respond.
The screenshots, and the commentary attached to each screenshot, were expressly identified in the impugned decision as the open source social media upon which the delegate relied in making the impugned decision. The commentary attached to each screenshot is, as the Minister submitted, not relevant information within the meaning of s 57(1), because it is commentary.
But the commentary, and the contents of that commentary, reinforce the conclusion that for the delegate to comply with s 57(2) it was necessary for the delegate to provide the open source social media information to the plaintiff and explain why or how it was said that the screenshots undermined his claim for a protection visa (as the commentary did) and to seek the plaintiff's response to those matters. That is because one could not expect the plaintiff to have been able to ascertain, simply by looking at the screenshots without any further explanation as to their relevance, the basis on which they might be relied upon as adverse to his claims. Absent such explanation, it could hardly be said to be self‑evident why or how the screenshots undermined the plaintiff's claims[28].
The adverse conclusions in the impugned decision, drawn from the open source social media information, necessarily depended on assumptions or speculative inferences drawn from the identity of and relationship between persons in photographs, as well as the context in which certain photographs were taken or posts made. Although the screenshots and the commentary were identified in the impugned decision, it is not clear whether the commentary reflects the inferences drawn from the photographs by the delegate. Nonetheless, four aspects of the commentary are illustrative of the speculative nature of the adverse conclusions that might have been drawn from the open source social media information:

[77]

In circumstances where the plaintiff was not provided with the screenshots themselves or any descriptions of the screenshots and where there was no explanation as to why or how it was said that the screenshots undermined his claim for a protection visa, it cannot be said that he had sufficient particulars to enable him to meaningfully respond to the relevance of those images to his claimed persecution in Pakistan. He was not provided with the dates of the social media posts, identities of the persons in those posts or any context as to the information relied upon, other than that its source was information publicly available on social media. The plaintiff was not informed of which social media platform or platforms the information before the Department was collated from. Nor was he informed about whose social media profile or profiles the information was derived from (that is, whether the information was from his profile or whether it was from his family's or friends' profiles). The generality of the plaintiff's response matched the generality of the letter provided.
It would have been reasonably practicable for each screenshot and the delegate's concerns (whether as reflected in the commentary or held on different grounds) to have been put to the plaintiff in the interview and the plaintiff to have been asked to respond. It may even have been possible to have grouped the screenshots by year or subject‑matter. But that was not done. And even describing in the letter that the screenshots "may indicate" that the plaintiff had "led a normal life in Pakistan with an active group of friends and family", which "may suggest" the plaintiff "[was] not persecuted and ostracized as a result of [his] sexuality in Pakistan", did not enable the plaintiff to meaningfully respond to the information. No context was provided - no year, no source, no description of activity. That list is not exhaustive. Indeed, the reference to social media information suggesting that the plaintiff led a "normal life ... with an active group of friends and family" is ambiguous. It could be taken to mean, for example, that the plaintiff did not post on social media about his sexuality or, perhaps, that the plaintiff's social media profile was not used as a platform to protest against his mistreatment on account of being a homosexual (the plaintiff's letter of 4 June 2020 suggests this may have been his understanding).
If, adopting the language of Murphy J[29], "[t]he greater the clarity of the information provided, the less that may be required of the Minister in exposing relevance" and, conversely, "the more the uncertainty in the information provided the greater may be the need to explain relevance", then in this case the delegate failed on both accounts. The delegate did not provide any clarity about what was the open source social media information and nor did he expose the relevance of it. Nonetheless, the delegate went on to conclude that the evidence before him, including the open source social media, "[did] not support the view that the [plaintiff] was a known homosexual in Pakistan who was shunned by his family and local community". This was a critical finding, rejecting a fundamental basis for the plaintiff's claim that he feared persecution in Pakistan on account of his homosexuality, namely, that his family and local community were aware of his homosexuality and that he had previously been subjected to torture and violence in Pakistan because of his homosexuality. On the face of the delegate's reasons, that finding is an important link in the chain of reasoning that led to the delegate's ultimate conclusion that the plaintiff had "fabricated his claim to be a homosexual and concocted an elaborate story regarding his previous experiences in Pakistan".
In circumstances where the open source social media information was a foundation for multiple findings by the delegate that were central to the conclusion that the plaintiff's application for a protection visa should be rejected and, as the photograph of the so‑called "marri[age]" showed[30], where the assumptions and speculative inferences that were drawn by the delegate from that social media information may have been incorrect and capable of being rebutted by the plaintiff, not putting the open source social media information to the plaintiff and not explaining why or how it was said that the screenshots undermined his claim for a protection visa deprived him of a meaningful opportunity to respond - to explain what appeared in that information.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (97 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (17)

Cited By (3)