Whether defendant failed to comply with s 57(2) Migration Act 1958 (Cth) by failing to disclose open source social media or provide particulars to enable plaintiff to understand why information was relevant to protection visa application.

Plaintiff M7/2021 v Minister for Home Affairs [2021] HCA 14 (15 April 2021)

Intro:-

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 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.

Facts:-

The plaintiff is a citizen of Pakistan. On 23 March 2018, the plaintiff applied for a protection visa, claiming he left Pakistan because, among other things, he faced torture and violence from his family as a result of his homosexuality.

During the interview, the plaintiff was asked to comment on photographs 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 also open-ended.

The delegate also sent the plaintiff a letter that contained an invitation to comment on unfavourable information that the delegate considered would be the reason, or part of the reason, for refusing to grant a protection visa in purported compliance with s 57 of the Migration Act. The letter referred to "[o]pen source social media information" and "social media information". The plaintiff was not provided with a copy of the "[o]pen source social media information" or the "social media information" that was "before the Department".

The plaintiff provided the delegate with "additional documentation as part of [his] protection visa application" which included what was described as an untranslated "[d]ocument related to disinheritance". The plaintiff told the delegate that he would be able to provide an official certified translation of the disinheritance document immediately after he received his next fortnightly salary on 15 June 2020.

The next day, 12 June 2020, and without waiting for a translation of the disinheritance document, the delegate made the impugned decision.

Issues:-

Was the plaintiff denied procedural fairness by failing to disclose to the plaintiff the open source social media so that he could meaningfully comment on it as required under s 57 of the Migration Act; and then concluding that the open source social media did not support the view that the plaintiff was a known homosexual in Pakistan thereby denying the plaintiff the opportunity to ascertain the relevant issues and respond to adverse information that was credible, relevant and significant to the decision to be made.

Was the delegate correct in not attributing any weight to the disinheritance document the plaintiff submitted, not referring to the plaintiff's request for further time to provide a translation of the disinheritance document and not consider the claim?

Analysis:-

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"), (2) the Minister must "give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances", "ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application", and "invite the applicant to comment on it".

What is required for the Minister to discharge his or her obligations under s 57(2) depends on the facts and circumstances of the case. The "relevant information" cannot be divorced from the context in which it appears. The required degree of disclosure about that surrounding context will depend upon the individual case. In some cases, disclosure of the substance of the relevant information may be sufficient, whereas in other cases, it may be necessary for an entire document – the "source" of the relevant information – to be provided to an applicant. This reflects that, in each case, compliance with s 57 will only be achieved if what has been provided is sufficient to ensure the applicant understands why the information is relevant to consideration of the application and can meaningfully respond.

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.

Other grounds:-

Although the conclusion reached in relation to the first ground of review is sufficient to dispose of the application, it is further to be noted that the delegate did not address or answer the plaintiff's statement in his letter of 11 June 2020 that he was able, within a few days, to provide a translation of a document that he had provided to the delegate relevant to a claim that he had been disinherited by his father and, instead, the delegate proceeded immediately to dismiss his other claims without otherwise addressing the plaintiff's claim that he had been disinherited by his father.

Decision:-

a) Pursuant to s 486A(2) of the Migration Act 1958 (Cth), the period within which an application may be made for a remedy to be granted in relation to a decision made by a delegate of the defendant on 12 June 2020 is extended to 29 January 2021.
b) Pursuant to r 4.02 of the High Court Rules 2004 (Cth), the time fixed by rr 25.02.1 and 25.02.2(b) be enlarged in respect of this application.
c) A writ of certiorari issue to quash the decision made by a delegate of the defendant on 12 June 2020 to refuse to grant the plaintiff a protection visa.
d) A writ of mandamus issue directed to the defendant requiring the defendant to determine the plaintiff's application for a protection visa according to law.