PLAINTIFF CHALLENGES THE REFUSAL TO GRANT HIS PROTECTION VISA APPLICATION ALLEGING THE DEFENDANT’S FAILURE TO PROVIDE PARTICULARS ON THE RELEVANT INFORMATION (WHICH CAME FROM SOCIAL MEDIA POSTS ) IT RELIED UPON IN REFUSING SUCH VISA APPLICATION
Plaintiff M7/2021 v Minister for Home Affairs [2021] HCA 14 (15 April 2021)
This is an application for a protection visa where the plaintiff alleges that the defendant erred in refusing to grant a protection visa when it failed to provide particulars to enable the plaintiff to understand why the information was relevant in the refusal of such visa.
Facts:
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"), 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 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 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 denied him the opportunity to ascertain the relevant issues and denied him the opportunity to meaningfully respond to that information.
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 and because it was referred to in the letter of 7 May 2020.
Issue: Should the relief of the plaintiff be granted?
Law:
- 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".
Analysis:
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.
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).
In circumstances where the open-source social media information was a foundation for multiple findings by the delegate that was central to the conclusion that the plaintiff's application for a protection visa should be rejected and, as the photograph of the so-called "marriage" showed, 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.
Conclusion: The consequences of non-compliance with S57(2) are twofold. A writ of certiorari should issue to quash the impugned decision. Second, as "the duties of the Minister to consider and determine the application remain unfulfilled" by reason of the non-compliance with S57(2), "their performance is able to be compelled by a constitutional writ of mandamus", and such a writ should issue.
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Hence, the court orders A writ of certiorari issue to quash the decision made by a delegate of the defendant on to refuse to grant the plaintiff a protection visa and 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.
