Whe
n I first read the decision in Plaintiff M7/2021 v Minister for Home Affairs [2021] HCA 14 , my first thought was that it was unusual because it was a single judge (Gordon J) final decision. That came about because, having missed the deadline for merits review in the AAT (by 1 day due to a miscalculation), the High Court (provided some procedural hurdles about time extensions were overcome), was the only Court with jurisdiction to review the delegate’s decision.
The case involved a Pakistani man who sought protection on the basis of his homosexuality. The delegate found that he had fabricated his claim. The basis for that finding was the man’s social media accounts which had several photos of him with male friends. The assumption made, was that the man was openly gay in Pakistan and that his family and friends knew and supported him.
Section 57 of the Migration Act is a procedural fairness provision. The extent of procedural fairness varies depending on the circumstances. However, s57 imposes obligations on the Minister to give to the applicant particulars of relevant information, to ensure as far as is reasonably practicable that the applicant understands why the relevant information is relevant to consideration of the application, and to invite the applicant to comment on it
In the present case, neither the interview between the delegate and the plaintiff, nor the letter sent to the plaintiff, 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 other words, the obligation under section 57 wasn’t met. As a result, a jurisdictional was found and the delegate’s decision was quashed.
Creative commons acknowledgement for the photograph.
