Plaintiff M7/2021 v Minister for Home Affairs

[2021] HCATrans 53

[2021] HCATrans 053

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M7 of 2021

B e t w e e n -

PLAINTIFF M7/2021

Plaintiff

and

MINISTER FOR HOME AFFAIRS

Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 30 MARCH 2021, AT 9.59 AM

Copyright in the High Court of Australia

MS N.P. KARAPANAGIOTIDIS:   If your Honour pleases, I appear on behalf of the plaintiff.  (instructed by Asylum Seeker Resource Centre)

MS C.L. SYMONS:   If the Court pleases, I appear on behalf of the defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Thank you.

MS KARAPANAGIOTIDIS:   Thank you, your Honour.  Can I indicate at the outset, if it is not apparent, an application for an extension of time is required?

HER HONOUR:   Yes.

MS KARAPANAGIOTIDIS:   It is ultimately submitted that the application should be granted, firstly because of the underlying reasons for the delay as outlined in my instructing solicitor, Ms Saravanamuthu’s affidavit, and I hope I did that justice.  He was misinformed and then various steps have been taken on his behalf in an attempt to remedy that situation.  But, secondly, and foremost, it is submitted that there is merit in the application ‑ ‑ ‑

HER HONOUR:   If we put to one side what I will call the unfortunate error and deal with the merits then that will inform, I think, and I am sure Ms Symons will agree, the way in which we might look at the application itself for an extension of time.

MS KARAPANAGIOTIDIS:   Thank you, your Honour.

HER HONOUR:   Do you have any opposition to that, Ms Symons?

MS SYMONS:   No, I do not, your Honour.

HER HONOUR:   Thank you.

MS KARAPANAGIOTIDIS:   The ultimate finding by the delegate was that the plaintiff had fabricated his claim to be a homosexual man.  It is submitted that the delegate failed in several respects – and there are six grounds that have been identified in the application.  Can I indicate, your Honour, that in relation to ground 3, and on further reflection, that is the ground that deals with the reference to a two‑year delay in making application for protection. 

On further reflection I think it needs to be conceded that what is put against the plaintiff is the two‑year delay is appearing he is resident in Australia and not appearing in between the student visa and the protection visa.  That is an interpretation open.  We say that there is another interpretation open but ‑ ‑ ‑

HER HONOUR:   Do you pursue it?

MS KARAPANAGIOTIDIS:   No.

HER HONOUR:   Thank you.

MS KARAPANAGIOTIDIS:   No, thank you, your Honour.  If I can first deal with ground 1, and that has been classed originally as a denial of procedural fairness ground, though it certainly would apply, your Honour.  It is accepted that it needs to be considered within the bounds of section 57 of the Migration Act.  The information relevant to this particular ground is found – the delegate’s decision is annexed as ER‑2 to my instructing solicitor’s affidavit.

HER HONOUR:   Yes, I have it.

MS KARAPANAGIOTIDIS:   There are a number of numbers on the page.  Your Honour, would it ‑ ‑ ‑

HER HONOUR:   I think you need to use the very large bold numbers at the bottom.

MS KARAPANAGIOTIDIS:   The page 1 of 8?

HER HONOUR:   Well, my ER‑2 has a “23” at the bottom in bold type.  I have the certificate of exhibit cover sheet which has 22 at the bottom and then the next page has 23.  That is what I use.  I am happy to use any number, just tell me which one I am to use.

MS KARAPANAGIOTIDIS:   Thank you, your Honour.  If we could use, turning to the actual protection visa decision record – if we could perhaps just use the middle – below the middle, page 7 is the first number that appears – in the middle of the page on the bottom.

HER HONOUR:   Thank you.

MS KARAPANAGIOTIDIS:   Thank you, your Honour.  Now, the relevant information here is identified in a footnote number 16 at page 11.  That footnote references a lengthy number and then “Social Media analysis”.

HER HONOUR:   Yes.

MS KARAPANAGIOTIDIS:   In the body of the decision, if we follow or locate the footnote, for example, in the body of the decision it appears somewhat mid‑page.  It is referred to as the “open source social media”.  It is apparent, and I do not understand to be a matter in dispute, your Honour, that this information is part of the reason for refusing the grant of the visa.

HER HONOUR:   Can I ask a couple of factual questions, so that I am clear on the facts?  Is it the position that what appears in footnote 16, which has a number of numbers and then dash “Social Media analysis”, is that the material that ultimately appears as exhibit ER‑2 to the affidavit of Mr Rogers?

MS KARAPANAGIOTIDIS:   ER‑2, yes.

HER HONOUR:   And is it the position that those social media screenshots were shown to your client during the interview?

MS KARAPANAGIOTIDIS:   No, I think at most what may have been shown by reference to this social media analysis is the photograph at page 26.

HER HONOUR:   Is that the wedding photo?

MS KARAPANAGIOTIDIS:   Yes.

HER HONOUR:   The bottom one?

MS KARAPANAGIOTIDIS:   That is right, the bottom one.  That may have been shown in the context of – so the transcript – an informal transcript – there is no issue taken – is annexed to my instructor’s affidavit at number 2.

HER HONOUR:   I have read that, yes.

MS KARAPANAGIOTIDIS:   Thank you, your Honour.  It seems as if, to use again, if I may, the number located in the middle of the bottom of the page – it seems that at page 26 the plaintiff is shown something, and you can see in italics “Delegate shows applicant something”.  It appears consistent perhaps with what follows, and looking at this photograph, that it most likely was this photo.

HER HONOUR:   Yes, I see.

MS KARAPANAGIOTIDIS:   But to address and to answer your Honour’s question fully, the other photographs or material in this analysis were not shown to the applicant.

HER HONOUR:   Or given to him?

MS KARAPANAGIOTIDIS:   Or given to him, correct.

HER HONOUR:   Thank you.

MS KARAPANAGIOTIDIS:   So, in terms of its effect or influence on the reasoning, clearly it is a matter that is relevant to credibility, but more so here, the way in which this material was used, again returning to the delegate’s decision, your Honour, and page 11, which is the page that I had turned to to reference the footnote, your Honour was taken to the body of that page and the reference to “open source social media” and just continuing in that paragraph we see, if we start at the beginning of that line perhaps:

The evidence before me, including open source social media, does not support the view that the applicant was a known homosexual in Pakistan who was shunned by his family and local community.  I find the applicant has provided inconsistent and conflicting evidence –

But perhaps putting that aside, this ‑ ‑ ‑

HER HONOUR:   Just stop there for the moment – what is the other evidence other than the open source social media to which the delegate may be referring?

MS KARAPANAGIOTIDIS:   In ground 2 we query that effectively.  It is a reasonableness ground and it is ultimately submitted that it is simply not clear what that other material might be, but if I can try and address your question in this way, your Honour, it appears as if financial transactions, both to and from the father, but more so to the father, delay, the open source social media and perhaps a finding of implausibility – if your Honour turns to page 10 of the delegate’s decision, last paragraph, there is a reference in that last paragraph on page 10:

I find it implausible that the applicant would inform his father in Pakistan of his intention to marry his partner in Australia had he been repeatedly tortured by his father in Pakistan as a result of his homosexuality.

It might be a reference to that, although it does not necessarily, in our submission, really go to that issue which is identified here which is inconsistent, conflicting evidence regarding his experiences as a homosexual in Pakistan.  That is the best I can do to answer that question, your Honour, as to what that might be referring to.

HER HONOUR:   Thank you.

MS KARAPANAGIOTIDIS:   So, the media information is clearly relied upon.  It is also referred to – it does appear – clearly, there is some reference to it in the interview and I will come to those specific sections in a moment.  There is also the section 57, for want of a better description, letter of 7 May.  That appears at the respondent’s instructing solicitor’s affidavit, I think, at ER‑3.  If I could ask your Honour to please turn to ER‑3 – it is only a two‑page document, I think, but the second page.  It is correspondence of 7 May.

HER HONOUR:   I have that, thank you.

MS KARAPANAGIOTIDIS:   Number 3) – there are four points, number 3) makes reference to this open source social media information, perhaps commencing around halfway down that paragraph:

Open source social media information before the Department, however, may indicate you led a normal life in Pakistan with an active group of friends and family.  Given the known social taboo to homosexuality in Pakistan which forms part of your Protection visa application; social media information before the Department may suggest you were not persecuted and ostracized as a result of your sexuality in Pakistan as you claim.

So, from the decision we have firstly the information does not support the view that he is a known homosexual and then, perhaps from what is identified in this letter, it is perhaps reclassed as a positive – in fact, it indicates that he led a normal life in Pakistan ‑ ‑ ‑

HER HONOUR:   What does that mean?  One of the interesting things is that the delegate’s decision is fabrication that he was in fact homosexual at all.

MS KARAPANAGIOTIDIS:   Yes.

HER HONOUR:   Is that addressed in this letter?

MS KARAPANAGIOTIDIS:   Number 1) of the letter ‑ ‑ ‑

HER HONOUR:   Is that what “normal” means?  I mean, it is a very unfortunate use of phrasing, but is that what “normal” means?

MS KARAPANAGIOTIDIS:   It is – I think it might.  I think that might be what it is expected to mean.  Can I indicate, your Honour, if you turn to the first page, at point 1) there are some concerns raised:

From the information you provided –

if I can just jump through there ‑ ‑ ‑

HER HONOUR:   For the distinction to be drawn, though, between concern that you are being persecuted as a result of your homosexuality and accepting you are homosexual versus a finding that you have fabricated your entire sexual identity.

MS KARAPANAGIOTIDIS:   Identity, yes.

HER HONOUR:   I am just trying to work out, is this letter, which is to meet the requirements of the provision of particular information that is to be used, which is adverse to your application for a visa, put on both bases, i.e. “I accept you are homosexual, but I do not accept that you were persecuted because of your sexual identity”, as distinct from, “But, anyway, I don’t think you are homosexual at all”.

MS KARAPANAGIOTIDIS:   I do not understand this letter to expressly identify or deal with that other part in terms of his sexual identity.  There are concerns raised, and at point 1) that I was just referring to:

I have concern with your claim that you told your father –

I see, your Honour, I mean these are concerns in respect of the factual claims as opposed to his overall identity which is not really dealt with in this decision.  His experiences as a gay man in Pakistan or Australia are not really – and this is a separate ground agitated - but they are not dealt with here.

HER HONOUR:   You put to me as your opening submission that the ultimate finding by the delegate was that your client had fabricated his claim as a homosexual man.

MS KARAPANAGIOTIDIS:   Yes, that is the ultimate finding and that can be located at page 11.

HER HONOUR:   Page 11.

MS KARAPANAGIOTIDIS:   Again, if we go to that, it is the last paragraph just above Part 6, the last substantive paragraph where, the second line:

I find the applicant has fabricated his claim to be a homosexual and concocted an elaborate story regarding his previous experiences in Pakistan in an attempt to materially enhance his Protection visa application.

That is the ultimate finding against the applicant.

HER HONOUR:   Yes, thank you.

MS KARAPANAGIOTIDIS:   In respect of this body of information and whether particulars were provided, I have already taken your Honour to the section 57 letter, the correspondence, where it is raised in a way.  There is some reference to Facebook – not necessarily this material – in the transcript, your Honour.  So, if I could refer to ‑ ‑ ‑

HER HONOUR:   Under 57 – this is what we are talking about, we are talking about this open source information is the subject of your complaint and we are looking to see whether or not it complies with section 57.

MS KARAPANAGIOTIDIS:   Yes.

HER HONOUR:   So, under 57 the relevant information:

would be the reason, or part of the reason:

(i)for refusing to grant a visa –

and it is specifically about the applicant and was not given by the applicant.

MS KARAPANAGIOTIDIS:   Yes, correct.

HER HONOUR:   As I understand it, 57(1) is satisfied, on your case.  Second, the Minister must:

give particulars of the relevant information . . . in the way that the Minister considers appropriate –

and (b):

ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application ‑ ‑ ‑

MS KARAPANAGIOTIDIS:   Yes.

HER HONOUR:   Which part of 57 has not been complied with?

MS KARAPANAGIOTIDIS:   Particulars of the relevant information – the complaint is they have not been provided.

HER HONOUR:   What should have been provided?

MS KARAPANAGIOTIDIS:   Well, the particular images or photographs and, given the analysis itself seemed to be relied upon, the particular commentary that accompanied the photographs.

HER HONOUR:   I do not understand that ‑ ‑ ‑

MS KARAPANAGIOTIDIS:   If we turn to the analysis, so at ER‑2 – this is ultimately what is referred to – that is footnote - we proceed on the basis that it is the document in its form and its totality that is relied upon and if we turn to, for example, page 25, there are a number of photographs too.  There is commentary at the top, so he:

appears to have a close group of male friends . . . Photos . . . range from mid‑2012 until he left for Australia.

Then the concluding line:

Given homosexuality is not accepted in Pakistan it’s interesting he has such a large group of understanding male friends.

I mean, that commentary, your Honour, it is submitted contains a number of assumptions and judgments in respect of these images and invites certain inferential reasoning that clearly has influenced the delegate in its decision and its reliance on this material.  So that is what I mean by the commentary.  It appears elsewhere – page 27, for example, is the photographs of the plaintiff with the retired male and the commentary there at the top of the page:

The second photo appears to be in a restaurant.  [He] seems to be acquainted with him well enough for a photo opportunity.  I’m curious if his homosexuality was widely known in the community.

The way all of this really commences, if we look at the first page, page 23, we have the analyst or the writer or whoever the individual is:

I haven’t found anything on social media which gives much away regarding his sexuality.  Just a few curiosities which may assist you.

Those curiosities are really spelt out, going to the wedding photograph that we have already considered – or looked at for a moment, page 26.  The commentary above that photograph:

It’s seems unlikely that a known homosexual’s involvement in a wedding would be accepted by the grooms family.

So, all of these curiosities or comments are put forward as a suggestion in support of some inference that either he is not a homosexual or he is not a known homosexual and it is evidenced by a selection of what would otherwise be a fairly random lot of photographs on a social media platform.

The plaintiff responds to that particular correspondence of 7 May that was forwarded to him and his correspondence, your Honour, is located at ER‑4, so it just follows the correspondence of 7 May.  That is a letter from him dated 4 June 2020.

HER HONOUR:   Yes, I have that.

MS KARAPANAGIOTIDIS:   So, on the second page of that letter, halfway down the page:

Open source social media information before the department may indicate that I led a normal life in Pakistan.

What he does, your Honour – I do not intend to read out the lengthy paragraphs that follow, but within this paragraph what he effectively says is:

I have never used social media as a platform to seek help and justice or to express my homosexual activities.

He refers to various mistreatments and then a decision on his part:

not to express my homosexuality –

His response, it is submitted, in a way evidences that he was not provided with sufficient – or adequate particulars to meaningfully address the information.  There is no reference, for example, here to “I had a group of friends who either were all gay themselves or didn’t know about my homosexuality or did” – there is no substantive response.  His response is quite broad and general which you might expect, it is submitted, given the broad and general way this social media information is put to him.

HER HONOUR:   The difficulty for me is if you go to the 7 May letter – in effect, there are three questions which I think we keep coming back to which seem to me to lie at the core of your complaint and need to be addressed.  The first is what is wrong with what has been done for the purpose of section 57?  Section 57 requires particulars to be given of the relevant information, that the applicant understands why it is relevant to the consideration of the application and then invite the applicant to comment on it. 

So, if one goes to the letter of 7 May, as I understand it – I just want to put back what I understand to be your propositions.  The first is that the concerns with the application are set out in paragraph 1 and they are concerns that arise, as I understand it, from the information that your client provided and the interview.  That interview included social media material but there is no reference to it in that paragraph. 

Then you have, in effect, the additional factual matters that are concerned - which you raised properly – that money flows to and from Pakistan to the father.  Then you get to 3), which is what I will call more directed concerns about the homosexuality as well and it seems to suggest that it is put – that is, the material about which you now complain - is put on the basis that suggests:

you were not persecuted and ostracized as a result of your sexuality in Pakistan ‑ ‑ ‑

MS KARAPANAGIOTIDIS:   Yes.

HER HONOUR:   Is that sufficient for the 57(2) requirement and, if not, why not?  Then you get to 4), and this is what might be described as a potential contention that your client has concocted his claim – in the last sentence of paragraph 4) – and that seems to be delay rather than to be referable to other facts and matters.  I might be doing the letter a disservice, but that is the way it seems to be structured.

MS KARAPANAGIOTIDIS:   Yes.

HER HONOUR:   Then your client is invited to “comment on the above information”.  So, four quite particular aspects.  Is that sufficient for section 57 and, if not, why not?

MS KARAPANAGIOTIDIS:   It is submitted that it is not sufficient in terms of the social media information and the reason, your Honour, is that what paragraph 3) really does is it in a way provides him with a type of finding or conclusion or opinion.  There is this information that might suggest X.  It does not provide him with the actual information or particulars of the information to then permit him to address it, to meaningfully reply – to reply in a manner that extends beyond a fairly general response. 

So, I am just dealing with the social – there is no complaint that delay was not raised with him, for example, or that – I think number 1) really seems to translate to that implausibility finding that I referred to as to why would you tell your dad that you were going to marry somebody and that finds its way into the decision under implausibility.

The complaint does seem to be around this social media information and just given the diversity of the photographs, the commentary within it, the inferences drawn by the delegate it…..particulars were not really provided to the plaintiff in respect of that information.

HER HONOUR:   An alternative view may be that when one looks at your client’s response in ER‑4 and in particular the passage you took me to on page 37, that in a sense he has provided a response to it.  What he has said is, listen, I might be in social media with people and with friends and things, but I cannot do anything that demonstrates that I am homosexual, because of the reasons he sets out there.

MS KARAPANAGIOTIDIS:   That might appear to be quite a reasonable response.  I mean how much is social media supposed to capture about a person’s life one wonders.  But, your Honour, the way in which the social media is used here – it is used to suggest that – or define that he has a large group of friends and that contradicts the actual claim at the heart of his claim to be a gay man or a gay man who was known to be gay.  He would not have been involved in a particular ceremony if he were a gay man or known to be gay.  It really supports fairly discrete findings which he does not comment upon and one might think that he could readily comment on.

He commented - for example, when it was put to him “Did you get married?” and he said no and then he provided a bit of information about that - a response, if particulars were put to him, may have contextualised or provided some information that would then perhaps cause the delegate not to make the findings that he did.

HER HONOUR:   I have taken you off your script, I apologise.

MS KARAPANAGIOTIDIS:   No need for an apology whatsoever, your Honour, thank you.  Before leaving this ground, because that effectively is the argument, I perhaps should just refer your Honour to the – here in the interview and where social media – again, it is not clear if it is this report but where social media is raised with the applicant.  Your Honour, sorry, I am going between applicant and plaintiff.  I hope you do not mind.

HER HONOUR:   I can cope.

MS KARAPANAGIOTIDIS:   Thank you.  Pages 35 to 36 – this is where he is asked, “Do you talk to your family on Facebook?”

HER HONOUR:   My review of it started at page 25, I must say, in the sense that he was asked:

Do you ever go on Facebook?

MS KARAPANAGIOTIDIS:   Yes.  Quite right, your Honour, yes.

HER HONOUR:   Then at 26 we have the photo – or have him shown something, which is what you and I were discussing earlier, and the response from your client is this is not a marriage:

It’s the night, it’s the night before marriage –

It is a function.  Then on page 29 there are questions about contact with a former partner, as I understand it.

MS KARAPANAGIOTIDIS:   Yes.

HER HONOUR:   “Facebook or Insta” – which I assume is Instagram – “Snapchat”.  Then at 35 it is friends on Facebook, and that is with family.

MS KARAPANAGIOTIDIS:   Yes, that is right.

HER HONOUR:   Is it the position then, as I understand it, that there is no other reference in this interview to “friends”, i.e., there is this assessment here or discussion with your client at pages 35 through to 36 about his relations with his family?

MS KARAPANAGIOTIDIS:   Yes, and in fact, your Honour, going – proceeding in the chronological order that you did, they are the references to social media.

HER HONOUR:   Yes.

MS KARAPANAGIOTIDIS:   Your Honour, I might, if it suits you, move to ground 2.

HER HONOUR:   Thank you.

MS KARAPANAGIOTIDIS:   There is some overlap in relation to this ground so I might start with the issue that we have been dealing with.  Effectively, what is contended is that there were unreasonable findings made by the delegate in reaching its ultimate conclusion in this case.  There are three particular findings that are identified.

HER HONOUR:   Are they the ones at the top of page 8 of your submissions, paragraph 2(a)(i), (ii) and (iii)?

MS KARAPANAGIOTIDIS:   Yes, your Honour.

HER HONOUR:   Yes.

MS KARAPANAGIOTIDIS:   That is – perhaps I will just leave it in that order.  What has fleetingly been touched upon – the finding that he had provided inconsistent and conflicting evidence to the Department regarding his experience as a homosexual in Pakistan, and that was the finding that your Honour has already been taken to at page 11.

HER HONOUR:   Yes.

MS KARAPANAGIOTIDIS:   The complaint, your Honour, is quite apparent and it is – it should be borne in mind that the plaintiff was unrepresented, and I think at one stage he was interviewed – and your Honour may have seen this – he indicated that he received some assistance through Google Translate that might have impacted on language used.  There was some discussion about that with the delegate. 

But in the interview, he gave fairly detailed information about his relationships in Pakistan, the identity of persons, the nature of the relationship.  He gave an account of his realisation of being a gay man.  He was tested in relation to that.  There was all that discussion about when sexual thoughts might be expected to enter one’s mind.  He provided an account as to his mistreatment in Pakistan.  He also provided an account – a description and a narrative in respect of relationships in Australia and again that was challenged.

So, it seems as if, if we look at the delegate’s decision, many aspects were not regarded as plausible.  On one instance there was a, just to illustrate the point that I was seeking to make – there was a comment by the delegate at page 23 at the top of the page of the transcript, and this is in the context of the plaintiff’s experiences here.  He says – before we get to that point at 23, that he has had about five or six encounters with people but did not have a sexual experience since 2017.  The delegate remarks:

I find that very difficult to comprehend.  You’re living in Melbourne . . . there would be no shortage of availability of a sexual partner.  If you’re going to live like that in Australia, you could live like that in Pakistan, couldn’t you?

There is a discussion there.  So, it is quite clear, perhaps right or wrong, that there are some aspects that he is questioned upon.  But when we turn to the actual decision, it is not at all apparent what the inconsistent and conflicting evidence and significant inconsistencies and discrepancies in his various accounts are actually a reference to. 

The complaint, your Honour, is that there really has been no substantive consideration of a great deal of a good portion of this man’s factual claims and there is no logical or probative basis for the finding that he has provided inconsistent and conflicting evidence to the Department regarding his experiences as a homosexual in Pakistan.

If one is left to wonder by simply turning to the delegate’s decision – sorry, the interview and the various exchanges, it very well may be that some of those purported discrepancies are just not – or would not have been open to be made by the delegate.  There is uncertainty and it is not subsumed, it is submitted, by those discrete matters that the delegate otherwise relies upon, so the financial transactions, the delay. 

Again, reading this decision, beneficially it would – and not with an eye attuned to one’s error or identifying error, there may be an implausibility finding, but that is quite substantively different to the finding ultimately that is made, there are significant inconsistencies and discrepancies.  In relation to the second issue, or complaint rather, it relates to the ‑ ‑ ‑

HER HONOUR:   This is the transfer of the money to the brother ‑ ‑ ‑

MS KARAPANAGIOTIDIS:   Yes, that is right.  I beg your pardon, sorry, your Honour.

HER HONOUR:   This is the transfer of the money to the brother using the father’s ID?

MS KARAPANAGIOTIDIS:   Yes, using the father’s ID account.  We will go to it.

HER HONOUR:   Yes.

MS KARAPANAGIOTIDIS:   The finding is at page 10.  I think it is at the fourth paragraph commencing “With reference to the applicant’s submission dated 4 June”, so it is around the middle of the page.  There is the finding there:

Having considered the evidence before me, I do not accept the applicant transferred money to his younger brother in Pakistan as he claimed at his Protection visa interview.  I am aware the applicant transferred money to Pakistan using the Western Union Money Transfer Service.  I am further aware that the Western Union Money Transfer Service terms and conditions state ‘cash money transfers shall be paid to the person that Agents deem entitled to receive the transaction after verification of identity often through examination of identification documents’.  I find it implausible that the applicant’s younger brother would be able to collect money in Pakistan using his father’s identity documents as the applicant claimed in his submission dated 4 June –

That submission, if I could ask your Honour to turn to – it is raised both at the interview, this issue, and addressed again, as noted there in that 4 June 2020 submission – ER‑4.  We have already turned to this in respect of social media.  If your Honour turns to the second page, there are some paragraphs at the top of the page, and the one commencing “Subsequently in year 2017 I came to knew that my father had disinherited me” – no, I beg your pardon, further down:

I have made numerous transactions to the ID of my father in Pakistan since my arrival in Australia, As I have stated at my interview . . . my father is a well known person . . . money exchange franchises owners like Xpress Money or Western Union never bothered in terms of allowing financial transactions to any of his family member using my father’s ID.

HER HONOUR:   Yes.

MS KARAPANAGIOTIDIS:   At the interview it is page 42 of the transcript where this issue was dealt with and it commences with the delegate putting to the applicant, a few lines from the top of the page:

So tell me, why did you send money to your dad, keep sending money to your dad if you’re not talking to him?  Why would you do that?

In the explanation, which largely mirrors what appears in that subsequent correspondence, follows – he further mentions that in the way things operate in Pakistan, the shops in the street, in a home street people know each other and he gives some context, if you like.

So, the complaint here, your Honour, is his claim is rejected, that is that his brother was in fact accessing the money, as implausible for the reason – or if not the sole reason certainly an important or significant reason and that is the terms and conditions that appear on the Western Union Money Transfer Service. 

It is contended that that is not a probative or rational basis to reject as implausible the applicant’s claim.  It is to be contrasted – I think the defendant refers to WET040 – just to refer to it in shorthand, the decision in the High Court – but it is to be contrasted to a complex factual claim where a delegate need not speculate but it is quite open, because it is either very desirable, just contrary to life experience, and implausibility findings might be made.

Here, it is made effectively because of these conditions.  On the face of it, it is contended, your Honour, that the conditions themselves actually provide a discretion, some discretion to the agent in terms of paying the person that they deemed to be entitled.  The condition, on the face of it, did not indicate if identification documents were always required.  The condition said nothing about the practical implementation or what might be in the mind, if you like, of the agent dealing with these transactions.

It would be another thing, it is submitted, your Honour, if the delegate had considered the factual claim of the applicant and perhaps for reasons – whether maybe he had provided conflicting accounts over time or there was something of that nature that would undermine the claim, it may in those circumstances be open to reject it as implausible but it is submitted that it is just simply not a rational basis to say, well, there is a generic condition that applies and therefore I reject the claim of the applicant.  That is really the complaint.

HER HONOUR:   Is the third complaint, the evidence of open source social media, in effect, a repetition – I do not mean to do that derogatorily, but it raises no additional issue than ground 1?

MS KARAPANAGIOTIDIS:   No, aside from it being cast in a different manner, which is what could Facebook or social media necessarily provide or suggest for support in relation to ‑ ‑ ‑

HER HONOUR:   I think you have made those submissions.

MS KARAPANAGIOTIDIS:   Yes, your Honour, I have.  I can move on, and I will move on.  That brings me to ground 4.

HER HONOUR:   Yes.

MS KARAPANAGIOTIDIS:   This concerns the claim that the applicant – so it is a complaint that there was a failure to assess an important component or an integer of the plaintiff’s claim.  He had claimed his father had disinherited him.  The correspondence at ER‑4, which we have now turned to a couple of times, quite specifically refers to this claim.  Page 2 – I think I accidentally commenced at this paragraph, but it is the paragraph:

Subsequently in year 2017 I came to knew that my father has disinherited me –

I am at ER‑4, the applicant’s correspondence of 4 June.

HER HONOUR:   Yes.

MS KARAPANAGIOTIDIS:   He says that he has been disinherited:

in the presence of magistrate, from all of his properties and I am no longer any part of his family and he has made that public on local newspaper . . . As a result of legal formalities of disinheritance in Pakistan I have only received one financial transaction from my father as part of magistrate orders from Pakistan.

I make the point, your Honour, that that appears to be – just in terms of that transaction, it does appear to be consistent with the transactions from the father.  So, just in terms of the money received from his father, there is a reference to that, if you turn to the delegate’s decision at page 10, and it is in the same paragraph that I have just referred to, the Western Union Money Transfer Service conditions.  Just before the conclusion and discussion of that matter, there is a reference to money transfers made to the applicant.  So, remaining on that paragraph, the second line:

I accept the money transfers from [R] may not originate from the applicant’s father –

and that was a claim put by the applicant:

however, I note his father did transfer money to the applicant in March 2017.

If I can just indicate, your Honour, with that ER‑2, the social media information – I am sorry, it looks like I am really jumping around now, but ‑ ‑ ‑

HER HONOUR:   I just want to deal with – finish ground 4, can we?

MS KARAPANAGIOTIDIS:   Yes, it has a reference to three payments received from his father, on that last page.

HER HONOUR:   Yes.

MS KARAPANAGIOTIDIS:   It just provides dates.  So, on that last page, page 28 of that document, it has three payments received from his father – March 2017, January 2020, April 2020.  All I was going to note there was that it must be that those subsequent payments, the delegate accepted, were not from the father and it appears that the one from the father is March 2017.  That was accepted.  I am sorry, I have just referred to that for the dates.

HER HONOUR:   Yes, that is all right.  I understand now, yes.

MS KARAPANAGIOTIDIS:   The delegate does not make a finding one way or the other as to whether the father did in fact disinherit the applicant.

HER HONOUR:   What am I to make of this document that is provided by your client in response on 4 June, which is not translated?

MS KARAPANAGIOTIDIS:   Yes.  Well, what the delegate does in respect of that at page 11, at the top of the page, is it notes that document.  So, literally, it says, top of page 11:

I note the Disinheritance document provided by the applicant is written in Urdu and is not supported by an official . . . translation – I place no weight on this document as evidence of the applicant’s problems with his father in Pakistan.  I also attach no weight to the documentary evidence provided by the applicant as part of his submission dated 11 June 2020 as I am aware such documents are easily obtained in Pakistan.

I think there is a medical document as well, but that last line may also be a reference to this document, though it is untranslated before the delegate when it is submitted to him.

HER HONOUR:   Yes.

MS KARAPANAGIOTIDIS:   It is an important aspect of the ‑ ‑ ‑

HER HONOUR:   Is not all the delegate saying in relation to this matter that there is not sufficient before me to assess it?

MS KARAPANAGIOTIDIS:   In terms of the document it seems to be saying that – it seems to be saying there is – it seems to be saying it is not translated; that is certainly one reason I am not going to give it any weight.  The claim is obviously made, and expressly made by the applicant, and I guess for the purposes of this ground, whether or not it is corroborated in any way does not detract from it having been expressly made and a claim that the delegate was required to consider.  It did not make a finding in relation to it.  It was consistent, if you like – I mean, there was arguably some corroboration in terms of the last transfer to him was in March 2017, which seems to fit within that timeline.

HER HONOUR:   Yes.

MS KARAPANAGIOTIDIS:   But it is a claim not considered.  It is perhaps put against me that it may be subsumed, or it is subsumed by other findings.  What is submitted, your Honour, is it ‑ ‑ ‑

HER HONOUR:   Your complaint is that there is no finding that he was not disinherited?

MS KARAPANAGIOTIDIS:   Yes, and it is a clear, discrete claim made.

HER HONOUR:   Yes, I see.

MS KARAPANAGIOTIDIS:   And it required consideration.

HER HONOUR:   Okay, ground 5.  Is that any more than ground 2?

MS KARAPANAGIOTIDIS:   Yes, I did note that there was some overlap.  That is right.  The complaint there is this man’s substantive claims to be a homosexual man in Pakistan, along with his narrative and his experiences in Australia were not considered.  So, it is, your Honour…..in disposing ‑ ‑ ‑

HER HONOUR:   Thank you.  Then, is not ground 6, in effect, part of ground 4?

MS KARAPANAGIOTIDIS:   Yes, slightly different, but correct.  There, again, I readily concede there is an overlap there.  He asked for additional time, so that correspondence – I do not think we have turned to that yet, your Honour.  It is at ER‑6.  It is dated 11 June.

HER HONOUR:   Yes, I have that.

MS KARAPANAGIOTIDIS:   Thank you, your Honour.  Within it – it is effectively a request for some additional time, noting that his financial situation has been adversely affected because of COVID.  He has only just recently started working again as an Uber driver and he notes that he would

be able to provide an official certified translation document immediately after I have received my next fortnightly salary on 15 June 2020.

HER HONOUR:   Yes.

MS KARAPANAGIOTIDIS:   The delegate then, the next day ‑ ‑ ‑

HER HONOUR:   The day after is the delegate makes their decision.

MS KARAPANAGIOTIDIS:   That is right.  There is a reference to the disinheritance document, but aside from what I have already taken your Honour to, there is no other discussion about it.  There is no other discussion or consideration of this claim for a bit more time and the complaint here is it was just unreasonable not to afford additional time or even to consider the request for additional time to translate this document that was an important document and that was at least partly dismissed because it was untranslated.

HER HONOUR:   Thank you.

MS KARAPANAGIOTIDIS:   Thank you, your Honour.

MS SYMONS:   Thank you, your Honour.  Your Honour, if I could address ground 1 of the substantive application to begin with.  The inquiry in relation to the ground, of course, is grounded in section 57 and not more generally concerned with questions of procedural fairness.  I make that observation because the analysis that my learned friend engaged in was to a large degree concerned with the decision of the delegate which, of course, records…..the delegate made, but we know that the decisions concerning section 57 and decisions concerning analogous provisions such as section 424A are concerned with an understanding and identification of the reason or part of the reason for a decision is undertaken before the decision is recorded.

HER HONOUR:   I think that is why I asked her what it was that were the complaints about the 57 application.

MS SYMONS:   Yes.  I make that observation and submission, your Honour, because of course it is apparent from the delegate’s decision that the delegate did refer to open source social media and it is apparent that the reference to that open source social media was in the ultimate part of the dispositive reasoning engaged in by the delegate. 

But separate to that analysis and that inquiry, when one looks at the material – and as I understand it, it is put on two bases, so we have the photographs themselves and what one can discern from those photographs, and then there is what is referred to as the commentary that appears next to some of those photographs.

When one looks at that material and then when one asks the question which this Court identified in the decision of Plaintiff M174 that we referred to in our list of authorities, one needs to ask the question whether or not – and I am going to paragraph 9 of that decision, your Honour, the reasons of Justices Gageler, Keane and Nettle, the information, so either of those two constructs of information:

must in its terms be of such significance as to lead the Minister to consider in advance of reasoning on the facts of the case that the information of itself “would”, as distinct from “might”, be the reason or part of the reason for refusing to grant the visa.

My submission would be that if one applies that analysis, which we must, the photographs do not engage with that precise conception of what would be the reason or part of the reason.

HER HONOUR:   Why?

MS SYMONS:   Because on their terms, on their face, they are not in their terms adverse to the claims that the plaintiff made.  It might ‑ ‑ ‑

HER HONOUR:   I find that submission very surprising.

MS SYMONS:   I am sorry, your Honour, I did not hear that.

HER HONOUR:   I said I find that submission surprising, that you can put that the photographs are not adverse to the plaintiff’s claims that were being made.  As I understood it, the plaintiff’s claims, from the interview onwards, were that he was being persecuted, beaten because of his sexual identity.  If you look at those photographs on their face, are they not adverse to the plaintiff’s claim?

MS SYMONS:   They are not, in my submission – or at least do not engage with the claim so far as one of persecution at the hands of his father or his father’s associate – my submissions do not say anything about that aspect of the claim that the applicant, or the plaintiff I should say, was making, but I accept what your Honour says in respect of the broader proposition that there were consequences because of his homosexuality that went beyond his father.  So, perhaps at their highest, they might be understood as having the capacity to undermine that aspect of the plaintiff’s claim.  But that is ‑ ‑ ‑

HER HONOUR:   How would you know that – how would the Minister know that – this is before the decision – without understanding the identity of who it is in the photographs?  This is my point.  If one takes the Plaintiff M174 inquiry of such significance it would be part of the reasons of the decision - to contend that they do not engage with the claims I think is surprising.  They have photographs of the plaintiff with family, arguably – well, small children – I do not know what the connection is.  There is a photograph of him with groups of men. 

Then I have – I think, as I understand it and I could have it wrong, I just want to make sure I am clear about this – I have a claim made by this plaintiff, as I understand it, on three bases, what I will call general antipathy towards homosexuals in Pakistan as a nation; family – father and siblings – it may be sufficient to put it on two bases for the moment.  Are not the photographs arguably adverse to both of those?

MS SYMONS:   If it is accepted that they do depict either both family or friends and we accept what your Honour has put to me that they have a capacity to at least undermine the plaintiff’s claim that he was suffering some form of consequence adverse because of his homosexuality, I accept that.

HER HONOUR:   Thank you.

MS SYMONS:   That being the case – if I could perhaps then, your Honour, deal with what is the second basis, the second form of information which my learned friend has identified and that is the commentary which appears to have attached to that social media information. 

My response in light of that commentary is that it is of a different character, that it is not information of the kind that is understood to engage provisions such as section 57 that is not documentary evidence which we accept the photographs would form – would fall within that characterisation.  They are somebody’s views, obviously expressed about those photographs, but they are not information of the kind that would engage provisions of section 57 of the Act.

So, to the extent that that is said to attract separate or distinct obligations, my submission is that they do not, that any obligation that the delegate did have comprehended the photographs and the photographs only.  If that is accepted, then the next question, of course, is:  how did the delegate go about discharging the obligation to identify the information for the plaintiff?  We make the submission, or make the submission on behalf of the Minister that ‑ ‑ ‑

HER HONOUR:   It is not just identify, is it?  The 57 requirements under (2) are more particular than that.  I think I have asked you the same questions I asked plaintiff’s counsel and that is how do you say that the requirements of section 57(2) were met?

MS SYMONS:   Yes, your Honour. 

HER HONOUR:   And that means both 57(2)(a) and (b).

MS SYMONS:   Yes, indeed.  So, the obligation, of course, is to give particulars of the relevant information.  We make the submission that the way in which that is done is not circumscribed in the way it was done…..relation to 424A.  So, the delegate has…..as to how that obligation is given effect.

The particulars in this particular case we say were identified for a…..and your Honour has been taken to the transcript of the protection visa interview that was conducted in February.  That transcript, and I accept what my learned friend said in relation to where the exchanges occurred about social media – and I do not identify any beyond the ones that my learned friend did.  But your Honour will recall that there was an exchange that commences at page 25 – I am looking at the bottom middle of that page where it is identified for the plaintiff – questions were asked about whether or not he went on Facebook.  There is reference to a wedding in 2015 and it would appear that the plaintiff was shown some material which was directed at that wedding in April 2015.  I do not make any submission beyond what my learned friend did in relation to what was shown to ‑ ‑ ‑

HER HONOUR:   We just do not know, do we?

MS SYMONS:   No, we do not, so I cannot presumptively stand here and say to your Honour that he was shown the whole of it – the Facebook material, because we simply do not know.  But there was an exchange that directed him to ‑ ‑ ‑

HER HONOUR:   What we do know is what – I think we know this much, do we not, from page 26, that he was shown something.  We do not know what it was, but it was something about a wedding.

MS SYMONS:   Yes.

HER HONOUR:   Which would seem to suggest that if one looked at the balance of the social media material, it did not extend to all of it.

MS SYMONS:   I would accept that, your Honour.

HER HONOUR:   And probably all but that photo which looks like a wedding photo.

MS SYMONS:   Yes.

HER HONOUR:   Do you accept that?

MS SYMONS:   I do, your Honour.

HER HONOUR:   Thank you.

MS SYMONS:   Your Honour has been taken through that exchange but it is certainly the case that the plaintiff was asked whether or not he engaged on Facebook and provided responses that were directed at this particular wedding that took place.

HER HONOUR:   Right, so that is one you say that complies with section 57(2).

MS SYMONS:   I say that it is part of a number of engagements that, when one looks at them together, satisfy the obligation under section 57(2) of the Act.

HER HONOUR:   Right, so that is the first.  What is the second?

MS SYMONS:   The second is at page 35 in the main document.  Again, your Honour has been taken to this exchange – it operates on the plaintiff’s family and your Honour will see for yourself that it is directed at the plaintiff’s contact with his family through the medium of Facebook.  The plaintiff in that context is asked particularly, this is at page 36 – or is directed to a particular comment that is made by members of his family.  It is put to the plaintiff that his family members are:

not obliged to talk to you on Facebook –

This is after the plaintiff has given the explanation that:

they only talk to me because I, like, I’m their blood relation –

and the delegate at the top of that page:

They’re not obliged to do that . . . 

A.  Yeah I know but I never replied to their comments –

So that, in my submission, is a further exchange which needs to be understood with the exchange that I have just taken your Honour to which is concerned specifically with the plaintiff’s engagement with his family through the medium of Facebook.

The next way in which, in my submission, the delegate discharged its obligation under section 57(2) is, of course, through the letter that was sent in May 2020.  That, your Honour, appears ‑ ‑ ‑

HER HONOUR:   It is ER‑3 at page 32 of the Rogers’ affidavit.

MS SYMONS:   Yes, that is correct.  Thank you, your Honour.  So, ER‑3 – and your Honour has gone through, in some detail, this letter with my learned friend.  The paragraph again is at paragraph 3) of that letter.

HER HONOUR:   Yes.

MS SYMONS:   That paragraph notes at the outset that the plaintiff himself, as part of his application, indicated his:

homosexuality was known and frowned upon by [his] family and local community in Pakistan.

Examples are then provided as to particular claims that the plaintiff made.  It is then said that information provided as part of that application, which included he had incurred death threats from his work colleagues in Pakistan as a result of the plaintiff’s homosexuality, and then the delegate at that point refers to:

Open source social media information . . . may indicate you led a normal life in Pakistan with an active group of friends and family . . . known social taboo . . . may suggest you were not persecuted and ostracized as a result of your sexuality in Pakistan as you claim.

Now, my submission, your Honour, in relation to that paragraph is that the emphasis, quite plainly, is not on the fact of the plaintiff being homosexual, even though, of course, that was part of his claim to the delegate as part of his protection visa application, but rather the consequences that, on the plaintiff’s case, flowed from that homosexuality and the fact that it was well known. 

It is on that basis that the delegate appears to have relied on information ultimately that the fact that there were these engagements on social media, friends and family, was contrary to or inconsistent with a claim by the plaintiff that he was suffering consequences in the form of ostracism from persons within either the family or the broader community.

If that is right, in my submission, that then is reflected in the decision of the delegate and if one returns to that decision and again, a familiar paragraph that appears at page 11 of that decision record, in the second‑last paragraph before the heading “Australia’s protection obligations”, approximately halfway through, the delegate there refers to:

The evidence before me, including open source social media –

and we know what that is now:

does not support the view that the applicant was a known homosexual in Pakistan who was shunned by his family and local community.

It is that aspect of the reasoning, in my submission, your Honour, that was dispositive.  It was not, as I made the submission earlier, the fact of being homosexual.  It was whether or not, because of that identity, he suffered the consequences of being shunned by a social group. 

Now, if that is right, in my submission that is the better construction of those reasons and in my submission the delegate did as it was required through the combination of the two exchanges during the protection visa interview and the letter that was sent in May which quite clearly spelt out that – and I will not take your Honour back to that letter, but it was an indication that the way in which the plaintiff engaged on social media was contrary to a claim that he was suffering consequences in the form of ostracism.

Now, in my submission that was sufficient to discharge the obligation that the delegate had and I come back to the submission I made at the outset, being that it is a discrete obligation engaging on information in the confined sense, and not one that is to be confused or conflated with the obligation to identify, for example, issues arising in relation to a review and in some respects the letter that the delegate sent to the plaintiff went beyond what it was strictly required to do insofar as it identified other issues arising in relation to the review of the – the consideration of the plaintiff’s application for a visa.

HER HONOUR:   How does the delegate know that there are – and this is coming back to the fact that you have social media – how does the delegate know that it is his family and local community that are reflected in those photographs?

MS SYMONS:   The way I see it, your Honour, it would have to be that it is not apparent that it does.  But the way in which the plaintiff has responded, certainly the plaintiff has not, at any point, given any indication that the engagement is not with friends or family.  It is implicit in the way in which the plaintiff has responded, either through the response to the 4 May letter or the exchange that occurred at the protection visa interview in February.

HER HONOUR:   Do you mean the 7 May letter?

MS SYMONS:   I do, yes.  Accepting that we know only that one photograph was shown to the plaintiff during the interview, the answers given in that context certainly indicated that it was a photograph of a social engagement that the plaintiff had engaged in.

HER HONOUR:   Yes.

MS SYMONS:   Your Honour, unless there are questions that arise in relation to what I have said in relation to ground 1, then I propose to move on to ground 2.

HER HONOUR:   Yes.

MS SYMONS:   Ground 2 challenges at least three findings that the delegate made.

HER HONOUR:   I think ground 3 – the third aspect of that can be put to one side because we have addressed it in the way in which you responded to ground 1.  So, we just need to deal with (2)(a)(i) and (ii).

MS SYMONS:   Thank you, your Honour.  So, 2(a), as I understand your Honour, is concerned with a finding which appears at page 11 of the document as it appears in this exhibit:

I find the applicant has provided inconsistent and conflicting evidence to the Department regarding his experiences as a homosexual in Pakistan. 

The response, your Honour, to that…..essentially that there was no probative basis for that finding, in particular, there were no inconsistencies or discrepancies identified by the delegate, is firstly that one needs to take a broad view of what is meant by “inconsistencies and discrepancies”. 

At a broad level the delegate plainly was concerned with the overall narrative of the plaintiff’s claim.  In particular, there was a concern borne out, not just in the decision but also in the transcript of the interview, that it was implausible that the plaintiff would have been subject to acts of violence, extreme violence at the hands of his father and associates, and had then, once in Australia, informed his father that he had entered into a marriage – a homosexual…..in Australia.

That was one aspect only.  I accept that.  But the overall way in which the delegate approached the plaintiff’s claims was significantly underscored by this concern that the narrative was entirely implausible.  Apart from that, in my submission, there are a number of inconsistencies that the delegate does identify in the ‑ ‑ ‑

HER HONOUR:   Why do you not – I think it may be useful if you identify what you say is the inconsistent and conflicting evidence.

MS SYMONS:   Yes.  The first inconsistency, your Honour, if one looks at page 9 of the decision record, and in the first paragraph under the heading “Findings of fact”, approximately five lines from the end of that paragraph, the delegate there notes that:

The applicant indicated his father had previously beaten him in Pakistan; however, he had never threatened his life.  At his Protection visa interview it was put to the applicant that his Protection visa application indicated his father had attempted to murder him on many occasions.  The applicant indicated his father in Pakistan had beaten him but he had never told him verbally that he was going to kill him.

Now, in my submission, that is a…..delegate does not attach at that point in time or make a finding as to inconsistency.  That, in my submission, is an obvious inconsistency which is ultimately in contemplation when the delegate records its findings in the end.  The delegate is concerned with delay.  Now, that is not technically an example of inconsistency, but if one accepts my submission at the outset that one needs to conceive of inconsistency and discrepancy in a broad sense to comprehend concerns more generally with the way in which the plaintiff’s claims were presented, then, in my submission, that is also part of the reason the delegate engaged in.

HER HONOUR:   It is a bit difficult, is it not – this is regarding his experiences as a homosexual in Pakistan.

MS SYMONS:   Yes.

HER HONOUR:   What is the second inconsistency?  I understand the first one you put.  What is the second?

MS SYMONS:   If I could just get to the second inconsistency in a moment, your Honour, but dealing with this question of experience of homosexuality, it is my submission that what the delegate was really getting at by that reference was not the experience per se of being homosexual, but the experience in terms of what the consequences were to him, especially around the – the persecution alleged at the hands of his father and the father’s associates.  It is clear – and it is a complaint I understand that the plaintiff makes. 

The delegate did not engage with the detail of the plaintiff’s experience as a homosexual in the day to day in that sense, but what the delegate did do, which was dispositive, was to consider well, even – and I accept the delegate does not say this, but it is as if the delegate had put to one side the question of homosexuality and looked substantially at the claims made as to what flowed from the status of homosexuality.  It was that approach which resonates throughout the decision.  His concerns are about well, how plausible, how realistic is it that these consequences were as the plaintiff says that they were, given the various concerns the delegate identifies.

HER HONOUR:   I think it would be useful if you could just list the inconsistencies with some precision, please.

MS SYMONS:   Yes, your Honour.  The next inconsistency, if one looks at page 10 of the delegate’s decision, and ‑ ‑ ‑

HER HONOUR:   This is number 2), is it?

MS SYMONS:   Yes.

HER HONOUR:   Yes.

MS SYMONS:   This is the third paragraph down.

HER HONOUR:   What is the inconsistency?

MS SYMONS:   The inconsistency, and again the delegate does not identify ‑ ‑ ‑

HER HONOUR:   No, no, just tell me what it is.  What do you say the inconsistency is?  At the moment I have – the first one is the last five lines of the paragraph dealing with the death threats.  What is the second one?

MS SYMONS:   The second is that the plaintiff’s protection visa interview admitted he was in contact with his family and that they never accepted his homosexuality and that as part of the submission dated 4 June claimed that the – he stopped sending money for his younger brother after his younger brother discovered he was a homosexual.  So, the inconsistency, in my submission, is that he had initially claimed that his siblings were aware and at a later juncture claimed that his brother became aware of his homosexuality at a different point in time.

HER HONOUR:   Thank you.

MS SYMONS:   Now, the third instance where it does use the language of inconsistency, second paragraph from the bottom, still on the same page, your Honour, and this in relation to the financial transactions, three lines from the end the delegate there notes:

I attach significant weight to the applicant’s financial transaction history which suggests he communicates freely with his father – I find this is inconsistent with his claim to fear persecution from his father in Pakistan.

So, the delegate there uses inconsistency in a slightly different sense, but it is a finding there of inconsistency made expressly.

HER HONOUR:   Yes.

MS SYMONS:   Those are the examples of inconsistency that I have identified in the delegate’s decision.

HER HONOUR:   Thank you.

MS SYMONS:   Which, in my submission, taken together with the other expressions of disquiet about delay, regarding plausibility of aspects of the claim provide a basis for the overall finding that there were discrepancies and inconsistencies in the way in which the plaintiff ‑ ‑ ‑

HER HONOUR:   I do not know that that is right, is it?  We are directed at this sentence – “inconsistent and conflicting evidence”, so we are dealing with that aspect and, as I understand it, there are three matters you rely upon:  the death threats, the family contact and when they became aware of his homosexuality and then the financial history.

MS SYMONS:   Yes.

HER HONOUR:   Thank you.

MS SYMONS:   If I can move on, the second aspect is the finding of implausibility that the plaintiff’s younger brother would be able to collect money in Pakistan…..identity documents.

HER HONOUR:   Yes.

MS SYMONS:   The brief response, your Honour, is that despite a different view being taken by the plaintiff, that finding was open to the delegate and it was open because of the view taken of the evidence generally and the delegate does – this is at page 4, third paragraph from the bottom, middle of that paragraph, the delegate there states:

Having considered the evidence ‑ ‑ ‑

HER HONOUR:   Sorry, I am lost – page 4.  It cannot be page 4.

MS SYMONS:   Sorry, your Honour, it is page 10.

HER HONOUR:   Yes.  Is this the last paragraph?

MS SYMONS:   No, it is the third‑last paragraph, your Honour, and then in the middle of that paragraph, this is where the delegate is considering the financial transactions:

Having considered the evidence before me –

and, in my submission, the evidence before the delegate included the articulation of the plaintiff’s claims but also the evidence that was given during the protection visa interview:

I do not accept the applicant transferred money to his younger brother –

That is a finding that, in my submission, grapples with all the evidence that was before the delegate, but then goes on to say:

I am aware the applicant transferred money to Pakistan using the Western Union Money Transfer Service.  I am further aware –

and it is in that context that the delegate goes on to refer to the terms and conditions of the Western Union Money Transfer and finds it “implausible” and we say that that finding was open, notwithstanding the plaintiff cavils with that finding.  It was open for the delegate to consider it implausible, having regard to the terms of those transactions that the brother could transact on his father’s behalf.

That was a further finding, in my submission, as to how it should be characterised.  The ultimate finding – or the primary finding was that it was a claim not accepted because of the evidence, including the responses provided during the protection visa interview, but there is no error attaching to the way in which the delegate disposed of that discrete claim.

HER HONOUR:   Thank you.

MS SYMONS:   If I could then, your Honour, move to ground – I do not think it has been ‑ ‑ ‑

HER HONOUR:   It is ground 4, the disinheritance claim.

MS SYMONS:   Ground 4, the disinheritance claim, your Honour, the submission briefly in relation to that is that the delegate was plainly aware of the disinheritance claim.  It is referred to expressly – I withdraw that.  It is not put in those terms.  The delegate at the top of page 11 notes the disinheritance document.  The disinheritance document was referred to – I withdraw that.

The claim itself was referred to for the first time on 4 June 2020 in the context of the plaintiff’s response to the section 57 correspondence bearing in mind that the protection visa application was made in March 2018.  The document itself was provided for the first time a period of days after that.

The delegate, in my submission, was aware of the claim – it could be inferred by the reference to the disinheritance document that the delegate was aware of the claim.  The delegate ultimately was not persuaded about any of the plaintiff’s claims to have suffered consequences, particularly at the hands of his father because of his homosexuality or more generally.

My submission is that those findings should be understood as comprehending, subsuming the discrete claim that the plaintiff made in relation to the disinheritance, in particular having regard to the way in which that claim was presented, included having regard to the time in particular that claim was presented in the evolution of the proceedings before the Department and ultimately the delegate.

HER HONOUR:   Ground 5, it was accepted, overlaps with the earlier claims.

MS SYMONS:   Yes.

HER HONOUR:   Do you wish to say anything about ground 6 which, in effect, overlaps with what we have just been considering?

MS SYMONS:   Yes, it does, your Honour.  I need to address it on the basis that it is framed slightly differently as a reasonableness ground.  The submission that we make in relation to that broadly is that obviously the

question of whether or not there has been unreasonableness needs to be considered in the context and in the circumstances broadly of this case.

We have set out, and I will not repeat it here, but the communication that passed between the plaintiff and the Department and the delegate we say put him…..on notice that he needed to provide documents at the earliest opportunity but was then given further opportunities during the evolution of the process to provide more material.  That material also needed to be translated.  That was repeated on at least three occasions for the plaintiff, so there was opportunity provided.  That is part of the second…..

The submission that I made earlier, this material was provided very late on any view and the delegate did, in fact, provide the plaintiff with a further opportunity for seven days in which to provide any further material.  So that having regard to that context, those exchanges, those opportunities, having regard ultimately to the place of that document  in the…..the delegate, the submission is that this is not a case where the approach taken by the delegate was unreasonable.  Certainly, it was within the area…..within which the Department could exercise its power to dispose of the application.

It might also be said, your Honour – I accept that there is some ambiguity – that that document in any case was favoured by the delegate’s finding or reference to country information which suggested that documents of that character were easily obtained in Pakistan.  It certainly appears in the same paragraph in close proximity to the discussion of his disinheritance document.

Your Honour, unless there were questions arising from that ground or anything more generally, then those are the submissions of the Minister.

HER HONOUR:   Thank you.  Any reply?

MS KARAPANAGIOTIDIS:   Very briefly on two points, your Honour.  In relation to ground 1, the exchange was your Honour asking how did we know that the social media photographs contained family or local community, and the reply was we know that through his response.  He never suggested that it did not.

In my submission, your Honour, given he was never provided with the material and he did not know precisely what was being referred to, we do not know if this is simply a selection of a much broader platform, there can be little weight really given to the nature of his reply to suggest that it in fact is family or local community in those photos.

The second issue, your Honour, in relation to ground 2, my learned friend identified various inconsistencies.  Your Honour, there is a danger, in my submission, in reading in a great deal into the guts of the decision.  If I can just illustrate one point.  It was put to your Honour that an inconsistency is that the applicant initially stated his siblings were aware that he was gay and that at a later stage – he said at another time that they only found out at a later stage.  Your Honour, that is not the evidence, in my submission.  At the hearing on 25 February 2020 he was asked at page 35:

Alright so who knows that you’re gay in your family?

A.  My whole family.

He is not asked:  when did they find out, when did your younger brother find out?  There is no further question about that.  Then in the correspondence of 4 June 2020, so his reply that you have been taken to many times now, in the context of those financial transactions he said when my younger brother came to know about my homosexuality from my father he then did not want my financial support.

So, in my submission, on the evidence it is really not an inconsistency as identified and there just is a danger and we certainly need to be cautious in identifying inconsistencies when in fact the delegate himself has not done so.  If your Honour pleases.

HER HONOUR:   Thank you.  I propose to reserve my decision on this application and to give judgment at 9.30 am on Thursday, 8 April in Canberra.  It will not be necessary for counsel to appear.  Thank you for your assistance. 

Adjourn the Court.

AT 11.36 AM THE MATTER WAS ADJOURNED