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Suppose you have a client who has posted material on her/his Facebook page that appears to contradict or be inconsistent with a claim made in the client’s visa application.
Suppose further that the Tribunal makes a decision in which it relies on what is said in the Facebook page as the reason, or part of the reason, for affirming the refusal of the visa application.
Does the Tribunal in this circumstance have a “procedural fairness” obligation under either sections 424A and 424AA of the Migration Act (in the case of applications for Protection visas) or otherwise under sections 359A and 359AA in the case of other kinds of visa applications to give the applicant clear particulars of any information on the Facebook page, invite the applicant to comment or respond, and notify the applicant that she/he may seek additional time to do so?
This specific question was addressed in a decision that was handed down in late August by Judge Dowdy of the Federal Circuit Court: AEN16 v Minister for Immigration & Anor, (2016) FCCA 2039 (23 August 2016).
The background of this case was that the applicant was a citizen of Bangladesh who originally arrived in Australia on a Visitor visa. Shortly after he arrived, he lodged an application for a Protection visa. He claimed that before he had left Bangladesh he had converted from Islam to Christianity and that he had also been baptized at a church in Australia after arriving here.
The applicant claimed that he had ongoing fear for his life if he were to return to Bangladesh as a consequence of his religious conversion.
In the first instance, a Departmental officer concluded that the applicant had “fabricated” his claims to have converted to Christianity in order to provide a basis for his application for a Protection visa. When the Department’s officer interviewed the applicant, the officer apparently raised with the applicant the fact that the applicant’s Facebook page stated that he was a Muslim. However, the actual Decision Record by which the officer had refused the application for the Protection visa did not make any reference to the Facebook page as a basis for the refusal.
After the application for the Protection visa was reviewed, the applicant sought review of the refusal before the Tribunal.
At the Tribunal hearing, the presiding member questioned the applicant about his Facebook page. In particular, the member asked the applicant why it was the case, if he had really converted to Christianity, that his Facebook page stated that the applicant was a Muslim. The applicant answered this question by stating that at the time that he had indicated on his Facebook page he was a Muslim, that the indication on the Facebook page as to his religion was very old, that he didn’t use Facebook very much, and that he had simply not thought to change his Facebook page.
The Tribunal member determined that the applicant’s failure to change the references on his Facebook page to being a Muslim was inconsistent with his claim to have converted to Christianity.
And thus, relying on what was found on the Facebook page, the Tribunal member affirmed the refusal of the Protection visa application.
When the case reached the next stage, before the Federal Circuit Court, the applicant’s legal representative submitted that the Tribunal’s decision to affirm the refusal was infected by procedural error, because the Tribunal member had not given the applicant clear particulars of the Facebook material.
The Minister’s representative countered by arguing that the material on the applicant’s Facebook page was not “information” within the meaning of the Act, because it only had bearing on the applicant’s credibility. Accordingly, the Minister’s representative submitted that the Tribunal member had no obligation for give the applicant clear particulars of the material on the Facebook page that would be the reason or part of the reason for affirming the refusal of the application.
Who was right? Was the material on the Facebook page “information”, and was the Tribunal therefore required to give the applicant clear particulars of it, and an opportunity to comment and respond?
Judge Dowdy held that the material on the FB page was “information”.
His Honour referred to the High Court case of SZBYR v Minister where it was held that “information”, in the context of section 424A, means “evidentiary material or documentation”. The term, according to SZBYR, does not relate to the existence of doubts, inconsistencies or the absence of evidence.
In this case, Judge Dowdy found that the Facebook page did in fact contain evidentiary material “that had the effect of being a rejection, denial or undermining” of the applicant’s “core and essential claim to be a Christian”. The material was therefore, in the Court’s view, “information” that was the reason, or part of the reason, for the Tribunal’s decision to affirm the refusal of the application.
Accordingly, the Tribunal did have an obligation to give the applicant clear particulars of the material on the Facebook page and an opportunity to comment and respond.
The Tribunal’s failure to do was jurisdictional error.
So what is the lesson of this case? Even though Mark Zuckerberg may wish otherwise, just because something is on Facebook doesn’t give it any special or mysterious status. If there is material on an applicant’s Facebook page that is adverse to an application and the Tribunal relies on it, then the Tribunal must comply with procedural fairness obligations with respect to that information.
And that is true whether the merits review is being conducted under “Part 5” or “Part 7”. If there is material on Facebook that the Tribunal considers to form the reason or part of the reason for affirming refusal of the application, then the Tribunal must comply with its procedural fairness obligations.