While talking about immigration cases, it is often the case that applicants or legal representatives will be more focused on whether the relevant criteria are satisfied or whether the documents meet the standard. It is rare that people will pay attention to their social media. The following case is a good example to illustrate that information on social media can also be relevant and important.

The applicant in our case study of AEN16 v Minister for Immigration & Anor (2016) FCCA 2039 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 on the grounds that he would have had an ongoing fear were he to return to his home country as his had converted his religion from Islam to Christianity.

DoHA was in the opinion that the applicant had made up his claims that he had converted to Christianity in order to satisfy the basis for the protection visa. During the interview process, the applicant was asked why his Facebook account still showed that he was a Muslim. However, this particular fact was not referred in the delegate’s decision.

Later, at the Tribunal, information on FB was once again raised to the applicant. Particularly, the applicant was asked to explain why his Facebook still showed that he was a Muslim should he really have converted to Christianity. The applicant answered that the Facebook information was posted while he was a Muslim, and that he simply didn’t use Facebook very much. The applicant also explained that he did not think to change his FB page. On the grounds that the failure to change Facebook information was inconsistent with his claim of having converted to Christianity, the Tribunal affirmed the refusal of his application for protection visa.  

The applicant appealed to Federal Circuit Court, challenging that the Tribunal committed jurisdictional error because the Tribunal failed to give him clear particulars of the Facebook material. The respondent defended that the material on the applicant’s Facebook page was not “information” within the meaning of Migration Act 1958 because it is only relevant to the applicant’s credibility, the Facebook page therefore could not be information under s 424A of Migration Act 1958. On the other hand, the respondent argued that procedural fairness does not apply to this particular information.

His Honour referred to High Court case: SZBYR v Minister for Immigration [2007] HCA 26 in which it was held that “information”, in the context of section 424A, meant “evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The court discovered 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”, and therefore the material was found to be ‘information’ for the purpose of the migration law.

Consequently, the court held that the Tribunal did have obligation to give the applicant clear particulars of the Facebook material, and the failure to do so constituted jurisdictional error, notwithstanding the Tribunal’s other findings were applicable. Thus, the Tribunal’s decision was eventually set aside.

Procedural Fairness

Procedural Fairness is a legal principle that ensures fair decision making. It was developed over time as a result of decisions by the courts in administrative law cases. Generally, procedural fairness requires decisions made to be consistent with:

·       the bias rule— to be free from bias or apprehension of bias by the decision-maker;

·       the evidence rule— to be rational or based on evidence that is logically capable of supporting the facts; and

·       the hearing rule— to provide people likely to be adversely affected by decisions an opportunity to:

·       present their case; and

·       have their response taken into consideration before the decision is made.

What lessons can we learn from this case?

While preparing your application to DoHA or the Tribunal, applicants should be extremely careful about the information they disclose on social media. If you are experiencing the same issue as the applicant in the above case, you may still have a chance as the decision-maker must make the decision by strictly complying with procedural fairness obligations.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*