The Federal Circuit Court of Australia has ruled that the material on Facebook page of an applicant is “information” that is “evidentiary material”. The ruling has come in the case of a Bangladeshi national seeking the grant of Protection visa in Australia.
The 36-year-old male Bangladeshi petitioner’s application for a protection visa had been earlier declined by a delegate of the Immigration Minister in July 2014.
The applicant who arrived in Australia on a visitor visa in October 2013 claimed in his Protection Visa application that he had converted from Islam to Christianity before he left Bangladesh. He also claimed that he had been baptised 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.
However, the Immigration Department concluded that he had fabricated his claims of conversion to Christianity. During his interview with an officer of the department, the applicant was told that his Facebook page still stated that he was a Muslim.
However, the actual decision record didn’t mention the Facebook information being the reason for refusal of the application.
As the applicant sought a review of the decision by the Administrative Appeals Tribunal, it was held that the information on his Facebook page was inconsistent with his claim to have converted to Christianity. The Tribunal upheld the refusal of Protection visa application.
In the Federal Circuit Court, the applicant’s legal representative said that the Tribunal’s decision had a procedural error as the Tribunal did not give the applicant clear particulars of the Facebook material. While the Immigration Minister’s representative countered this by claiming that the Facebook page wasn’t “information” within the meaning of the applicable act, it only had bearing on the applicant’s credibility.
However, Judge Dowdy held that the material on Facebook page was indeed “information” and that he should have been given the particulars of it. The Judge set aside the tribunal’s order considering that the applicant should have been provided the reason for the refusal of his visa application.
“His Facebook page accordingly, at the very least, “undermined” his claim to have a well-founded fear of persecution and a potential for harm by reason of his asserted Christian religion.”
“Accordingly, having regard to the way this case has been conducted, the decision of the Tribunal, notwithstanding the strength of its other findings which led it not to be satisfied that the Applicant met the Refugee Convention Criterion in s.36(2)(a) or the complementary protection criterion obligations under s.36(2)(aa) were applicable, must be set aside,” the judgment read.
Seasoned lawyer and editor of Migration Alliance website, Michael Arch advises caution with use of social media.
“You have to be very careful about what you put on Facebook and social media these days. I am aware of cases where social media posts have been held in the court which played a part in determining the outcome of cases.”
Mr. Arch says the Department of Immigration is extra cautious in dealing with applications for the protection visas.
“The department is particularly difficult with protection visas. They look for any information that is contrary to what the applicant has supplied in the application and it is held against you,” he says.
Michael Arch’s blog about this case can be read on Migration Alliance.