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According to a new ruling by Federal Circuit Court of Australia, an applicant’s Facebook profile information is an “evidentiary material.”
In July 2014, a Bangladeshi national applied for the protection visa in Australia and got rejected. Later, he went to the court against the decision. The latest ruling has come in this protection visa case.
The Bangladeshi national came to Australia 3 years ago on a visit visa. Later, he claimed that he converted to Christianity from Islam before leaving his country. After arriving in Australia, he has also baptised at a church, he claimed in his application.
In his application, he wrote that his life will be in serious danger because of his religious conversation if he returns back to his country.
The Immigration Department figured that he has lied about turning to Christianity. While having an interview with the immigration department, the officer told him that his Facebook profile still says that he is a Muslim.
On the other hand, Facebook information is not mentioned as a reason for visa refusal.
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.
