Abu Siddque, the solicitor for a 36-year-old Bangladesh national whose protection visa application was refused by the Administrative Appeals Tribunal, says the decision breached procedural fairness.
“By attempting to ambush the applicant, [known as the pseudonym AEN16] with information drawn from his Facebook account, the tribunal breached some important safeguards,” Mr Siddque told SBS.
AEN16’s protection visa application, which stated he feared for his life if he returned to Bangladesh because he had converted to Christianity in that country, was declined by the Department of Immigration and Border Protection in July 2014. He had arrived in Australia the year before on a visitor visa.
In August 2014, the man's case was heard by the Administrative Appeals Tribunal. His application refusal was upheld in December 2015 on the grounds that there was a discrepancy between information in his visa and that which was on his Facebook profile.
However, Mr Siddque said that this breached a legal procedure set out in the 1958 Migration Act, and took the case to the Federal Circuit Court.
“The court held that there had been a denial of procedural fairness,” Mr Siddque told SBS.
“An applicant in the tribunal is entitled to have disclosed to it information which is adverse to their claim – and to understand how it is relevant to the review – so that they can comment on it.”
This is covered under sections 424A and 424AA of the Migration Act.
Once the applicant is aware, they are then invited to answer to it. However, AEN16 was given no chance to explain why his Facebook status might not show his true religion before the tribunal made its decision.
The tribunal told SBS that while it doesn’t comment on individual cases, following the Federal Circuit Court's decision it would redetermine the case.
The Department of Immigration and Border Protection confirmed the case would go before the tribunal for reconsideration.
