The tribunal will generally do its own internet investigation
By Lorenzo Boccabella, Barrister-at-law, specialist in migration law (20 Jan 2024)
By Lorenzo Boccabella, Barrister-at-law Specialist in migration law
Dr Google is always at the Tribunal’s side. Also on hand is Google Maps, Facebook, Instagram and indeed any internet database.
On Saturday 27 January 2024 at a special workshop session on the Gold Coast (simulcast also as a webinar) we do a 4 hour intensive Masterclass on conducting matters before the tribunals where look at how to deal with the tribunal’s want and desire to carry out its own investigations.
As well as searches on publicly available sources, ultimately the Tribunal has the power of the summons which is contained in s363(3)(b) of the Migration Act and which reads:
“….the Tribunal may, for the purposes of a review:
(b) summon a person to produce to the Tribunal the documents or things referred to in the summons;”
Such a summons can be made without notice to an applicant and could even occur after the hearing. The summons power is, to a large extent, unlimited and can include a summons to a public authority like the prisons, the police, educational institutions, hospitals and health bodies and community services organisations etc.
Of course if any material the tribunal assembles through its own devices is adverse to an applicant ultimately it must be disclosed to the applicant and the applicant must then be given an opportunity to respond.
However, by then the damage may be done, because what the tribunal may have uncovered material which may contradict the case as already put by the applicant.
Of course it needs to be mentioned in passing that Immigration is now doing the same thing, ie using publicly sourced internet material to gather information about a visa applicant or a visa holder.
The examples of the sorts of things the tribunal could pick up is obvious, like any of the following:
An applicant moon lighting in another job inconsistent with the occupations claimed;
Google maps showing photographs of the shop which the applicant says is operating but which Google maps shows is closed;
A linked-in profile showing inconsistencies with what an applicant is claiming
Facebook showing details of other amorous relationships.
And simply a Google search revealing media articles or information damaging to an applicant.
As always, forewarned is forearmed, migration advisers therefore need to undertake a thorough search of all publicly available material before committing pen to paper in drawing up statements by the applicant and his or her witnesses. Clients need to be warned that anything available by search on the internet is part of the public record.
What the clients may have told public authorities or people working for public authorities is also a source of damaging contradictory information.
What a client has told a psychiatrist, health professional or social worker or community worker can be easily uncovered by the tribunal.
Clients need to be asked directly and firmly – ‘what would be revealed by a summons to such a person’. Similarly with private bodies like education providers.
Of course, the tribunal must reveal adverse information to applicants. Failure to do so would lead to judicial review setting aside the tribunal’s decision – see for example Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149 where the AAT did its own Google search and claimed that there was nursing home accommodation available to a Vietnamese elderly person. The Full Federal Court said:
“32.The difficulty revealed by the manner in which the Tribunal exposed the fact that it had obtained information during the course of the hearing was that:
the Tribunal did not then identify the source of its information that “there are plenty of residential care places and there’s 73 available in your area at the moment”.
Without further information being disclosed, it is difficult to see how a party could meaningfully respond to a statement so broadly expressed.”
Worse, of course, is the tribunal’s research may lead to the tribunal seducing itself into self persuasion, a point aptly made by the Federal Court in Forster v Minister for Immigration and Border Protection [2018] FCAFC 125:
“50…. It is also true that his Honour was ultimately persuaded by his own point – an example, perhaps, of what Sir Robert Megarry referred to as the ‘perils of self-persuasion’”
Megarry, Sir R, “Temptations of the Bench” (1978) 16 Alberta Law Review 406 at 410
“The propositions of law are those that he has thought of himself, and they are expressed in his own language. He who frames such arguments is liable to find his own products unduly seductive.”
Better, of course, to pierce that self-persuasive ballon by getting in first and at least putting such publicly available material into context.
As mention ed above we examine all of these issues and more on our masterclass on conducting matters before the tribunal, on Saturday 27 January 2024 on the Gold Coast, (simulcast also as a webinar). I look forward to seeing you there.