Federal Court. Was it "legally unreasonable for the Authority not to consider getting 'new information' by clicking on the link that was provided as the source of what was described by the appellant as screenshots from the appellant's public Facebook account"?
The appellant gave the Immigration Assessing Authority (IAA) so-called 'new information', namely screenshots of Facebook posts, claiming that those posts revealed that he had engaged in public criticism against his home Country of Vietnam.
The appellant also gave the IAA an active hyperlink to those posts.
One of the questions to the IAA was whether to receive such 'new information' under s 473DC of the Migration Act 1958 (Cth) for consideration.
The IAA said at [47] (emphasis added by the Federal Court (FCA)):
Within the posts I accept the applicant does make political statements. It is unclear whether these posts involve his own wording in all cases, but I accept these political comments are critical of the Vietnamese Government. A further considered [sic,consideration] here is that it is unclear whether the majority of these postings have actually been made available or public on his Facebook page. With the exception of seven or eight of the postings, the bottom part of these screenshots (where the likes, comments and other engagements would appear) have been cropped out. An example of where this has occurred is on page 366-67 of his submission.
The IAA refused to receive such 'new information'.
The Federal Circuit and Family Court dismissed a judicial review application of the IAA's decision.
On appeal to the FCA, the appellant argued, inter alia, that if the IAA considered exercising its power in s 473DC to get new information by following the hyperlink:
40 ... then it was said that the Authority's decision not to get the information was unreasonable.
The FCA also said:
15 ... the active pages [(i.e., screenshots)] each showed a globe icon which was said to indicate that the page was publicly accessible.
Further, the FCA said:
70 ... the appellant has established the following matters for the purposes of Claim (2):
(1) a significant part of the appellant's claim for protection was the claim concerning his political beliefs formed and activities undertaken since the delegate's decision;
(2) the screenshots of the Facebook posts were advanced in support of that claim;
(3) the new information in the form of the screenshots was described as being screenshots taken from the appellant's publicly available Facebook account;
(4) the 'source' of the screenshots as so described was identified by way of an active link;
(5) the screenshots were received as new information, the active link was not;
(6) in the appellant's submissions, the Facebook posts were claimed to be publicly available;
(7) the Authority's reasons included a finding that it was unclear whether the majority of the posts had actually been made available or public on the appellant's Facebook page;
(8) the finding to that effect was described by the Authority as a 'further' consideration;
(9) it is not possible to conclude with any certainty that the findings by the Authority as to the low level of the appellant's political beliefs and activities (and hence how he would behave if returned to Vietnam) were not affected by that 'further' consideration;
(10) the active link was available to the Authority;
(11) consequently, it was very easy for the Authority to simply click on the link and see whether it could be determined from doing so that the profile was publicly accessible;
(12) it was very obvious that the link was identified by the appellant as the source of publicly accessible versions of the screenshots; and
(13) it is possible that what would have been revealed by clicking on the link may have persuaded the Authority that the appellant's Facebook account was publicly available.
Some of the questions to the FCA were as follows:
Question 1: In order to succeed, did the appellant have to "demonstrate, as a matter of fact, what the Authority would have seen if it had clicked on the active link"?
Question 2: Was the IAA's power under s 473DC to receive new information, was that power dependent upon a request being made by the appellant for such new consideration to be received?
Question 3: Was it "legally unreasonable for the Authority not to consider getting 'new information' by clicking on the link that was provided as the source of what was described by the appellant as screenshots from the appellant's public Facebook account"?
Question 4: In LPDT [2024] HCA 12 at [6], the plurality held that errors in the form of legal unreasonableness in the final result are material by definition. Should that ruling be extended to legal unreasonableness in findings along the way to the final result?
The FCA answered those questions as follows: