The internet is an evidence box for the Minister

In many areas of law, like criminal law, we often don’t trust or believe our clients unless proven otherwise. The same is clearly emerging in migration law. It is not that migration clients are particularly mendacious but that many people simply regard lying to the government (indeed any government) as part of life.

A by-product is that all publicly sourced on-line material is now an evidence box for Immigration. Many cases are emerging at both the tribunal and delegate level of client information being at odds with what is available on the internet.

Sometimes it is blatantly at odds.

Here are some examples:

Employer says a retail business is thriving, Google maps shows the business has closed with a photograph of empty shelves;

Employer says a job is situated in a regional area, a Google search shows otherwise;

An employee who is meant to working exclusively for the sponsoring employer is shown on the internet to be heavily moonlighting selling real estate;

Facebook reveals a sponsoring partner has an obvious romantic relationship with a third person;

LinkedIn sometimes shows that a person’s employment background is not consistent with a visa application.

Google searches sometimes reveal the person is doing a job inconsistent with the employer sponsored or nominated occupation.

Results of any litigation good and bad is now published on Austlii, such it may reveal misleading information was given to Immigration.

It is surprising how often ASIC records are not consistent with a visa situation, this must be checked as well, including historically.

Claims of skilled work experience do not match what is shown on FaceTime, LinkedIn or other publicly available material.

The above demonstrates that nowadays one has to do a thorough open source investigation to see if adverse evidence is available about any party to the migration matter including witnesses, sponsors and nominators as well as the applicant him or herself and where appropriate, partners. All this has to be done before any material is lodged with Immigration. All sources need to be thoroughly checked including but not limited to:

Google maps, Google itself, Yelp, FaceTime, Twitter, LinkedIn, Austlii

At the same time, it would be useful to warn clients that on any return entry to Australia, a person’s mobile phone, tablet and laptop are additional evidence boxes for Immigration. WhatsApp can be a useful source of adverse material for Immigration as can Outlook or any email software. Indeed any cloud based messaging service can be the source of adverse evidence. Better to this search yourself on a client’s devices rather than waiting for Immigration to be the first third person to view a client’s private messages. There is some value in not taking a mobile phone or laptop through customs. One option is to buy a cheap laptop and phone overseas and leave such devices overseas. All cloud based apps or material can be re-loaded onto an offshore device and left offshore.

As lawyers or migration agents we cannot participate in false evidence production. But it is permissible to advise a client to delete all unnecessary material from the open source internet where possible.

Other areas of misleading conduct are creeping onto migration law and practice.

It seems there is  a small coterie of accountants or book-keepers who are acquiescing to producing false BAS or inaccurate accounts.

Nowadays at the tribunal level at least, any accounts produced must be signed off by the accountants and the ATO tax returns as lodged must be produced with evidence that the tax returns were lodged.

Even diligent accountants are sometimes tardy in updating ASIC records and often are late in filing tax returns. Stale tax records inevitably raise suspicion. Plus tax minimisation, often legitimately encouraged by accountants, may show a company is struggling when in fact it is not.

Although the era of the cash economy is receding, receiving undeclared income in cash still has attractions for some, but clients need to be warned that undeclared cash income may be detrimental to a visa applicant’s position.

This is my 40th year of practice in migration law and on the basis of that experience I can say that exaggeration, misleading information and downright fraud has always existed in migration law. At one stage the assessing authorities used to accept work experience as a suitable qualification until it emerged that a large slab of work references were simply inaccurate.

Some exaggeration appears to be gratuitous, in one case I observed that in a statement the person claimed to have sustained a leg fracture in an incident but this was not recorded in a hospital admission document obtained later.

I am not sure if it is getting worse or whether because of the nature of the work I do, (mainly appeals and advice on contentious matters) that I seem to be seeing more of it.

In any event, as far as migration practice is concerned an important aspect of what I call the ‘psychology of advocacy’ nowadays is to show to a delegate beyond reasonable doubt that the person’s application is NOT a fraud. Therefore all public open source material must be consistent with what is claimed in the visa application or nomination or sponsorship, all statements including witness statements should be in the form of a statutory declaration with a colour copy of either a passport or drivers licence attached, clearly showing the signature of the deponent, any witness to a statutory declaration should be clearly identified including the address and contact details of the witness, copies of contentious documents should be certified as true copies, nowadays more rather than less is required with appropriate summaries and indexing.

The above means that applications or AAT reviews which look to be squeaky clean will get a much better run.

The above also means that all migration work requires more investigation which inevitably means charging clients more if one is to be properly remunerated for work actually done.

My experience in professional negligence matters reveals that often mistakes occur when a practitioner, consciously or subconsciously feels that he or she is not being properly paid for the extent of the work actually done. The result is that thoroughness is sometimes the first casualty. This often proves the adage that a client gets what he or she has paid for. Migration law has now become so complex that discounting should be left to professionals like K-mart!

We discuss this and more in the upcoming 10CPD point webinar on Saturday 6 May. Read the full blog post and register to attend below.