FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Gill [2019] FCAFC 9

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders of the primary judge made on 29 June 2018 in MLG 137 of 2017 are set aside and, in lieu thereof;

(a)    the originating application in MLG 137 of 2017 is dismissed;

(b)    the applicant pay the respondent’s costs of the originating application, as agreed or assessed.

3.    The first respondent pay the appellant’s costs of the appeal, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The respondent to this appeal, Mr Jatinder Singh Gill applied for a Skilled (Residence) (Class VB) subclass 887 (Skilled – Regional) visa under the Migration Act 1958 (Cth) on 4 February 2015. A delegate of the then-titled Minister for Immigration and Border Protection refused to grant the visa. That decision was affirmed by the Administrative Appeals Tribunal on review under Pt 5 of the Act. On judicial review, the Federal Circuit Court of Australia set aside the Tribunal’s decision: Gill v Minister for Immigration & Anor [2018] FCCA 1726. The Minister now appeals from that judgment.

2    It was a criterion for the grant of the visa that the Minister be satisfied that Mr Gill had resided in a specified regional area as the holder of a prescribed visa for a period of two years preceding the date upon which the visa application was made: s 31(3) and s 65 of the Act; reg 2.03; Sch 2, cl 887.212 of the Migration Regulations 1994 (Cth). The relevant period in Mr Gill’s case is between 4 February 2013 and 3 February 2015 inclusive. It is common ground that Mr Gill was the holder of a prescribed visa over that time and that the town of Wodonga in Victoria is a specified area for the purposes of the visa criterion: Sch 2, cl 887.111 Regulations.

3    This appeal concerns the Tribunal’s conclusion that it was not satisfied that Mr Gill lived at two addresses in Wodonga over the relevant period, as he had claimed. In concluding that it was not so satisfied, the Tribunal took into account information that had been provided to it, and to the Department of Immigration and Border Protection, in a series of telephone calls from an unknown informant or informants (hereafter, the anonymous information). The broad effect of the anonymous information was that Mr Gill had lived and worked in Melbourne over the relevant period and that he had contrived evidence for the purpose of securing the grant of a subclass 887 visa.

4    Before the primary judge, the onus was on Mr Gill to demonstrate that the Tribunal’s decision was affected by jurisdictional error: s 474 of the Act, Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. The primary judge accepted Mr Gill’s substantive argument that the Tribunal’s reliance on the anonymous information was illogical or otherwise legally unreasonable and so concluded that the decision was affected by jurisdictional error: Gill at [16], [25] - [30].

5    The Minister presses a single ground of appeal expressed as follows:

… the primary judge erred in concluding, in effect, that it was not open to the Tribunal to consider or place any weight on the evidence from the anonymous informant (or informants) in the circumstances of this case in assessing whether it was satisfied that Mr Gill satisfied the criterion in clause 887.212.

6    For the reasons that follow, the Minister’s appeal should succeed.

principles

7    Although not expressly stated, the conclusion of the primary judge that the Tribunal’s decision was illogical or otherwise legally unreasonable amounted to a finding that the Tribunal failed to observe an implied and inviolable constraint that the Tribunal’s powers be exercised reasonably, as explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28] - [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ), [88] (Gageler J).

8    The Minister argued that the primary judge erred in concluding that the reasoning of the Tribunal was “illogical”. For an administrative decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, the Minister argued, “extreme” illogicality or irrationality must be shown: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148] (Robertson J); Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] (Wigney J), approved in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60] (McKerracher, Griffiths and Rangiah JJ). See also Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 at [12] (Kiefel CJ), [53] - [54] (Gageler J), [79] (Nettle and Gordon JJ), [131], [133] - [135] (Edelman J).

9    Submissions on the appeal focused principally on the question of whether the Tribunal’s process of reasoning may be characterised as illogical or irrational. That may be explained by the primary judge’s use of the word “illogical” to describe the Tribunal’s reasoning processes. However, as Allsop CJ said in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (at [2]):

The proper elucidation and explanation of the concepts of jurisdictional error and legal unreasonableness does not depend on definitional formulae or on one verbal description rather than another. Both concepts concern the lawful exercise of power. For that reason alone, any attempt to be comprehensive or exhaustive in defining when a decision will be sufficiently defective as to be legally unreasonable and display jurisdictional error is likely to be productive of complexity and confusion. One aspect of any such attempt can be seen in the over-categorisation of more general concepts and over-emphasis on the particular language of judicial expression of principle. Thus, it is unhelpful to approach the task by seeking to draw categorised differences between words and phrases such as arbitrary, capricious, illogical, irrational, unjust, and lacking evident or intelligent justification, as if each contained a definable body of meaning separate from the other.

10    His Honour went on to say (at [8]) that the concept of legal unreasonableness is:

… derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].

11    As Edelman J more recently said in SZVFW at [135], there is only one test for legal unreasonableness, “but its content is assessed in light of the terms, scope, purpose and object of the statute”. See also Li at [67] (Hayne, Kiefel and Bell JJ).

12    Part 5 of the Act confers a power on the Tribunal to review a decision of the Minister to refuse to grant a visa of the kind in issue in this case. For the purposes of such a review, the Tribunal may take evidence on oath or affirmation: s 363(1)(a). Oral evidence must generally be taken in public: s 365. When a review is conducted in public and evidence is given by telephone or other means of communication, the Tribunal must take such steps as are necessary to preserve the public nature of the review: s 366(2). In reviewing the delegate’s decision, the Tribunal was not bound by technicalities, legal forms or rules of evidence: s 353(a).

13    Section 349 provides that the Tribunal may, for the purpose of the review, exercise all of the powers and discretions conferred by the Act on the person who made the decision. The Tribunal’s task was to arrive at the correct or     preferable decision on the material before it: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [140] - [142] (Kiefel J).

14    In Mr Gill’s case, that required the Tribunal to consider his application for a Skilled (subclass 887) visa, and to determine that application in accordance with s 65 of the Act. That section relevantly provides that the Minister:

(a)    if satisfied that:

(i)    the health criteria for it (if any) have been satisfied; and

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; …

…

is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

15    The lawful formation of the state of satisfaction to which s 65(1)(a) refers is a “jurisdictional fact” in the sense that it preconditions the power to grant a visa: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [23] - [24] (Gummow ACJ and Kiefel J). In its application to the criterion in issue in Mr Gill’s case, the power to grant the visa under s 65(1)(a) of the Act could only be exercised if the Tribunal was positively satisfied that Mr Gill resided in Wodonga in the relevant period.

16    However, the state of non-satisfaction to which s 65(1)(b) refers did not require the Tribunal to be positively satisfied that Mr Gill did not live in Wodonga, nor to make any positive finding as to where he did in fact live. As the Full Court said in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]:

It can be seen from the form of that sub-section that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied.  …

CONSIDERATION

17    Resolution of the issue arising before the primary judge, and now on this appeal, necessitates some detailed consideration of the course of proceedings before the Tribunal and a careful analysis of its reasoning process.

Reasoning of the Tribunal

18    Before the Tribunal, Mr Gill claimed that he had lived in Wodonga at an address in Butterworth Place between 10 July 2012 and 31 October 2013 and then at an address in Lawrence Street from 1 November 2013 to 3 February 2015 and thereafter. The two year period specified in cl 887.212 spanned both addresses. Accordingly, it was necessary for the Tribunal to be satisfied both as to Mr Gill’s residence at the Butterworth Place address (at least from 4 February 2013) and as to his residence thereafter at the Lawrence Street address (at least until 3 February 2015).

19    In relation to both addresses, Mr Gill gave evidence about the persons he had lived with, the financial relationships between them and his employment situation in Wodonga at the time. He claimed that he had lived at Butterworth Place with three persons, Mr Prince Paul Singh Mann, Mr Hartej Singh and Mr Singh’s wife. He stated that whilst living at Butterworth Place he had been financially supported by Mr Mann.

20    Mr Gill stated that he had moved to the Lawrence Street address with Mr Hartej Singh and Mr Singh’s wife to secure a rental agreement naming him as a tenant to assist him to prove that he had lived in Wodonga. He stated that he received financial support for the move from his family and that he and Mr Singh had jointly met the rental payments and other expenses at the Lawrence Street address.

21    Mr Gill told the Tribunal that he had worked as a “trolley pusher” in or around Wodonga and that he had, at times, found it difficult to find work.

22    At Mr Gill’s request, the Tribunal received telephone evidence from Mr Mann and Mr Singh. Mr Mann stated that he had shared the Butterworth Place residence with Mr Gill and Mr Singh. Mr Singh confirmed that he had shared both the Butterworth Place and Lawrence Street addresses with Mr Gill at the claimed times.

23    Mr Gill provided the Tribunal with documentary evidence including (without being exhaustive):

(1)    utility bills directed to him at each address;

(2)    mobile telephone accounts directed to Mr Gill at the Butterworth Place address;

(3)    utility bills and correspondence directed to Mr Mann at the Butterworth Place address and to Mr Singh at the Lawrence Street address;

(4)    correspondence and documents directed to Mr Gill at the Lawrence Street address concerning traffic infringements;

(5)    employment and superannuation records indicating Mr Gill’s place of employment and payment for work in and around Wodonga;

(6)    taxation records directed to Mr Gill at the Lawrence Street address;

(7)    a letter from Joban’s Trolley Collection Pty Ltd directed to Mr Gill at the Lawrence Street address stating, among other things, that it had employed Mr Gill full time since 17 December 2013;

(8)    bank statements addressed to Mr Gill at each address;

(9)    statements from friends to the effect that they knew Mr Gill to have resided in Wodonga and to have socialised with him at one or both addresses; and

(10)    a rental agreement in respect of the Lawrence Street address naming Mr Gill and Mr Singh as tenants.

24    Subject to exceptions that do not presently apply, s 359A of the Act requires the Tribunal to give a review applicant clear particulars of any information that would be the reason, or a part of the reason, for affirming the decision that is under review. In the discharge of that obligation, the Tribunal sent a letter to Mr Gill informing him that one or more informants had provided information to the Department and to the Tribunal. It is appropriate to describe the anonymous information in the same terms as it appears in the Tribunal’s letter:

1.    The Department and Tribunal have received the following information from anonymous source(s):

1.2    Information received by the Department on 19 September 2014

•    The Source provided various personal information regarding you and Mr Singh, including telephone numbers, home address, age and work addresses.

•    You and Mr Singh are engaged in illegal work.

•    You and Mr Singh are not working for their nominating employer in a regional area.

•    You and Mr Singh are paying money to the employer in exchange for not notifying DIBP.

•    You arrived in Australia in 2007 to study, completed studies and applied for other visas.

•    You and Mr Singh did not, at any stage, relocate to Albury to take up the nominated positions.

•    You and Mr Singh took out a lease in Albury at 1/106 Lawrence Street, Wodonga Victoria 3690 and continue to pay rent on the vacant property.

•    You and Mr Singh have continued to live at the address (1192 Centre Rd, Clayton South), for the last 5 – 6 years.

•    You work at the Sandbelt Hotel as a security guard through a third party agency (unknown) and are paid cash.

•    You work 5 nights a week across 7 days and have done for the last 6 years.

•    Mr Singh works at Taxi Link as a driver 6 nights a week and has done so for the last 6 years.

•    You and Mr Singh intend to apply for PR and will continue with this arrangement until eligible to apply.

1.3    Information received by Department

•    Source provided various personal information regarding you, including telephone number, home address, date of birth

•    You pretended to live in regional area while on your VC487 visa.

•    You have been living at Centre Road, Clayton, for 8 years. You share with another 2 people

•    You pretended to live in Albury/Wodonga but actually lived in Melbourne and worked as a security guard for cash.

•    You purchased work experience as a trolley pusher in a regional area for your permanent visa.

•    Your friend, Mr Singh, did the same thing and was deported by Immigration.

•    You were refused a permanent visa but have appealed.

1.4    Information received by Department

•    Source provided personal information about you and Mr Singh and Jaspreet Kaur, including your phone numbers and date of birth.

•    You and Mr Singh lodged applications for skilled regional SC887 for NSW.

•    You and Mr Singh provided false work experience documents to support the applications, and paid a contractor to employ others to work on your behalf as trolley pushers for an Albury supermarket.

•    You and Mr Singh also signed for a rental property in Albury/Wodonga, then rented it out to others, but continued to use that address to meet DIBP’s regional requirements.

•    You and Mr Singh worked in Melbourne for the whole time.

•    Mr Singh worked as a taxi driver and was deported with Jaspreet Kaur after being caught driving in Melbourne.

•    You ran away to Albury when you believed DIBP were looking for you, stayed there for a few weeks, then returned to Melbourne when safe. You continue to work in Melbourne as a security guard, and one of your shifts is at the Tabaret opposite ‘Melbourne’s Cheapest Cars’ in Moorabbin. You usually work at this site on weekends between 11pm and 6am. You also work at a Tabaret in Clayton.

•    You have worked for the security contractor for cash for the past 8 – 9 years. You work as a security guard.

•    Your SC887 application was unsuccessful and you have sought AAT review while continuing to reside in Melbourne.

1.5    Information received by Tribunal on 9 June 2016

•    Source had information regarding migration fraud by you.

•    You were granted a 487 visa in 2012 and were required to work in a regional area to be eligible for a permanent visa.

•    You never worked in a regional area and have remained in Melbourne for the entire period working as a security guard for cash in hand.

•    You rented a house in Albury-Wodonga but never lived in the house.

•    Your claimed experience as a trolley-person in Albury is false.

•    You have a friend who committed similar fraud and he has been deported to India.

•    You have never paid tax on your income.

1.6    Information received by Tribunal on 12 July 2016

•    The source provided your name and date of birth.

•    You provided false information to the department about your experience in a regional area, that you paid someone to work in a regional area for him as a trolley pusher. You took out a lease on a property, had all your mail sent to this address, but never lived there nor did you ever work in a regional area. Whilst you were supposed to be in the regional area working for a period of two years, you were in Melbourne working as a security guard doing cash jobs. You have supposedly not paid tax for 7 years in Australia.

•    The Tribunal officer asked the male caller how he knew this information and he said he could not tell the officer. The Tribunal officer asked the male caller why he wanted to provide this information to the Tribunal, what his motivation was, and he replied by saying that he could not close his eyes.

•    The source came to know this information because your friend had essentially done the same thing as you, except when the department found out, your friend was deported.

•    The male caller stated this information came from another person and gave information indicating a knowledgeable source.

25    The letter goes on to state that “the information contained in paragraphs 1.2, 1.3 and 1.4 above” was subject to certificates issued by the Minister pursuant to s 375A of the Act. The certificates form an enclosure to the letter. It appears from the face of the certificates (and from the final dot point extracted in the preceding paragraph) that the Tribunal may have been provided with information that tended to identify the “source” of the informant’s information: see also that part of the Tribunal’s reasons extracted at [40]. The effect of s 375A was that the information subject to the certificate could not be disclosed by the Tribunal to Mr Gill. Mr Gill did not challenge the validity of the certificates and, as the Tribunal noted, Mr Gill made no request for access to any written material given or produced to the Tribunal for the purposes of the review: see s 362A of the Act. Nonetheless, on appeal, the parties’ submissions proceeded on the assumption that the Tribunal was not aware of the identity of the informant(s), nor of the identity of the source of the informant(s) information. This Court will proceed on the same assumption.

26    At this juncture, some observations should be made about the structure of the Tribunal’s reasons. First, the Tribunal asked itself whether Mr Gill had resided at Butterworth Place. In that portion of its reasons, the Tribunal expressly stated that it was not satisfied that Mr Gill had lived at the Butterworth Place address. Next, the Tribunal asked itself whether Mr Gill had resided at the Lawrence Street address and expressed its state of non-satisfaction in connection with that claim.

27    It is fair to say that the use to which the Tribunal put the anonymous information only becomes apparent in that part of the reasons in which the Tribunal deals with the Lawrence Street address. That is not to say that the portions of the reasons dealing with the anonymous information had no bearing on the Tribunal’s assessment of Mr Gill’s claim to have lived at Butterworth Place. As will be seen, the Tribunal expressed its conclusion in relation to Butterworth Place in a manner that inextricably incorporated its reasoning about the anonymous information. That explains why the Minister (properly) abandoned another ground of appeal which asserted that there was an independent basis for the Tribunal’s conclusions in relation to Butterworth Place, unaffected by its consideration of the informant’s allegations.

28    In respect of Butterworth Place, the Tribunal identified inconsistencies between the evidence given by Mr Gill and the evidence given by Mr Mann in respect of the number and identity of persons who had shared the address with them and the financial arrangements between them. The Tribunal stated (at [22]) that the explanations given by Mr Gill for these inconsistencies did not allay its concerns:

The Tribunal considers that the inconsistency in the evidence between Mr Mann and Mr Gill, along with the other matters discussed below, gave rise to the Tribunal not being satisfied that Mr Gill is a reliable witness and cannot rely on his evidence regarding his residence at Butterworth Place between July 2012 and October 2013.

29    The Tribunal went on to state that it was “troubled” by the evidence that Mr Mann had met Mr Gill’s living expenses, having regard to the nature and duration of their relationship. The Tribunal then turned to identify deficiencies in the documentary material upon which Mr Gill relied. It is not necessary to detail the identified deficiencies here.

30    The Tribunal said that it placed little weight on the statements of friends which, it said, included very little detail. The Tribunal also took into account the circumstance that Mr Gill had not identified Butterworth Place as a previous address when he first applied for the visa before concluding:

33.    The Tribunal also had significant reservations Mr Gill lived at Butterworth Place, in light of the evidence discussed below from anonymous informant(s) and the department’s record of comments made by Mr Hartej Singh on 2 June 2015 to a Department officer.

34.    After having regard to all the evidence available, the Tribunal is not satisfied that Mr Gill lived in Wodonga between July 2012 and October 2013.

31    It is the remarks at [33] that render the anonymous information inextricable from the remainder of the Tribunal’s reasoning in relation to the Butterworth Place address. The Tribunal did not say that its state of non-satisfaction was formed independently of that information.

32    In relation to the Lawrence Street address, the Tribunal summarised the documents supplied by Mr Gill, which included a tenancy agreement, bills, bank statements and other documents of a similar kind to those provided in connection with Butterworth Place as described earlier in these reasons.

33    The Tribunal summarised the evidence given by Mr Hartej Singh as follows (at [38]):

At the applicant’s request the Tribunal also spoke by teleconference with Mr Hartej Singh in India. Mr Hartej Singh gave evidence that Mr Gill lived with him at Lawrence Street, Wodonga for a period of 18 months to 2 years, until Mr Hartej Singh left Australia in 2015. Mr Hartej Singh was unable to recall the exact dates they lived together. Mr Hartej Singh said that he and his wife, Kapreet Kaur lived with Mr Gill and shared a house. Mr Hartej Singh also gave evidence that Mr Gill and Mr Hartej Singh also lived together at 4 Butterworth Place. Mr Hartej Singh stated that he left Australia in 2015 because he had an issue with Immigration – he was driving taxis in Melbourne and he was not allowed to drive in Melbourne. He also stated that at the time his wife was pregnant and sick so they returned to India. Mr Hartej Singh stated that when interviewed by the Department he lived in Melbourne and sometimes in Wodonga and he was driving in Melbourne. Mr Hartej Singh stated that the lease for Lawrence Street was under both their names and they both shared the rent. He stated that they had support from family and friends and there was not much work so he had to drive taxis and worked as a trolley pusher. Mr Hartej Singh gave evidence that we (Mr Singh and Mr Gill) moved to Butterworth Place but there were no jobs. They applied for jobs and then Mr Hartej Singh went to India and Mr Gill also went back to India. They them [sic] moved to Lawrence Street and they obtained a small job.

34    The Tribunal then turned to consider the anonymous information and Mr Gill’s response to it. The effect of Mr Gill’s response was that the anonymous informant(s) should not be trusted, that the Tribunal could not assess the credibility of the caller(s), that the caller(s) may bear animosity toward Mr Gill and be motivated to take revenge and that the documentary evidence supplied by Mr Gill should be preferred. Mr Gill also stated that he had complained to his bank about identity fraud and that the bank had confirmed that an account had been set up fraudulently in his name. The Tribunal said that it had considered Mr Gill’s submissions, then continued (at [44]):

…  However, the Tribunal considered the information from the anonymous informant(s) in the context of the other evidence available and its concerns regarding the reliability of the applicant’s evidence, and placed some weight on this information from the anonymous informant(s).

35    In the remaining portion of the reasons, the Tribunal referred to other evidence that, it said, “corroborated” certain aspects of the anonymous information.

36    Departmental records indicated that Mr Hartej Singh (the person with whom Mr Gill claimed to have shared both addresses) had been interviewed by an officer of the Department on 2 June 2015. The records indicated that Mr Singh had admitted that he had not lived in Wodonga for the last few years. Departmental records also showed that Mr Singh had been detained and deported from Australia after being found working in Melbourne as a taxi driver. When the evidence of the admission was put to Mr Singh, he denied admitting to the Department that he did not live in Wodonga. In response to the evidence concerning Mr Singh’s admission, Mr Gill said (among other things) that it was possible that Mr Singh had not remembered minute details because of his mental state. He repeatedly confirmed that he and Mr Singh had lived and worked together in Wodonga.

37    The Tribunal also referred to licencing records held by Victorian police, demonstrating that Mr Gill had applied to be licenced as a security guard in 2008 and that a licence had been granted then renewed in 2011, 2012 and again in 2015. The records showed that Mr Gill’s registered address was Centre Road, Clayton South, although that address had been changed on a 2015 licence renewal form. The licence record listed Mr Gill’s employer between 2008 and 2012 as an entity situated in Portman Street, Oakleigh.

38    The Tribunal took into account that it had asked Mr Gill during the hearing about the employment he had undertaken in Australia, and that, in his responses, Mr Gill had not disclosed that he had worked as a security guard, nor had he disclosed his employment as a security guard on a personal particulars form completed in support of his visa application. The Tribunal “considered that Mr Gill deliberately omitted both on his personal particulars form and in his oral evidence his work as a security guard…”.

39    When asked to explain the information held by the Victorian police, Mr Gill stated that he had only done a small amount of work as a security guard before July 2012. The Tribunal did not accept that explanation. The Tribunal said that it did not consider Mr Gill to be a reliable witness because of the inconsistencies mentioned elsewhere in its reasons and because of Mr Gill’s failure to disclose his security guard work until confronted with evidence of it.

40    The Tribunal continued (at [56]):

The Tribunal considered the submission that the informant(s) made the statements to the Department and the Tribunal due to his dislike of the applicant. The Tribunal acknowledges this is possible and the informant(s) may be motivated by this. However, the informant(s) had detailed knowledge of the circumstances of the applicant and Mr Hartej Singh and also indicated to the Tribunal in one contact of the source of information, which would appear to be a knowledgeable source regarding the events described by the informant(s). Further, as noted above the informant(s) information was corroborated by other aspects of the evidence available. The Tribunal did not consider the identity fraud in relation to the ANZ credit card was evidence that supported the informant(s) was a person who disliked the applicant so could not be relied on. The Tribunal did not consider that the information from the informant(s) could not be relied on because the Department did not verify the information. On one view, the Department did verify the information when it detained Mr Hartej Singh in June 2015. It is a matter for the Tribunal to assess, in the context of all the information available, whether it accepts any or all of the information provided by an anonymous informant(s). Generally, the Tribunal would be cautious on relying on information from an anonymous informant(s). However, there is other cogent evidence available that corroborates the information.

41    The Tribunal then turned to consider the documentary evidence provided by Mr Gill. It found that it was “more likely than not that Mr Gill lived in Melbourne and worked as a security guard in Melbourne since 2012 after having regard to the various documents provided by Mr Gill and his evidence in relation to these documents”. The Tribunal considered the documents at some length. Among other things, the Tribunal considered a credit card statement issued by the Commonwealth Bank of Australia. The Tribunal found that the statement disclosed a repayment having been made which equated to several months’ salary of a trolley pusher. The Tribunal considered the repayment was indicative of Mr Gill having another source of income and rejected his claim that he had received financial assistance from his parents. The Tribunal also found that Mr Gill had been charged with traffic offences at times and places that indicated that he was not residing in Wodonga. The Tribunal concluded (at [72]):

After carefully reviewing all the evidence, the Tribunal is not satisfied that the applicant lived and worked in Wodonga between July 2012 until February 2015 or thereafter. The Tribunal did not accept that Mr Gill was a reliable witness. The Tribunal placed greater weight on the information from the anonymous informant(s) which was corroborated by police records and the department records, and in part by the evidence of Mr Hartej Singh and Mr Gill (in respect of Mr Hartej Singh’s deportation). The Tribunal also placed weight on the admission by Mr Hartej Singh to the Department in June 2015, prior to his deportation, that he did not live/work in the Wodonga area for several years and the evidence he was located working as a taxi driver in Melbourne. The Tribunal considered the discrepancies in the payslips and bank records and late payment of superannuation indicated that the applicant was not living and working in Wodonga as claimed. In relation, to the other documentary evidence – the Tribunal does not consider that documents addressed to a person at a certain address is reliable evidence that a person is residing at the mailing address. As demonstrated in this case, the applicant received various correspondence at the Butterworth Place address – in a period he states that he did not live there. For this reason the Tribunal placed little weight on the documentary evidence submitted to show the various mailing addresses as evidence of where the applicant lived. In light of the inconsistencies between the evidence of Mr Mann and the applicant, the Tribunal placed little weight on the evidence of Mr Mann and Mr Gill. Similarly, in light of the admission to the Department by Mr Hartej Singh, and the circumstances of his departure from Australia, the Tribunal placed little weight on his evidence that he resided with the applicant in Wodonga. For the reasons set out above, the Tribunal placed little weight on the evidence of Mr Pokhapel and Mr Pardeep Singh.

Reasons of the primary judge

42    The primary judge (correctly) observed that the Tribunal had not arrived at its decision independently of the anonymous information and that the Tribunal had reasoned to its conclusion by considering whether there was evidence to corroborate the allegations made by the informant(s).

43    The primary judge referred to the difference between cases in which an informer’s identity is known to a decision-maker and cases in which the informer’s identity is not. The Judge said:

25.    …  The former situation admits of the possibility of the decision maker logically determining whether or not to accept the information as reliable evidence based upon their assessment of the informer, whereas the latter does not.

26.    Simply because some parts of the allegations of an anonymous informant are independently proved does not necessarily demonstrate that the informant is truthful or accurate with respect to the balance of the claims. Indeed, it is difficult to imagine a situation where an anonymous informant’s allegations could be relied upon as evidence in a visa claim. Of course it must be acknowledged that it is not impossible that in unusual circumstances a logical basis may be established for relying upon anonymous allegations: for example the average response from a survey may provide evidence of likely state of mind of a class of persons which may be relevant in some contexts, however, such unusual circumstances do not arise here.

44    The primary judge found the following obiter remarks of Rares J in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (at [17]) “particularly persuasive”:

The fact that an anonymous letter writer may have access to certain information that is accurate does not logically, rationally or reasonably allow the inference to be drawn that other assertions made by the mysterious source are true. Before such a conclusion can be drawn the basis on which the source makes the relevant assertion must be known.  …

45    It was not possible, the primary judge said, to “disentangle the extent to which reliance upon the anonymous allegations played a role in the Tribunal ultimately rejecting the applicant’s evidence”. The judge said that he was not otherwise persuaded that the Minister’s arguments showed that it was logical or legally reasonable to “place weight” on the anonymous allegations.

Analysis

46    The question of whether or not the Tribunal may lawfully have regard to information supplied by an anonymous informant cannot yield the same answer in every case. As Mr Gill properly acknowledged, it will not always be illogical or irrational to place “some weight” on anonymous information. However, Mr Gill argued, this was not a case in which the Tribunal had placed “some weight” on the information, but rather one in which the anonymous allegations had played a central role in the Tribunal’s reasoning processes.

47    The forensic significance of the anonymous information to the reasoning of the Tribunal may be accepted, not only in relation to the Lawrence Street address but also in relation to the Butterworth Place address. However, the Tribunal’s decision is not to be vitiated for illogicality, irrationality or otherwise for legal unreasonableness by resort to a general rule to the effect that anonymous information cannot in any case play a central role in reasoning toward a result. There is no such rule. Whilst the primary judge found the remarks or Rares J in SZOOR (extracted at [44] above) to be “particularly persuasive”, his Honour was there in minority on this issue and the case was, in any event, a case in which the decision-maker reasoned to a conclusion independently of the anonymous information before it: see [87] and [94] (McKerracher J), and [113] (Reeves J.)

48    In light of Mr Gill’s acknowledgement that it would not always be illogical or irrational for the Tribunal to place some weight on anonymous information, the question to be determined is whether it was open to the Tribunal to reason in the manner in which it did, having regard to all of the information before it, and bearing closely in mind the binary task to be performed under s 65 of the Act. The context, as we have said, is one in which refusal of the visa was mandated by s 65(1)(b) if the Tribunal was not satisfied that Mr Gill lived in Wodonga over the relevant period.

49    The conclusion of the primary judge was based in part on the premise that “simply because some parts of the allegations of an anonymous informant are independently proved does not necessarily demonstrate that the informant is truthful or accurate with respect to the balance of the claims”. While this may be correct, it pays insufficient regard to the nature of the task to be undertaken under s 65 of the Act. As has been explained, a decision to refuse to grant a visa under s 65(1)(b) did not require the Tribunal to make findings of fact: Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214. More specifically, the Tribunal was under no obligation to make findings of fact consistent with each and every aspect of the competing narrative alleged by the informant(s). The Tribunal did not, in fact, make a finding that the informant was truthful and accurate in respect of the uncorroborated balance of the claims. In our view, it was sufficient for the Tribunal to find (as it did) that the anonymous information was accurate in respects that rendered critical aspects of Mr Gill’s evidence unable to be accepted.

50    The aspects of the anonymous information that were independently proved went to two central matters bearing on Mr Gill’s visa application and to the credit of Mr Gill more generally: the claim that he shared both addresses with Mr Hartej Singh and the claims that he had worked as a trolley pusher in Wodonga, depended on others for financial support and had no other employment.

51    As to the claim that Mr Gill lived at both addresses in Wodonga with Mr Hartej Singh, it is to be recalled that Mr Hartej Singh was called to give evidence on that topic at Mr Gill’s request, not at the behest of the Tribunal. The Tribunal received anonymous information to the effect that Mr Hartej Singh had never lived in Wodonga but had lived and worked in Melbourne as a taxi driver. That information was consistent with admissions Mr Hartej Singh had made to the Department and with his immigration history more generally. It was not illogical for the Tribunal to use the “corroborated” anonymous information as a basis for rejecting the evidence of both Mr Hartej Singh and Mr Gill that they had shared the two addresses in Wodonga.

52    The Tribunal also received anonymous information to the effect that Mr Gill worked in Melbourne as a security guard. That information was consistent with Victorian police records. The Tribunal found that Mr Gill deliberately withheld the fact that he had worked in Melbourne as a security guard until confronted with the independent evidence which supported the anonymous allegation. There is no challenge to that finding. The Tribunal was entitled to reject Mr Gill’s attempted explanation for the omission. It was open to the Tribunal to conclude that the anonymous informant(s) were correct in respect of Mr Gill’s actual work history and so open to the Tribunal to reject Mr Gill’s evidence (as originally given) that he had worked as a trolley pusher in Wodonga.

53    It should be emphasised again that the use to which anonymous information may be put will depend in all cases on the statutory context and upon the body of the information before a decision-maker. In the circumstances of Mr Gill’s case, the weight to be ascribed to the anonymous information was a question in respect of which reasonable minds may differ. To make out the ground of review of legal unreasonableness, it is not sufficient to express emphatic disagreement with the weight ascribed by the Tribunal: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [34], [37] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). Nor is it permissible for a court on review to substitute its own view as to the appropriate weight for that expressed by the decision-maker.

54    The reasons for the decision disclose a logical and intelligible basis for rejecting Mr Gill’s evidence and so for refusing to grant the visa in the exercise of the power conferred by s 65 of the Act. Illogicality attaches to neither the Tribunal’s reasoning nor to its result. Nor was the outcome or the process of reasoning otherwise legally unreasonable. It is both undesirable and unnecessary to explain this result on the appeal by reference to any abstract principle or role attaching to the use of information provided by an anonymous source.

55    The appeal should be allowed with costs. The Court will order that the judgment and orders of the primary judge be set aside and, in lieu thereof, there will be orders dismissing the originating application in the Federal Circuit Court of Australia, and providing for the Minister’s costs of the originating application to be paid by the appellant.

Associate:

Dated:    5 February 2019