Gill v Minister for Immigration

[2018] FCCA 1726

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1726

Catchwords:
MIGRATION – Application for judicial review – Tribunal’s reliance on “anonymous source” – whether open to Tribunal to rely upon anonymous allegations – application allowed.

Legislation:
Migration Act 1958 (Cth), ss.375A, 359A
Migration Regulations 1994, cl.877.212

Cases cited:
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58
VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72
Minister for Immigration and Citizenship v Kumar [2009] HCA 10

Applicant: JATINDER SINGH GILL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 137 of 2017

Judgment of: Judge Riethmuller

Hearing date: 5 February 2018

Date of Last Submission: 5 March 2018

Delivered at: Melbourne

Delivered on: 29 June 2018

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent: Mr Tran

Solicitors for the First Respondent: Mills Oakley Lawyers

ORDERS

1. A writ of certiorari issue quashing the decision of the Second Respondent dated 5 January 2017 (Case Number 1510663).

2. A writ of mandamus issue directed to the Second Respondent requiring it to determine the Applicant’s application according to law.

3. The First Respondent pay the costs of any filing fees incurred by the Applicant.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 137 of 2017

JATINDER SINGH GILL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 5 January 2017.  That decision affirmed the decision of a delegate of the first respondent not to grant the applicant a Skilled (Residence) (Class VB) visa (“skilled visa”).

2. The applicant is a male citizen of India who arrived in Australia in 2007 on a student visa.  From June 2012 until June 2015, the applicant was the holder of a 487 visa.  On 4 February 2015, the applicant applied for the skilled visa.

3. On 22 July 2015 the delegate refused the visa application as the delegate was not satisfied the applicant met cl.887.212 of Schedule 2 to the Migration Regulations 1994, namely that the applicant did not live in a regional area of Australia for a period of two years.

4. Regulation 887.212, at the time of the application, relevantly provided:

   887.212  The applicant must have lived in a specified regional area for a total of at least 2 years as the holder of 1 or more of the following visas:

   (a)  a Skilled—Independent Regional (Provisional) (Class UX) visa;

   (b)  a Skilled—Designated Area‑sponsored (Provisional) (Class UZ) visa;

   (c)  a Subclass 475 (Skilled—Regional Sponsored) visa;

   (d)  a Subclass 487 (Skilled—Regional Sponsored) visa;

   (e)  a Skilled—Regional Sponsored (Provisional) (Class SP) visa;

   (f)  a Bridging A (Class WA) visa, or a Bridging B (Class WB) visa, that was granted on the basis of a valid application for:

   (i)  a Skilled—Independent Regional (Provisional) (Class UX) visa; or

   (ii)  a Skilled (Provisional) (Class VC) visa; or

   (iii)  a Skilled—Regional Sponsored (Provisional) (Class SP) visa.

5. The applicant applied to the Tribunal for judicial review, and attended the hearing on 28 October 2016 to give evidence and present arguments.  The Tribunal also heard oral evidence from two witnesses of the applicant.

6. The Tribunal identified the issue before it was whether the applicant had lived in a specified regional area as the holder of a specified visa for a total of two years prior to February 2015 (at [7]). 

7. The applicant claims that between 10 July 2012 and 31 October 2013 he lived at one address in Wodonga and between 1 November 2013 and

   
   

   4 February 2015 he lived at a second address in Wodonga.  In support of his claim to have lived at the first address, the applicant provided a number of statutory declarations and some utility bills as detailed at [15] of the Tribunal’s decision.  Mr Mann, who said that he was the applicant’s housemate gave evidence by telephone.  In support of his claim to have resided at the second address, the applicant provided a number of further documents, as detailed at [37] of the decision.  Mr Singh who resided at the second address with his wife, also gave evidence by telephone for the applicant.

8. The Tribunal found that the applicant held a 487 visa from June 2012 to June 2015 (at [10]) and that Wodonga was a specified regional area under the Regulations (at [11]).

9. The Tribunal was not satisfied that the applicant lived at either address in the relevant periods. The Tribunal found the evidence of the applicant and Mr Mann to be inconsistent: see [18] and [19]. The Tribunal put the inconsistencies to the applicant at the hearing. The applicant’s representative explained the inconsistency on the basis that the events occurred four years ago and it was difficult for the applicant and witness to remember who was coming and going from the house. The Tribunal considered the applicant’s response, but was “not satisfied that the inconsistent evidence was due to the passing of time and the number of person who resided at the address”: see [21].

10. Significantly, in reaching its decision the Tribunal considered information provided to the department from an anonymous informant. That information was the subject of a certificate issued under s.375A of the Migration Act 1958 (“the Act”), however the substance of the information was disclosed to the applicant in a s.359A letter: see [40]. At [41] the Tribunal summarised the information provided by the anonymous informant (as quoted below): that the applicant never resided in Wodonga, but worked and lived in Melbourne and that the applicant and friends had a false arrangement involving leasing a Wodonga property and employment records.

11. The Tribunal raised this information with the applicant at the hearing.  The applicant questioned the credibility of the anonymous source and suggested that, without hearing from the sources, it may be someone who wanted him punished and that such evidence should not be considered: see [42] and [43].

12. Ultimately, the Tribunal found against the applicant, saying:

    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 [the applicant] was a reliable witness.  The Tribunal placed greater weight on the information from the anonymous informant(s) which was corroborated by police records and department records, and in part by the evidence of Mr Hartej Singh and [the applicant] (in respect of Mr Hartej’s deportation). 

13. The Tribunal set out significant other evidence and reasons for rejecting the applicant’s evidence on the crucial issues.

Grounds of Review

1. The applicant represented himself at the hearing.  He set out five grounds of review in his application:

   1. The Tribunal failed to accord me the procedural fairness and natural justice as prescribed in Migration Law.

   2. Tribunal failed incorrectly accepted the statements from unknown, unidentifiable sources to make a decision and failed to accept my evidence which was verifiable and identifiable.

   3. Tribunal made a decision disregarding my evidence submitted at the time of hearing including witnesses to the extend available.

   4. Tribunal relied on the information which was already with the Minister before my visa was lodged.

   5. Procedural fairness was denied as prescribed in Section 358A of Migration Act. I lodged my 887 visa on the bases of meeting the residential requirements and submitted documents a normal single person can in the circumstances where one shares the accommodation. Tribunal failed to accept that fact not all residential documents are possible from a normal human being to mark.

2. The core issue relating to the use that the Tribunal could make of the anonymous allegations was the subject of oral submissions at the hearing.  The minister filed further written submissions, and the applicant then filed written submissions.  The applicant’s written submissions did not follow the grounds of the application but articulated three substantive arguments:

   a)The Tribunal ought not to have had regard to the anonymous informant’s evidence;

   b)The Tribunal failed to have proper regard to the applicant’s documentary evidence; and

   c)The Tribunal failed to have proper regard to the applicant’s explanation for having a Melbourne address on his security guard licence.

3. As was apparent at the hearing, the substantive argument underpinning the applicant’s claims is that it was illogical and legally unreasonable for the Tribunal to rely upon the allegations of an anonymous informant as evidence against him in the hearing.

4. The Tribunal summarised the anonymous allegations at [41] of its decision saying:

   41. The Department and the Tribunal have received information from anonymous informant(s) on a number of occasions since 2014.  In summary, the relevant information is as follows:

   36.1 Information received by the Department on 19 September 2014

   ·   Source provided various personal information regarding [the applicant] and Mr Singh, including telephone number, home address, age and work addresses

   ·   [The applicant] and Mr Singh are engaged in illegal work

   ·   [The applicant] and Mr Singh are not working for their nominating employer in a regional area

   ·   [The applicant] and Mr Singh are paying money to the employer in exchange for not notifying DIBP

   ·   [The applicant] arrived in Australia in 2007 to study, completed studies and applied for other visas

   ·   [The applicant] and Mr Singh did not, at any stage, relocate to Albury to take up the nominated positions

   ·   [The applicant] and M Singh took out a lease in Albury at [the first address] and continue to pay rent on the vacant property

   ·   [The applicant] and Mr Singh have continued to live at the address [Melbourne address omitted], for the last 5-6 years

   ·   [The applicant] works at Sandbelt Hotel as a security guard through a third party agency (unknown) and is paid cash

   ·   [The applicant] works 5 nights a week across 7 days and has done for the last 6 years

   ·   Mr Singh works at Taxi Link as a driver 6 nights a week and has done of the last 6 years.

   ·   [The applicant] and Mr Singh intend to apply for PR and will continue with this arrangement until eligible to apply

   36.2 Information received by Department

   ·   Source provided various personal information regarding [the applicant], including telephone number, home address, date of birth

   ·   [The applicant] pretend to live in regional area while on a his visa sc487

   ·   [The applicant] has been living at [Melbourne address omitted] for 8 years. He shares with another 2 people

   ·   [The applicant] pretended to live in Albury Wodonga but he actually lived in Melbourne and worked as a security guard for cash 

   ·   [The applicant] purchased work experience as a trolley pusher in a regional area for his permanent visa

   ·   [The applicant’s] friend, Mr Singh, did the same thing and was deported by Immigration

   ·   [The applicant] was refused his permanent visa but has applied for appeal.  [The applicant] is planning to run away to the countryside if the appeal is not successful

   36.3 Information received by Department

   ·   Source provided personal information about [the applicant] and Mr Singh and Jaspreet Kaur, including phone numbers of [the applicant], date of birth of [the applicant]

   ·   [The applicant] and Mr Singh lodged applications for skilled regional sc887 for NSW

   ·   [The applicant] and Mr Singh provided false work experience documents to support their applications, and paid a contractor to employ other to work on their behalf as trolley pushers for an Albury supermarket

   ·   [The applicant] 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.

   ·   [The applicant] 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

   ·   [The applicant] ran away to Albury when he believed DIBP were looking for him, stayed there for a few weeks, then returned to Melbourne when safe. [The applicant] continues to work in Melbourne as a security guard, and one of his shifts is at the Tabaret opposite “Melbourne’s Cheapest Cars” in Moorabbin.  [The applicant] usually works at this site on weekends between 11pm and 6 am.  [The applicant] also works at a Tabaret in Clayton.

   ·   [The applicant] has worked for the security contractor for case for the past 8 – 9 yeas.  [The applicant] works as a security guard.

   ·   [The applicant’s] sc887 application was unsuccessful and [the applicant] has sought AAT review while continuing to reside in Melbourne.

   36.4 Information received by Tribunal on 9 June 2016

   ·   Source had information regarding migration fraud by [the applicant]

   ·   [The applicant] was granted a 487 visa in 2012 and was required to work in a regional area to be eligible for a permanent visa.

   ·   [The applicant] never worked in a regional area and has remained in Melbourne for the entire period working as a security guard for cash in hand.

   ·   [The applicant] rented a house in Albury-Wodonga but never lived in the house.

   ·   [The applicant’s] claimed experience as a trolley-person in Albury is false.

   ·   [The applicant] has a friend who committed similar fraud and he has been deported to India

   ·   [The applicant] never paid tax on his income

   36.5 Information received by Tribunal on 12 July 2016

   ·   The source provided the name of [the applicant] and [the applicant’s] date of birth.

   ·     provided false information to the department about his experience in a regional area, that he paid someone to work in a regional area for him as a trolley pusher.  He took out a lease on a property, had all his mail sent to this address, but never lived there nor did he ever work in a regional area.  Whilst [the applicant] was supposed to be in the regional working area for a period of two years, he was in Melbourne working as a security guard doing cash jobs. [The applicant] has 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 me.  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 a friend of [the applicant] had essentially done the same thing as [the applicant], except when the department found out, this person was deported.

   ·   The male caller stated ‘how could I know this information first hand’, and then confirmed that yes, this information came from another person and gave information indication a reliable source.

5. Importantly, the terms of the file notes do not show whether it was the same informant on each occasion.  On the last occasion, the material demonstrates that the information was not within the personal knowledge of the informant, and the informant’s sources of knowledge were not disclosed.

6. Thereafter the Tribunal traverses in great detail the other evidence, and whether it corroborates or confirms the various allegations made by the informant, before stating:

   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 or 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. (emphasis added)

7. The Tribunal, stated that:

   44.    … 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).

8. The core of the applicant’s argument, reframed in terms of judicial review, is that it was legally unreasonable for the Tribunal to rely upon the informant’s allegations as evidence. 

9. There would be no argument if information from an informant were merely used to gather evidence of the type that is discussed in the balance of the Tribunal’s reasons.  That is, if it were merely information that assisted with enquiries that discovered evidence against an applicant.  However, the Tribunal went further in this case and relied upon the informant’s allegations as evidence.

10. In SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 Rares J remarked upon on the issue of allegations from informants, saying:

    17.    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…

11. Whilst the comment does not form part of the ratio of the decision it is particularly persuasive reasoning.  The two High Court authorities referred to in SZOOR are not of great assistance in this matter as they do not deal with anonymous informants, but the procedural difficulty that confronts a decision maker when the identity of the informant is known but cannot be disclosed: see VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 and Minister for Immigration and Citizenship v Kumar [2009] HCA 10.

12. There is a significant difference between a case where the informer’s identity is known to the decision maker and one where the informer is anonymous.  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. 

13. 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.

1. In SZOOR it was concluded that although the Tribunal ultimately relied upon the informants allegations, it was only after the Tribunal had independently reached it conclusion that the applicant in that case had fabricated his claim.  Thus, the reliance upon the anonymous material did not form a basis for a remedy. 

2. In the present application it was not submitted that the Tribunal independently reached its findings before considering whether to rely upon the allegations of the informant, and nor could those submissions have been made given the terms of the decision: not only was there no independent finding expressed, but the reasoning of the decision maker considers what evidence ‘corroborates’ the anonymous informant’s allegations.

3. It was argued for the Minister that reliance upon the anonymous information was not a judicially reviewable error that should lead to relief for three reasons:

   a)It was argued that the Tribunal only decided to give weight to the allegations after considering the applicant’s submissions.  This argument shows procedural fairness but does not address the logicality or reasonableness of giving weight to anonymous allegations.

   b)This was not a case where the anonymous allegations were the only evidence.  This proposition cannot be denied as there was considerable other circumstantial evidence that weighed heavily against the applicant.  However, it is not possible to disentangle the extent to which reliance upon the anonymous allegations played a role in the Tribunal ultimately rejecting the applicant’s evidence, and thus it is not possible to logically determine if the outcome would have been the same.

   c)The Tribunal found there was nothing to show that the informant had motive to harm the applicant.  This finding, in the absence of any knowledge of the identity of the informant, is just as illogical as one relying upon the allegations – there is simply no evidentiary basis for making the finding, save for accepting the anonymous allegations on their face.

4. I am not persuaded that these arguments show that it was logical or legally reasonable to place weight on the anonymous allegations, nor that the applicant should be denied relief in the exercise of the court’s discretion. 

5. I therefore allow the application.

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  29 June 2018