Australian Immigration Daily News

Can the Tribunal rely on that information as the basis for affirming the refusal of a visa application?

This interesting question was presented in a case that was decided by Judge Riethmuller of the Federal Circuit Court late last week, Gill v Minister for Immigration and Border Protection (2018) FCCA 1726 (29 June 2018).

The background of the case was that the applicant was seeking a “Skilled (Residence)” visa, subclass 887.

He had previously held a Subclass 487 (Skilled – Regional Sponsored) visa.

One of the criteria for the grant of the Skilled Residence visa was that, at the time of application, the applicant must have lived in a specified regional area as the holder of a 487 visa for a period of at least 2 years.

Both the Department and the Tribunal received anonymous allegations to the effect that the applicant was not actually living in a regional area, but had in fact been living and working in Melbourne where he was employed in jobs where he was paid in cash.

The Tribunal did rely on this anonymously provided information as the basis for affirming the refusal of the applicant’s visa application.

The applicant sought judicial review of this decision in the Federal Circuit Court, where he claimed that it was legally unreasonable for the Tribunal to rely on anonymous allegations as evidence.

The Court accepted the applicant’s submissions, and overturned the Tribunal’s decision.

Judge Riethmuller reasoned that there is a significant difference between evidence given by an informant whose identity is disclosed to the decision-maker,  and evidence given by an informant who chooses not to provide her/his identity. 

In Judge Riethmuller’s view, it is possible where the informant provides her or his identity for the decision-maker to determine logically whether or not to accept the informant’s information based upon an assessment of the informer, whereas when the informer decided to keep her or his identity “secret”, then it is not possible to make an assessment of the informer’s reliability.

Judge Riethmuller also held that there is no difficulty with the Tribunal’s using information supplied by an anonymous informant as the basis for gathering further evidence.

Also, in Judge Riethmuller’s view, it is a different situation where the Tribunal reaches its findings independently of the anonymously provided evidence, before proceeding to consider whether it should also rely on the allegations made by an anonymous informant.

So, the important lesson from this case is that when the Tribunal relies entirely on the evidence of an anonymous informant as the basis for its decision, then the decision may be vulnerable to being challenged in court.