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.