By Lorenzo Boccabella, Barrister-at-law and specialist in migration law
In Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2026] FedCFamC2G 160, the court found that the tribunal failed to ‘properly assess’ the dob-in information.
In this particular case the dob-in information was produced to the court. The Court noted:
17.Exhibit 2 [the dob-in information] records what was claimed by an anonymous caller. On the face of Exhibit 2, reservations as to the reliability and truth of the information provided were recorded. Yet the Tribunal was prepared to accept the information as being more likely to be true than not where a contrary inference was equally open to the Tribunal.
The Tribunal had stated in its reasons:
“This suggests strongly to the Tribunal that the dob-in given to the Department is likely correct: that is, he has two partners, one is his ex-wife, his “real partner” as alleged, and the other is the applicant, who is romantically engaged with the sponsor, but not as his exclusive partner and not for the long term. It bears emphasis that to satisfy the Act, the relationship must be exclusive of others.”
The dob-in information therefore formed part of the tribunal’s ‘pathway of reasoning’.
The submission put to the court was as follows:
Paragraph 11 of [the] affidavit [exhibiting the dob-in material] records that the person who received the information determined that “reliability cannot be judged” and “truth cannot be judged”. Further the accent of the person who gave the information is ‘not known’ and the person would not identify him or herself nor would he or she provide contact details. Another officer reviewed the record 2 days later and possibly made changes but we don’t know what those changes were (if any). For reasons which are unknown, the Minster will not reveal whether the person who made the call was male or female and we don’t know how long the call was. No hand written notes were made and no audio recording was made (as confirmed in the affidavit of Ms ….).
The transcript of the tribunal hearing disclosed that it was clear the tribunal itself was influenced by the contents of the dob-in information without showing any indication of having assessed the quality of the material – see the transcript at page 30:
HH: I have that letter here. It says, on 8 December 2016, the department received information. That alleged she was not in a genuine relationship with your sponsor.
01:46:16
HH: The source alleged your sponsor resides with his genuine partner in Brisbane and that you reside in Bundaberg. So you can understand, I hope why this might be important. If you are living in Bundaberg, he’s in Brisbane. But you’re saying you live in Brisbane? It may be a sign that you are not in a genuine relationship.
It turns out the letter was merely the delegate’s original decision. The delegate decision stated:
“The Department received information that alleged you were not in a genuine relationship with your sponsor. The source alleged that your sponsor resides with his genuine partner in Brisbane and that you reside in Bundaberg.”
The delegate did not say that the ‘dob-in’ information was doubtful.
The AAT made the decision without seeing the original dob-in report!
The Court ultimately found as follows:
18.The Court accepts the submission made on behalf of the applicant that the unverified dob-in information “poisoned the well”. [emphasis added].
19.The Court does not accept the submissions made on behalf of the first respondent. The Tribunal misinterpreted or misunderstood the nature of the evidence before it. It should not have found that the dob-in information was likely true.
20.The error on the part of the Tribunal was jurisdictional in nature. Had the Tribunal properly assessed the evidence it could reasonably have arrived at a different decision. The error was material.
The applicant had relied upon what the High Court said in the judgement of Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [24] – [25] where it was said:
24 Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25 It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
Basically the tribunal had failed to properly evaluate the ‘dob-in’ material.
In a separate case, in Khaira v Minister for Home Affairs (No 3) [2021] FCCA 687 (8 April 2021) the court ordered that the dob-in information be disclosed to the applicant, there being no case for public interest immunity.
The Minister often argues that the disclosure of the dob-in information will expose the departments intelligence gathering methods.
The website of Home Affairs discloses how it all works – see https://www.homeaffairs.gov.au/help-and-support/departmental-forms/online-forms/border-watch
Plus there is a link to a dob-in number to call – see https://www.homeaffairs.gov.au/about-us/what-we-do/borderwatch/reporting/information-protection-statement
Once it is established that the Department of Home Affairs publishes how it’s dob-in system works, it can hardly be a state secret to keep dob-in information secret!
The end result is that dob-in information is often unreliable, a failure of a delegate or tribunal to properly evaluate that information would lead to jurisdictional error.