FEDERAL COURT OF AUSTRALIA

ABJ17 v Minister for Immigration and Border Protection [2018] FCA 950

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia on 8 June 2017. His Honour dismissed an application for judicial review of a decision of the Immigration Assessment Authority. The Authority had, on 29 November 2016, affirmed a decision of a delegate of the first respondent, then known as the Minister for Immigration and Border Protection, now the Minister for Home Affairs, to refuse the grant of a particular type of protection visa known as a Safe Haven Enterprise (subclass 790) visa (SHEV) to the appellant.

2    Part 7AA of the Migration Act 1958 (Cth) provides limited “fast track” merits review by the Authority for certain protection visa applicants who arrived by boat in a limited window between mid-August 2012 and the end of 2013. The scheme of Pt 7AA is described in some detail in Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136. As canvassed in AMA16, the Authority does not have the power to grant protection visas, but only either to affirm the delegate’s decision or to refer the case back to the Minister’s Department for further consideration, for example, after making a finding that a visa applicant was a refugee: see s 473CC. The Authority’s review process is ordinarily confined to the material that was before the delegate and is conducted on those papers: s 473DB.

3    While the Authority may obtain any additional document or information that was not before the Minister (and thus the delegate) that it considers relevant, it has no duty to do so: s 473DC(1) and (2). Such additional documents or information are defined in that provision as “new information”. By reason of s 473DC(3), the Authority may also invite anyone to give new information. However, s 473DD provides that the Authority must not consider any new information, however provided, unless several mandatory conditions are met.

4    Most challenges to the Authority’s decisions involving the concept of “new information” concern a refusal by the Authority to have regard to such information. This case is different. It concerns a decision to treat a document as not being new information, and therefore the decision by the Authority to have regard to it without it meeting the statutory hurdles in s 473DD.

5    The document in question in this case was provided to the Authority by the appellant shortly before it had made its decision. It is an English translation of what is ostensibly a court document from Iran. While the translation was given to the Authority, only the original, untranslated copy of the document had been given to the delegate. The live issue in this appeal is whether the translation constitutes “new information” for the purposes of s 473DC(1) of the Migration Act insofar as it is now said by the appellant to constitute a document or information that was not before the delegate. That, in turn, raises the question of whether the word “information” in s 473DC(1) should have the same meaning as in ss 424 and 424A(1) of the Migration Act. Advancing that construction, the appellant submits that the translation constitutes “evidentiary material” or “knowledge communicated or received concerning some fact or circumstance” that was not before the delegate.

6    A curious, though not determinative, feature of this appeal is that the appellant’s case before the primary judge and this Court involves a refutation of the position he advanced before the Authority. That is, he now contends that the Authority was wrong to accept his submission that the translation document was not new information. The appellant was unsuccessful in this argument before the primary judge. He has therefore appealed to this Court.

Factual and procedural background

7    The Minister agreed with the summary of the factual and procedural background contained in the appellant’s written submissions. In light of that agreement, it is convenient to reproduce that summary as follows (omitting appeal book references; quotes in italics):

Factual and Procedural Background

2.    The appellant is a national of Iran of Azari Turk ethnicity. He was born on 16 March 1990 and arrived in Australia on 20 December 2012 as an unauthorised maritime arrival. He has been held in closed detention since his arrival, although it is unclear whether all this time was spent in immigration detention. He is presently detained on Christmas Island.

3.    On 20 April 2016 the appellant was informed the respondent Minister had lifted the s 46A bar.

4.    On 22 June 2016 the appellant lodged an application for a Safe Haven Enterprise visa (SHEV). The application was accompanied by a statement in which the appellant claimed that summonses had been sent to his address in Iran. The statement attached a translation of a “Court Ruling” of the “Tehran Islamic Revolutionary Court” dated after the appellant’s departure from Iran by which that Court sentenced the appellant to “10 years of discretionary imprisonment”. The appellant claimed in his statement that his parents obtained the Court documents from the family of [Activist], the co-accused mentioned in the Court Ruling.

5.    On 18 July 2016 the appellant’s advisors (the Refugee Advice and Casework Service (RACS)) provided written submissions in support of the application. The submissions referred to the appellant’s claim of ‘being summonsed and likely sentenced in absentia’.

6.    On 25 June 2016 the appellant attended an interview with a delegate of the Minister in relation to his application for a SHEV visa.

7.    On 5 September 2016 the appellant provided an untranslated document to his Departmental Case Manager who forwarded a black and white copy of it by email to the delegate with the information: “It is not translated but (the appellant) informed me it is a slip that requested him to appear in court in Iran”. On the same day the Case Manager also emailed RACS a copy of the document. These emails are reproduced in the Supplementary Court Book.

8.    On 7 September 2016 the delegate refused to grant the visa. The delegate found the appellant had not provided any evidence of summons issued by the courts, “in particular the court summons he claims that was issued for him following his departure to Australia”.

9.    The delegate’s decision records that: “On 5 September 2016, the appellant's Case Manager forwarded a scanned copy of an untranslated "court slip" as requested by the appellant. As the document is an untranslated photocopy and holds no visible security features, I have not afforded it any weight in this assessment.”

10.    On 27 September 2016 RACS sent an email to the respondent Immigration Assessment Authority (the Authority) including the following description of its attachments:

1.    Authority

2.    Submissions

3.    Email from DIBP to RACS

4.    Attachment to email

5.    Colour copy of Attachment

6.    Translation of Attachment.

[The attachments 3-5 were reproduced in a Supplementary Court Book.]

11.    The RACS submissions attached as item 2 to the email are also dated 27 September 2016. The Submissions include the following:

“In the findings, the Delegate referred to a “court slip” forwarded to the Department by the Applicant’s CIIDC Case Manager on 5 September 2016, two days before the date of the Findings. However the Delegate afforded it no weight in the assessment due to the lack of a translation and “no visible security features”. As this document was forwarded to RACS on the same date (see email at Attachment) RACS was unable to obtain an official translation before the date of the Findings however we now provide this document to the IAA (see official translation at Attachment). We submit that this should not be considered new information as we understand the original document is already before the IAA and is referred to by the Delegate.”

12.    In its submissions in relation to the delegate’s findings of a lack of security features on the ‘court slip’ RACS also submitted that the colour copy of this document demonstrated more features than a black and white copy.

13.    The Authority did not enter into any correspondence with the appellant or his advisors after the email of 27 September 2016. The Authority did not conduct an interview with the appellant.

14.    By decision dated 29 November 2016 the Authority affirmed the delegate’s decision.

Appellant’s claims

15.    The appellant claimed he faced a real risk of persecution upon return to Iran:

•    As a young man who had an anti-regime political profile who would be perceived as pro-Western because of his participation in anti-government activities in Iran, for his expression of anti-government opinions and tattoos, and as one sentenced in absentia to 10 years imprisonment for his political activities;

•    As an apostate because of his conversion to Christianity;

•    As a returned failed asylum seeker from Australia, exacerbated by the DIBP data breach.

16.    All grounds of review relate to the appellant’s claim of his anti-government activities for which he claimed he was sentenced in absentia to prison for 10 years. These claims concerned the appellant’s association with the [Activist] whom the appellant claimed to have met at a 2009 protest in Tehran surrounding the Presidential elections.

17.    The appellant claimed that after he had completed his military service he renewed his association with [Activist] and agreed to help him with his activism, including by setting up a workspace in his father’s mattress factory where [Activist] and the appellant held meetings and prepared and printed flyers which the appellant distributed outside the university on his motorbike.

18.    The appellant claimed that Ettelat arrested [Activist] and his father at the workshop and that his father only was released approximately two days later. Believing that he had been accused of being an activist with [Activist], the appellant fled Iran for Australia six days after [Activist]’s arrest. As indicated above, the appellant claimed that summonses were sent to his address.

Legislative scheme

8    The provisions of the Migration Act that are relevant to this appeal are as follows:

473DC    Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

473DD    Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

Before the Authority

9    As noted in the summary reproduced above, on 27 September 2017, the appellant’s representatives sent an email to the Authority, attaching a five-page submission and an English translation of a “court slip”. The original, untranslated “slip” in Farsi had been given to the delegate prior to her decision having been made under s 65 of the Migration Act. The explanation given on behalf of the appellant to the delegate was that it was a “slip that requested him to appear in court in Iran”. The document was relevant to the appellant’s claims that he had been pursued by the authorities for anti-government activities.

10    In its decision of 29 November 2017, the Authority recorded its determination that the translation of the “court slip” did not constitute “new information” for the purposes of s 473DC. That finding was explained at [5] as follows:

Attached to the submission was a translation of a document previously provided to the delegate. An explanation of the document was provided when the document was submitted prior to the delegate’s decision. I therefore do not consider the translation to be new information and I have considered it.

11    In substance, the Authority accepted that the information contained in the translation of the document was information that was before the delegate of the Minister at the time of making the decision under review. The Authority therefore proceeded on the basis that its consideration of the document was not constrained by s 473DC(1)(a) and did not require its satisfaction of the matters in s 473DD.

12    For various reasons, the Authority ultimately did not accept that the “court slip” was genuine, and relied upon the translation of the document to undermine several of the appellant’s claims.

Before the primary judge

13    It was the appellant’s case before the primary judge that, contrary to the finding made by the Authority (and contrary to the appellant’s position before the Authority), the English translation was “new information” according to the test in s 473DC(1). This was based on the assertion that neither the translation document, nor the information it communicated to the Authority, was before the delegate. The primary judge summarised the appellant’s submissions on this point at [25] to [35] of his Honour’s reasons. At [35], his Honour accepted that the Authority’s determination on this issue was a mix of fact and law, and not merely one of fact.

14    At [36], the primary judge concluded that the Authority did not err:

In my view, the Authority did not fall into error in accepting the translated document. The question in this case is not whether the Authority’s reasons for accepting the applicant’s submission, that the English translation of the document before the delegate in the Farsi language was not new information, were good or bad. The question is whether the Authority’s finding that the English translation was not new information was right or wrong. I am firmly of the view that a faithful English translation of a document that was before the delegate in a foreign language is not new information for the purposes of s.473DC(1). In that regard, I accept the Minister’s submissions as follows.

15    The primary judge’s reasons in support of that conclusion, at [37] to [44], may be summarised as follows:

(1)    Contrary to the appellant’s submissions before his Honour, the English translation contained information, being evidentiary material, that was before the delegate and was the same as that contained in the original document. The English translation was merely in a different language, making it comprehensible, but did not add to the information in the original. The translation rendered the information intelligible without altering its content.

(2)    The appellant’s construction could lead to very harsh outcomes for a protection visa applicant referred to the Authority. His Honour pointed out, by way of example, that an applicant might provide a document in a foreign language that contains information so cogent and important to claims for protection that, if accepted, would result in the grant of a visa. The delegate might consider the document, but place no weight upon it because it was in a foreign language. If, on review, the Authority were then given a translation of the same document, on the appellant’s construction, the Authority would not only be precluded from having regard to the translated copy without first determining whether it met the requirements of s 473DD, but would also likely find that the document fell afoul of s 473DD(b) because it comprised credible personal information which was previously known and, in the absence of extenuating circumstances, could have been provided to the delegate. If the visa applicant could have provided a translated copy to the delegate but did not do so, he or she would then be prevented from a positive decision on the review.

(3)    The original document, which was a document containing certain information, had been given to the delegate prior to a decision being made on the appellant’s visa application, and was therefore before that delegate. Only the form of the document was different because it was in a foreign language, which was not of any relevant consequence for the purposes of s 473DC(1). His Honour observed that the word “document” in s 473DC(1) needed to be given a sensible construction in line with its ordinary meaning, reflecting its use as an ordinary English word. It could not merely be a reference to a piece of paper or some other format devoid of content. Rather, it was to be taken to refer to “something written … which provides evidence or information or serves as a record”, citing a dictionary definition. If that were not so, a duplicate or reproduction in a new format of a document that had been before the Minister that was given to the authority would be characterised as new information even though it had also formed part of the review material. That outcome, his Honour considered, would be absurd, but could be the consequence of the appellant’s construction of s 473DC(1) being adopted. There was no difference in substance between that scenario and the present.

(4)    The appellant’s representatives provided to the Authority a reproduction in colour of the original document, implicitly observing that, on the appellant’s argument, that would be a new document as well, with the enhanced intelligibility being by reason of a better reproduction rather than a translation.

(5)    The original document was given to the authority by the Secretary of the Minister’s Department pursuant to s 473CB(1). It formed part of the review material and was considered by the Authority in accordance with its duty under s 473DB(1). Were it not for the fact that the information in the original document had been translated into English, the Authority, like the delegate, may not have given any weight to it. However, the English translation permitted the Authority to understand the document already provided and to place some weight on it. There was no good reason why the Authority’s references to the document should be treated as anything other than references to the original document, which, in light of the English translation, had been rendered comprehensible. On that view, all the Authority did was have regard to a document that comprised a part of the review material, as it was obliged to do by s 473DB(1).

(6)    To the extent that the Authority’s reasons for treating the document as not being new information had any relevance, and contrary to the appellant’s submissions before his Honour, it was not correct to say that the basis for the Authority’s finding that the translation was not new information was that an explanation of the document was provided when it was submitted prior to the delegate’s decision. The basis for the Authority’s finding was not only that an explanation of the original document had been given by an officer of the Minister’s Department, but also that the original document had already been provided to the delegate. His Honour was of the view that it did not matter that the explanation given by the Authority was not on all fours with, or as detailed as, the explanation given by the appellant’s representatives in producing the English translation. What mattered was that the original document had been given to the delegate before her decision was made under s 65 of the Migration Act. That alone was sufficient to support the Authority’s decision to treat the English translation as not constituting new information.

The appeal

16    The appellant relies upon an amended notice of appeal in the following terms:

1.    His Honour erred in finding at [36] that an English translation of a document that was before the delegate in a foreign language was not ‘new information’ for the purposes of s 473DC(1) of the Migration Act 1958 (the Act).

Particulars

i.    The appellant contends the word ‘information’ in s 473DC(1) should have the same meaning it has in ss 424A(1) and 424 of the Act being ‘knowledge of relevant facts or circumstances communicated to or received by’ the decision maker: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3].

ii.    The appellant contends the English translation of the Summons was ‘new information’ because the translation imparted knowledge of facts and circumstances to the second respondent which had not been known or communicated to the delegate by the untranslated Summons.

iii.    Further or in the alternative, the appellant contends the English translation was a document which was not before the minister when the Minister made the decision under section 65 of the Act.

17    The appellant contends that the primary judge was wrong to treat the English translation document as the same “in substance” as the document before the delegate, an approach which he says would defeat the purpose of a limited review on the papers and avoid the natural justice safeguards that the scheme otherwise applies to the consideration of “new information”. He submits that the statutory elaboration in s 473DC(1) of “new information” to include “documents” in addition to “information” is intended to forbid adducing on the review further documentary evidence of a claim or matter that would amount to “information” which had already been before the delegate. He submits that his characterisation of the translation document accords with that legislative intention. Moreover, he submits that the knowledge conveyed by the translation was not before the delegate. He submits that it could not be sensibly maintained that the translation document was a duplicate of the original document; they must be taken to be two separate and distinct documents if the word “document” is to have any meaning at all.

18    The Minister submits that the primary judge was correct to hold that the English translation of the summons did not comprise “new information” for the purposes of s 473DC(1). He submits that although the original summons and the translated summons were, in a physical sense, two separate pieces of paper, the original document containing certain information was given to the delegate prior to a decision being made on his protection visa application and was therefore before that delegate. The Minister submits that it was of no moment for the purposes of s 473DC(1) that the form of the two documents may have been different insofar as the translation was in English while the original was in Farsi, because the word “document” needed to be given a sensible construction. The Minister submits that, as the primary judge observed by reference to his submissions below, a “document” cannot merely be a reference to a piece of paper devoid of content. If that were the case, then an exact duplicate of a document before a delegate which is subsequently given to the Authority would comprise new information. The Parliament could not have intended that. Rather, the word “document” must refer, as the primary judge observed by reference to a dictionary definition, “something written … which provides evidence or information or serves as a record”. It is said that the English translation added nothing material by way of additional evidence or information to the original, but simply rendered it intelligible to those who, like the reviewer constituting the Authority for the purposes of the review, conduct reviews in the English language.

19    The Minister submits that it is important to note that the original summons that the appellant had given to the delegate was provided to the Authority by the Secretary of the Minister’s Department pursuant to s 473CB(1). As such, it formed part of the review material and was considered by the Authority in accordance with its duty in s 473DB(1). Were it not for the translation, the Authority, like the delegate, may not have given any weight to it. However, the English translation permitted the Authority to understand, and place weight upon, the document that had already been given to it by the Secretary. Thus, the Minister argues, the primary judge was correct to hold that the Authority’s references to the summons should be taken to be references to the original summons seen in light of the translation. On this view, the Authority merely had regard to a document that comprised part of the “review material” in accordance with its statutory duty.

20    The Minister submits that, in any case, on the appellant’s own construction of the word “document” in his written submissions, namely, “further documentary evidence of a claim or matter which would amount to ‘information’ which had already been before the delegate”, the translated summons would not meet that description because it did not contain “further documentary evidence” of a claim or matter before the delegate.

21    The Minister further submits that the English translation of the summons comprised “information” as that word is understood in s 473DC(1), that is “evidentiary material” or “knowledge communicated or received concerning some fact or circumstance” that was before the delegate when the original decision was made, citing, respectively, SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190 at [18] and Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [53]. The Minister submits that, objectively, the original and translated document communicated the same information and both the delegate and the Authority received the same information. It is said that the original summons was not able to be comprehended by the delegate solely due to her inability to comprehend Farsi. However, that lack of comprehension did not change the nature or content of the information communicated by the document or received by the relevant decision-maker.

22    The Minister’s submissions must be accepted and preferred to those for the appellant. It should be observed that the appellant’s submissions were advanced on a somewhat bifurcated basis, with it being contended separately that the translation was neither a “document” nor “information” that had been before the delegate. For present purposes at least, I do not consider it to be sound to treat the reference in s 473DC(1) to “documents” and to “information” as having any meaningful difference in application to the translation document; rather, the terms reflect only that “new information”, as it is globally defined, may be manifested differently, but the focus of the provision remains on confining the review to the substance of what was before the delegate unless quite stringent criteria are met. This is the entire purpose of the scheme for review in Part 7AA. The phrase “documents or information (new information)” in s 473DC(1) must be read in a substantive and practical way and as part of a unified scheme, not in an unduly technical way.

23    The focus must therefore be on the substance, and not the form, of what was before the delegate. A faithful translation of a document that was before the delegate, no differently to an improved copy of a document that was otherwise difficult to read, does not engage the concept of being “new” in the sense which the phrase “documents or information (new information)” conveys. The requirement is that the document, in the sense of the information it conveys, or the information itself, be new, and not that its capacity to be comprehended or understood is new. In this case, the information in the original summons was before the delegate, but in Farsi. Had the delegate, by chance, been able to read Farsi, no translation would have been necessary. Had the delegate decided to use a Farsi-English dictionary, no translation would have been necessary, although such process may not have been very reliable or accurate. The provision of the English translation achieves the same practical purpose, but to a higher standard that is more likely to accord with the original in terms of the information conveyed and able to be comprehended. A change in comprehension is not a change in the information to which that comprehension applies.

24    The appellant’s alternative argument is made by reference to judicial construction of the term “information” as it is used elsewhere in the Migration Act. The appellant submits that this understanding of “information” as referring to the conveyance of knowledge to a decision-maker means that it cannot be maintained either that:

(1)    the translation was before the Minister pursuant to s 473DC(1)(a) merely because it was a faithful translation of a document that was before the delegate; or

(2)    the substance of the evidentiary material in translation was the same as that contained in the original document, with this substance merely being made comprehensible.

25    In substance, this is a submission that regard should be had to the use of the word “information” elsewhere in the Migration Act in the event that success is not achieved by reference to context alone. As to the judicial understanding of “information” that is sought to be applied to Division 3 of Part 7AA, the appellant relies upon VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; 236 FCR 549, where the following was said at [24(ii)]:

… the word “information” in s 424A(1) has the same meaning as in s 424: Win [(2001) 105 FCR 212] at [20]; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win at [19]-[22] …

26    The appellant submits that this Court should prefer a construction of “information” in s 473DC(1) that is consistent with the use of that word elsewhere in the Migration Act in relation to the merits review of decisions refusing applications for protection visas, relying upon Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].

27    While it is not strictly necessary to decide on any theoretical impact that the meaning given to “information” in s 424 or 424A might have on the meaning of that word as it is used in Division 3 of Part 7AA, it may be observed that the context in which the word “information” is deployed in the former is sufficiently different so as to have little general application to the latter, at least in the present circumstances. Nothing more definitive is required for this case. There may be other circumstances in which the jurisprudence developed on the meaning of “information” in ss 424 or 424A may have greater utility in considering its meaning in Division 3 of Part 7AA. However, whatever meaning may have been given to “information” elsewhere in the Migration Act, it does not assist the appellant in this case.

28    The appellant submits that the wide and exhaustive statement of the natural justice hearing rule in s 473DA(1) in relation to reviews by the Authority, unlike the narrower qualification in s 422B of the Migration Act “in relation to the matters it deals with”, means that there is not the same scope for the operation of common law principles of natural justice as there is in reviews by the Administrative Appeals Tribunal under Part 7 of the Migration Act. While the appellant did not contend that the Authority was subject to the kind of procedural fairness obligations described in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 in relation to its findings based upon the English translation document, the statutory limitations on the operation of the rules of natural justice are said to be, together with the construction of “new information” contended for by him, congruent with the purpose of the fast track scheme to provide for only very limited review on the papers, save for the exercise of discretion in exceptional circumstances, where it nonetheless is required to be exercised reasonably, citing Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [26], [29], [63], [88] and [94].

29    This further argument for the appellant does not advance his case, especially in light of the conclusions already reached. As the Minister correctly points out, it is not necessary for this Court to resolve the appellant’s submissions going to procedural fairness as reshaped by the Migration Act because, the Authority having proceeded on the basis that the translated summons did not comprise new information, this did not affect the exercise of any of its duties in Division 3 of Part 7AA, including its disclosure obligation in s 473BE(1). While that provision requires the Authority to give a referred applicant particulars of new information that is adverse which has been, or will be, considered, and to invite comment, it does not have a wider application than s 424A(1), with that duty being expressed in more limited terms insofar as it applies only in respect of new information. That argument has particular cogency in this case because the translated document emanated from the appellant and the substance of his objection is that instead of helping him, it was of no assistance at all, and, as it turned out in an immaterial way, hurt his case by the reasoning deployed by the Authority.

30    The appellant notes the primary judge’s reliance on the very harsh outcomes of the construction of s 473DC(1) contended by him, but denies that those outcomes foreclose his construction. He submits that the expression “previously known” in s 473DD(b)(ii) should be read as previously known by the decision-maker, reflecting the subsection’s concern with how the information might have affected consideration of the visa applicant’s claims. In any event, the appellant submits that if his contentions are correct in law, he should not be judged as responsible for any of the harsh outcomes that might result, as he was not the author of the legislation. In response, the Minister submits that the primary judge made no error in holding that the appellant’s construction might produce very harsh outcomes, relying on the illustration provided by the primary judge. The Minister also submits that, in circumstances where the appellant’s notice of appeal takes issue only with the primary judge’s construction of s 473DC(1), it is not necessary for this Court to determine the meaning to be given to the words “previously known” in s 473DD(b)(ii) of the Migration Act. That is a separate and complex question of statutory construction which should await a case in which it properly arises for determination and in which the Court has received the benefit of a full argument.

31    Again, the Minister’s submissions should be accepted. An important aspect of statutory construction is that a court, when faced with a choice between an interpretation that will advance the evident objectives of a statutory scheme without absurdity or unlikely hardship, and one that might well be productive of either, will strive to give effect to the former if the language deployed by the legislature permits such an outcome. Thus this argument for the Minister bolsters and reinforces the conclusion already reached. Beyond that, it is not necessary to address the question of what the expression “previously known” in s 473DD(b)(ii) is referring to.

32    The appellant submits that if, upon remittal, a differently constituted Authority were satisfied of the matters in s 473DD and considered the “new information” of the English translation, he would then have the benefit of the procedural fairness safeguards in s 473DE, which have a wider application than s 424A and do not exclude “new information” provided by an applicant as does s 424A(3). The Minister counters by pointing out, correctly, that it is wrong to say that s 473DE(1) does not exclude “new information” provided by an applicant. That is because s 473DE(3)(c) provides that the Authority’s disclosure obligation in s 473DE(1) does not apply to new information of a kind that is prescribed by regulation for the purposes of that paragraph. Regulation 4.41 of the Migration Regulations 1994 (Cth) prescribes, for the purpose of s 473DE(3)(c), that s 473DE does not apply to new information “given to the … Authority by a referred applicant for the purposes of the Authority’s review of the fast track reviewable decision in relation to the review referred applicant”. Thus, although of no practical moment, the appellant would not have had the benefit of the procedural fairness safeguards in s 473DE had the translated summons been treated by the Authority as new information.

33    The appellant submits that neither the untranslated document nor the explanation given to the delegate conveyed anything like the same information to the delegate as the English translation did to the Authority. The Minister submits in response that it was not correct to say that the basis for the Authority’s finding was that an explanation of the document was provided when the document was submitted prior to the delegate’s decision. The basis for the Authority’s finding was not so limited and also included the fact that the original summons had already been provided to the delegate. Reinforcing what the primary judge found, the Minister submits that it did not matter that the explanation was not as detailed as that which was given in the English translation when the fact that the original document was given to the delegate before the decision was made under s 65 was, alone, sufficient to empower the Authority to treat the English translation as not constituting new information.

34    The Minister puts the argument another way: the reasons given by the Authority for finding that a piece of information is or is not “new information” as defined cannot be determinative of the objective question of whether the English translation comprised information or a document that was not before the Minister when the original decision was made. The Minister submits that if there is a contest as to whether or not such a document does or does not comprise new information, that is a matter for this Court to resolve and the primary judge was correct to reach that conclusion. The short point is that whatever legal error the Authority might have made in the nature of explaining or understanding why the translation was not new information, that is only material if that error was, or in some material way contributed to, jurisdictional error. The Minister submits that while it does not appear that the Authority did err on this point as the appellant contends, even if it did, that is of no moment once the correct basis for characterising the translation has been ascertained.

35    The Minister also submits in the alternative that even if this Court were to hold that the Authority misconstrued or misunderstood s 473DC(1), the result cannot be a jurisdictional error in the circumstances of this case. Any breach by the Authority of that provision and any failure to assess the information of the translated summons against the requirements of s 473DD did not depart from the limits upon the exercise of decision-making power in s 473CC(2)(a), citing Craig v South Australia (1995) 184 CLR 163 at 179, Muin v Refugee Review Tribunal [2002] HCA 30; 190 ALR 601 at [21], [45]-[48], [174]-[183], Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [82], Re Minister for Immigration and Multicultural and Indigenous affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 at [57], and Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [66]-[67]. The Minister submits that any breach of the statutory requirements that did occur (contrary to his primary argument) was immaterial because any concerns that the Authority may have had in relation to the authenticity of the summons had nothing to do with its concerns relating to the court ruling dated 13 June 2013; whether the appellant had been detained by the Intelligence Police in 2011 and interrogated, tortured and released within one week as claimed; whether the appellant was involved with the activist as claimed; or whether the appellant’s father was arrested in a raid on his manufacturing plant. The Authority’s finding, at [44], that it did not accept that a genuine summons was issued for the appellant to attend court in Iran on 5 December 2012 did not affect its conclusions because it had separately found that the court ruling, being a document that assumed that the appellant had been summoned to attend court, was not genuine. Accordingly, even if the Authority made an error of law, which was not conceded by the Minister, it was either an error within jurisdiction, or an error which was not operative.

36    It is not necessary to finally decide the issue of error within jurisdiction or of non-operative jurisdictional error in light of the conclusions that have already been reached. However, it seems clear enough that even if the error that the appellant relies were to have been established, it would most likely either have been an error within jurisdiction, rather than an error going to the exercise of jurisdiction and thereby possibly constituting jurisdictional error, or have been an error which had no material bearing on the outcome so as to be inoperative. However, it is not desirable to make any final decision on either point. Both concern an issue that does not arise. Moreover, the High Court is revisiting the question of when a jurisdictional error will, or will not, be operative: see Shrestha v Minister for Immigration and Border Protection [2017] FCAFC 69; 251 FCR 143 and Shrestha v Minister for Immigration and Border Protection [2017] HCATrans 179.

37    As none of the arguments that the appellant relies upon can be accepted, his appeal must fail on all grounds.

Conclusion

38    The appeal must be dismissed with costs.

Associate:

Dated:    22 June 2018