FEDERAL COURT OF AUSTRALIA

DFS16 v Minister for Home Affairs [2019] FCA 944

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant have leave to rely on his amended notice of appeal.

2.    The appeal be dismissed.

3.    The Appellant pay the First Respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

KERR J:

1    In this appeal, the dispositive issue is whether, for the purposes of the relevant provisions of the Migration Act 1958 (Cth) (Act), the term “information” has a meaning that is limited to a particular instance of its embodiment. The specific circumstance in which that question is raised involves whether the translation of a text from Tamil to English is “new information” for the purposes of Pt 7AA of the Act, or whether it is merely a different embodiment of the same information. The accuracy of the translation is not in dispute.

2    Text in a document can be scanned and sent by email. If so, when the document is scanned, the written text will be converted into a series of bits and bytes (for example 01101100). The data will be routed to a computer’s “address” where it can be reassembled at the receiver’s end (interpreted by way of universal protocols) into screen readable electronic text (pixels) or stored. A person who gets an email on his or her computer is able to forward the digital data he or she has received to a printer. By such means text can be reformatted back into hard copy.

3    Arguably, during those transitions any “information” embedded in the text remains constant throughout notwithstanding the different ways it is embodied and the fact that in its raw digital state it will be incapable of being understood. Does that also apply in respect of information conveyed in another language?

4    The question in this appeal arises in this way. The Appellant, DFS16, arrived by boat in Australia from Sri Lanka. He applied for a Safe Haven Enterprise (subclass 790) visa (SHEV) and advanced protection claims. A delegate of the First Respondent (Minister) refused the Appellant’s SHEV application on 5 August 2016. The decision of the Minister’s delegate was automatically referred to the Immigration Assessment Authority (Authority) for review pursuant to Pt 7AA of the Act.

5    Part of the material the Appellant had initially provided in support of his SHEV application was a document in Tamil. It is uncontentious that that document contained, in the Tamil language, “information” relevant to his SHEV application.

6    The delegate did not read Tamil. She dealt with DFS16’s application without considering the information embodied in the Tamil text.

7    The document, together with some other documents in Tamil that DFS16 had given the delegate, were provided to the Authority by the Secretary pursuant to s 473CB of the Act as a component of the review materials that had been before the delegate.

8    DFS16, by his then migration agent gave the Authority a NAATI accredited translation of the Tamil text of the document he had earlier wanted the delegate to take into account. I infer that he did so in anticipation that the Authority might also not speak or read Tamil. As noted, the accuracy of the translation is not in dispute.

9    The Authority was not permitted to consider “new information” supplied by DFS16 unless satisfied that there were exceptional circumstances warranting that course and the information was of a kind which met the tests provided for in s 473DD of the Act.

10    However, the Authority reasoned that the translation was not new information. At [5] it stated:

Attached to [DFS16’s] submission are English translations of some documents that are included in the review material. I do not consider the English translations are new information. The information in those documents was before the delegate in the original language. The English translations just allow me to comprehend the contents of those documents and better assess how much weight to place upon them.

The Authority proceeded on the basis that that information was lawfully before it.

11    Unfortunately from the Appellant’s perspective, his effort to make the information contained in the document comprehensible to the Authority backfired. Rather than the information conveyed in English being of assistance to him, it was cited and relied on by the Authority as one of several factors that led it to find that he lacked credibility. The Authority affirmed the delegate’s decision to refuse DFS16 the visa he had sought. A subsequent application for judicial review in the Federal Circuit Court of Australia (FCCA) was unsuccessful.

12    By way of a proposed ground of appeal, the Appellant contends that the translation he had provided to the Authority in English had been “new information” rather than a mere manifestation, albeit differently embodied, of the information he had earlier supplied to the Minister’s delegate. It was “new information” because the translation of a document from Tamil to English amounted to a “communication of knowledge about some particular fact”, being the meaning in English of the document. Because the Authority had considered the “new information” without concluding that there were exceptional circumstances and without subjecting it to the tests mandated by s 473DD of the Act, it had made its decision having regard to information that it was prohibited from taking into account. For that reason, the Authority had fallen into jurisdictional error. Its decision should therefore be set aside.

13    The Minister accepts, subject to materiality, that if the Authority had decided DFS16’s review having regard to information it had been prohibited from giving consideration to pursuant to s 473DD of the Act, such an error would go to the Authority’s jurisdiction. However, the Minister submits the Authority had been correct to conclude that the English translation was not “new information”. It was the same information as DFS16 had given to the delegate, albeit capable of comprehension by the Authority only in consequence of its translation from Tamil to English.

14    The resolution of that almost philosophical question, articulated as a legal issue, thus lies at the heart of this case.

The procedural history

15    As noted, following the Authority’s rejection of his fast-track review, DFS16 sought judicial review of that decision in the FCCA. His review grounds made no reference to the contention he now seeks to press. His application was dismissed.

16    The Appellant initially appealed to this Court on three grounds in which the asserted error again was not identified. However, when the matter came before the Court, Mr Jones of counsel sought leave to abandon DFS16’s grounds of appeal and rely exclusively on the proposed ground of appeal set out below at [21] of these reasons.

17    Leave to rely on a ground raised for the first time on appeal is not lightly to be granted: Coulton v Holcombe [1986] HCA 33; 162 CLR 1.

18    However, the Minister accepted that the new ground Mr Jones sought leave to rely on was one of law, that no factual findings in the Court below were in issue, and that the Minister would not be prejudiced if the Court was to grant leave. The Minister accepted that in those circumstances, the determinative question as to whether leave should be granted was the merit of the proposed ground.

19    The Minister made no objection to the Court hearing argument concurrently as to whether leave should be granted and, assuming leave were to be granted, whether the appeal should be upheld. The Court proceeded on that basis.

20    Having confirmed that the Appellant had given informed instructions that he wished to abandon the original grounds of appeal, he was given leave to do so.

The proposed ground of appeal

21    DFS16’s proposed ground of appeal is as follows:

1.     The Second Respondent (Authority) made a jurisdictional error by failing to treat particular information as “new information” and deciding whether or not to consider that information in accordance with s 473DC and s 473DD of the Migration Act 1958 (Cth) (Act).

    Particulars

a.     Section 473DC(2) of the Act provides that the Authority does not have a duty to accept new information.

b.     Section 473DD of the Act prohibits the Authority from considering new information unless the Authority is satisfied there are exceptional circumstances justifying such consideration and the Appellant satisfies the Authority that the new information either was not and could not have been provided to the Minister before the primary decision was made or is credible personal information not previously known and could have affected the Minister's consideration of the Appellant’s claims.

c.     In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (M174), Gageler. Keane and Nettle JJ held (at [24]) that “‘new information’ must be read consistently when used in ss 473DC, 473DD and 473DE of the Act as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event”;

d.     A failure by the Authority to treat material as new information, as explained in M174, could amount to a jurisdictional error so long as it was material to the Authority’s decision-making (Wehbe v Minister for Home Affairs [2018] HCA 50 at [23] per Edelman J). The test for materiality is ordinarily whether the absence of the error could have resulted in the making of a different decision (Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [31] per Kiefel CJ, Gageler and Keane JJ).

e.     The Authority at Appeal Book filed 10 January 2019 (AB) 182 [5] found that translations into English provided to the Authority on 19 September 2016 with respect to documents which had been before the Minister were not new information as they “just allow me to comprehend the contents of these documents and better assess how much weight to place upon them”.

f.     The Authority erred as the translations constituted a communication of knowledge about a particular subject, being the English meaning of a document in a foreign language. That information may have enabled the Authority to comprehend material already before the Minister. However, the Authority could not have comprehended that material without the additional communication constituted by the translation.

g.     As a result, the Authority failed to treat the translations as new information and admitted those translations without first observing s 473DD of the Act.

h.     The error of the Authority was jurisdictional as it had materiality because the Authority used the translations as a basis for concluding: that the original documentation was not genuine and the Appellant was not credible (AB 185 [14]).

The submissions

22    Mr Jones, counsel for the Appellant, acknowledges that in ABJ17 v Minister for Immigration and Border Protection [2018] FCA 950; 260 FCR 295 (ABJ17) Bromwich J had given considered reasons for rejecting a similar contention.

23    In ABJ17 his Honour had reasoned that:

22    … 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    Mr Jones submits that ABJ17 was plainly wrongly decided and should not be followed. He submits that Bromwich J had no, or insufficient regard for a considered statement of the High Court as expressed by Gageler, Keane and Nettle JJ, in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600 (M174). The statement Mr Jones relies on is at [24] in which their Honours stated:

The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event …

(Citation omitted.)

25    Mr Jones submits that:

M174 is not referred to by Bromwich J in ABJ17. It is true that his Honour refers to similar descriptions of the term information on two occasions (at [21] and [25]). However, his Honour does not appear to accept the point made by the Appellant before this Court. That is, a translation of a document amounts to a “communication of knowledge about some particular fact”, being the meaning in English of the document. There is nothing in M174 to suggest that their Honours intended their definition to be flexible or variable. Nor does it appear to be anything less than “seriously considered” obiter (Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89). It follows, therefore, that anything which falls within its terms and was not before the Delegate ought be considered new information. This includes a translation.

26    Mr Jones submits that when regard is had to the seriously considered obiter of the plurality in M174, the reasoning in ABJ17 cannot be sustained. For that reason, notwithstanding the respect due to the reasoning of another judge of this Court, I am entitled to, and should, decline to follow that decision.

27    On the Minister’s behalf, Ms Carr submits that there is nothing inconsistent with Bromwich J’s reasoning and that of the plurality in M174. There being no such inconsistency, ordinary principles of comity apply. ABJ17 provides a complete answer to the Appellant’s contentions.

28    Ms Carr characterises the Appellant’s submissions as “imploring a subjective assessment” of the information before the Authority. What was or was not information would depend on whether “the meaning of the documents is comprehended differently by the [Authority] to that of the delegate”. She submits that to construe the meaning of “information” as requiring such an assessment “misconstrues the plain language and meaning of s 473DC(1)”.

29    Ms Carr submits:

Subdivision C of Division 3 of Part 7AA, is directed towards information that was not before the delegate. So much is indicated by the inclusion of the word ‘new’. Therefore the assessment of what was before the delegate must be objective. Otherwise, to accept the appellant’s construction, before considering whether documents or information is ‘new information’ for the purpose of s 473DC(1), the IAA would need to assess the level of comprehension the delegate had of the material compared to its level of comprehension of the same material.

30    Thus, Ms Carr submits, the English translation of the text was merely a different manifestation of the information as had been originally expressed in Tamil in the (untranslated) document which ABJ17 had given the delegate. The “information” embedded in the Tamil text was unaltered notwithstanding that before the text was translated into English the Authority might not have been able to read or comprehend the Tamil text. Bromwich J had been correct to hold that an original document and an accurate translation of that document relevantly contained the same information.

Consideration

31    The circumstances in ABJ17 are directly analogous to those as arise in this appeal.

32    In support of his protection claims, ABJ17 provided a delegate of the Minister with a document containing text in a language other than English (Farsi). That document was not taken into account. His claims were rejected. His application was referred to the Authority pursuant to Pt 7AA of the Act for review. He gave the Authority an English translation of the document. The translation was relied upon by the Authority as part of its reasons for determining its review adversely to ABJ17. In subsequent judicial review proceedings ABJ17 contended that the Authority had erred in law when it had taken the English language translation into account because it had been prohibited from having regard to “new information”.

33    I am satisfied that the circumstances are relevantly indistinguishable. The ratio of ABJ17 would compel me, if I were bound to follow it, to hold that the Appellant must fail. However, as Mr Jones submits, I am not bound to follow a decision of a single judge of this Court; rather such a judgment is entitled to judicial comity.

34    In that regard, Mr Jones submits the correct approach for me to take is as was expressed by Lindgren J in Undershaft (No 1) Ltd v Federal Commissioner of Taxation [2009] FCA 41; 175 FCR 150 at [68]-[88]. The passages he cited commence as follows:

68    The notion of judicial comity raises interesting questions. I am not bound to follow Edmonds J in Virgin Holdings, it being a decision of co-ordinate authority. However, the answers to the following questions are not so obvious. In what circumstances, if at all, am I bound to accord influence to his Honour’s decision? Am I bound independently to reach my own conclusion? If so, and my conclusion does not accord with that of his Honour, by reference to what principles, if at all, am I at liberty to discard my own conclusion in favour of his Honour’s?

69    Before referring to the authorities, I will state my understanding of the role of considerations of judicial comity by reference to the task confronting me.

70    First, I must embark on my own independent consideration of the issues for decision with a view to reaching my own independent conclusion on them. The oath of judicial office requires me to do no less. If my own conclusion, independently reached, is consistent with his Honour’s, there is no scope for his decision to influence me beyond “fortifying” me in my conclusion.

71    Second, I must not follow his Honour should I reach the view that his Honour was “clearly” or “plainly” wrong.

72    Third, I may (not must) follow his Honour’s (supposedly inconsistent) decision once it is clear that that decision is not “plainly” or “clearly” wrong.

73    Fourth, accepting the strong desirability of certainty and stability in judicial decision-making in the administration of justice, I will in fact follow his Honour’s inconsistent decision unless I conclude that it was clearly or plainly wrong, or that for some other reason those same interests of justice demand that I adhere to my own conclusion in preference to his Honour’s supposedly erroneous one.

74    While the expression “clearly wrong” and “plainly wrong” may be open to criticism, they usefully remind the later judge of the interests of justice in consistency of decision-making in a system of which the individual judge is but a part. The “choice” to follow an earlier inconsistent decision of co-ordinate authority is, however, as a matter of law, discretionary and depends on the circumstances of a particular case. These will properly include considerations of the length of the period during which the earlier decision has stood, and whether it has been relied upon in the arrangement of human affairs.

35    I accept that the doctrine of comity does not relieve me of the necessity of considering the correctness or otherwise of the reasoning of Bromwich J in ABJ17. However, I am sceptical that my oath of judicial office requires me to proceed by way of the sequenced steps Lindgren J refers to.

36    In one of the cases cited by Lindgren J, Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 (Hicks), French J accepted (at [75]) that it was well established that a judge of this Court should follow an earlier decision of another judge of the Court unless of the view that the earlier decision was “plainly wrong”.

37    French J added (at [76]) that where questions of law and statutory construction are concerned, the proposition that a judge who had taken one view of the law or statute was “plainly wrong” was one not lightly to be advanced having regard to the choices that so often confront the courts, particularly in the area of statutory construction. His Honour did not say that a judge must state his or her own opinion before reaching a conclusion that another judge is not plainly wrong.

38    I am not persuaded, save in respect of an instance in which I were to be “convinced that the law and justice of the case require[d] a different decision” (R v Hookham (1993) 31 NSWLR 381 at 391 per Priestly JA) that it would be inconsistent with my judicial duty for me not to express a view as to the correctness or otherwise of the conclusions of another judge of this Court provided I am satisfied that the other decision is not plainly wrong. Any expression of my own views in such circumstances, while permissible, is unnecessary and perhaps an irrelevancy.

39    Whatever I might be inclined to say regarding how, uninfluenced by comity, I might have decided a matter, such reflections would appear to be hypothetical and of no consequence. The outcome is that I have followed that decision. The only remedy available to a disappointed litigant is to appeal to a forum not constrained by principles of comity.

40    In an exceptional case of the kind Priestly JA refers to, I would not follow such a decision even if I were to conclude it was not plainly wrong. In such a case it is self-evident that I would be required to explain my reasons for so concluding.

41    In the event Mr Jones did not advance any reason for the Court to conclude that the decision of Bromwich J in ABJ17 had been wrongly decided, save its asserted inconsistency with the reasoning of the plurality in M174.

42    The issue of comity does not arise in the ordinary sense in such circumstances. The plurality reasoning expressed the views of three members of a five-member Full Court of the High Court of Australia. If I were satisfied that a considered statement in the plurality decision of the High Court was inconsistent with the reasoning at first instance of a judge of this Court I ought to defer to the reasoning of the High Court.

43    I therefore turn to Mr Jones’ substantive proposition.

44    In M174 the plurality (Gageler, Keane and Nettle JJ) gave careful and detailed attention to the legislative scheme applying to the limited form of review provided for in Pt 7AA of the Act:

[7]     For the most part, the general scheme of Div 3 of Pt 2 of the Act applies to a valid application for a protection visa that is made by a fast track applicant in the same way as it applies to a valid application for any other visa made by any other applicant. Section 47 imposes a duty on the Minister to consider the application. Section 65 imposes a duty on the Minister to grant the visa if satisfied, relevantly, that the criteria prescribed for the visa have been met or to refuse to grant the visa if not so satisfied. Section 66 imposes a duty on the Minister to notify the applicant of the decision and, in the event that the decision is to refuse to grant the visa, to give the applicant written reasons as to why the Minister considers that any criterion for the grant of the visa is not met, In the case of a fast track reviewable decision, the notification is also required to state that the decision has been referred for review under Pt 7AA.

[8]     Within Div 3 of Pt 2, subdiv AB sets out a code of procedure which governs the Minister’s consideration of the application. The subdivision “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. The matters with which the subdivision deals include the requirement of s 54 that the Minister “must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application”, the requirement of s 55 that “[u]ntil the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision”, and the requirement of s 56 that “[i]n considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa”.

[9]     Section 57 is also located within subdiv AB. The section deals with “relevant information”. Section 57(1) defines that term, subject to an immaterial exclusion, to mean information that the Minister considers meets three conditions. The first condition is relevantly that the information “would be the reason, or part of the reason ... for refusing to grant a visa”. Whether or not that condition is met, it has been held in this Court in respect of a materially identical provision, “is to be determined in advance – and independently – of the [Minister’s] particular reasoning on the facts of the case”. For the condition to be met, it has again been held in this Court in respect of a materially identical provision, the information in question “should in its terms contain a ‘rejection, denial or undermining’ of the review applicant’s claim”. That is to say, the information must in its terms be of such significance as to lead the Minister to consider in advance of reasoning on the facts of the case that the information of itself “would”, as distinct from “might”, be the reason or part of the reason for refusing to grant the visa. The Court is not asked to reconsider that approach to the operation of the first condition in the present case.

[10]     The second condition that must be met for information to be relevant information as defined by s 57(1) is that the information “is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member”. The third condition is that the information “was not given by the applicant for the purpose of the application”.

…

[15]     Within Pt 7AA, Div 2 sets up a mechanism designed to result in automatic review of a fast track reviewable decision. Section 473CA imposes a duty on the Minister to refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made. Section 473CB imposes a duty on the Secretary to the Department that is administered by the Minister (“the Secretary”) to give the Authority specified “review material” in respect of each fast track reviewable decision that is referred by the Minister. The review material includes a statement that sets out the findings of fact made by the person who made the decision, refers to the evidence on which those findings were based, and gives reasons for the decision. Importantly, the review material also includes “material provided by the referred applicant to the person making the decision before the decision was made” and “any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”.

…

[22]     Within Div 3, s 473DB sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant. To that primary rule, subdiv C of Div 3 admits of exceptions. The principal provisions of subdiv C providing for those exceptions are contained in ss 473DC, 473DD and 473DE. Close attention needs to be paid to each of those provisions and to their interrelationship.

[23]     Section 473DC is concerned with when the Authority can “get”, in the sense of seek out, “new information”. The section is entirely facultative. It provides:

(1)     Subject to this Part, [the 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 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 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.”

[24]     The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.

[25]     There is no inherent dichotomy between new information which meets the two conditions set out in s 473DC(1)(a) and (b) and review material which the Secretary is required to give the Authority under s 473CB. That is because review material is not limited to information that was before the Minister or delegate at the time of making the decision to refuse to grant the protection visa.

[26]     In relation to information contained in review material given to the Authority by the Secretary that was before the Minister or delegate at the time of making the decision to refuse to grant the protection visa, s 473DA(2) makes clear that there is no general requirement for the Authority to give that material to the referred applicant. There is, however, nothing in Pt 7AA to preclude the Authority from giving the whole or some part of that material to the applicant or another person in the context of exercising the power conferred by s 473DC(3) to invite the giving of new information, and s 473DA(2) is not addressed to what might be required of the Authority in particular circumstances in order to exercise that power reasonably.

[27]     Information contained in review material given to the Authority by the Secretary that was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa will become new information if and when the Authority considers that the information may be relevant. The Authority will not need to invoke s 473DC in order to receive that new information. However, given that the Authority's obligation under s 473DB(1) to conduct its review by considering the review material is subject to Pt 7AA, the Authority will need to comply with s 473DD, and where applicable s 473DE, if the Authority is to take that new information into consideration.

[28]     Section 473DD imposes restrictions on when the Authority can consider new information. The section provides:

“For the purposes of making a decision in relation to a fast track reviewable decision, [the 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.”

[29]     The precondition set out in s 473DD(a) must always be met before the Authority can consider any new information. Whatever the source of new information, the Authority needs always to be satisfied that there are “exceptional circumstances” to justify considering it.

[30]     Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.

[31]     Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).

…

[36]     Two other provisions in Pt 7AA ought to be noted. Section 473FA(1) contains a general exhortation that, in carrying out its functions under the Act, the Authority “is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review)”. Section 473FB confers on the President of the Administrative Appeals Tribunal power to issue directions, not inconsistent with the Act and the regulations, as to the conduct of reviews by the Authority.

[37]     In the exercise of that power, the President on 16 September 2015 issued a direction entitled “Practice Direction for Applicants, Representatives and Authorised Recipients” (“the Practice Direction”). The Practice Direction states that a referred applicant may provide a written statement on why he or she disagrees with the decision of the Department under review and on any claim or matter that he or she presented to the Department that was overlooked.

[38]     Consistently with s 473DD, and adopting the grammatical form of addressing the referred applicant in the second person, the Practice Direction goes on to state:

“We can only consider new information (information that was not before the Department) in very limited circumstances as set out in section 473DD of the Migration Act. We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department.

If you want to give us new information, you must also provide an explanation as to why:

•    the information could not have been given to the Department before the decision was made, or

•    the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known.”

(Citations omitted.)

45    The Appellant’s case turns on his contention that Bromwich J gave no or insufficient attention to the terms of [24] of the above reasoning.

46    Mr Jones properly acknowledges that Bromwich J did refer to the meaning of “information” and “new information” in language broadly consistent with their Honour’s formulation on two occasions: at [21] and [25] of his Honour’s reasons. The most significant instance is at [21] where his Honour adopted a submission pressed on behalf of the Minister in that appeal as follows:

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.

47    Notwithstanding, Mr Jones submits that those passages do not not appear to accept the point made by the Appellant before this Court. That is, a translation of a document amounts to a “communication of knowledge about some particular fact”, being the meaning in English of the document.

48    That of course assumes that the point made by the Appellant is a necessary consequence of the reasoning of the plurality in the passage he relies upon. But is that so?

49    It is not inconsistent with the duty of a lower court to give effect to any “seriously considered” obiter of the High Court to examine the context in which a particular passage is found to apprehend its effect.

50    The passage at [24] of the plurality’s reasons in M174 contains a footnote reference to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214 (SZEEU) per Allsop J (as he then was) at 259 [205]. There, his Honour observed:

Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event: The Complete Oxford English Dictionary (2nd ed, 1991). In this context, the word has been taken as referring 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], approved in VAF at [24] or knowledge which has come to, or been gained by, the Tribunal: Paul at [95].

51    That paragraph is followed immediately by Allsop J’s conclusion at [206] that the term “information” as appears in s 424A of the Act did not encompass the then Refugee Review Tribunal’s subjective “appraisals, thought processes or determinations”.

52    In the context of the plurality’s footnoting of Allsop J’s reasoning, I am unpersuaded that what their Honours stated at [24] was intended to do more than to ensure that the meaning of “new information” as found in ss 473DC, 473DD and 473DE must be understood as limited in that sense. It excludes the subjective appraisals, thought processes and determinations of the Authority.

53    Unless the Authority’s appraisals, thought processes and determinations are excluded from the meaning of “new information”, the Authority would be required to provide particulars to a review applicant of any adverse conclusion it may have formed about that applicant in the course of it undertaking its review pursuant to s 473DE.

54    Prior to M174, it may not have been self-evident that that limitation had been imported as an aspect of the new Pt 7AA scheme. The limitation is important.

55    Of course, Allsop J’s remarks in SZEEU were made in the context of Pt 7 of the Act, but I take the plurality’s reference in M174 to those remarks to accept that the language carries a common meaning across Pt 7 and Pt 7AA of the Act.

56    Mr Jones submits there is nothing in M174 to suggest that their Honours “intended their definition to be flexible or variable” but that submission does not grapple with the possibility, having regard to the footnote to [24], that the definitional task being undertaken by the plurality had been confined to ensuring that “new information” would be understood as not extending to the thought processes of a member constituting the Authority.

57    There is nothing in the reasoning of the plurality (or that of Allsop J in the decision their Honours footnoted) to suggest that what constitutes information should be understood as contingent on the Tribunal’s capacity to apprehend it. At least in so far as the reasoning of Allsop J is concerned, the opposite is so. Such a construction would import into the word something requiring subjective appraisal. That is what his Honour expressly disavowed at [206]. The language used by his Honour at [205] is entirely consistent with there being an objective test: information includes something “told” to the Tribunal and knowledge of relevant facts “received by” the Tribunal. For something to be information, it must be at least potentially comprehensible but there is no super-added test that it be actually comprehended.

58    I do not construe his Honour’s holding at [261] dealing with the results of inquiries made by the Tribunal on the internet to suggest otherwise. In SZEEU, the Full Court dealt with a number of associated appeals in the same proceeding. One was commenced by SZEOP, who had said that he had posted photographs of himself on the internet which revealed his homosexuality. The Tribunal had examined the photographs and concluded they revealed no such thing. Allsop J reasoned the photographs were “information”. Because the photographs had formed part of the reason for the Tribunal’s adverse decision, they were covered by s 424A(3)(b) of the Act such that the appellant should have been given an opportunity to comment on them.

59    In holding that the photographs were not covered by s 424A(3)(b), his Honour must be taken to have held that the general reference by the appellant to his having posted photographs on the internet did not amount to his having given the Tribunal the “information” conveyed by the photographs as relied on by it.

60    It must be accepted, in so far as that reasoning applies to the present proceeding, that Allsop J would have concluded that the photographs, in the hands of the Tribunal, were “new information”.

61    But the analogy necessary for Mr Jones’ argument to succeed breaks down at that point.

62    Assume that SZEOP had made an identical claim that he had posted photographs on the internet which revealed his homosexuality. Assume that, instead of making that general assertion, SZEOP had given the Tribunal a USB flash drive (or a data file) asserting that it contained screenshots of those photographs. Assume the Tribunal had electronically reconstituted the data file into photographs it had relied upon.

63    On a plain reading of s 424A(3)(b), the digital data would be information he gave for the purpose of his application for review. It would be his evidence of what he asserted he had posted on the internet. It would be information relevant to his application for review.

64    I apprehend nothing in Allsop J’s reasoning to suggest, in those circumstances, his Honour would have held that s 424A(3)(b) would not apply to that information, assuming the Tribunal, in order to understand the information the applicant had submitted, later caused the data (the information he had given it) be embodied in a form comprehensible to it (as photographs). Those photographs would convey the same information the applicant had given it – originally in bits and bytes – albeit differently manifested.

65    Mr Jones submits that in ARJ17, Bromwich J did not appear to accept the point that is now made by the Appellant before this Court. That is, a translation of a document amounts to a “communication of knowledge about some particular fact”, being the meaning in English of the document.

66    In some other circumstances, that are presently unnecessary to decide, that might be a plausible contention. However, in the specific facts of this appeal it may be doubted that it is.

67    In oral argument, Mr Jones accepted that the document in Tamil which was submitted by the Appellant as part of his case before the Minister’s delegate would have been “information” had the delegate been capable of reading Tamil.

68    As the plurality in M174 observed at [8], a delegate of the Minister “must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application”.

69    It may be arguable that in the present circumstances, the Minister’s delegate failed to comply with that obligation, but as the ratio of M174 establishes, any failure procedurally at an earlier stage will not invalidate the jurisdiction of the Authority to review a decision “in fact made”.

70    The Secretary gave the document in Tamil, conveying that information, to the Authority pursuant to s 473CB as part of the “material provided by the referred applicant to the person making the decision before the decision was made”.

71    Thereafter the applicant took it upon himself to provide the Authority with an accredited translation of that document into English. He did so. The applicant does not contend, and has never contended, that that translation was inaccurate in any respect.

72    Mr Jones’ submission that the Authority received that translation as a “communication of knowledge about some particular fact”, being the meaning in English of the document, might be thought to import a degree of artificiality to the analysis.

73    On one view, all that occurred was that DFS16, then thinking it to be in his interests to do so, provided the Authority with the means to enable it (accurately) to comprehend “information” he himself had earlier put before the delegate. The position would appear to be indistinguishable from that as would apply had the delegate failed to open an encrypted document and had therefore ignored it, but later the applicant had provided the Authority with the technical means of de-encrypting it. Despite its different embodiment, it would be the same information. In such a circumstance, s 473DC is not engaged; there never would have been a provision of any “new information”.

74    Such reasoning would be consistent with Bromwich J’s analysis in ABJ17 at [22]:

… 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 …” 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.

75    I earlier have concluded that an available reading of what the plurality stated at [24] in M174 is that their Honours intended no more than to ensure that the meaning of “new information” as found in ss 473DC, 473DD and 473DE was to be understood as limited in that it would exclude the subjective appraisals, thought processes and determinations of the Authority.

76    Once that is accepted, there would appear to be no basis to conclude that the reasoning of Bromwich J in ABJ17 is plainly wrong.

77    Mr Jones advances no other reason save as he asserts is necessitated by the plurality’s reasons in M174 for such a technical reading to be preferred over the purposeful construction as adopted by his Honour.

78    If I am incorrect in my reasoning that a judge is obliged not to reach a conclusion that another judge’s reasoning is not plainly wrong without first stating their own view as to the correctness or otherwise of that judge’s reasoning, I should indicate that I would reach the same decision as did his Honour. I am not persuaded that what the plurality stated at [24] in M174 must be read as if it were a dictionary definition of “information”. In the context of that passage as a whole, including their Honours’ footnoted reference to Allsop J’s reasoning in SZEEU, the reading I refer to at [60]-[62] as being available, appears to me more likely to have been that which the plurality intended. It concerned the subject matter of the information, not the manner in which the information was manifested. Having reached that conclusion, I would adopt what was stated by Bromwich J at [22] that s 473DC(1) of the Act “must be read in a substantive and practical way and as part of a unified scheme, not in an unduly technical way.”

79    It was because the three scripts on the Rosetta Stone conveyed the same “information” that the ancient Greek hieroglyphs finally came to be understood.

80    I would dismiss the appeal.

81    However, I reject Ms Carr’s submission that the proposition advanced by Mr Jones was without merit. Mr Jones was entitled to raise whether the reasoning of the plurality in M174 required a different answer to be given to the question that had been addressed in ABJ17. That reasoning had not been put squarely in issue in ABJ17. The Court would grant the Appellant leave to rely on his single proposed ground but, having regard to the reasons as set out above, reject the contention advanced.

82    I record that, on the assumption that I am in substantive error, I would not have refused relief for want of the asserted error’s materiality. The information in the translated letter DFS16 had given the Authority was held by it to contain provable falsehoods. The Authority referred to that as having undermined DFS16’s credit generally. In such a circumstance, it is impossible to reason backwards, assuming that that information should not have been before the IAA, to a conclusion that in the absence of his credit being so undermined the Authority necessarily would have reasoned to the conclusion it ultimately reached: Pharikan v Minister for Home Affairs [2019] FCA 49.

Disposition

83    I make the following orders:

(1)    The Appellant have leave to rely on his amended notice of appeal.

(2)    The appeal be dismissed.

(3)    The Appellant pay the First Respondent’s costs as agreed or assessed.

Associate:

Dated:    20 June 2019