Were the photographs "new information"?
30 Part 7AA of the Act, which provides for a fast track review of decisions in which a delegate of the Minister has refused to grant a protection visa, has been examined by the High Court in detail on a number of occasions: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at 225-232 [13]-[38]; BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 373 ALR 196 at 198-201 [3]-[17]; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 375 ALR 47 at 48-50 [2]-[8]; Minister for Immigration and Border Protection v CED16 [2020] HCA 24; 380 ALR 216 at 222-223 [21]-[24] and 224 [30]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 383 ALR 407; AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 384 ALR 196 at 197-200 [2]-[13]; Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212; and DVO16 v Minister for Immigration and Border Protection [2021] HCA 12.
31 The IAA when conducting its review is engaged in a de novo consideration of the merits of the decision that has been referred to it: Plaintiff M174/2016 264 CLR at 226 [17]. The "simplified outline" to Part 7AA, contained in s 473BA, states that the IAA is "required 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)": see also s 473FA. It describes the review as "on the papers": see also s 473DB(1) which precludes the IAA from accepting or requesting new information or interviewing a referred applicant. The limitation in s 473DB(1) is, however, expressed to be "subject to" the remainder of Part 7AA, which leaves some room for the IAA to "fashion its procedure" in a given review: Plaintiff M174/2016 264 CLR at 235-236 [49]. The IAA may depart from s 473DB(1) when the terms of s 473DC and s 473DD are met.
32 The statutory regime is premised on the IAA examining the same information that was before the Minister: ABT17 383 ALR at 410 [8]. In this respect, s 473CB requires the Secretary to provide to the IAA all material provided by the referred applicant to the delegate (as 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 to be relevant to the review.
33 "New information" is defined in s 473DC(1) (dealing with "getting" new information) as documents or information that were not before the Minister when the Minister made the decision under s 65 and the IAA considers may be relevant. The information will be relevant if it is capable of rationally affecting the IAA's assessment of the probability of the existence of some fact about which the IAA might be required to make a finding in determining afresh whether or not to be satisfied that the criteria for the grant of a protection visa have been met: CED16 380 ALR at 222 [23] and ABT17 383 ALR at 410 [9]. Under s 473DD, the IAA must not consider any new information unless the IAA is satisfied that there are exceptional circumstances to justify considering it and the applicant satisfies the IAA that the new information was not, and could not have been, provided to the Minister or is credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant's claims. For a discussion of the principles concerning s 473DD and the meaning of "exceptional circumstances", see the recent Full Court decision of ELQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 27 at [5]-[14] and the High Court decision of AUS17 384 ALR at 197-200 [2]-[12].
34 Justices Gageler, Keane and Nettle addressed the meaning of "new information" in Plaintiff M174/2016 264 CLR at 228 [24]-[25]:
[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.
(Emphasis added and footnotes omitted.)
35 The plurality in Plaintiff M174/2016 264 CLR at 228 [24] referred to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214 at 259 [205], in which I stated:
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 has been gained by, the Tribunal: Paul at [95].
36 At 264 CLR 229 [27], in the context of the paragraphs cited above, the plurality in Plaintiff M174/2016 stated:
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.
37 It is important to note that Part 7AA distinguishes between the statutory concepts of "information" (specifically, "new information") and "review material": see in this respect the recent Full Court decision of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 [2021] FCAFC 58 at [53]-[63] and High Court decision of DVO16 [2021] HCA 12 at [15]. As Kerr and Mortimer JJ noted in AWT19 at [54], s 473CB refers to "review material" in the sense of the form in which information has come to be embedded or stored. In contrast, the term "information" is used in a deliberately open-ended context. The information is "new information" because it is new to the consideration of the visa application; the information does not need to be chronologically new, as the definition in s 473DC makes plain: AWT19 at [60]. Note, however, that in CED16 380 ALR at 222 [21], the majority applied the holding in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at 440 [28] concerning the same terminology in Part 7 of the Act to Part 7AA to conclude that "the term information in the context of [Div 3] cannot sensibly be read as extending beyond knowledge of facts or circumstances relating to material or documentation of an evidentiary nature".
38 In the recent decision of ABT17, the High Court considered the circumstances in which the IAA could and should exercise its power to get and consider new information under ss 473DC and 473DD. The majority held that the IAA's power to invite an applicant to an interview is subject to an implied condition of reasonableness, and this reasonableness condition can compel the IAA to exercise the powers at its disposal to get and consider new information in order to supplement the review material so as to place itself in as good a position to assess credibility as had been the delegate. In coming to this conclusion, the majority identified the potential for what it referred to as an "informational gap". This "informational gap" arose from the absence of a requirement on a delegate to record information acquired from an applicant in a prescribed way: see ABT17 383 ALR at 410-411 [10]-[12]. The majority stated at 411-412 [13]-[16]:
[13] However, the potential for a record of an interview conducted in accordance with the Code of Procedure to take a variety of forms creates potential for an informational gap to arise in the review material where an interview with the referred applicant has been conducted by the delegate in person and has been audio recorded but not video recorded. Provision of the audio recording as part of the review material will then not put the Authority in the position of having and being able to examine for itself the totality of the information available to the delegate and required by the Code of Procedure to be considered by the delegate when making the referred decision. Missing from the review material will be a visual impression of how the referred applicant appeared during the interview - his or her demeanour.
[14] An informational gap of that nature has potential to impact on the Authority's assessment of the credibility of the account given by the referred applicant during the audio recorded interview and in turn has potential to impact on the Authority's assessment of the referred applicant's overall credibility. "Impressions formed by a decision-maker from the demeanour of an interviewee may be an important aspect of the information available to the decision-maker." That has "long been recognised" and continues to be appreciated despite awareness on the part of sophisticated decision-makers that "an ounce of intrinsic merit or demerit" measured by reference to objectively established facts and the apparent logic of events "is worth pounds of demeanour".
[15] The potential significance of demeanour is illustrated by the present case. Here, as will be seen, the Authority was troubled by a concern that the appellant's evidence in his audio recorded interview with the delegate was generally lacking detail and at times vague and hesitant. An interview was the obvious means by which the Authority might seek to resolve these matters of concern, given that the Authority was evidently not convinced by the country information alone to uphold the delegate's ultimate decision, however "plausible" the appellant's account of his personal circumstances might be. At an interview the Authority could seek answers in relation to those aspects of the appellant's evidence that troubled the Authority by raising questions which had not previously been raised with the appellant. The Authority could thus develop an informed impression of the credibility of the appellant based on his responses to such questions and an observation of his demeanour. The appellant's responses and the demeanour of the appellant inextricably associated with them would be new information relevant to his personal circumstances.
[16] There can be no doubt that the powers of the Authority to get and consider new information enable the Authority to bridge such an informational gap by inviting the referred applicant to a further interview to be conducted in person or by video link in order to assess and consider his or her demeanour for itself. The Authority's own visual impression of the referred applicant's appearance during such an interview would necessarily constitute new information within the power of the Authority to get because it would communicate knowledge of an evidentiary nature which would be open to be considered by the Authority to have the potential to bear on the Authority's assessment of the referred applicant's credibility and which was not before the Minister when the delegate made the referred decision. The new information so got by the Authority would then meet the preconditions to its consideration by the Authority on the basis that it was not and could not have been before the Minister when the delegate made the referred decision and on the basis of the Authority's satisfaction that the existence of any informational gap is sufficiently aberrant within the scheme of de novo review for which Pt 7AA provides to make existence of the informational gap in the particular review alone enough to constitute "exceptional circumstances" justifying its consideration irrespective of how frequently such an informational gap might arise in practice.
(Emphasis added and footnotes omitted.)
39 As the Full Court noted in AWT19 at [67], the approach taken by the majority in ABT17 (with Nettle, Gordon and Edelman JJ in dissent on this point) indicates that the concept of "new information" is to be construed relatively literally. Drawing upon the majority's statement at 412 [16] of ABT17, Kerr and Mortimer JJ stated at [67] that the way a narrative told to the delegate is then told to the IAA can be "new information". The reality that the topics within the narrative may have been relayed to the delegate will not prevent the telling of the narrative to a new decision maker being "new information" in circumstances where the new decision maker can see and hear a person. As I explained at [3] of AWT19:
… Parliament is not to be taken to have created a procedure whereby the character of "new information" is to be denied because it can be logically deduced (proof by comparative experience being impossible by reason of the loss of the recording) that some of the words used before the delegate will be repeated before the Authority or that most of the words used (as translated) by the applicant at the interview will be on the same subjects discussed earlier with the delegate. Such logical strictness (perhaps pedantry) is not demanded by the language of Part 7AA. The procedure under Part 7AA is supposed to be an efficient, but fair, way of reviewing material and information given to a delegate and available to the Secretary. Recognising the true nature of translation (DVO16 at [4]-[8]), and even assuming English may be the language of an applicant, to deny the ability to remedy an informational gap by denying the character of newness to an entirely fresh oral recounting of events on subjects, because there has been an earlier oral recounting about the same subjects (the record of which has been lost), and thereby create either procedural gridlock or an interference with or an undermining of fair efficacy of the procedure, is not demanded by the words of Part 7AA.
40 In AWT19, the Full Court held (at [51]) that where a recording of the applicant's interview with the delegate is not available or where for some different reason there is an "informational gap", then the question for the IAA is whether it is necessary for the purposes of the discharge of its review task to remedy the "informational gap".
41 In the present case, an "informational gap" was necessarily created when the appellant showed the delegate his scarring in the SHEV interview and the delegate (although acting conformably with Div 3 of Part 2 and the Code of Procedure) did not record that information, preventing some record of the information from forming part of the review material provided to the IAA by the Secretary. As the Full Court said in AWT19, it is then a decision for the IAA as to what to do about that informational gap. This will depend upon whether the IAA thinks it is necessary for the purposes of the discharge of its review task to remedy the informational gap and if so how. AWT19 and the cases cited at [49] of that decision demonstrate that much will depend on the centrality of the informational gap to the particular review being undertaken by the IAA. In ABT17, the visual appearance of the applicant, including his mannerisms and demeanour, was central to the credibility findings of the delegate and this meant that the IAA was obliged to invite the applicant for an interview to cure that informational gap by allowing the IAA to see for itself the applicant's demeanour and appearance.
42 Here, it is unnecessary to determine whether the IAA would have been obliged to invite the appellant to an interview to cure the informational gap because the appellant himself proffered that information in the form of photographs attached to his submissions.
43 On the majority's construction of "new information" in ABT17, the information contained in those photographs was necessarily "new information" in the sense that it was not before the delegate at the time the delegate made his or her decision. Whilst the topic of the information conveyed in the photographs was a topic covered in the interview with the delegate, namely the scarring to the appellant's body, the facts, knowledge or opinions conveyed or communicated about that topic were not the same. For example, and as the Minister submitted, the information conveyed by a three dimensional, in-person inspection of the scarring, in the particular conditions of the room in which the interview was conducted, was necessarily different to the information about the scarring conveyed by two-dimensional photographs of the appellant taken in a home setting on an unspecified date.
44 The Federal Circuit Court judge concluded that the scarring as depicted in the appellant's photographs was clearly visible, and his Honour inferred that they were "the same as, or not materially different to, the scarring earlier shown to and described by the applicant to the delegate". It is not in question that the photographs are of the appellant's body. It should be noted, however, that the areas of the appellant's body shown in the photographs do not accurately match the areas that the appellant in his affidavit identified as being shown to the delegate. It is somewhat difficult to determine what areas of the appellant's body are shown in the photographs, but the photographs appear to depict the appellant's head, elbows, torso and both legs and feet.
45 As explained above, the appellant in his affidavit stated that he showed the delegate his head, face, right foot and leg, and left and right hands. The relevant part of the transcript, which was relied upon by the Federal Circuit Court judge in the portion of his Honour's reasons which dealt with this issue, set out at [5] above, suggests that the appellant showed the delegate scarring to his head. There is no indication in the affidavit evidence nor transcript that the appellant showed the delegate scarring to his torso, elbows, left leg and left foot. It is difficult to accept the Federal Circuit Court judge's conclusion that the scarring shown in all of the photographs was the "same as, or not materially different to, the scarring earlier shown to and described by the applicant to the delegate" in circumstances where the appellant says he showed different areas of his body, and thus different scars, to the delegate compared to those portrayed in the photographs.
46 The scarring shown in at least some of the photographs could not have been in substance the same scarring shown to the delegate in person because it was on different areas of the appellant's body. This distinction is important in circumstances where the appellant has submitted in this Court that the materiality of the scarring, or its probative strength, is in the sheer number of scars and the consistency of the scarring across his body, including the depth and age of the scars. It was the cumulative effect of the scarring that the appellant placed reliance on in his submissions to assert that the scarring was corroborative evidence of a car bomb attack.
47 Based on the appellant's account of the areas of his body that he says he showed to the delegate and the SHEV interview transcript, the photographs of the scarring to the appellant's torso, elbows, left leg and left foot constitute new information for the purposes of s 473DC and s 473DD. In addition to the analysis set out above concerning all of the photographs, this provides an additional basis to conclude that, to the extent the Federal Circuit Court judge found that these photographs were not new information, this finding was in error.
48 The appellant submitted that a conclusion that the photographs were not new information would be consistent with previous decisions of this Court. The appellant referred to the decision of Bromwich J in ABJ17 v Minister for Immigration and Border Protection [2018] FCA 950; 260 FCR 295, which was cited by the Federal Circuit Court judge. In ABJ17, the appellant had provided the IAA with an English translation of a court document from Iran. While the translation was given to the IAA, only the original, untranslated copy of the document had been given to the delegate. The IAA determined that the information contained in the translated document was information that was before the delegate at the time of making the decision under review and, thus, the IAA determined that the translated court document did not constitute "new information" for the purpose of s 473DC. The IAA then proceeded on the basis that it was not required to satisfy the requirements of s 473DD before considering the translated document. In concluding that the translated document was not new information under s 473DC, Bromwich J made the following comments at 260 FCR 304-305 [21]-[23]:
[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) 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 Pt 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.
49 In DFS16 v Minister for Home Affairs [2019] FCA 944; 166 ALD 410, the appellant had initially provided in support of his visa application a document in Tamil, which was provided to the IAA as part of the review material pursuant to s 473CB. The appellant then gave an accredited English translation of the Tamil document to the IAA. The IAA had reasoned that the translation was not new information. The appellant in DFS16 submitted that the decision of Bromwich J in ABJ17 was plainly wrong and inconsistent with the statement of the plurality in Plaintiff M174/2016 264 CLR at 228 [24], set out above at [34], because a translation of a document amounts to a "communication of knowledge about some particular fact". Justice Kerr held that Bromwich J's conclusion was not "plainly wrong", nor was it inconsistent with the plurality's decision in Plaintiff M174/2016 because there was "nothing in the reasoning of the plurality … to suggest that what constitutes information should be understood as contingent on the Tribunal's capacity to apprehend it": DFS16 166 ALD at 423 [57]. At 166 ALD 424 [70]-[74], Kerr J stated:
[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] …
50 In indicating his agreement with the conclusion Bromwich J, Kerr J stated at 166 ALD 425 [78]:
… 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."
51 The decisions of ABJ17 and DFS16 must now be examined in the light of the High Court's reasons in DVO16 [2021] HCA 12 at [4]-[6] where the majority said the following about the nature of translation in the context of Part 7AA review:
[4] The function of translation in a curial or administrative setting is interpretation of communications as accurately and completely as possible. The process of interpretation involves comprehension of words spoken or written in a source language, conversion to a target language, and delivery in a manner faithful both to the content of the words and to the register and style of the speaker or writer. That, at least, is the ideal.
[5] Long past is the time when an interpreter might have been thought to be appropriately described as a "translating machine" or "bilingual transmitter" performing a function "not different in principle from that which in another case an electrical instrument might fulfil in overcoming the barrier of distance". More accurate is to conceive of an interpreter as a "bilingual mediating agent between monolingual communication participants in two different language communities" and to recognise that "total equivalence" between words spoken or written in a source language and words translated into a target language is a "chimera". Translation is not a "simple word-matching exercise" but "a difficult and sophisticated art" which, "[t]o be done well", "requires not only linguistic sophistication and sensitivity to 'minor' linguistic details (which may be correlated with vast differences in conceptualization), but also an intimate knowledge of the cultures associated with the language in question, of the social and political organization of the relevant countries, and of the world-views and life styles reflected in the linguistic structure".
[6] Professor Wigmore noted the "peculiarity" of language that "the most perfect system of signs, the most richly developed language, leads only to a partial comprehension ... whose degree of completeness depends upon the nature of the subject treated, and the acquaintance of the hearer with the mental and moral character of the speaker". Imperfections in communication arising out of mistranslation of words spoken or written in one language into another language are inherent in the human condition, as are imperfections in communication arising out of misuse or misunderstanding of words spoken or written in a common language. "Perfect interpretations" simply "do not exist".
(Footnotes omitted.)
See also the reasons of Edelman J at [51]-[53].
52 These expressions of the matter by the High Court in the above passage reflect what was said by Wigney J in BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 565 at [98], where his Honour considered the correctness of the decisions of ABJ17 and DFS16, stating:
The finding that a document in Farsi, Kurdish, or any other language conveys or communicates the same information or knowledge as an English translation is, with respect to their Honours, highly questionable, at least where the recipient of the document cannot read the relevant language and makes no attempt to do so. To such a person, the untranslated document conveys very little, if any, information or knowledge. It amounts to just a series of symbols on a page. The fact that the recipient could have, if he or she had chosen to do so, use a translation dictionary to decipher those symbols and glean some meaningful information from the document seems beside the point. That is so particularly in circumstances where that was not done. It is difficult to see how, in such circumstances, the substance of the information in the untranslated document could be said to have relevantly been "before" that person. As desirable as it might be for the Authority to be able to consider a translated version of a document that was before the delegate, it is difficult to accept that the translation is not new information and that the Authority would, in those circumstances, be subject to the constraints in s 473DD.
53 It is strictly unnecessary for the resolution of this appeal for me to decide the correctness or otherwise of ABJ17 and DFS16. I would only add my view that the question may not be whether an earlier decision of a single judge on appeal is "plainly wrong" but whether out of comity it should be followed. If I were required to come to a decision, however, I would, with respect, agree with the remarks of Wigney J at [98] of his Honour's reasons in BVC20, particularly in the light of the High Court's comments in DVO16.
54 During the course of the hearing of this appeal, I raised with counsel for the Minister whether the IAA had statutory authority to consider the information communicated by the photographs if I were to find that it was not new information, in circumstances where the photographs themselves were not before the delegate but the object of the photographs, being the scarring, had been shown to the delegate in person, and the photographs were not material forwarded to the IAA by the Secretary. Counsel for the Minister submitted that the IAA would not have statutory authority to consider the information conveyed by the photographs at all if it was not deemed to be "new information", but this was not a basis upon which the Minister sought to have the appeal dismissed. Consistent with the Minister's submission, it appears that the IAA would not have authority to consider the photographs if they did not contain "new information" but were also not included in the "review material" provided by the Secretary, even if the requirements in ss 473DD (pertaining to when the IAA can consider new information) were satisfied. In the context of a legislative scheme for de novo review in which the IAA "has and examines for itself the same information that was before the Minister": ABT17 383 ALR at 410 [8], this anomaly fortifies my conclusion as to the meaning of "new information" in ss 473DC and 473DD.
55 It is to be noted that this issue was not squarely addressed by the Court in ABJ17 and DFS16. In those cases, the IAA proceeded on the basis that it was considering the untranslated document, which formed part of the review material. According to the IAA, the English translation simply allowed it to better comprehend the content of the untranslated document. Such an approach is questionable in the light of the High Court's comments on translation and interpretation in DVO16 and the clear distinction between "review material" and "information" elucidated by the High Court in DVO16 at [15] and the Full Court in AWT19.
56 For these reasons the Minister's notice of contention should succeed. I do not consider that the IAA erred in finding that the photographs were new information. It was then open to the IAA to conclude that there were no exceptional circumstances to consider the information because the photographs were of little probative weight in circumstances where the IAA accepted the appellant had scarring. The photographs only conveyed this information and did not assist in establishing how the scarring was incurred.