Exercise of the s 473DC discretion to get the photograph
90 The main issue in relation to the exercise of the s 473DC discretion to get the photograph is whether the photograph was, or could conceivably have been considered to be, "new information" as defined in subs 473DC(1). If it was not new information, it was not open to the Authority to exercise its discretion to get the photograph.
91 There is no doubt that during the interview the appellant showed the delegate a digital image or version of the photograph which was stored on his phone. For the reasons given in the context of the s 473CB ground, that amounted to providing the delegate with the information depicted in the image, or communicating knowledge about the facts revealed by that image. That information or knowledge concerned the scarring or injury to the appellant's hand depicted in the photograph and, more importantly, was relevantly "before the Minister" or the delegate for the purposes of subs 473DC(1)(a). It must follow that it was not open to the Authority to exercise its discretion to get the same information. The Authority therefore could not ask the appellant, or anyone else, to provide it with the digital image. That is so even though the Authority did not have that image before it because it had not been provided it by the Secretary pursuant to subs 473CB(1)(b).
92 There is, however, a potential issue as to whether it would have been open to the Authority to exercise its discretion to get a print of the photograph. The issue arises because subs 473DC(1) defines "new information" as being "documents or information" that meets the two conditions set out in subparagraphs (a) and (b). Something may be information even if it is not recorded in a document: Plaintiff M174/2016 at [24] (per Gageler, Keane and Nettle JJ). For the reasons just given, "information", in the form of the digital image, was before the delegate. A "document" in the form of a hard copy or print of the photograph was not. A document includes a photograph: s 2B of the Acts Interpretation Act 1901 (Cth). Was it therefore open to the Authority to get a copy of that document by exercising its discretion under subs 473DC(1)?
93 The answer to that question, on balance, is "no". That is essentially because the information depicted in, or the knowledge of facts conveyed by, the digital image is, for all intents and purposes, the same as that depicted in or conveyed by any hard copy or print of the photograph.
94 In ABJ17 v Minister for Immigration and Border Protection (2018) 260 FCR 295; FCA 950, a visa applicant had provided a delegate of the Minister with an untranslated copy of a "court slip" which was in Farsi. The delegate apparently could not speak, read, or write Farsi, but nevertheless gave the document no weight for various reasons. The delegate's decision to refuse the visa application was referred to the Authority. The applicant gave the Authority an English translation of the court slip. The Authority received and considered the translation on the basis that it was not new information for the purposes of s 473DD. The applicant argued in subsequent judicial review proceedings that the Authority was wrong to do so because the translation was in fact new information. That argument was rejected at first instance and on appeal.
95 Bromwich J considered that there was no "meaningful difference" between the words "documents" and "information" in the global definition of "new information" in subs 473DC(1); rather, "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": ABJ17 at [22] (emphasis in original). His Honour held, in that context, that the information in the untranslated Farsi document was in substance the same as the information in the translation. His Honour said (at [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.
(Emphasis in original.)
96 Bromwich J's finding in ABJ17 was followed by Kerr J in DFS16 v Minister for Home Affairs (2019) 166 ALD 410; FCA 944. Kerr J was not persuaded that Bromwich J's reasoning or conclusion was plainly wrong. Indeed, his Honour indicated (at [78]) that he would have reached the same conclusion as Bromwich J. Kerr J expressed the view (at [57]) that for "something to be information, it must be at least potentially comprehensible but there is no super-added test that it be actually comprehended".
97 Similarly in BKX18 v Minister for Home Affairs [2020] FCA 432, Logan J held (at [61]), in the context of documents that were translated from Kurdish to English after the delegate's decision, that he was not persuaded that the views expressed by Bromwich J were clearly wrong.
98 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.
99 Nevertheless, the reasoning in those cases does appear to have some application in this case, whatever may be the correct position in relation to untranslated versus translated documents. That is because there could be little doubt that the information or knowledge conveyed by the digital image which was shown to the delegate was in substance the same as the information or knowledge that was, or would have been, conveyed by a hard copy or print of that image. The appellant submitted that the "digital file" and the printed photograph were not "equivalent information". That was said to be because digital files contain a "wealth of information that is not reproduced on paper", including "the date of the file's creation or manipulation". The difficulty for the appellant, however, is that the delegate was only shown the digital image. The delegate was not shown any of the other digital information that may have been in the digital file.
100 It is, in those circumstances, difficult to see how it would have been open to the Authority to exercise its discretion to get a copy of the hard copy photograph from the appellant. That is because the photograph contained, in substance, the same information as the digital version of the photograph which was shown to the delegate. It would not constitute or comprise "new information" for the purposes of s 473DC because it was, in substance, the same as the information which was before the delegate.
101 It should also perhaps be added that, even if a print of the photograph could be said to be "new information", it is difficult to see how the Authority could have considered it in any event. That is because there could be little doubt that a print of the photograph could have been provided to the Minister before the Minister, or his delegate, made the decision under s 65 of the Migration Act. In those circumstances, the referred applicant would not have been able, in any event, to persuade the Authority that the print of the photograph satisfied subs 473DD(b)(i) of the Migration Act. The fact that the Authority would not, in any event, have been able to consider the photograph would have been a good reason not to exercise the discretion under s 473DC to get the photograph in the first place.
102 One could be forgiven for thinking that it is somewhat absurd that, in the particular circumstances of this case, the Authority was in effect precluded by s 473DC or s 473DD from either getting or considering a document or information which was before the delegate whose decision the Authority was reviewing, but which it did not have in the review material. That is particularly the case given that the statutory scheme under Pt 7AA is clearly premised on the Authority having all of the material that was before the original decision-maker.
103 The solution to that seemingly absurd conundrum is, however, rather simple. Once the Authority realised that it did not have the photograph, the appropriate course for it to have taken was not to seek to exercise its discretion under subs 473DC(1). It was, rather, to simply ask the Secretary to provide it with a copy of the photograph, given that it was part of the review material that should have been sent to the Authority pursuant to s 473CB. While the Secretary may not have had a copy of that document, it would have been a relatively simple step to contact the appellant to ensure that a copy could be provided. There is nothing to suggest that the Authority gave any thought to the fact that it had not been sent the photograph as part of the review material, let alone how that issue was able to be resolved. Had it done so, it is far less likely that its decision would have been the subject of review proceedings in the Circuit Court.