FEDERAL COURT OF AUSTRALIA
DFS16 v Minister for Home Affairs [2019] FCA 944
Appeal from: DFS16 v Minister for Immigration & Anor [2018] FCCA 1628 File number: NSD 1572 of 2018 Judge: KERR J Date of judgment: 20 June 2019 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority (Authority) – where the Authority had affirmed a decision of a delegate of the First Respondent not to grant the Appellant a Safe Haven Enterprise (subclass 790) visa – dispositive issue in appeal whether an English translation of a Tamil document is “new information” for the purposes of Pt 7AA of the Migration Act 1958 (Cth) – where the Authority found translation was not “new information” and had regard to it – where the Authority made adverse credibility findings about the Appellant on the basis of the translation – translation of document already before the delegate not new information where submission that decision in ABJ17 v Minister for Immigration and Border Protection [2018] FCA 950; 260 FCR 295 is inconsistent with considered obiter reasoning of the plurality in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600 – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 424A, 473CB, 473DC, 473DD, 473DE, Pt 7, Pt 7AA Cases cited: ABJ17 v Minister for Immigration and Border Protection [2018] FCA 950; 260 FCR 295
Coulton v Holcombe [1986] HCA 33; 162 CLR 1
Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757
Pharikan v Minister for Home Affairs [2019] FCA 49
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600
R v Hookham (1993) 31 NSWLR 381
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214
Undershaft (No 1) Ltd v Federal Commissioner of Taxation [2009] FCA 41; 175 FCR 150
Date of hearing: 15 February and 29 May 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 83 Counsel for the Appellant: Mr O Jones Counsel for the First Respondent: Ms A Carr Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs
Table of Corrections 9 August 2019 In paragraph 37, “not” has been inserted before “plainly wrong” in the final sentence. ORDERS
NSD 1572 of 2018 BETWEEN: DFS16
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
KERR J
DATE OF ORDER:
20 JUNE 2019
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
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- Case
- [2019] FCA 944
- Decision Date
CaseChat Overview and Summary
The court considered whether the translation of a document already submitted to the delegate constituted "new information." The appellant argued that the decision in ABJ17 v Minister for Immigration and Border Protection was inconsistent with the considered obiter reasoning in Plaintiff M174/2016 v Minister for Immigration and Border Protection. The court noted that the circumstances in ABJ17 were directly analogous to the present case. In ABJ17, a Farsi document provided to the delegate was not considered, but an English translation of the document was relied upon by the Authority during its review. The court acknowledged the reasoning in ABJ17 but emphasised that it was not bound to follow it, given the obiter nature of the decision and the plurality of views expressed in Plaintiff M174/2016. The court concluded that the translation did not constitute new information, as it was merely a different manifestation of the information originally expressed in Tamil.
The court exercised its discretion under the principles of judicial comity to follow the earlier decision in ABJ17, as it was not clearly or plainly wrong. Consequently, the appeal was dismissed. The appellant was granted leave to rely on his amended notice of appeal, but the appeal was ultimately unsuccessful. The appellant was ordered to pay the Minister's costs as agreed or assessed.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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 The circumstances in ABJ17 are directly analogous to those as arise in this appeal. 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”. 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. 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:68The 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?69Before referring to the authorities, I will state my understanding of the role of considerations of judicial comity by reference to the task confronting me.70First, 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.71Second, I must not follow his Honour should I reach the view that his Honour was “clearly” or “plainly” wrong.72Third, I may (not must) follow his Honour’s (supposedly inconsistent) decision once it is clear that that decision is not “plainly” or “clearly” wrong.73Fourth, 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.74While 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.