Ground one - Did the Authority unreasonably fail to exercise its discretion to get new information?
47 As noted earlier, the primary judge did not directly engage with or address the appellant's contention that the Authority's failure to consider exercising its discretion, or its failure to exercise its discretion in s 473DC of the Act to get new information, was legally unreasonable. Nor did his Honour give any, or any detailed consideration to the statutory scheme in Pt 7AA of the Act and the applicable principles in relation to the Authority's discretion to get new information. Rather, his Honour approached the appellant's arguments by considering whether it was legally unreasonable for the Authority not to "put to" him that it was "minded to make different findings" to those made by the delegate: see Judgment at [23]. His Honour concluded that it was not.
48 It is not particularly fruitful to give any further consideration to the primary judge's reasoning in that regard. The more pertinent question, given the specific ground of review raised by the appellant, is whether there was any merit in the appellant's contention that it was legally unreasonable for the Authority to fail to consider exercising its discretion, or to fail to exercise the discretion, in s 473DB of the Act. Nevertheless, his Honour was undoubtedly correct to find that the Authority was not required to put the appellant on notice that it may make different factual findings to those made by the delegate. There is no provision in the relevant statutory scheme which obliged the Authority to put the appellant on notice that it may make a different finding to the delegate. But were the circumstances of the appellant's case such that the Authority was effectively required to exercise its discretion under s 473DB of the Act so as to give the appellant the opportunity to provide new information about the factual matters about which the Authority made different findings?
49 The relevant statutory provisions in Pt 7AA of the Act were referred to earlier. The critical points to emphasise about the operation of those provisions are: first, s 473DB(1) indicates that the Authority must ordinarily conduct its review on the basis of the material provided to the Authority under s 473CB, which in general terms is the material which was before the delegate, without accepting or requesting new information; second, s 473DC(2) makes it clear that, while the Authority has a discretion to get new information, it does not have a duty to get, request or accept, any new information; and third, s 473DD provides that the Authority can only consider new information in exceptional circumstances.
50 There may be circumstances in which it would be legally unreasonable for the Authority to fail to consider exercising its discretion under s 473DC: see CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [38] and the cases there cited. There must, however, be some factual foundation from which it can be inferred that the Authority failed to consider exercising its discretion: see BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35; [2018] FCAFC 114 at [41]. The mere fact that the Authority's reasons do not explicitly refer to the fact that the Authority had considered exercising the discretion and decided not to does not necessarily support an inference that the Authority gave no consideration to the issue.
51 There is no basis for inferring that the Authority failed to consider exercising its discretion to get new information concerning the authenticity of the document from the Thi Qar Criminal Court. That is because it is clear that the Authority exercised its discretion to consider new information that the appellant provided in a statutory declaration that he sent to the Authority after the delegate's decision: Reasons at [5]-[7]. There could therefore be no doubt that the Authority was aware that it had a discretion to get and consider new information. The appellant did not request the Authority to get new information about the authenticity or provenance of the document from the Thi Qar Criminal Court. Nor did the Authority have any duty to request any such new information from the appellant, even though it ultimately arrived at a different conclusion to the delegate about the authenticity of the document. The available inference, in all the circumstances, is that the Authority considered, but decided against, exercising its discretion to get any new information from the appellant other than the specific new information that the appellant provided in his statutory declaration.
52 Perhaps more significantly, there is no basis for concluding that any failure by the Authority to consider exercising its discretion to get new information about the authenticity of the relevant document, or any decision by the Authority not to exercise its discretion, was legally unreasonable. A failure by the Authority to consider the exercise of the discretion in s 473DC(1) does not necessarily amount to an error, let alone a jurisdictional error: DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43 at [37]-[39].
53 The appellant advanced two reasons why it should be concluded that the Authority's failure to exercise its discretion to get new information about the authenticity of the document was unreasonable. The first was that the delegate had accepted the authenticity of the document and the appellant was not put on notice that the Authority might not do so. The second was that a finding of "document fraud" was a serious allegation. Neither of those contentions provides a basis for concluding that the Authority acted legally unreasonably in failing to get new information about the document.
54 As for the first contention, as has already been noted, there is nothing in the statutory scheme in Pt 7AA of the Act to suggest that the Authority is obliged to notify a referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate: DGZ16 at [72]. It must follow that the mere fact that the Authority is considering taking a different view of the material before the delegate does not oblige the Authority to request, or consider requesting, new information from the referred applicant. The "requirement for legal reasonableness is not a vehicle for effectively mandating the exercise of s 473DC in every case which involves the Authority overturning a positive finding made by a delegate on an issue that is dispositive to its review": FGC17 v Minister for Home Affairs [2019] FCA 559 at [40].
55 As for the second contention, as discussed in the context of ground two, it is not entirely clear that the Authority made an unequivocal finding that the appellant had committed "document fraud", though it is clear that the Authority doubted the authenticity of the relevant document for various reasons. Even putting that issue to one side, the mere fact that the Authority is considering making a serious adverse factual finding against a referred applicant would not alone oblige the Authority to obtain new information about the subject matter of that adverse finding. That is all the more so where that subject matter was addressed before the delegate, where there is nothing to suggest that the referred applicant was able to give any additional information about that subject matter that was not given to the delegate, and where there is nothing to suggest that the Authority was in any way "disadvantaged in comparison with the delegate" in relation to making a finding about the relevant factual issue: FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1369 at [39].
56 In the appellant's case, there was nothing to suggest that the appellant was able to give any further information to the Authority about the authenticity of the document which was said to be from the Thi Qar Criminal Court. Indeed, there was nothing to suggest that there was any new information of any sort that bore on that issue. The appellant had every opportunity before the delegate to address the authenticity of the document. There was nothing to suggest that the Authority was disadvantaged in any way, as compared to the delegate, in terms of considering and deciding that issue. There was and is, therefore, no basis for concluding that the Authority's failure to exercise its discretion to get some new unspecified information about the authenticity of the document was in any way unreasonable.
57 The appellant contended, on appeal, that the primary judge failed to apply "binding authorities", being the decisions in CRY16, DGZ16 and DZU16, and misapplied the decision in FGC17. There is no merit in that contention. The primary judge referred to each of those cases. His Honour correctly distinguished CRY16 and DZU16, which were both cases where the Authority made findings about relocation in circumstances where that issue was not fully dealt with before the delegate. The decision in DGZ16 did not assist the appellant and the basis upon which it was said that the primary judge did not apply or correctly apply that decision was unclear. As for FGC17, the primary judge simply cited that decision as authority for the proposition that the Authority is not obliged to invite a referred applicant to provide comments about a particular factual matter simply because it proposed to overturn a positive factual finding made by the delegate in relation to that matter. While the facts and circumstances of FGC17 were distinguishable from this case, that proposition was nevertheless relevant and applicable to the circumstances of this case.
58 It follows that the primary judge was ultimately correct to effectively reject the appellant's contention that the Authority's failure to exercise its discretion to get new information about the authenticity of the document from the Thi Qar Criminal Court was legally unreasonable. Ground one in the notice of appeal is accordingly not upheld.