Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 , 144 FCR 1
Outcome: applied
The review process ", it may be accepted, " is inquisitorial rather than adversarial ": NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58] , [2004] FCAFC 263 ; 144 FCR 1 at 18 per Black CJ, French and Selway JJ. And s 427(1)(d) of the Migration Act 1958 (Cth) confers a discretionary power upon the Tribunal to " require the Secretary to arrange for the making of any investigation ...". But that section does not impose any general duty to inquire: Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50 at [12] to [14] [2000] HCA 50 ; , 175 ALR 209 at 212 to 213. See also Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [86] [2001] FCA 274 ; , 106 FCR 426 at 445; Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480 at [26], 190 ALR 543 at 553 to 554; S1925 of 2003 v Minister for Immigration and Citizenship [2008] FCA 246 at [21] . In limited circumstances a Tribunal, in the discharge of its " inquisitorial " functions, may be required to consider a claim not articulated by a claimant: e.g. NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2), supra , at [58] to [61], 144 FCR at 18 to 19 per Black CJ, French and Selway JJ. But such is not the present case. The alternative manner in which the Appellants seek to advance their first Ground of Appeal is to allege a denial of " procedural fairness " on the part of the Tribunal by reference to the " weight " given by the Tribunal to the claims previously advanced by the mother. The Tribunal considered the claims made by the Applicants' mother in her earlier unsuccessful application for a protection visa and relevantly concluded as follows: [97] The Tribunal is satisfied that the Applicants' father is competent to speak on behalf of the Applicants. The Tribunal accepts that the Applicants' mother was happy to leave this role to her husband and that she did not wish to speak on behalf of her children. The Tribunal draws no negative inferences from her stated unwillingness to speak at the RRT hearing. [98] The Tribunal does, however, have regard to the comments she gave in response to its concerns about the difference between the claims she raised on behalf of the Applicants' family in 2005 and the claims now being raised by her husband on behalf of the present Applicants. It is fair to observe that the 2006 coup had not occurred at that stage, so that is one factual element that the Applicants' mother could not logically have been in a position to discuss or even reasonably predict, but that does not satisfactorily explain why the Applicants' mother claimed that her family was being harassed by Speight supporters over all those years, whereas her husband later claimed that they were being harassed by the forces that were actually trying to break up the Speight putsch . [99] The Tribunal gives weight to the fact that the claims lodged by the Applicants' mother, and also evidently subscribed to at the time by the Applicants' father (according to what he said to the presently-constituted Tribunal in oral evidence and in writing), were denounced by both of the Applicants' parents, at the RRT hearing, and by the Applicants' father in writing later on, as false claims .