Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1
Outcome: applied
Federal Magistrate Emmett concluded that the Tribunal was not obliged to deal with claims that are not articulated and which do not clearly arise on the material before it. No claim was made to the Tribunal for persecution on the grounds of political opinion. Her Honour observed, with reference to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] , that an unarticulated claim must be raised squarely on the material available to the Tribunal before it has a duty to consider it. Her Honour also relied on Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at [1] where Gleeson CJ stated that, although the Tribunal proceedings are not adversarial, the decision of the Tribunal must be considered in the light of the basis upon which the application was made. 30 The absence of a finding of a relevant fact may amount to jurisdictional error ( NABE at [55]). A failure to make a finding on a substantial, clearly articulated argument relying on established facts can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction ( NABE at [55] citing Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at [24] and [95]). The task of the Tribunal and the way in which it discharges that function flow from the powers and procedures prescribed for the Tribunal in the conduct of reviews and the use of the word "review" ( NABE at [56]). That includes a requirement to consider all of the claims of the applicants ( NABE at [57] approving Allsop J, with whom Spender J agreed, in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]). 31 The Tribunal is required to deal with ' the case raised by the material or evidence before it ' ( NABE at [58] citing Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 ; (2000) 106 FCR 157). The Tribunal is not limited to the ' case ' articulated by an applicant if evidence and material which it accepts raise a case not articulated. A claim ' not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal ' ( NABE at [58]) (emphasis added). At [59], the Full Court discussed whether the Tribunal is required to consider a claim not expressly raised and observed that there is no general rule that the Tribunal can disregard a claim which arises clearly from materials before it: '[t] he Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it ' (at [61]). 32 The Court in NABE approved the reference by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17] to the observation by Kirby J in Dranichnikov , at 405, that '[t] he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances ' and of the Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49] that the Tribunal ' can only deal with the claims actually made '. The Court at [60] also approved the statement of Selway J at [18] that the question ultimately is ' whether the case put by the [applicant] before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it '. 33 If the Tribunal makes an error in misunderstanding or misconstruing a claim advanced by the applicant, that can amount to jurisdictional error because of a failure to consider a claim. The claim must, however, ' emerge clearly from the materials before the Tribunal ' ( NABE at [68]). There was no suggestion that the Tribunal is required to consider a claim not made or abandoned before the Tribunal. 34 A claim made to the Department and referred to in the Delegate's decision would, ordinarily, be before the Tribunal. However, where a claim has been made to the Delegate and not advanced at all before the Tribunal and does not arise from the material before the Tribunal, the Tribunal is entitled to assume that the claim is no longer made. The Tribunal is conducting a review of the Delegate's decision but on the basis of the claims advanced and materials before the Tribunal. If a claim does not so arise and is abandoned, especially where the applicants are legally represented, the Tribunal is entitled to take the view that the applicants do not make that claim or a case based on that claim. 35 The conclusion by Emmett FM that the claim to persecution on the ground of political opinion or imputed political opinion was abandoned and that the Tribunal was not obliged to consider it has not been shown to be in error. This ground is rejected.