Case: NABE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 219 ALR 27
Outcome: followed
The unexamined question was, in my opinion, sufficiently clearly an integer of her case to require consideration. If it was not clearly and expressly so asserted in the ways referred to at [44] above, in my view it clearly arose on the materials before the Tribunal. In NABE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 219 ALR 27 (' NABE ') the Full Court said (at [61]): 'We are of the view that the observations by Merkel J in Paramananthan , by the Full Courts in Sellamuthu and Sarrazola (No 2) and by Cooper J in SDAQ are consistent with the proposition that the tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The tribunal's obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov , extends to reviewing the delegate's decision on the basis of all the materials before it.' 51 Earlier the Full Court had approved (at [60]) some pertinent observations by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17]-[18] : '...But this does not mean that the application is to be treated as an exercise in nineteenth century pleading. ... The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.' It would be strange if a claimant of refugee status were to be denied a right to have the substance of her claim considered, including the different ways in which the Convention might apply to her, because she had failed clearly to analyse those ways in her application and supporting material, although she had clearly enough delineated facts that might attract the salvation of the Convention. It is not likely that the Full Court in NABE intended such a thing. The Full Court was absolving the Tribunal from any duty to engage in subtle teasing out of hypotheses that only abstrusely arise from an applicant's account of the circumstances that have led to the claim of refugee status. That is not the position here. 52 In my opinion, nothing in NABE was intended to deny, nor can it be denied, that to determine whether a claim 'clearly arises' on the material before a decision-maker, the decision-maker must fully understand the claim being made. That, in turn, may in some cases make it necessary for the decision-maker to analyse what the appellant has said in terms of possible Convention categories. That was the position here. 53 In my opinion, failure to consider this matter constituted a constructive failure to exercise the Tribunal's jurisdiction. 54 Nevertheless, whether such error ultimately has the effect of invalidating the Tribunal's decision depends on whether there was otherwise an independent, jurisdictionally robust basis, among those found by the Tribunal, for denying the appellant's claim. In particular, the finding that the appellant feared persecution at the hands of one local man and that the appellant could avoid such threat as he might pose by relocating elsewhere in Indonesia is of potential significance here.