Case: Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334
Outcome: applied
In determining the " correct or preferable " decision, the Tribunal will ordinarily be best " guided by the parties " in identifying the issues: Sullivan v Department of Transport (1970) 20 ALR 323 at 342. See also: A v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 227 at [36] per Katz J; NADB v Minister for Immigration and Multicultural Affairs [2002] FCA 200 at [21] , [2002] FCA 200 ; 189 ALR 293 at 298 per Hely J. Deane J, with whom Fisher J agreed, further observed in Sullivan however that "[c] ircumstances may ... arise in which ... a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute ": (1978) 20 ALR 323 at 342. It is " the duty of the Tribunal ", it has been said, " to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made ": Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 429 30. Before the Tribunal there is no requirement that " the point be taken ": Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 348 per Fox J. 18 In determining the " correct or preferable " decision the Tribunal must also be satisfied that there is " enough material " before it on a matter of central importance to the decision to be reached ( Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 343 per Bowen CJ). And "[t] he tribunal [is] required to make the correct or preferable decision on the material before it, regardless of the form which the parties' submissions [take]": McKeown v Repatriation Commission (1995) 39 ALD 30 at 33 per Jenkinson J. An error of law may be committed if the Tribunal ignores a central issue, even if no submission at all is directed to it: Australian Trade Commission v F &amp; F Asia Pty Ltd (1996) 69 FCR 252 at 266 per Carr J. See also: Transport Accident Commission v Bausch (1998) 4 VR 249 at 263 per Tadgell JA (Batt and Buchanan JJA agreeing). 20 But it is not a line to be drawn so as to impose upon the Tribunal any general duty to itself secure evidence which has not been otherwise adduced or any general duty to pursue submissions not otherwise advanced. The need to inquire into facts not otherwise before the Tribunal may not be confined to those facts going to jurisdiction, as in Kuswardana ; but should be confined to facts of central importance to the decision to be made: cf Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155. And the need to consider submissions or issues not raised by the parties may equally normally be confined to those submissions which are submissions of substance which emerge from the factual material before the Tribunal: cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 , 144 FCR 1. It was said there that a " judgment that the Tribunal has failed to consider a claim not expressly advanced is ... not lightly to be made. The claim must emerge clearly from the materials before the Tribunal ": at [68]. See also: SZITR v Minister for Immigration and Multicultural Affairs [2006] FCA 1759 at [50] , [2006] FCA 1759 ; 44 AAR 382 at 397 per Moore J; MZXMG v Minister for Immigration &amp; Citizenship [2007] FCA 1884 at [13] [14] per Middleton J. In MZXLB v Minister for Immigration &amp; Citizenship [2007] FCA 1588 at [14] Finkelstein J referred to NABE and observed that there " is no precise standard for determining when an issue is 'raised squarely', but it is clear the tribunal is obliged to consider any claim that is apparent on the face of the material before it ".