Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 , 144 FCR 1
Outcome: cited
if the " Particulars " provided are intended to convey a contention that the Tribunal failed to consider a particular claim, namely the claim as to a " fear as a result of my sister's adverse experiences ", that was a claim not advanced before the Tribunal for resolution. That was the conclusion of the Federal Magistrate. No error is discernible in that conclusion. No error is exposed by the Tribunal failing to resolve a submission not advanced before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 , 144 FCR 1. Black CJ, French and Selway JJ there made the following observations: [58] The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it ... There is authority for the proposition that the Tribunal is not to limit its determination to the 'case' articulated by an applicant if evidence and material which it accepts raise a case not articulated &#8212; Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693 ; (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (1999) 90 FCR 287 at 293 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant &#8212; Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 263 ; (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised 'squarely' on the material available to the Tribunal before it has a statutory duty to consider it &#8212; SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120 ; (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb 'squarely' does not convey any precise standard but it indicates that 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. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal. [59] There is some authority which might be taken to suggest that the Tribunal is never required to consider a claim not expressly raised before it. ... [60] In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709 ; (2003) 199 ALR 364 at 368 [17] , Selway J referred to the observation by Kirby J in Dranichniko v, at 405, that '[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances'. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 548 that '[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made' (at [16]). Selway J however went on to observe in SGBB (at [17]): But this does not mean the application is to be treated as an exercise in 19th Century pleading. His Honour noted that the Full Court in Dranichnikov v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1801 at [49] had said: The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention "label" to describe his or her plight, but the Tribunal can only deal with the claims actually made. His Honour, in our view, correctly stated the position when he said (at [18]): 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. This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it. [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. [62] Whatever the scope of the Tribunal's obligations it is not required to consider criteria for an application never made. ... In MZXLB v Minister for Immigration and Citizenship [2007] FCA 1588 at [14] , Finkelstein J referred to NABE and observed that " (t)here 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 ". See also: SZEIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1798 at [30] to [31] and [56] to [57] per Bennett J; SZGBI v Minister for Immigration and Citizenship [2008] FCA 599 ; Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609. That which is not to be permitted is for a claimant to " reformulate his claims on an ex post facto basis ": SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 at [23] , [2008] FCA 1330 ; 171 FCR 134 at 140 per Gilmour J.