Case: Abebe v Minister for Immigration and Multicultural Affairs [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: cited
The Minister contended that the Tribunal is only obliged to consider the evidence that is put to it by the appellant. It is up to the Tribunal, as an inquisitorial body, to deal only with the appellant's material and evidence before it: see Abebe v Minister for Immigration and Multicultural Affairs [1999] HCA 14 ; (1999) 197 CLR 510 (' Abebe '), per Gummow and Hayne JJ at 576 [187]. 24 This contention was pressed at two levels. At the higher level, the Minister contended that as the behaviour modification claim was not raised by the appellant before the Tribunal, there was no error in the way that the Tribunal dealt with the appellant's claim. Phipps FM was correct, so the Minister said, in finding that the Tribunal was not obliged to inquire into the behaviour modification claim because it was not explicitly raised by the appellant at the hearing or in the second statutory declaration. 30 A behaviour modification claim was not explicitly formulated in those terms before the Tribunal. In these circumstances, the respondents rely on the statement by Gummow and Hayne JJ in Abebe at 576 [187], to assert that the Tribunal was not required to consider such a claim: 'Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.' 31 In the course of the hearing, a question arose as to how the Minister's argument, founded on Abebe , can be reconciled with the comments of Merkel J in Paramananthan at 63. His Honour's view, confirmed by the Full Court in VFAY at [97], was that: 'In general, an administrative tribunal is entitled to be guided by the issues that the parties choose to put before it for its consideration (see Sullivan v Department of Transport (1978) 20 ALR 323 at 342, Repatriation Commission v Hughes (1991) 23 ALD 270 at 274 and Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 487-489) and is entitled to have regard to the case put: Noble v Repatriation Commission (unreported, Federal Court, Full Court, No VG 308 of 1997, 3 November 1997) at p 16. However, ultimately the [Tribunal] is under a duty to fulfil its statutory obligation to "review the decision" before it and to do so according to s 420(2), which requires it to act according to the "merits of the case". Unlike an adversarial proceeding, parties do not appear and put a case, as such, to the [Tribunal]. As stated above, the [Tribunal] is required to determine whether it is "satisfied" that the applicant is a person to whom Australia has protection obligations under the Convention. Material and evidence, as well as arguments, may be presented to the [Tribunal] but its inquisitorial procedures or enquiries are not limited to or by the materials, evidence, or arguments presented to it. In an appropriate case the [Tribunal] may undertake its own enquiries and, in some instances, may be obliged to do so: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 at 49-50 per Davies, Wilcox and Pincus JJ; and Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 118-119; 151 ALR 505 at 547-548 per Wilcox J. Similarly, the [Tribunal] is not to limit its determination to the "case" articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant. That obligation arises by reason of the nature of the inquisitorial process and is not dependent upon whether the applicant is or is not represented: cf Bouianov v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Branson J, No NG 134 of 1998, 26 October 1998) at p 2 and Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 at 49-50. Representation can be relevant to the content of a duty to act according to "substantial justice" or fairly in a particular case, but cannot affect the fundamental duty of the [Tribunal], acting inquisitorially, to review the decision before it according to the "merits of the case". In my view the inquisitorial function of the [Tribunal] and the combined effect of the provisions to which I have referred, is such that the [Tribunal] is required to determine the substantive issues raised by the material and evidence before it. That duty... is a fundamental incident of the inquisitorial function of an administrative tribunal such as the [Tribunal].' 34 The analysis of this issue by Gummow and Hayne JJ proceeds on the footing that the Tribunal is not confined by the way in which an applicant formulates his or her claims: the central question whether there is a well-founded fear of persecution must in their view be examined in the light of all the evidence before the Tribunal and the Tribunal's findings of fact. In the case before them, this question had to be addressed in the light of the Tribunal's finding that the appellants were likely to live in a way that would not cause Bangladeshi society to confront their homosexual identity: at 502 [87]. Gummow and Hayne JJ said at 500 [80]: 'If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be "discreet" about such matters is simply to use gentler terms to convey the same meaning. The question to be considered in assessing whether the applicant's fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.' 35 A little later in their reasons for judgment, Gummow and Hayne JJ at 503 [88] identified the error made by the Tribunal: '[The Tribunal] did not ask why the appellants would live "discreetly". It did not ask whether the appellants would live "discreetly" because that was the way in which they would hope to avoid persecution. That is, the Tribunal was diverted from addressing the fundamental question of whether there was a well-founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention. That the Tribunal was diverted in that way is revealed by considering the three statements in its reasons that are referred to earlier: first, that it is not possible to "live openly as a homosexual in Bangladesh"; secondly, that "[t]o attempt to [live openly] would mean to face problems"; and, thirdly, that "Bangladeshi men can have homosexual affairs or relationships, provided they are discreet ". Nowhere did the Tribunal relate the first and second of these statements to the position of the appellants. It did not consider whether the adverse consequences to which it referred sufficed to make the appellants' fears well founded. All that was said was that they would live discreetly.'