Case: Minister for Immigration and Multicultural and Indigenous Affairs v VFAY [2003] FCAFC 191
Outcome: cited
In oral submissions, the Minister also put the argument at an alternative and lower level. This argument accepted that the Tribunal may be required in particular circumstances to investigate beyond the limits of the claim expressly made by the appellant, but it maintained that there is nothing in the present case to indicate that it was bound to do so because the behaviour modification claim was not explicitly or implicitly raised by the appellant: see Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 (' Paramananthan ') per Merkel J at 62-63; Minister for Immigration and Multicultural and Indigenous Affairs v VFAY [2003] FCAFC 191 (' VFAY'), per French, Sackville and Hely JJ at [97]. 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].'