Case: Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437
Outcome: cited
This (together with the Minister's submissions) was the foundation for the Federal Magistrate saying in his reasons at [27]: Although the headings on the 25 January 2007 facsimile might have put an alert reader at the Tribunal on notice that not all pages which had been intended to be sent were actually sent, or at least had not been received, the Tribunal is not obliged to make inquiries or to prompt and stimulate an elaboration which the applicant choses [sic] not to embark upon: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 21 22 [42] and [43]; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 451 [58]. No error is demonstrated by the Tribunal not correcting the applicant's adviser's error. 46 In [27] of his reasons, the Federal Magistrate cited two cases in support of his conclusion that there was no duty to inquire: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 21-22 [42] - [43] and Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 at 451 [58]. The first ( SGLB [2004] HCA 32 ; 207 ALR 12) was a reference to the reasons of Gummow and Hayne JJ (with whom Gleeson CJ agreed). Their Honours in that case said that the power to obtain evidence under s 427 did not import an element of duty, a position made plain by s 426(3). That was a straightforward recognition that no duty to enquire about evidence arises from the terms of s 427 of the Migration Act . This much can be readily accepted. There are ample Full Court decisions to like effect. In S154 201 ALR 437, Gummow and Heydon JJ (with whom Gleeson CJ agreed) said in the context of examining how detailed the questioning of an applicant was required to be said that: The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on. This reference has nothing to do with the question here. 57 These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process: Re Ruddock; Ex parte S154 201 ALR at 450-451 [57]-[58], 455-6 [81], 457 [86] and [88]; Miah [2001] HCA 22 ; 206 CLR 57 at 69-70 [31] - [32] ; Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 435 [29] - [31] ; Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 at 648 [208] ; Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at 513 [97]; Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at 146 [52] ; Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 576 [187] ; NCSC v News Corporation Limited [1984] HCA 29 ; (1984) 156 CLR 296 at 315; Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57 ; (2006) 204 CLR 82 at [75] ; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134 [2003] HCA 1 ; (2003) 195 ALR 1 at 8; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at 405, [78] ; Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at [39] ; VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 24; Re Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387 at 413 [76] ; NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [22] ; SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 229 ALR 423 at [4] ; SZBEL 228 CLR 592 at [40]; SZFDE [2007] HCA 35 at [30] ; Minister of Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 at 540-41 [71] , 526 [18] and 531 [37]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [111] ff and [199]; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 223 ALR 171 at [9] , [69] and [165].