Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 , 144 FCR 1
Outcome: considered
may be cases where the Tribunal is not confined to the " case " as expressly articulated by a claimant: Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693 ; (1998) 94 FCR 28 at 63 per Merkel J. In properly discharging the jurisdiction entrusted to it, the Tribunal must also consider a claim that emerges from the materials presented to it for consideration. How clearly a claim that has not been expressly raised must emerge from the materials has been variously expressed. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [48] , [2004] FCAFC 263 ; 144 FCR 1 at 18 to 19, Black CJ, French and Selway JJ said (references omitted): [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 ... 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 ... 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 ... 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. Their Honours thereafter went on to refer to the decision in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709 , 75 ALD 411 and continued: ... 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.