Submission relating to proposition that case relied on for judicial review was not articulated at RRT

In Htun, Merkel J said, in words which go not merely to the duty on the Tribunal to deal with non-rejected material which raises an unarticulated case, but also to the jurisdictional error that a Tribunal will commit in failing in this duty (194 ALR at 248 [13] and [14]):

“13 The Tribunal's approach to this issue might be explained by the manner in which the appellant put his case. However, unlike in an adversarial proceeding, the Tribunal cannot limit its determination just to the case articulated by an appellant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the appellant: see Paramanathan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63, Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at [15], Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294, Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 and Giraldo v Minister for Immigration and Multicultural Affairs [2001] FCA 113 at [58]-[59]. In any event, on a fair reading of his evidence before the Tribunal, the appellant based his claim on his activities in Burma and Australia.

14 Accordingly, the Tribunal failed to conduct its review in accordance with the duties imposed upon it under the Act and therefore constructively failed to exercise its jurisdiction or ignored relevant material: see ss 476(1)(b) and 476(1)(c) and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [81]-[83]. Put another way, the Tribunal "should have examined, but did not examine" the issues to which I have referred and thereby fell into jurisdictional error: see Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 537 per Gleeson CJ and McHugh J.”

In W396 the Full Court (Black CJ, Wilcox and Moore JJ) said (at 68 ALD 79-80, [35]):

“35 We accept, as is evident from the material set out at para 30, that neither the appellant's claims nor submissions made on his behalf invited the Tribunal to draw links between, or look globally at, the facts set out above at para 29 in the context of advancing the appellant's sur place claim. We also accept that no apparent reliance was placed on the ASIO interview and how it might particularly place the appellant at risk of suspicion. Nonetheless the scope of Tribunal's review task is not limited by the case articulated by an applicant. The Tribunal should look at all the evidence and material that it has not rejected and give consideration to a case which it might reasonably raise, notwithstanding that such a case might not have been contended for by the applicant. This obligation on the Tribunal was explained by Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 294- 295 where his Honour held that it is necessary to "consider all the relevant possibilities by looking back at the entirety of the material placed before [it]", and the decision-maker must "[stand] back from the particular grounds and consider ... the case in its entirety" (See also Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at para 13 and the authorities cited there).”