Case: VBAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
Outcome: referred to
The appellant filed a notice of appeal on 21 October 2005 setting out the following grounds of appeal: "(a) The evidence of the appellant before the Tribunal was 'vague, confused and contradictory in relation to many aspects of her claim' and the learned Magistrate found that the Tribunal's adverse finding regarding the appellant's credibility was open to it, and hence there was no error in law. However, the decision of the learned Magistrate indicates that he adopts and applies the decision in VAT v- MIMIA (2004 FCAFC 255) which decision also encompasses the denial of procedural fairness as a jurisdictional error. The point is made that if the Tribunal found the appellant's evidence to be vague, confused and contradictory in relation to many aspects of her claim, then the Tribunal ought to have clarified the issues that were vague, confused and contradictory rather than making an adverse finding as to credibility without clarification. This assumes importance in relation to the Tribunal findings about the KKB. (b) The appellant's credibility was a deciding factor and the Tribunal relied on the appellant's husband's evidence to decide that issue and the appellant's husband was an applicant before the Tribunal, the learned Magistrate gave the incorrect interpretation to section 424A(1) and (3) in that the Tribunal had no legal obligation to put the appellant's husband's evidence to the appellant in accordance with section 424A of the Act. In saying that section 424A(3)(b) of the Act operates to excuse the Tribunal from giving notice, the learned Magistrate has not clarified what the word 'application' refers to in the said sub-section 424A(3)(b). (c) In seeking to rely on the decision in VBAP of 2002 v- MIMIA (2005) FCA 965 to substantiate that the Tribunal has not erred in its approach to section 424A in that in any way it would not have altered the findings of the Tribunal (see paragraph 27 of the learned Magistrate's judgment) what the learned Magistrate failed to see was that the finding on these two issues were crucial to the appellant's case." 11 In contentions of fact and law filed on 5 December 2005, the appellant again asserted that she was persecuted and threatened due to her membership of the Cyprus Women's Group. She submitted that there was a lack of state protection available to her and the police had failed to investigate the threats made. The appellant contended that her husband was unable to retain employment as a result of her political involvement in the Cyprus Women's Group and the fact that he voted against the incumbent government. Additionally, the appellant asserted that she underwent major surgery on 14 December 2004. None of these contentions, however, were subsequently pressed as independent grounds of appeal. 12 The appellant appeared before me on 23 February 2006 with the aid of an interpreter. I invited the appellant to identify any reasons why, or any facts or circumstances that supported her contention that, the decisions of the Tribunal and the Federal Magistrate were wrong. At the hearing, the appellant did not add anything of substance to the matters referred to in the notice of appeal and the contentions of fact and law. 25 The respondents advanced an alternative argument to address the contingency that the husband's evidence might fall outside the exception in s 424A(3)(b). The respondents submitted that McInnis FM was correct in applying the decision in VBAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 ( "VBAP" ). In VBAP , the Tribunal had rejected the applicant's claim on four separate bases. North J accepted at [31] that, in relation to one of these bases, s 424A may not have been complied with. However, his Honour held that, despite this non-compliance, he could not accept a submission that the Tribunal's decision must be set aside. His Honour distinguished SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 (" SAAP "), pointing out that SAAP was a case in which the only ground relied upon was a ground on which jurisdictional error was established. In his Honour's view, SAAP does not stand for the proposition that, if there is a breach of s 424A in relation to one ground upon which a decision is made, and there exist one or more grounds upon which the decision is not or cannot be impeached, the decision nevertheless fails.