S203 of 2003 v Refugee Review Tribunal [2005] FCA 1442

FEDERAL COURT OF AUSTRALIA

S203 of 2003 v Refugee Review Tribunal [2005] FCA 1442

S203 of 2003 v REFUGEE REVIEW TRIBUNAL, SECRETARY, DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND COMMONWEALTH OF AUSTRALIA

NSD 977 of 2003

BRANSON J

20 OCTOBER 2005

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 977 of 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN: S203 of 2003

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

SECRETARY, DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA

THIRD RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 20 OCTOBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for an order nisi be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 977 of 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN: S203 of 2003

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

SECRETARY, DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA

THIRD RESPONDENT

JUDGE: BRANSON J

DATE: 20 OCTOBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 3 June 1996, the Refugee Review Tribunal ('the Tribunal') affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing the applicant a protection visa under the Migration Act 1958 (Cth). 2 The applicant filed an application for an order nisi in the High Court on 21 May 2003 requiring the respondents to show cause why constitutional writs should not be issued in respect of the Tribunal's decision. The application was remitted to this Court pursuant to orders made by Gaudron J, as varied by McHugh J, following the delivery of the High Court's judgment in Muin v Refugee Review Tribunal (2002) 76 ALJR 966. 3 The Minister has not been named as a party to the proceeding. However, for present purposes, nothing turns on that omission or the inappropriate joinder of both the Secretary, Department of Immigration & Multicultural & Indigenous Affairs and the Commonwealth. 4 The applicant, a citizen of India, supported his application for an order nisi by an affidavit sworn on 21 May 2003. By correspondence of 12 November 2004, the District Registrar of the Federal Court informed the applicant that the Court proposed to consider whether there is an arguable case for the granting of an order nisi on the basis of the written material before the Court. The applicant was invited to supplement his affidavit with written submissions on the question of whether the Court should make an order nisi and did so on 9 December 2004. 5 I propose to deal with this application on the papers. 6 The Tribunal decision that is the subject of this application was made in respect of the applicant's second application for review of the delegate's decision to refuse him a protection visa. By an earlier decision dated 8 February 1994, the Tribunal had affirmed the delegate's decision based largely on a finding that the applicant's claims lacked credibility because they were presented in an inconsistent way. The Tribunal allowed the applicant to lodge a second application for review because the applicant claimed to be suffering from post-traumatic stress disorder and that his condition had affected his evidence given in support of the first application for review. At the second hearing medical evidence was presented from three doctors. The applicant also relied on a medical certificate from a fourth doctor and the evidence of a witness. 7 The Tribunal found that the material presented by the applicant at the second hearing reinforced, rather than questioned, the previous Tribunal findings about the applicant's credibility. 8 The Tribunal found that 'either the applicant or someone assisting him has deliberately produced a fabricated report relating to the applicant's medical condition.' The applicant submits that the Tribunal overstepped its role in finding that a medical certificate presented by the applicant to the Tribunal was fraudulent. However, the Tribunal is clearly entitled to form a view as to the bona fides of material presented before it as part of its fact‑finding role. 9 There is nothing in the material before me to suggest that the Tribunal reached its finding in relation to the medical certificate without affording procedural fairness to the applicant. At the hearing, the Tribunal discussed the likelihood that the medical certificate had been fabricated with one of the doctors. The doctor concurred that the medical certificate appeared to have been fabricated. The applicant was asked about the doctor's view on the medical certificate. 10 The Tribunal similarly provided the applicant with an opportunity to comment on other matters in relation to which potential adverse findings were open to the Tribunal. The Tribunal found that evidence given by a witness contradicted the applicant's account. The applicant was asked about the matters raised in the witness' evidence and sought to explain discrepancies between the two accounts by reference to his medical condition. The Tribunal also concluded that the applicant's need for medical treatment was not genuine as he had not sought medical treatment prior to the first Tribunal decision. The applicant was asked about his medical treatment and offered an explanation of his treatment before and after the first Tribunal decision. 11 The Tribunal further found that, even if the applicant's claims of past mistreatment had been credible, there is no real chance that the applicant would experience a fear of persecution on return to India. This finding provides an additional obstacle in the way of the applicant demonstrating an arguable case for the issue of an order nisi even if the Tribunal had erred in its finding regarding the applicant's credibility. 12 On the material before me, the applicant has not made out an arguable case that the decision of the Tribunal is affected by jurisdictional error. The application for an order nisi is dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.