SZMSF v Minister for Immigration & Anor [2010] FMCA 22 (27 January 2010)

Federal Magistrates Court of Australia

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SZMSF v Minister for Immigration & Anor [2010] FMCA 22 (27 January 2010)

Last Updated: 29 January 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMSF v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 22

MIGRATION – Protection (Class XA) visa – review of Refugee Review Tribunal decision – citizen of Nepal claiming fear of persecution by reason of political opinion – credibility – where the Tribunal accepted that the applicant suffered from depression and stress – whether the Tribunal gave any consideration to whether depression and stress may have had an effect on the applicant’s presentation at the Tribunal hearing – whether the Tribunal failed to comply with Migration Act 1958 (Cth) s.425 – whether the applicant was affected by a medical condition such that he was unable to participate in the hearing before the Tribunal – whether the Tribunal erred in the exercise of its jurisdiction by failing to consider whether to use its powers to obtain medical evidence about the applicant’s fitness to attend the hearing – no evidence that the applicant was so affected by a medical condition or the effects of prescribed medication that he was unable to participate in a Tribunal hearing – no failure to provide a fair hearing – no jurisdictional error.

Migration Act 1958 (Cth), ss.91X, 425, 474, 476

SZMSF v Minister for Immigration & Anor [2009] FMCA 914 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 SZIWY v Minister for Immigration & Anor [2007] FMCA 1641 distinguished Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2006) 228 ALR 719; [2006] FCA 363

Applicant:

SZMSF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2300 of 2008

Judgment of:

Scarlett FM

Hearing date:

1 September 2009

Date of Last Submission:

13 October 2009

Delivered at:

Sydney

Delivered on:

27 January 2010

REPRESENTATION

Counsel for the Applicant:

Mr Young

Solicitors for the Applicant:

Simon Diab & Associates

Counsel for the Respondents:

Ms Francois

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The Application is dismissed.
(2) The Applicant is to pay the First Respondent’s costs.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2300 of 2008

SZMSF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. The Applicant is a citizen of Nepal who is applying for review of a decision of the Refugee Review Tribunal signed on 17th July 2008 and handed down on 7th August 2008. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
2. The Applicant seeks the issue of writs of certiorari, mandamus and prohibition.

Background

3. The Applicant arrived in Australia on 19th November 2007. He applied for a Protection (Class XA) visa on 28th December 2007. In a statement submitted with his application, the Applicant claimed to have been involved in various political activities in support of the King of Nepal and to have been targeted by Maoists as a result. He claimed to have been beaten and threatened by a group of people on 20th May 2006. He claimed to have been threatened by Maoists on a number of occasions after that incident. In his statement he claimed:
   • I left the country on 17 November 2007 and living peacefully in Australia. I am not secure there. I am targeted by the Maoists and other political parties. The government is not giving any security to pro monarch supporter. In light of above I am now seeking protection of my life in Australia.[1]
4. The Department of Immigration and Citizenship invited the Applicant to attend an interview with an officer of the Department on 10th March 2008. He attended that interview.
5. On 18th March 2008 a delegate of the Minister for Immigration and Citizenship refused the application for a protection visa. In the Protection (Class XA) visa Decision Record, the Minister’s delegate expressed doubts about the credibility of the Applicant’s claims, saying:
   • Furthermore in addition to the applicant’s political claims being vague and lacking critical detail, I note that the applicant has provided no documentary evidence to substantiate his claimed membership and involvement in the RPP Nepal. Although an applicant for a protection visa is not required to provide ‘proof’ of their claims, evidence of his membership and role would carry more weight and add credibility to the applicants’ claims and I consider that if the applicant was committed to politics as he asserts, he would have provided evidence in support of his claimed involvement in politics.[2]
6. Later in the Decision Record, the delegate stated:
   • I consider it is significant that the applicant’s claims for protection are very similar to the claims made by another protection visa applicant, which raises doubt as to the veracity of any of the applicant’s claims for protection.[3]
7. The delegate noted that the Applicant was invited to comment on that matter at the interview. He insisted that the statement submitted with his application contained an accurate representation of his claims. The delegate went on to state:
   • The applicant could not provide a credible explanation as to the similarity and identicalness in the statements of claims and insisted that he doesn’t “know anything about that” and reiterated that he knows his life is at risk. Considering the remarkable similarity between the applicant’s claims and those of another protection visa applicant and the applicant’s generally weak and superficial account at interview of his involvement in royalist politics in Nepal, I consider that the applicant has presented circumstances and claims which have been fabricated for the purposes of seeking protection in Australia.[4]
8. After the application for a protection visa was refused, the Applicant applied to the Refugee Review Tribunal for review of that decision.

Application to the Refugee Review Tribunal

9. On 15th April 2008 the Refugee Review Tribunal received the Applicant’s application for review.
10. The Tribunal invited the Applicant to appear at a hearing on 5th June 2008. He attended the hearing and gave evidence with the assistance of a Nepali interpreter.

The Refugee Review Tribunal Decision

11. On 7th August 2008 the Tribunal handed down its decision, affirming the delegate’s decision not to grant the Applicant a Protection (Class XA) visa.
12. In its Decision Record, the Tribunal set out a detailed summery of the Applicant’s claims to fear persecution in Nepal, interspersed with quotations from and references to Independent Country Information about Nepal and the Maoist insurgency.[5]
13. However, the Tribunal attached little credibility to the Applicant’s claims, saying:
    • On the vagueness and evasiveness of the Applicant’s evidence, the Tribunal does not accept that the Applicant has been actively involved with any DDC or other local government structure formally or informally, with the RPP or any other party.
    • On the Applicant’s vague, contradictory and unimpressive evidence, the Tribunal does not accept that the Applicant has ever been closely linked with the RPP or any other party. The Tribunal accepts that the Applicant may have at some stage preferred the RPP to other parties but does not regard this as significant, because the Applicant made it clear he faced persecution for being an RPP member, who was also a member of a local government structure who worked aggressively for the party, all facts that the Tribunal dismisses as concoctions.[6]
14. The Tribunal referred to the “poor quality of the Applicant’s evidence overall”[7] as being significant in its decision to give no weight to his claims and described him as “highly unconvincing” in describing how he exploited the pretext of “temporary business” as a means of escaping persecution in Nepal.[8]
15. The Tribunal gave consideration to the Applicant’s mental state, saying:
    • The Tribunal accepts that the Applicant has suffered depression and stress. However, the Tribunal does not accept on the evidence before it that the Applicant suffers from this as a result of the events and pressures claimed. Also, the Tribunal is not satisfied that the many, many inconsistencies in the Applicant’s oral evidence, some of which was quite starkly reversed from one sentence to another, have anything to do with the Applicant being on medication.[9]
16. The Tribunal was not satisfied that the Applicant faced a real chance of Convention-related persecution in Nepal and found his claimed fear not to be well-founded. Accordingly, it was not satisfied that the Applicant was a person to whom Australia owes protection obligations under the Convention and therefore did not satisfy the criterion in s.36(2)(a) for a protection visa.

Application for Judicial Review

17. By his amended application filed in Court on 1st September 2009, the Applicant seeks the issue of writs of certiorari, mandamus and prohibition. Essentially, he claims that the Tribunal fell into jurisdictional error because it accepted that the Applicant suffered from depression and stress but gave no consideration to the effect that this may have had on the Applicant’s presentation. Mr Young of counsel, who appeared for the Applicant, submitted that the Tribunal simply drew from the Applicant’s presentation itself that he was a person of no credibility. The unfairness arose from the failure by the Tribunal to consider whether the Applicant’s poor presentation was in part or in whole caused by the Applicant’s psychiatric condition.
18. Thus, it was submitted that a question of the fairness of the Tribunal hearing under s.425 of the Migration Act arose.
19. The Applicant gave evidence, as did his treating psychiatrist, Dr. M.A. Chaudhary. Whilst I held that certain affidavit evidence was inadmissible (SZMSF v Minister for Immigration & Anor[10]), the fact that the First Respondent was aware of what evidence Dr Chaudhary would give led me to the view that Dr Chaudhary’s evidence should be taken orally.

The Evidence of Dr. Chaudhary

20. Dr Chaudhary gave evidence that he is a psychiatrist who has been in practice in Australia for thirty years. The Applicant was referred to him by his treating general practitioner.
21. Dr Chaudhary prepared a report for the Applicant’s solicitors on 26th March 2009[11] and wrote to the solicitors on 3rd April 2009 to answer a specific question put to him.[12]
22. Dr Chaudhary reported that he had examined the Applicant on 12th March 2009. He reported a history from the Applicant of having been physically battered and emotionally tortured. The Applicant claimed that his past never left him and he feared further repercussions if he were to return to Nepal. He complained of:
    • Flashbacks;
    • Inability to sleep properly;
    • Nightmares;
    • Awakening with startle responses; and
    • Fears of horrible problems coming his way.
23. Dr Chaudhary described the Applicant as exhibiting symptomatology of post traumatic stress disorder characterised by intrusive recollections, dreams and flashbacks of events that happened whilst the Applicant was in Nepal. He also described the Applicant as exhibiting symptoms and signs of severe depression, feeling sad and melancholic, subject to crying easily and suffering from sleep disturbance.
24. Dr Chaudhary diagnosed the Applicant as suffering from:
    1. Post traumatic stress disorder;
    2. Severe depression; and
    3. Anxiety disorder.
25. The Applicant’s solicitors wrote to Dr Chaudhary on 2nd April 2009, asking him:
    • As such, we request your specialist knowledge as to whether (the applicant’s)[13] performance at the Tribunal’s hearing would have been adversely affected due to his diagnosed medical condition and whether the medication he was taking would affect his ability to provide evidence at the hearing.
26. Dr Chaudhary replied the next day:
    • I would like to advise that I did not see him at the time of his appearance before the Tribunal and as it is a hypothetical question the answer to this is that there is a probability that the diagnosed condition and the medication which is Tryptomer 10mg tablets one twice daily could have a sedative effect on his mind and that can affect his concentration attention and response to the questions put to him.[14]
27. In his evidence in chief Dr Chaudhary explained that the medication that had been prescribed to the Applicant contained amitryptiline, which is a tricyclic antidepressant. The Applicant was taking 10 mg, which Dr Chaudhary said was a small dose that was basically a sedative dose.
28. In cross examination, Dr Chaudhary was referred to his letter of 3rd April where he said that the question he was being asked was hypothetical because he had not seen the Applicant at the time of the Tribunal hearing. He was asked whether it would have assisted him in forming his opinion about the Applicant’s performance at the Tribunal hearing if he had been provided with a copy of the transcript of the hearing or the tapes of the hearing. Dr Chaudhary replied that it would have been “beneficial”.
29. Dr Chaudhary was unable to offer an opinion about the Applicant’s mental state when he made his initial statement to the Department of Immigration and Citizenship in December 2007, as he did not have the relevant information.

The Applicant’s Evidence

30. The Applicant gave evidence. He confirmed that the contents of his affidavit of 7th April 2009 accurately reflected what he wanted the affidavit to say.
31. In his affidavit the Applicant deposed that he had sought medical attention from a doctor at a hospital in Kathmandu in May 2007 and was prescribed Amitryptiline and Naturolax. He took a three month supply of his medication with him when he went to Australia and, when he had only about enough for another month, he asked his relatives in Nepal to obtain some more for him. He confirmed that he had consulted Dr Chaudhary on 12th March 2009.
32. The Applicant deposed that he had attended the Tribunal hearing on 5th June 2008 and had given evidence. He stated:
    • I gave evidence in Nepali with the assistance of an interpreter. At the time of the Tribunal hearing I was taking the Tryptomer medication. The effect of this medication is that it often made me drowsy and unable to concentrate. To the best of my recollection I was affected in this way on the day I appeared before the Tribunal. To the best of my recollection I knew that I was not answering questions before the Tribunal very well. My mind did not seem to be operating properly. I wasn’t able to remember things and I was very confused. To the best of my recollection, I not only told the Tribunal that I was on medication but at some point I even showed a strip of the medication. The Tribunal member appeared to write down something from looking at the strip.[15]
33. In cross examination, the Applicant said that he when he attended the interview with the Minister’s delegate he was not in a condition to give details about his involvement in politics in Nepal because of his mental status, saying:
    • and I would not be able to recall those things and I was not well mentally to be able to do so.[16]
34. He said that he told the Tribunal that he was taking medication and he had referred to his mental condition at the hearing. He agreed that he did not tell the Tribunal that he could not understand the Tribunal’s questions, saying:
    • I could not do that. He kept on asking what I told him. I can’t recall that all now. I do remember I presented the medication.[17]
35. He denied that he was giving false evidence to try to assist his case. He explained his inconsistent answers to the Tribunal by saying:
    • It’s all because of the depression status.[18]

Evidence on Behalf of the First Respondent

36. The First Respondent read an affidavit by Ms Dunn, solicitor, sworn on 24th August 2009. Ms Dunn was not required for cross examination. Her affidavit annexed a transcript of the Tribunal hearing.
37. The First Respondent also read an affidavit of Dr Richard Barry Furst, sworn on 16th June 2009. Dr Furst is a consultant forensic psychiatrist. Annexed to his affidavit were:
    1. A copy of his expert report dated 1 June 2009;
    2. A copy of his curriculum vitae; and
    100. A copy of a letter from the Minister’s solicitors to which his report related.

The Evidence of Dr Furst

38. In his report, Dr Furst stated that he obtained information from:
    1. The Court Book;
    2. Dr Chaudhary’s reports;
    100. The amended application;
    4. The Applicant’s affidavit;
    5. The CD of the Tribunal hearing; and
    6. The transcript of the hearing.
39. Dr Furst did not interview the Applicant.
40. In his report, Dr Furst stated that Amitryptiline is a tricyclic antidepressant used for the treatment of major depression, nocturnal enuresis and also for the treatment of chronic pain. In one study that examined the cognitive effects of Amitryptiline at doses of 25 mg:
    • Although there were delays in reaction time seen following administration of Amitryptiline, the average effect on these measures was between 5-10% delays in attention and information processing compared to baseline. This finding was statistically significant, but of little clinical significance.[19]
41. It was Dr Furst’s opinion that minimal side-effects would be expected in a person taking a dose of Amitryptiline 10mg twice daily for a longer period of time, as in the case of the Applicant.
42. Dr Furst went on to state that, at the dose in question, and given the likelihood of tolerance developing to the Amitryptiline medication, he would expect little or no effect on a person’s concentration, attention and responsiveness to questions asked of him in a setting such as a Tribunal hearing. The only visible manifestations, if any, at that dosage, would be a very slight delay in responding to questions, or the person asking for a question to be repeated for clarification.
43. Dr Furst stated that he had reviewed the CD of the Tribunal and the transcript, and stated:
    • Having regard to all the evidence available to me, I do not think that the Applicant’s answers to the Tribunal’s questions were affected or impaired, by reason of his medical condition or the dosage of his prescribed medication, namely Amitryptiline 10mg taken twice daily.[20]
44. In cross examination, Dr Furst said that he did not consider an examination of the Applicant to be necessary. He denied that his report was defective for that reason, stating that the questions he was asked were:
    1. The effect of 10 milligrams of Tryptomer taken twice daily on a male subject of average build and 36 years of age;
    2. To what extent would the subject’s concentration, attention and responsiveness to questions asked of him in a setting such as a Tribunal hearing be affected?
    100. What visible manifestations of the effect of the dosage would be displayed by the subject; and
    4. Whether Dr Furst considered that the Applicant’s answers to the Tribunal questions were affected or impaired by reason of hid medical condition or the dosage prescribed.
45. Dr Furst stated that, having looked at the information, the questions that he was being asked, and having had access to the transcript and the CD of the hearing, he did not feel that it would have been of assistance to interview the Applicant.
46. Dr Furst expressed the opinion that there was an inconsistency between the diagnosis of post traumatic stress disorder and the Applicant’s submissions to the Tribunal that he was suffering from depression. He did not disagree that the Applicant had a history of depression and stress, but that diagnosis is different from post traumatic stress disorder in psychiatric terms. Depression could affect a person’s presentation in giving evidence. The Tribunal, in its decision, did not consider the nature or severity of the Applicant’s depression.

Submissions

47. Counsel for the Applicant, Mr. Young, submitted that once the Refugee Review Tribunal had information that the Applicant suffered from depression and was on anti-depressant medication, there was an issue before it relating to possible impairment. He referred the Court to the decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR[21], where it was held that a breach of s.425 of the Act can occur as a result of circumstances unknown to the Tribunal and beyond its control.
48. Mr Young also referred to the decision of Smith FM in SZIWY v Minister for Immigration & Anor[22], where his Honour had dealt with the issue of a denial to an applicant of a fair opportunity to present her case to the Tribunal because of impairment. His Honour found that the applicant’s capacities as a witness were materially affected by her circumstances at the hearing. He also found further unfairness in the Tribunal’s failure to take into account issues about the applicant’s mental capacities.
49. It was submitted that once the Tribunal had accepted that the Applicant was suffering from depression and was taki8ng medication for it, there were plainly issues accepted by the Tribunal which affected the Applicant’s ability to present his case. However, the Tribunal found without any inquiry that it was not satisfied that inconsistencies in the Applicant’s oral evidence had anything to do with his being on medication. There was no evidence before the Tribunal from which it could base that conclusion.
50. The Tribunal had accepted that the Applicant suffered from depression and stress. It made a finding that the quality of the Applicant’s evidence was not related to his being on medication but it totally failed to consider whether the Applicant’s evidence was affected by the serious psychiatric and mental condition which it found to be established. The mental condition and the medication which the Applicant was taking would have been sufficient to make the hearing unfair. The Tribunal knew that the Applicant was suffering from depression and taking anti-depressant medication but, without any evidence, dismissed their significance.
51. For the First Respondent Minister, Ms Francois of counsel submitted that the Court is required to determine one issue of fact and one issue of law:
    1. Whether the Applicant was affected by a medical condition such that he was unable to participate in the hearing before the Refugee Review Tribunal causing the Tribunal to breach s.425 of the Act; and
    2. Even if the question of fact is decided against the Applicant, whether the Tribunal erred in the exercise of its jurisdiction by failing to consider whether to use its powers to obtain evidence about the Applicant’s fitness to attend the hearing.
52. It was submitted that the Court should give no weight to the opinion of Dr Chaudhary, who had diagnosed the Applicant to be suffering from depression, post traumatic stress and anxiety. The opinion was based upon:
    1. The assumption that the factual history given by the Applicant was accurate; and
    2. Dr Chaudhary’s observations of the Applicant during a one hour interview, with the Applicant’s friend acting as the Applicant’s interpreter.
53. As the Applicant gave no evidence to prove that the history he gave to Dr Chaudhary was accurate, this history being the primary basis for Dr Chaudhary’s opinion, the Court should give no weight to the report (Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd[23] at [7] per Heerey J).
54. Further, Ms Francois submitted that the Court should give no weight to Dr Chaudhary’s opinion for these reasons:
    1. He failed to obtain all necessary relevant material, including the Court Book and a copy of the transcript of the Applicant’s evidence or a recording of the Tribunal hearing;
    2. He conceded that:
       1. The Applicant’s evidence to the Tribunal had been responsive to the questions asked;
       2. The Applicant had appeared to understand the questions; and
       3. It was not possible for him to explain why the Applicant’s otherwise responsive evidence was contradictory.
    100. His own observations of the Applicant during the interview were equally consistent with the Applicant being depressed and anxious about being sent back to Nepal; and
    4. It was unlikely that the Applicant suffered from depression before coming to Australia, which made the symptoms that Dr Chaudhary observed more likely to have arisen in connection with this litigation and the Applicant’s desire to remain in Australia, rather than because of having been persecuted in Nepal.
55. It was submitted that it is not open to the Court to find that at the time of the hearing the Applicant suffered from depression, post traumatic stress disorder and anxiety such that he was medically unfit to participate in the Tribunal hearing. Further, it was submitted that the Court should have regard to the evidence of Dr Furst, who listened to the hearing tapes and reviewed the transcript of the Tribunal hearing. The Court should therefore find that the Applicant was not relevantly accepted by any medical condition at the time of the hearing such that he could not participate in the hearing.
56. As to the question of law, Ms Francois submitted that the Applicant’s argument on the question of law relies entirely on the obiter dicta observations of Smith FM in SZIWY v Minister for Immigration and Anor.[24] It was submitted that his honour’s observations are wrong and there is no jurisdictional error by a Tribunal in failing to consider whether to obtain a medical report about an applicant’s fitness to attend a hearing.
57. Ms Francois submitted that the fact that if an applicant is not medically fit to attend the hearing, there may be a breach of s.425 of the Act (Minister for Immigration and Multicultural and Indigenous Affairs v SCAR[25]) cannot support the corollary proposition that the Tribunal must always consider the question of an applicant’s medical fitness before sending an invitation to a hearing.
58. In reply, Mr Young submitted on behalf of the Applicant that the Tribunal had accepted that the Applicant had suffered from depression and stress[26] but gave no consideration to the effect of the effect of that depression and stress upon the Applicant’s participation in the hearing, which was the critical issue under s.425. It had a “jurisdictional duty” to determine whether the Applicant’s capacities as a witness were affected by this condition. Whilst the Tribunal did consider whether the Applicant’s presentation had been affected by the medication he was taking, it was not satisfied that the Applicant’s poor presentation in evidence had anything to do with his being on medication.
59. It was further submitted that in assessing the Applicant’s credibility adversely by reference to the nature of his responses, without taking into account a possible psychological or psychiatric explanation is sufficient to establish jurisdictional error.

Conclusions

60. The Applicant’s case raises a question of fact and a question of law. The question of law does not, in my view, arise unless the question of fact is decided in the Applicant’s favour.
61. The Applicant’s case is based on his evidence that he was drowsy and unable to answer questions very well because of his medication and on the opinion of Dr Chaudhary.
62. The Tribunal accepted that the Applicant had been prescribed medication for depression whilst in Nepal. There was no evidence before the Tribunal that the Applicant had undergone any medical treatment in Australia. The Applicant did not tell the Tribunal that he could not understand the Tribunal’s questions or that he did not feel well enough to participate in the hearing.
63. Dr Chaudhary diagnosed the Applicant as suffering from post traumatic stress disorder, severe depression and anxiety disorder, based on the history given to him by the Applicant and his observations of the Applicant on 12th March 2009. The Tribunal hearing had taken place on 5th June 2008.
64. It was always going to be a difficult question for Dr Chaudhary to make an ex post facto diagnosis of the Applicant’s condition when he appeared before the Tribunal nine months earlier. The task was not made any easier for Dr Chaudhary in that he was not provided with either a transcript or a recording of the Tribunal hearing.
65. As Dr Chaudhary stated in his letter of 3rd April 2009 (Exhibit 3), he was being asked to reply to the questions:
    1. Whether the Applicant’s performance at the Tribunal hearing would have been affected adversely due to his diagnosed medical condition; and
    2. Whether the medication he was taking would affect his ability to give evidence.
66. Dr Chaudhary pointed out that he did not see the Applicant at the time of the hearing. The best he could say was that there was “a probability” that the diagnosed condition and the medication could have a sedative effect on the Applicant’s mind which could affect his concentration, attention and responses to the questions put to him. This was a tentative answer to what Dr Chaudhary himself described as “a hypothetical question”.
67. As Dr Chaudhary said in cross examination, it would have been “beneficial” if he had been supplied with a transcript of the Tribunal hearing or, better still, a copy of the recording. Unfortunately, he was provided with neither.
68. As to the dosage of Amitryptiline being taken by the Applicant at the time of the hearing, namely 10mg twice daily, Dr Chaudhary said in evidence that it was a small dose that was basically a “sedative dose”. Dr Chaudhary advised the Applicant to increase the dosage to three times a day:
    • Now, when he came to see me he told me that he was taking two tablets a day and I told him it’s not adequate, he should increase to three tablets a day, which makes total amount of amitryptiline in the medicine up to 30 milligrams.[27]
69. Dr Furst was of the view that “minimal” cognitive side-effects would be expected in a person taking a dose of amitryptiline 10mg twice daily for a person in the position of the applicant. He stated that he would expect little or no effect on a person’s concentration, attention and responsiveness at that dose. He would expect no obvious visible manifestations, except possibly in the form of a very slight delay in responding to questions, or asking for a question to be repeated for clarification.
70. Dr Furst had the advantage over Dr Chaudhary in that he was provided with a transcript of the Tribunal hearing and a CD of the hearing, both of which he was able to review. He referred to the Applicant changing his answers on a number of occasions. He gave these examples:
    • There was no suggestion that he did not comprehend the question and no attempt by the applicant to clarify the question, which strongly suggests that he understood the question put to him but gave an inconsistent response...
    • There appeared to be a lack of knowledge and inconsistency in the Applicant’s responses, rather than a problem with his attention or memory.[28]
71. Dr Furst stated that he did not think that the Applicant’s answers to the Tribunal’s questions were affected or impaired, by reason of his medical condition or the dosage of his prescribed medication, which was Amitryptiline 10mg taken twice daily.
72. In my view, Dr Furst’s opinion is based on evidence of the Applicant’s performance at the Tribunal hearing, which was not made available to Dr Chaudhary. By comparison, Dr Chaudhary had to rely on the Applicant’s history at a consultation nine months after the event, and he was required to extrapolate his diagnosis back to the time of the hearing.
73. For those reasons, I am satisfied that I should prefer the opinion of Dr Furst to that of Dr Chaudhary.
74. There was no obligation on the Tribunal to obtain any medical or psychological evidence about the Applicant on the basis that it was made aware that he had been prescribed medication for depression and stress. I would comment that the fact situation in SZIWY was quite different from the facts in this matter. In SZIWY there was evidence that concerns had been raised about the Applicant’s mental state at the time she was taken into immigration detention and an application was made for a protection visa. I would distinguish SZIWY on the facts.
75. I am therefore satisfied that there is no evidence sufficient to establish that the Applicant was so affected by a medical condition or by the effects of prescribed medication that he was unable to participate effectively and appropriately in the hearing before the Refugee Review Tribunal. There is no denial of the right to a fair hearing under s.425 of the Act.
76. There is no jurisdictional error. The Tribunal decision is a privative clause decision. Consequently, it is final and conclusive and not subject to the orders in the nature of certiorari, mandamus and prohibition that the Applicant seeks in his amended application (s.474(1)).
77. The application will be dismissed with costs.

I certify that the preceding 77Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !seventy-sevenseventy-seven (77) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V. Lee

Date: 14 January 2010

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[1] See Court Book at page 30
[2] Court Book at page 62
[3] Court Book at page 63
[4] Court Book 12-13
[5] Court Book 104-114 at paragraphs [22]- [86]
[6] Court Book 114 at [89] and [90]
[7] Court Book 114-115 at [92]
[8] Court Book 115 at [94]
[9] Ibid at [95]
[10] [2009] FMCA 914
[11] Exhibit 1
[12] Exhibit 3
[13] The Applicant’s name is not published in order to comply with Migration Act 1958 s.91X
[14] Exhibit 3
[15] Applicant’s affidavit 7 April 2009 paragraph 13
[16] Transcript 1.9.09 page 47 at lines 23-24
[17] Transcript page 48 lines 14-15
[18] Ibid line 25
[19] Dr Furst’s Report, page 4
[20] Dr Furst’s Report, page 6
[21] (2003) 128 FCR 553; [2003] FCAFC 126
[22] [2007] FMCA 1641
[23] (2006) 228 ALR 719; [2006] FCA 363
[24] Supra
[25] Supra
[26] Court Book 115 at [95]
[27] Transcript 1.9.09 page 15 at 44-46
[28] Dr Furst’s Report page 5