Nam and Civil Aviation Safety Authority - [2023] AATA 3574

Nam and Civil Aviation Safety Authority [2023] AATA 3574 (2 November 2023)
Division:GENERAL DIVISION
File Number: 2022/7485
Re:Oliver James Nam
APPLICANT

AndCivil Aviation Safety Authority
RESPONDENT

DECISION
Tribunal:Senior Member C. J. Furnell
Dr S Lewinsky, Member
Date:2 November 2023
Place:Melbourne

The Tribunal sets aside the decision under review and remits it to the respondent for reconsideration subject to a direction that the applicant does not fail to satisfy the safety relevant condition criterion or the medication criterion by reason of his ADHD, his use of Ritalin or a combination thereof.
...............[sgd]......................................... .............[sgd]......................................
Senior Member C. J. Furnell Dr S Lewinsky, Member
CATCHWORDS
CIVIL AVIATION - Class 1 and Class 2 medical certificates - applicant diagnosed with ADHD and treated with Ritalin - whether the applicant meets the medical standard for medical certificates - safety relevant condition criterion - medication criterion - consideration of "side effects likely to affect the person" - decision set aside and remitted with a direction
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Civil Aviation Act 1988 (Cth)
Civil Aviation Safety Regulations 1988 (Cth)
CASES
Al Salim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 65
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Bush and Civil Aviation Safety Authority [2022] AATA 2821
Dixon and Civil Aviation Authority [2011] AATA 332
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Elias v Commissioner of Taxation (2002) 123 FCR 499
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
Hall and Civil Aviation Safety Authority [2004] AATA 21
Healy and Civil Aviation Safety Authority [2017] AATA 741
Leong and Minister for Home Affairs (Citizenship) [2019] AATA 3641
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529
Mulholland and Civil Aviation Safety Authority [2007] AATA 1952
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Window and Civil Aviation Safety Authority [1999] AATA 525
Secondary Materials
REASONS FOR DECISION
Senior Member C. J. Furnell
Dr S Lewinsky, Member
2 November 2023

The applicant applied to the Tribunal[1] for review of an August 2022 decision of the respondent made under the Civil Aviation Safety Regulations 1988 (Cth) (“CASR”).
[1] Civil Aviation Act 1988 (Cth) (“CA Act”), s 31: Application may be made to the Administrative Appeals Tribunal for review of a reviewable decision which includes “a refusal to grant or issue, or a cancellation, suspension or variation of, a certificate, permission, permit or licence granted or issued under this Act or the regulations.” Regulations made under the Act include the Civil Aviation Safety Regulations 1988 (Cth).
That decision was to refuse to issue the applicant with either a class 1 or a class 2 medical certificate.[2]
[2] T3, pp.8-30.
In reviewing the decision, the Tribunal stands in the respondent’s shoes, to “do over again” that which was done by the respondent.[3] In doing so, it performs the same function, exercises the same power,[4] is subject to the same constraints and addresses the same question or questions[5] as the respondent.
[3] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], citing with evident approval two earlier decisions, Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51] and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315 [40], [100].
[4] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529 per Katzmann J at [34] citing Esper v Commonwealth of Australia (1992) 174 CLR 430 at 440; Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [14]-[15]; Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], where it is said that the “…merits review function of the AAT is “to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review”. The function of the AAT, in other words, is “to do over again” that which was done by the primary decision-maker.”
[5] Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51], where it is said that the “…AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT’s review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision”.
In deciding whether to issue a medical certificate to the applicant, a constraint to which the respondent was subject (and, hence, one to which the Tribunal is subject) is found in CASR 67.180(1). That regulation imposes an obligation to issue medical certificates for which application is made if the applicant meets certain requirements specified in the regulation.
The obligation to issue a medical certificate for which application is made is, however, subject to another provision of CASR.[6] Under that other provision, a medical certificate may only be issued if, amongst other things, issuing the certificate would not be likely to have an adverse effect on the safety of air navigation.
[6] CASR 11.055.
Neither party made any submissions about the applicability or otherwise of this other CASR provision. The focus of the parties’ submissions was, instead, on the question of whether the applicant met the relevant requirements of CASR 67.180. Indeed, only one of the requirements was in issue, it being implicitly accepted by the parties that the applicant met the other relevant requirements.
Given the nature of the requirement in issue, as will soon become apparent and as generally submitted by the respondent,[7] the questions to be addressed in considering whether to issue a medical certificate to the applicant are:
(a)whether he meets the medical standard for the issue of a class 1 and class 2 medical certificate;
(b)if not, whether the extent to which he fails to meet the medical standard is not likely to endanger the safety of air navigation; and
(c)if so, whether any conditions could be imposed upon the medical certificate which would mitigate the threat posed to air safety by the applicant's failure to meet the class 1 and class 2 medical standard so that it is no longer likely to endanger the safety of air navigation.
[7] R SFIC [3].
Thirty-nine criteria need to be satisfied in order to meet the medical standard for each of a class 1 and a class 2 medical certificate.
In these proceedings, the parties focussed on two of those criteria, the respondent submitting that they were not satisfied. Those criteria are found in items 1.1 and 1.3 of Table 67.150 of CASR (in the case of the class 1 medical certificate application) and items 2.1 and 2.3 of Table 67.155 of CASR (in the case of the class 2 medical certificate application).
For the reasons which follow, we are not satisfied that those criteria are not satisfied. This does not mean, however, that we have decided to issue to the applicant the medical certificates for which he applied. Instead, we have decided to remit the matter to the respondent for reconsideration in accordance with a direction requiring that the applicant not be considered to have failed to satisfy the criteria which are the focus of these proceedings by reason of a particular medical condition (ADHD), the applicant’s use of a particular medication in relation to that condition (Ritalin), or a combination thereof.
Material before Tribunal
In undertaking its review of the respondent’s August 2022 decision, the Tribunal is obliged to make “the correct or preferable decision” on the material before it.[8]
[8] See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]-[98] (Hayne and Heydon JJ).
The material before the Tribunal included evidence adduced at the hearing and certain documentary material lodged with the Tribunal prior to the hearing.
As for evidence adduced at the hearing, the Tribunal heard from the applicant and two expert witnesses called by the applicant, a psychiatrist (Dr Tofler) and a clinical neuropsychologist (Dr Bourke). The Tribunal also heard from witnesses called by the respondent, a psychiatrist (Dr Atherton) and a senior medical officer employed by the respondent (Dr Sharma).
As for documentary material lodged with the Tribunal, it comprised:
(a)A bundle of copy documents of 251 pages lodged with the Tribunal by the respondent under s 37(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (designated in these reasons with a “T”).
(b)Report of Dr Atherton of 3 May 2023 (“Atherton report”).
(c)Witness statement of Dr Sharma of 30 June 2023 (“Sharma statement”) and annexures thereto of 59 pages.
(d)Email of 13 July 2023 to the applicant from Ms Canny, a principal lawyer employed by the respondent, including a screenshot of guidelines used for drug categorisation by respondent medical officers.
(e)Email of 23 March 2023 to the applicant from Ms Canny.
(f)Respondent’s briefing letter of 12 April 2023 to Dr Atherton.
(g)Report of 13 July 2022 of Mr Watson-Munro, consultant psychologist.
The parties lodged submissions about that documentary material prior to the hearing.[9] Further submissions were lodged in the course of closing submissions made on behalf of each party.[10]
[9] See the respondent’s statement of facts, issues and contentions of 13 June 2023 (“R SFIC”) and the applicant’s statement of facts, issues and contentions of 4 August 2023 (“A SFIC”).
[10] Applicant’s two-page closing submission (“A CS”) and respondent’s outline of closing submissions of 24 pages (“R CS”), both lodged on 13 September 2023.
Objection was taken by the applicant to certain of the evidence before the Tribunal. In particular, the applicant suggested that the Tribunal should not have regard to Dr Sharma’s evidence or to the Sharma statement because Dr Sharma was the decision-maker or an officer of the decision-maker.
We reject that suggestion. The respondent in this proceeding is not seeking to have the Tribunal validate a decision the respondent made but is, rather, seeking to have the Tribunal make what the respondent considers to be the correct or preferable decision having regard to the material now before the Tribunal. Moreover, requiring that decision-makers effectively remain silent before the Tribunal would defeat the purpose underlying the legislative requirement that they use best endeavours to assist the Tribunal to make its decisions.[11]
[11] Administrative Appeals Tribunal Act 1975 (Cth), s 33(1AA).
This is not to suggest that material weight ought to be attributed to opinion evidence of a witness that lies outside the scope of the witness’ expertise. This leads us to objections taken by the applicant to certain paragraphs of the Sharma statement and to a submission that appeared to have been made by the respondent concerning an annexure to the Sharma statement.
As for the applicant’s objections, they concerned certain paragraphs of the Sharma statement.[12] Certain of those paragraphs include conclusionary statements about issues that fall outside the scope of Dr Sharma’s expertise.[13] While not bound by the rules of evidence, the Tribunal nevertheless attributes little weight to statements of that nature.
[12] Sharma statement at [30]-[31], [38]-[39], [42]-[47].
[13] For instance, at [30], Dr Sharma states that “controllers must not exercise the privileges of a medical certificate” while taking Ritalin.
As for the respondent, it appeared to submit that the respondent’s clinical practice guidelines with respect to ADHD (set out in an annexure marked SS3 to the Sharma statement) constituted evidence that ought to be given greater weight than expert opinion.[14]
[14] R CS at [11], [37].
While not bound to do so,[15] the Tribunal generally seeks to apply government policy where relevant, absent cogent reasons to the contrary.[16] Such an approach is particularly appropriate where the Tribunal is being called upon to arrive at an opinion[17] based on an evaluative judgment.[18] That is not, however, the case here. Largely, the issues before the Tribunal in this proceeding are ones of construction, not opinion. Insofar as the clinical practice guidelines expressly or implicitly reflect or adopt a particular construction of CASR,[19] we do not attribute significant probative value to them.
[15] Elias v Commissioner of Taxation (2002) 123 FCR 499 at 506–7 per Hely J. See also Leong and Minister for Home Affairs (Citizenship) [2019] AATA 3641 at [34]-[42].
[16] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645 per Brennan J; Al Salim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 65 at [25]. In MDXJ v Secretary, Department of Social Services [2020] FCA 1767, it was said (at [17]) that the “…part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case … Further, it is well-established that the Tribunal … is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”
[17] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [54]: “…the matter of which the Minister must be satisfied, the applicant’s good character, is not a fact to be proved but an opinion requiring an evaluative judgment.”
[18] Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 at [54], where it is said: “Policy guidelines like the priorities policy promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike. In particular, policies or guidelines may help to promote consistency in ‘high volume decision-making’, such as the determination of applications for Subclass 202 visas. Thus in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) , Brennan J, as President of the Administrative Appeals Tribunal, said that ‘[n]ot only is it lawful for the Minister to form a guiding policy; its promulgation is desirable’ because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision-making by ‘diminishing the importance of individual predilection’ and ‘the inconsistencies which might otherwise appear in a series of decisions’. The subjectivity of the evaluation by a decision-maker in a case such as the present highlights the importance of guidelines.”
[19] It is noted, for instance, that the respondent considers that the applicant ought to have addressed the respondent’s clinical guidelines as they “…clearly do not allow for certification while a person is [being] treated with stimulants.”: see R CS at [57].
Aspects of factual and general regulatory context
In November 2020, aged 32, the applicant was diagnosed with ADHD (inattentive type) by Dr Tofler.
Dr Tofler prescribed medication for that condition, methylphenidate (also known as Ritalin).
The applicant currently takes 40mg of Ritalin daily, 20mgs in the morning, 10mgs later in the morning and 10mgs in the early afternoon.
The applicant holds a private pilot licence and a commercial pilot licence.
In this regard and as a general rule, a person may only exercise the privileges afforded under legislation to the holder of a pilot licence if he or she holds a current class 1 medical certificate (in the case of a commercial pilot licence)[20] or current class 1 or class 2 medical certificate (in the case of a private pilot licence).[21]
[20] CASR 61.415. The general rule is qualified when, for instance, the relevant person holds a medical exemption for the exercise of the privileges of the person’s licence or, in the case of a recreational aircraft and subject to further qualifications, the person holds a current recreational aviation medical practitioner’s certificate.
[21] CASR 61.410. Again, the general rule is qualified.
Moreover, a person is generally prohibited from performing any duty that is essential to the operation of an Australian aircraft during flight times if the person does not hold a current civil aviation authorisation that authorises the performance of that duty[22] (noting that the term “civil aviation authorisation” is defined in CA Act to include a medical certificate issued under the regulations[23]).
[22] CA Act, s 20AB.
[23] CA Act, s 3.
The applicant held a class 1 medical certificate which expired in June 2018.
The applicant also held a class 2 medical certificate, but it was suspended in January 2021 and cancelled in March 2021.
In November 2021, the applicant applied for a class 1 and class 2 medical certificate.[24]
[24] T30, p.130: see CASR 67.175 as to applications for a medical certificate. This is subject to CASR 11.055.
After the applicant applied for these certificates, the respondent became obliged to issue them to him if he met the requirements of CASR 67.180(2).[25]
[25] CASR 67.180(1).
That obligation of the respondent (and, in its shoes, the Tribunal) is subject to two things.
First, it is subject to CASR 11.055. Amongst other things, that suggests that a medical certificate may only be issued to the applicant if to do so “would not be likely to have an adverse effect on the safety of air navigation.”[26] As noted earlier, neither party made submissions directed to this qualification to the obligation to issue a medical certificate.
[26] CASR 11.055(1A)(e), noting that the term “authorisation” as used in the regulation encompasses a medical certificate, being “a certificate capable of being granted to a person under these Regulations”: see CASR 11.015. In considering this matter, the respondent is able to take into account a number of issues, including any other matter relating to the fitness of the applicant to hold the certificate: see CASR 11.055(4).
Second, it is subject to CASR 67.180(7). This means that the obligation to issue a medical certificate to the applicant is subordinate to an obligation not to issue him a medical certificate if the respondent (or, standing in its shoes, the Tribunal) is satisfied that, amongst other things, the applicant does not satisfy the requirements of CASR 67.180.[27]
[27] CASR 67.180(7).
For the applicant to satisfy the requirements of CASR 67.180, amongst other things, either he would need to meet the “relevant medical standard” or, if he does not meet the relevant medical standard, the extent to which he does not meet the standard “…is not likely to endanger the safety of air navigation”.[28]
[28] CASR 67.180(2)(e).

Hence, there are two possible bases on which it might be considered that an applicant for a medical certificate satisfies the requirements of CASR 67.180. In this proceeding, the focus of the parties was on the first basis.[29] This involved addressing the issue of whether the applicant met the relevant medical standard. The respondent submitted, in essence, that the applicant did not meet the standard and that he did not do so for reasons concerning the safety of air navigation. Hence, according to the respondent, it could not be said that the shortfall from the relevant medical standard is not likely to endanger the safety of air navigation.
[29] Albeit in closing submissions the respondent’s counsel submitted that the applicant’s ADHD treated by methylphenidate “also poses an unsafe risk to aviation safety”: Transcript, p.157.
For a class 1 medical certificate, the “relevant medical standard” is medical standard 1 set in CASR 67.150.[30] For a class 2 medical certificate, the “relevant medical standard” is medical standard 2 set in CASR 67.155.[31]
[30] CASR 67.010 and 67.150.
[31] CASR 67.010.
Many criteria must be satisfied for a medical standard to be met. In this proceeding, however, the focus ultimately came to be on whether the applicant satisfies two criteria, common to both medical standards. In these reasons, those criteria are called the safety relevant condition criterion and the medication criterion.
The safety relevant condition criterion requires that the applicant have no safety‑relevant condition of any of the following kinds that produces any degree of functional incapacity or a risk of incapacitation:
(a)an abnormality;
(b)a disability or disease (active or latent);
(c)an injury;
(d)a sequela of an accident or a surgical operation.[32]
[32] Item 1.1 of CASR Table 67.150; Item 2.1 of CASR Table 67.155.
The medication criterion requires that the applicant not be using any over‑the‑counter or prescribed medication or drug (including medication or a drug used to treat a disease or medical disorder) that causes him to experience any side effects likely to affect him to an extent that is safety‑relevant.[33]
[33] Item 1.3 of CASR Table 67.150; Item 2.3 of CASR Table 67.155.
The concept of “safety relevant” used in both criteria is defined in CASR but only in the context of a “medically significant condition,”[34] such as an abnormal psychological state.[35] In this regard, an abnormal psychological state will be safety relevant if it reduces, or is likely to reduce, the ability of someone who has it to exercise a privilege conferred or to be conferred, or perform a duty imposed or to be imposed, by a licence that he or she holds or has applied for.[36]
[34] CASR 66.010.
[35] CASR 67.010: definition of “medically significant condition”.
[36] CASR 67.015.
Similarly, the term “likely” is used in both criteria. It is an element of the “safety relevant” concept. It is also used in the medication criterion in assessing whether the side effects of a drug or medication have a safety relevant effect on the applicant. As so used, it has been found to mean a risk which is not remote but is substantial or real.[37] As was said by DP Handley in Hall, “…When issues of air safety are under consideration, a small risk may be sufficient to trigger the need to take appropriate action to address the risk.”[38]
[37] McClymont and Civil Aviation Safety Authority [2019] AATA 5429 at [39] citing Window and Civil Aviation Safety Authority [1999] AATA 525 at [60], where it was said that “Having regard to the need to protect public safety while having regard to a person’s entitlement to pursue his or her ambitions, we consider that the word ‘likely’ means ‘a substantial or real and not remote chance’”. That decision was also cited in Bush and Civil Aviation Safety Authority [2022] AATA 2821 at [151]. In Bush, reference was also made to the decision in Mulholland and Civil Aviation Safety Authority [2007] AATA 1952 where, at [65], when referring to the risk of a particular event, it was said that “…the risk of incapacitation is real and not an imaginable or fanciful risk nor is it a remote risk.”
[38] Hall and Civil Aviation Safety Authority [2004] AATA 21 at [45].
Accordingly, the medication criterion will not be satisfied if the applicant’s use of Ritalin causes him to experience any side effects which give rise to a substantial or real risk of reducing his ability to exercise a privilege conferred or perform a duty imposed by his class 1 or class 2 pilot licence.
We note that the respondent (and, standing in its shoes, the Tribunal) may issue a medical certificate to the applicant subject to any condition that it is satisfied is necessary in the interests of the safety of air navigation.[39] As submitted by the respondent, in “…some circumstances it is by using regulation 11.056 to impose conditions upon a medical certificate that the respondent can reach the required level of satisfaction that the extent to which the person fails to meet the applicable medical standard is not likely to endanger the safety of air navigation.”[40] As DP Kendall stated in Healy, “…if the extent to which an applicant fails the medical standard is likely to endanger the safety of air navigation, then the relevant certificate must be refused unless it can be issued with conditions which will ameliorate any risk posed.”[41]
[39] CASR 11.056(1)(a).
[40] R SFIC [16].
[41] Healy and Civil Aviation Safety Authority [2017] AATA 741 at [27] (“Healy”).
While the respondent submitted that the Tribunal was required to consider the issue of “whether any conditions could be imposed upon the medical certificate which would ameliorate the threat posed to air safety by the applicant’s failure to meet the class 1 and class 2 medical standard,”[42] neither party addressed the possibility of imposing conditions on the applicant in any detail.[43]
[42] R CS [3].
[43] Compare Bush and Civil Aviation Safety Authority [2022] AATA 2821, where conditions were proposed by both parties.
From the applicant’s perspective, conditions were not necessary as he satisfied the safety relevant condition and medication criteria. Accordingly, as his counsel acknowledged at the hearing, in terms of possible conditions, he had not “…really sat down and contemplated what they might entail or what they might look like.”[44]
[44] Transcript, p.156.
From the respondent’s perspective, it maintained the position expressed in the decision the subject of review that “…no conditions imposed upon your medical certificate would adequately mitigate the risks to air safety posed by your medical condition.”[45] If, as the respondent submitted, the medication criterion was not satisfied because of the side effects of taking Ritalin, the Tribunal accepts that conditions designed to identify whether the applicant was at any particular time suffering such side effects would not seem feasible. In this regard, according to Dr Atherton, there is no real objective way of assessing whether a person is suffering such side effects.[46] In any event, we note suggestions on behalf of the respondent that it may be prepared to issue a medical certificate to the applicant should he cease his use of Ritalin for at least six months.[47]
[45] T3, p.29; see Sharma statement at [72].
[46] Transcript, p.133.
[47] R SFIC [96].
In construing provisions of CASR of relevance to the safety of air navigation, “… a suitably cautious approach must be undertaken…”[48] so that “…to the extent that there is ambiguity or uncertainty surrounding the Applicant’s medical condition [or, indeed, the effects on the application of medication taken by him], the Tribunal should err on the side of caution…”.[49] The need for such caution is consistent with:
(a)The main object of the Act under which CASR is made (the CA Act) being to “…establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents.”[50]
(b)The obligation of the respondent to “…regard the safety of air navigation as the most important consideration…” when exercising its powers and functions.[51]
[48] Bush and Civil Aviation Safety Authority [2022] AATA 2821 at [142].
[49] Ibid [143].
[50] CA Act, s 3A.
[51] CA Act, s 9A(1).
Respondent submissions
As mentioned earlier, in November 2021, the applicant applied for a class 1 and class 2 medical certificate.
The respondent submits that the Tribunal is obliged not to issue the applicant a medical certificate as it ought to be satisfied that, amongst other things, the requirements of CASR 67.180 are not satisfied in the case of the applicant.
According to the respondent, the 67.180 requirements are not satisfied because neither relevant medical standard is met and, inferentially, “the extent to which” the applicant does not meet the medical standards is likely to endanger the safety of air navigation.
Two criteria, common to both medical standards, are said not to be satisfied: the safety relevant condition criterion and the medication criterion.[52]
[52] R CS [18].
The safety relevant condition criterion
We admit of some reluctance to consider the respondent’s submissions concerning this criterion. The proposition that it was not satisfied was raised on the second day of the hearing of this proceeding, having not been mentioned in the R SFIC.[53] When the Tribunal expressed concern about its having been so raised, on behalf of the respondent it was said that the respondent’s reliance on the criterion was identified “in the original decision”[54] and by the decision-maker.[55] The respondent did not, however, place any reliance on that criterion in the decision the subject of review. As in the R SFIC,[56] in that decision, reference is made only to the medication criterion.[57] Similarly, only the medication criterion was referred to in a May 2022 letter to the applicant alerting him to the respondent’s intention to refuse to issue him a medical certificate.[58] (We do note, however, that reference to the safety relevant condition criterion was made when cancelling the applicant’s class 2 medical certificate in March 2021.[59])
[53] The R SFIC at [84] did mention that the respondent’s clinical practice guidelines stated that a diagnosis of ADHD required grounding of a pilot. The respondent also referred to the applicant’s ADHD in combination with his use of Ritalin, but in the context of the fall-back question of whether the extent to which he does not meet the standard “…is not likely to endanger the safety of air navigation”: see R SFIC [103]-[105]. At R SFIC [97], it was said that the “…respondent contends that the applicant fails to meet the class 1 and class 2 2 (sic) medical standard in the following regard: Item 1.3 and 2.3- Is not using any over-the-counter or prescribed medication or drug (including medication or a drug used to treat a disease or medical disorder) that causes the person to experience any side effects likely to affect the person to an extent that is safety-relevant.”
[54] Transcript, p.148.
[55] Transcript, p.158.
[56] R SFIC [97].
[57] T3, p.28.
[58] T42, p.193.
[59] T22, p.99.
That the medication criterion was the focus of concern is reflected in the evidence of the experts called by the respondent. They concentrated on the applicant’s use of Ritalin, not on his ADHD condition.[60] Indeed, in his May 2023 report, Dr Atherton expressed doubt as to the validity of the applicant’s ADHD diagnosis. Nevertheless, he said that “…, if it exists, [it] is of an extremely mild form, and the use of medication is not required in this case. In fact, he is highly likely to meet the standard for medical certification without the use of medication given his high levels of performance and the use of medication will decrease the safety profile of this individual… Clearly, his medication is a barrier to him returning to one of his past [sic] times, aviation.” Dr Sharma considered simply that it was the applicant’s use of Ritalin that constituted a risk of endangering the safety of air navigation,[61] albeit that in his statement he expressly referred to the safety relevant condition criterion[62] and contended that it was not satisfied by reason of the applicant’s ADHD.[63]
[60] For example, see Sharma statement at [64]-[67].
[61] Sharma statement at [70].
[62] Sharma statement at [46].
[63] Sharma statement at [38].
When given an opportunity to do so, the applicant’s counsel expressed no concern about what might seem to be a late change in position by the respondent.[64] This was despite counsel stating he had approached the hearing on the basis that the respondent was concerned only with the medication criterion.[65] That lack of concern, however, does not relieve the Tribunal of its obligation to ensure that each party to a proceeding before it is given a reasonable opportunity to present his or her case.[66]
[64] Transcript, pp.148-149.
[65] Transcript, p.12. At Transcript, p.148, the applicant’s counsel in closing stated that “nothing was actually ever put that they were running a case of 1.1, and, until Dr Sharma referred to it again this morning, it didn’t appear to be of issue.” That the issue perceived to be of concern was the applicant’s use of Ritalin is also reflected in expert reports obtained by the applicant. For instance, Mr Watson-Munro noted “… from the documentation that a decision was based on a concern by CASA as to Mr Nam taking medication to manage his ADHD whilst holding a Class 1 and Class 2 Medical Certificate and operating an aircraft because of a concern that the medication and its potential side effects on a person, led to a belief that a person may become an unacceptable risk to the safety of air navigation.”: report of 13 July 2022 of Mr Watson-Munro, consultant psychologist, p.3.
[66] Administrative Appeals Tribunal Act 1975 (Cth), s 39.
We do not need to decide, however, whether the respondent’s reliance on the safety relevant condition criterion did deprive the applicant of a reasonable opportunity to present his case. This is because we have, in any event, found the respondent’s reliance on that condition to be misplaced.
The respondent submitted that the safety relevant condition criterion is not satisfied with respect to two alleged conditions. The first was said by the respondent to be ADHD treated with Ritalin. The second condition was said to be constituted by the applicant being treated with Ritalin.[67]
[67] R CS at [19].
The contention underlying both those reasons is that the treatment for a condition forms part of the condition or is itself a condition. We reject that contention.
The ordinary meaning of the words employed in CASR, when construed in context, is not suggestive of a safety relevant condition being constituted by either a combination of a condition and the medication for it or the use of a medication for a condition.
While the treatment for a condition is of relevance in an assessment of whether the safety relevant condition criterion is satisfied, that relevance arises in the context of an assessment as to whether the condition produces any degree of functional incapacity or a risk of incapacitation.
The respondent took the Tribunal to the decision of DP Kendall in Healy. There the Tribunal found that the safety relevant condition criterion and the medication criterion were not satisfied in circumstances where the applicant for class 1 and class 2 medical certificates had ADHD and was taking certain medication to control that condition.[68]
[68] Healy at [36].
As for the safety relevant condition criterion, it was said that “…a number of separate matters which need to be considered: (i) the applicant must suffer a condition as defined in sub-paragraphs (a)- (d) of Item 1.1 and 2.1 of the standard; (ii) the condition must be ‘safety relevant’ and; (iii) the condition must produce a risk of incapacitation.”[69]
[69] Healy at [33].
As for the requirement that the applicant suffer a particular type of condition, we note that in Healy the condition appeared to be described as a composite of “ADHD with treatment by Dexamphetamine”.[70] No rationale for incorporating the medication used to treat a condition as part of the condition was, however, identified. Absent such a rationale, it might well have been the case that the Tribunal was not called upon to consider the appropriateness of defining a condition to be the aggregate of a medical condition and the treatment therefor. In these circumstances, we decline to adopt a similar approach.
[70] Healy at [33].
In this proceeding, the condition suffered by the applicant is ADHD. That may well be an abnormality, disability or disease and, hence, a condition of the type to which the safety relevant condition criterion applies. The treatment for a condition is not, however, itself an abnormality, disability or disease and nor is it a part of an abnormality, disability or disease. Hence, it is neither a condition of the type to which the safety relevant condition criterion applies nor a part of such a condition.
We note that in its closing submissions, the respondent referred to the Tribunal’s decision in Dixon.[71] There, the person concerned was considered not to have a safety relevant condition even though he was using Ritalin.
[71] Dixon and Civil Aviation Authority [2011] AATA 332 at [23]-[25].
The respondent in closing contended that an abnormality includes something that deviates from the standard and that Ritalin is an abnormality because it affects the normal performance of the person taking it.[72] This contention conflates the “standard” with the normal performance of the person taking Ritalin. Acceptance of that contention would mean that any medication that ameliorates the effects of an abnormality would itself be an abnormality as it affects the normal performance of the person taking the medication.
[72] Transcript, p.160.
What the applicant has and suffers from is ADHD. The treatment for that condition is not a condition from which the applicant suffers.
As for the requirement that the condition be safety relevant, as mentioned earlier, in certain circumstances, a “medically significant condition” can be safety relevant. A product such as Ritalin, however, is not itself a condition. While the use of a product to treat a medically significant condition may affect the person consuming the product, that effect is not itself such a condition. Contrary to the respondent’s submissions in closing, a psychological effect which a treatment for a condition has on the person taking the treatment does not render the use of the treatment or, indeed, the effects of that use, a mental infirmity or a mental incapacity. More particularly, while a treatment for ADHD such as Ritalin might have a psychological effect, that effect is not a medically significant condition by reason of being an abnormal psychological state. Rather, that effect is the temporary amelioration of an abnormal psychological state resulting from physiological change induced exogenously.[73] While the use of Ritalin has a particular psychological consequence, that use is not a condition.
[73] CASR 67.010: definition of “medically significant condition” includes any illness or injury; any mental infirmity, defect or incapacity; any abnormal psychological state. See Transcript, pp.160-161.
That Ritalin is not of itself or in combination with ADHD a condition is reinforced when regard is had to the context. The relevant medical standards address treatments (in the form of medication) for conditions separately from the underlying conditions. In particular, the standards deal specifically with the effects of use of a treatment by way of medication or drugs in a criterion separate from the safety relevant condition criterion.
Unlike its oral closing submissions,[74] in its written closing submissions, the respondent did not submit that the applicant’s ADHD, of itself, resulted in the safety relevant condition criterion not being satisfied[75] (despite reference being made to ADHD and associated neurocognitive impairments being problematic in the context of air navigation generally[76]).
[74] Transcript, p.159, where reference is made to ADHD alone falling within the safety relevant condition criterion.
[75] Similarly, the respondent did not submit that there was a failure to satisfy another criterion of each relevant medical standard which applies where an applicant for a medical certificate has a clinical diagnosis of a “significant mental abnormality or neurosis to an extent that is safety relevant”: see item 1.4 of Table 67.150 and item 2.4 of Table 67.155.
[76] R CS at [40].

That the applicant’s ADHD was not considered, of itself, to result in a failure to satisfy the safety relevant condition criterion is unsurprising given that, even if it were to have that result, the resultant failure to meet the relevant medical standards “…is not likely to endanger the safety of air navigation”.[77] That this is so is reflective of, and consistent with, material before the Tribunal to the effect that:
(a)The applicant’s class 2 pilot licence was initially suspended and later cancelled, not because of the applicant’s ADHD but because he had been prescribed Ritalin;[78]
(b)Insofar as the applicant has ADHD, he suffers at most from only a very mild version of the condition. Indeed, the psychiatrist called by the respondent suggested that the applicant had been misdiagnosed given that he was “…unlikely to meet the criteria and thresholds which are accepted in DSM-5 in the wider community and do not warrant treatment with amphetamine-based medication.”[79] However, if present, the applicant’s ADHD was considered to be “…of an extremely mild form”.[80]
(c)Given that any ADHD suffered by the applicant was mild, the respondent regarded Ritalin as the “showstopper”.[81]
(d)The safety of air navigation was endangered not by the applicant’s ADHD but, according to Dr Sharma, by reason of the applicant’s use of Ritalin.[82]
(e)Prior to his having been diagnosed with, and being treated with Ritalin for, ADHD in 2020, the applicant had, by obtaining his pilot licences (and associated ratings) in the time frame in which he had obtained them, demonstrated significant air navigation skills. According to the respondent, the applicant was able “to obtain his pilots licence in record time.”[83]
(f)The applicant is a highly gifted individual with exceptional cognitive performance[84] (a matter which the respondent does not dispute[85]).
[77] CASR 67.180(2)(e).
[78] T3, p.27.
[79] Atherton report, p.6; see also R CS at [50].
[80] See the respondent’s closing submissions on this point at R CS [45]-[46].
[81] Transcript, p.127.
[82] Sharma statement at [70].
[83] R CS at [67].
[84] Atherton report, p.6; See at T 27, p.119, the July 2021 report of a clinical neuropsychologist, Dr Bourke, who opines that “on measures of intellectual functioning,…[the applicant] fell within a very superior range overall.”
[85] R CS at [54].
Medication criterion
As is apparent from its description earlier and as submitted by the applicant,[86] there are at least three components of the medication criterion. In particular, for the criterion not to be satisfied in relation to the applicant:
(a)He would need to be using an over‑the‑counter or prescribed medication or drug (including medication or a drug used to treat a disease or medical disorder);
(b)The medication or drug would need to cause him to experience side effects; and
(c)The side effects which the applicant has been caused to experience would need to be likely to affect him to an extent that is safety‑relevant.[87]
[86] A CS at [3].
[87] Item 1.3 of CASR Table 67.150; Item 2.3 of CASR Table 67.155.
The applicant is using prescribed medication, Ritalin.
Given this and as mentioned earlier, that use will result in the medication criterion not being satisfied if it causes the applicant to experience any side effects which give rise to a substantial or real risk of reducing his ability to exercise a privilege conferred or perform a duty imposed by his class 1 or class 2 pilot licence.
On behalf of the applicant, it was submitted that his use of Ritalin does not cause him to experience any side effects.[88] In a 12 February 2021 letter, Dr Tofler stated that there are no current side effects of the applicant taking Ritalin.[89] In a 5 October 2021 letter, Dr Tofler referred to the applicant having found that his Ritalin dose of 40mg daily to be both tolerable “and without side effects”.[90] In a report of 21 October 2021, Dr Tofler notes a variety of possible side effects of taking Ritalin but then says the applicant has not had any of them.[91] Dr Bourke, a clinical neuropsychologist, opined in a July 2021 report that, “…whilst medicated on Ritalin,…[the applicant] had entirely normal and extremely high-level cognitive abilities.”[92]
[88] A SFIC at [8], [17].
[89] T17, p.82.
[90] T28, pp.121, 123.
[91] T29, pp.127, 128.
[92] T27, pp.119: note that the applicant had been subject to cognitive function testing when younger and not using Ritalin. According to Dr Bourke, the applicant’s cognitive test performance while on Ritalin were similar to those derived from the earlier testing: T27, p.120.
The respondent took issue with that submission, contending that the applicant did experience side effects from his use of Ritalin. There appeared to be three limbs to that contention.
First, it was said that the applicant ought to be considered to experience side effects if Ritalin had the potential to cause side effects for anyone. A number of potential side effects were identified by the respondent such as anxiety, irritability, insomnia, dizziness, aggression, tachycardia, psychosis and fatigue masking.[93]
[93] Sharma statement at [26], [32], [53]; R CS at [39](b)], [40(f)(3)].
The respondent contended that it was wrong to break the medication criterion down into its component parts. Instead, it was said that the criterion should be considered as a whole. To do otherwise would, it was suggested, “produce a narrow construction that would undermine airline safety”.[94] According to the respondent, considering the criterion as whole has the result that, if a drug has safety relevant side effects, the person taking the drug will have been caused to experience the side effects.[95] In oral submissions, this proposition was expanded so as to apply if a drug has the potential to cause safety relevant side effects to anyone taking it.[96] In combination, the respondent submitted that a person taking a drug will have been caused to experience safety relevant side effects for the purposes of the medication criterion if the drug being taken has the potential to cause such effects to anyone.
[94] R CS at [21].
[95] R CS at [21], where it is said that a “…drug ‘causes the person to experience side effects likely to affect the person’ if the drug has safety-relevant side effects.”
[96] Transcript, pp.161-164.
That submission is consistent with:
(a)Statements in the Sharma statement. There, Dr Sharma stated that it “…is considered aeromedically reasonable not to allow a person who suffers from ADHD, requiring to take a medicine or drug which has known side effects which are likely to affect the person to an extent that is safety relevant, to fly”[97] and that Ritalin “…has demonstrated adverse effects in use. It is my view that these effects would pose a clear threat to the safety of aviation, and he cannot therefore, in my view be issued with a Medical Certificate.”[98]
(b)The statement made by Dr Sharma in his oral evidence that he considers that the medical standard is not met if a person uses a safety relevant medication.[99]
(c)The statement made in the respondent’s closing submission to the effect that the medical standard is not met because there is a real risk that the applicant taking Ritalin reduces his ability “…to exercise the privileges of a licence and otherwise there is a “real and not remote risk” that it endangers the safety of air navigation. Accordingly,…[the applicant] does not meet the requirements in regulation 67.180(2) of the Regulations.”[100]
[97] Sharma statement at [54].
[98] Sharma statement [66].
[99] Transcript, pp.117-118.
[100] R CS at [44].
We reject the respondent’s submission in this regard.
Nowhere in the aforementioned statements is there recognition of any requirement that the relevant medicine or drug cause the person concerned to experience side effects. Significantly, in his oral evidence, Dr Sharma acknowledged that he is not asserting that the applicant suffers side effects but, rather, that “there is a likelihood he may suffer side effects”.[101] As is implicit in that acknowledgment, the respondent’s submission reflects a focus on the relevant drug as opposed to the applicant. It conflates side effects with the potential for or risk of side effects.
[101] Transcript, p.121.
While, as mentioned earlier, it is appropriate to err on the side of caution when construing CASR, the importance attributed to the safety of air navigation in the legislative context does not constitute a licence for decision makers to ignore the plain meaning of the words used in CASR. This is the more so where any concerns as to air safety that might be said to arise as a result of giving effect to the plain meaning of those words would appear, at least arguably, to be addressed by other CASR provisions not the subject of submission in these proceedings (such as CASR 11.055).
Non-satisfaction of the medication criterion requires that a drug be used by the person concerned “…that causes the person to experience any side effects likely to affect the person to an extent that is safety‑relevant.” The words of the medication criterion make at least two things plain, even when read as a whole. First, the focus is on the person concerned. Second, that person must experience side effects. A person does not experience side effects from use of Ritalin simply because there is a substantial or real risk of a side effect being experienced by a person who uses Ritalin.
Hence, while we accept that there is a risk that side effects will be experienced by those who use Ritalin,[102] that risk does not mean that the applicant ought to be considered to experience side effects.
[102] See the list under the heading of “Adverse Effects” found at Annexure SS2 to Dr Sharma’s statement, some of which are identified at [53] of the statement.
Second, it was said that the Tribunal ought to infer that the applicant currently experiences side effects from his use of Ritalin given material before the Tribunal indicating that the applicant had, in the past, experienced some such side effects. In particular, the respondent refers to anxiety and masking fatigue.[103]
[103] R CS at [48], [61]. As for masking fatigue, see the Sharma statement at [60] and R CS [65(f)]. See also the Atherton report at p.7, where reference is made to its being “harder for those using stimulants such as amphetamines to understand and have self-awareness of when they are feeling tired.” In oral evidence, Dr Sharma referred to a lack of understanding of being fatigued.
As for anxiety, reference was made to it in an October 2021 letter from Dr Tofler. The applicant commenced taking Ritalin in November 2020. In Dr Tofler’s letter, he states that in a February 2021 review the applicant had reported initial anxiety but that this had by then settled.[104] This is not a basis on which to infer that Ritalin causes the applicant to experience anxiety. Rather, it simply evidences the fact that the applicant experienced a side effect for a brief period shortly after he commenced taking Ritalin while in the process of adjusting his dose (noting Dr Atherton’s evidence to the effect that side effects can sometimes be addressed by dose adjustments[105] and Dr Tofler’s evidence to the effect that physiological adaptation over time may also address side effects[106]).
[104] T28, p.122: the report of anxiety in February 2021 is consistent with the applicant having stated to his general practitioner in February 2021 that he can feel more anxious on Ritalin if he doesn’t exercise but feels okay if he exercises: T53, p.236.
[105] Transcript, p.146. Note also at [26] of the Sharma statement where it is said that most side effects are dose dependant.
[106] Transcript, p.83.
Similarly, the fact that the applicant reported feeling some anxiety when seeing Mr Watson-Munro in June 2022 is not a basis on which to infer that Ritalin now causes the applicant to experience anxiety. There is no reason to infer a causal nexus between the use of Ritalin and that anxiety, especially as Mr Watson-Munro characterised that anxiety as being reactive to the review being conducted by the respondent.[107]
[107] T47, p.209.
As for masking fatigue, we note Dr Tofler’s oral evidence to the effect that it would be unusual for Ritalin to mask fatigue. The respondent contended, however, that it had done so in the case of the applicant. Reference was made to Dr Tofler’s October 2021 letter in which he stated that, in a September 2021 review, the applicant had said that Ritalin helped when he was “a bit tired”, keeping him alert for longer on driving trips between Mt Buller and Melbourne.[108] As is apparent from this, the applicant’s fatigue was not masked; he knew he was tired but considered Ritalin had helped him stay alert. We note in any event the applicant’s suggestion, in cross-examination, that this may have occurred while his Ritalin dosage was being adjusted.
[108] T28, p.123.
In his evidence before the Tribunal, the applicant stated that he had experienced side effects from his use of Ritalin additional to those just mentioned. In particular, he said he experienced headaches and a dry mouth. This, however, was said to be the case only in the first six weeks after he commenced taking Ritalin.
In contending that the Tribunal ought to reject the applicant’s evidence that he does not experience side effects from using Ritalin, the respondent, amongst other things, points out that there is a real and not remote risk of side effects from such use.[109] The existence of such risk is not, however, inconsistent with the applicant’s evidence.
[109] R CS at [65(d)].
Third, it was said that the applicant currently experiences a side effect from his use of Ritalin, being the effect on him when a dose of Ritalin wears off.
In this regard, the respondent adopted a dictionary definition of “side effect” as “any effect produced, as of a drug, other than those originally intended, especially an unpleasant or harmful effect.”[110] It was then said (and we accept[111]) that Ritalin is a drug that is intended to stimulate the central-nervous system. Hence, any effect of Ritalin that did not entail stimulation of the central-nervous system was, according to the respondent, a side effect. When a dose of Ritalin wears off, its effect is not stimulatory. Hence, so the argument runs, that effect is a side effect.
[110] R CS at [21].
[111] Atherton report, where it is said that Ritalin “…is a central nervous system stimulant, and it affects chemicals in the brain and nerves that contribute to hyperactivity and impulse control.”
We do not accept that argument, even if the concept of “side effect” has the meaning given to it by the respondent. Ritalin is a drug that has, and is intended to have, a temporary effect. That is, it is part of its design and intended operation that its effect wears off. In these circumstances, we do not accept that the side effects of use of Ritalin include an effect of that use that is inevitable and consistent with its design and intended operation.
Some support for the proposition that such an effect may, however, be a side effect is found in DP Kendall’s decision in Healy. There, the particular “side effects” found to be of concern appeared to be fluctuations in cognitive performance caused by the relevant medication wearing off, something which the evidence before the Deputy President suggested was a design element of the medication.[112] The question of whether such an effect may properly be characterised as a side effect would not, however, appear to have been in issue in Healy.
[112] Healy at [35]-[36], [42]-[43].
None of the witnesses called by the respondent characterised the inevitable effect of Ritalin wearing off as a side effect. Indeed, those witnesses appeared to accept the proposition that the applicant was not suffering any side effects from his use of Ritalin.
In Dr Atherton’s report, reference is made merely to the potential for side effects and also to the adverse effects should there be non-adherence with prescribed dosages.
He says it “…is well recognised in aviation circles that amphetamine-based medications have potential side effects and these side effects potentially could lead to safety issues...medications such as amphetamines can affect perception, motor and cognitive skills and importantly, is also harder for those using stimulants such as amphetamines to understand and have self-awareness of when they are feeling tired.”[113] This, Dr Atherton says, can lead to poor judgement around lethargy.[114]
[113] Atherton report, p.7.
[114] Atherton report, p.9.
As for non-adherence, Dr Atherton says in relation to Ritalin that “…the fact that its immediate onset of action and short duration of action mean that it is extremely susceptible to adherence levels. As demonstrated, these adherence levels are difficult to predict, and the outcome of this can be large fluctuations in cognitive performance and behaviour, leading to unacceptable human factor variations.”[115] We note that Dr Tofler stated that he had no concerns about the applicant’s capacity or willingness to adhere to the prescribed dosage of Ritalin.
[115] Ibid.
Like Dr Atherton, Dr Sharma refers to the potential for side effects. As noted earlier, Dr Sharma acknowledged that he is not asserting that the applicant suffers side effects but, rather, that “there is a likelihood he may suffer side effects”.[116] He says the applicant’s “…ongoing use of Methylphenidate (Ritalin™) for his medical condition, is associated with a number of potential symptoms and side effects.”[117] Dr Sharma does, however, go on to state that “issues which may arise” include “resurgence of symptoms with the effect of medication wearing off.”[118]
[116] Transcript, p.121.
[117] Sharma statement at [53].
[118] Ibid.
Moreover, the inevitable effect of Ritalin wearing off was not included in the list of adverse effects and side effects of Ritalin use identified in academic and other material lodged with the Tribunal by the respondent. Reference is made, in particular, to the extract from the Australian Medicines Handbook entry on drugs for ADHD, the article “Methylphenidate HCI: therapy for attention deficit hyperactivity disorder” and the article “Pharmacokinetics and Clinical Effectiveness of Methylphenidate” annexed to Dr Sharma’s statement as SS2, SS5 and SS6, respectively.
Even if, however, the effect on the applicant of a dose of Ritalin wearing off is a side effect, for there to be failure to satisfy the medication criterion, that effect needs to be safety relevant, that is, an effect which gives rise to a substantial or real risk of reducing the applicant’s ability to exercise a privilege conferred or perform a duty imposed by his class 1 or class 2 pilot licence.
Here, the suggested effect of Ritalin wearing off on the applicant is the “resurgence” of his ADHD symptoms.[119] Indeed, in closing submissions, the respondent identified what it characterised as safety risks associated with Ritalin. Reference was made, for instance, to the risk of symptom resurgence and concerns about compliance and missing doses.[120] These are not, however, side effects of Ritalin use. In particular, the resurgence of symptoms of an underlying condition seems to be an effect of the condition, not an effect of medication that provides temporary relief from the symptoms.
[119] Sharma statement at [32]-[53]. In an annexure to the statement, immediately after identifying as an issue poor compliance and missed dosage, it is suggested that the potential for recurrence of symptoms sufficient to affect aviation safety is high: see SS7. See also R CS at [38]. R SFIC at [100] includes as a potential side effect “resurgence of symptoms with the effect of medication weaning off”.
[120] R CS at [38].
In any event, however, we do not find that any such resurgence to be safety relevant in a context where:
(a)the material before the Tribunal is suggestive of some doubt as to the validity of the applicant’s ADHD diagnosis;
(b)the parties accept that any effects of the applicant’s ADHD, if it exists, are very mild;
(c)at least in its written closing submissions, it is not contended by the respondent that the applicant’s ADHD, of itself, results in a failure to satisfy the safety relevant condition criterion;
(d)the respondent’s clinical practice guidelines suggest that untreated ADHD would not preclude the issuance of a medical certificate, at least where both symptoms and treatment had been absent for six months.[121]
[121] Sharma statement, annexure SS3.

We note that in opening the respondent submitted that the use of Ritalin always led to unacceptable variations in performance.
In making that submission, it was not clear to the Tribunal whether the respondent was contending that variations in performance were inevitable and were a side effect which users of Ritalin were caused to experience. Insofar as that was being contended, however, we do not accept it, at least insofar as it is said to apply to the applicant.
It was Dr Sharma’s evidence that Ritalin use “may” result in variable performance, not that it was inevitable.[122] Dr Atherton merely acknowledged the potential for fluctuations in cognitive performance and only did so in the context of a concern about levels of adherence to prescribed dosage.[123]
[122] Sharma statement at [60].
[123] Atherton report, p.9.
As for the applicant specifically, Dr Bourke opined that his overall intellectual function fell at an exceptionally high level.[124] Moreover, according to Dr Bourke, the applicant’s cognitive performance as measured when he was using Ritalin was “remarkably stable” in comparison to childhood assessments undertaken when he was 7 and 16 years of age[125] (albeit that he acknowledged in cross examination that the effect of medication is not always revealed in cognitive testing). According to Dr Atherton, the applicant “has had several psychological assessments through his life which have demonstrated no change in his psychological performance before or after medication”[126] and that his psychological cognitive assessments demonstrate that there is “no difference between his pre-treatment and post-treatment performance.”[127]
[124] T27, p.119.
[125] T27, p.120.
[126] Atherton report, p.5.
[127] Atherton report, p.7.
In the circumstances, the third and final element of the medication criterion requires that side effects which the applicant has been caused to experience be “likely” to have an effect on him to an extent that is safety‑relevant.
Given the meanings of “likely” and “safety relevant” outlined earlier, for that element of the criterion to apply the Tribunal would need to be satisfied that there is a substantial or real risk that side effects experienced by the applicant would affect him to an extent which reduces his ability to exercise a privilege conferred or perform a duty imposed by his class 1 or class 2 pilot licence.
Given that we are not satisfied that the applicant experiences side effects from his use of Ritalin, we are not satisfied that this element of the medication criterion is met. Nevertheless, we did not accept an aspect of the applicant’s submissions concerning this element of the criterion.
At the hearing it was submitted on behalf of the applicant that any risk of side effects coming to affect the applicant from his use of Ritalin was not substantial or real as he had not suffered side effects for over two years. The underlying proposition seemed to be that, if the risk of side effects had not crystallised in two years, there was minimal chance of that risk crystallising in the future. Given the evidence before the Tribunal, however, we are not satisfied of the validity of that proposition. In particular, Dr Atherton in his oral evidence made clear that side effects may come and go, “often depending on what is going on in the individual’s life at that stage.”[128]
[128] Transcript, p.133. See also Transcript, p.142.
CONCLUSION
The applicant is entitled to the benefit of an obligation to issue the medical certificates for which he applied. That obligation is, however, qualified. One such qualification applies if the decision maker is satisfied that certain requirements are not satisfied. Amongst other things, an aspect of one such requirement is that a medical standard prescribed in CASR is met.
A number of criteria need to be satisfied in order to meet such a medical standard. The focus of submissions in this proceeding have been on two such criteria; the safety relevant condition criterion and the medication criterion.
We are not satisfied that those two criteria are not satisfied.
Another qualification to the obligation to issue the medical certificates for which the applicant applied is found in CASR 11.055. That provision is not addressed in the parties’ submissions in this proceeding.
DECISION
We set aside the decision the subject of review and remit it for reconsideration by the respondent subject to a direction requiring that the applicant not be considered to have failed to satisfy the safety relevant condition criterion or the medication criterion by reason of his ADHD, his use of Ritalin or a combination thereof.

I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell, Member Dr Stephen Lewinsky

.......................[sgd].................................................
Associate
Dated: 2 November 2023

Dates of hearing: 11 & 12 September 2023

Date final submissions received: 13 September 2023

Counsel for the Applicant: John Ribbands

Counsel for the Respondent: Sarah Spottiswood

Dates of hearing:	11 & 12 September 2023
Date final submissions received:	13 September 2023
Counsel for the Applicant:	John Ribbands
Counsel for the Respondent:	Sarah Spottiswood