SZSLC v Minister for Immigration & Border Protection - [2013] FCCA 1905

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSLC v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR

[2013] FCCA 1905

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision was affected by jurisdictional error – whether the Refugee Review Tribunal ignored expert medical evidence about the applicant’s mental state in making adverse credibility findings in circumstances where the Refugee Review Tribunal stated that it accepted the professional evidence before it about the applicant’s mental state – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss. 5, 31, 36, 65, 411, 422B, 424A, 425, 474
Migration Regulations 1994 (Cth) reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration v Li (2013) 297 ALR 225
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 476

Applicant:

SZSLC

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3061 of 2012

Judgment of:

Judge Emmett

Hearing date:

19 November 2013

Date of Last Submission:

19 November 2013

Delivered at:

Sydney

Delivered on:

19 November 2013

REPRESENTATION

Solicitors for the Applicant:

Mr Michael Jones
Parish Patience Immigration Lawyers

Counsel for the Respondents:

Mr Patrick Knowles

Solicitors for the Respondents:

DLA Piper Australia

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3061 of 2012

SZSLC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 23 November 2012 (“the RRT”).
The applicant claims to be a citizen of Nepal and of Hindu faith and Brahmin ethnicity and to fear harm from Maoists in Nepal because of his support for the opposing Nepali Congress Party.
The issue in this case is whether the RRT ignored expert medical evidence about the applicant’s mental state in making adverse credibility findings in circumstances where the RRT stated that it accepted the professional evidence before it about the applicant’s mental state. This issue is considered below in the context of considering whether the RRT’s decision is affected by jurisdictional error.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa and the decision of the delegate of the first respondent (“the Delegate”) and a summary of the RRT’s review and decision.

Background

On 30 December 2007, the applicant arrived in Australia having departed from Nepal on a passport issued in his own name.
On 1 February 2008, the applicant was granted a subclass 572 visa as the dependant of a person to whom he fraudulently claimed to be married. This arrangement continued until the applicant’s application for a protection visa.
On 6 May 2011, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).
On 23 March 2012, the Delegate refused the applicant’s application for a protection visa.
On 18 April 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.
On 23 November 2012, the RRT affirmed the decision of the Delegate not to grant a protection visa.
On 20 December 2012, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an Applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:
“424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
425 Tribunal must invite Applicant to appear
(1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.
Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

The applicant provided a statement in support of his protection visa application 6 months after lodging the application and in which he stated the following:
a)The applicant grew up on his family farm in Chitwan District, where he continued to work into adulthood with his brother.
b)The applicant supported the Nepali Congress Party, which opposed the Nepal Communist Party Maoist (“Maoist”). The applicant claims that the Maoists terrorise the Nepalese, “killing innocent people, abducting citizens from their houses, torturing and extorting people and forcefully making people join the party.”
c)In January 1998, the applicant (genuinely) married and became active in politics as a member of the Nepali Congress Party and protested against the Maoists. The Maoists attempted to force the applicant to join them, but he refused as he disliked their policies and their activities.
d)The Maoists forcefully collected money from each household in his village. The applicant refused to pay the Maoists and subsequently received threats from them.
e)The Maoists started to attack and kill many of the local Nepali Congress Party members. Many of the party workers fled Nepal as a result.
f)To avoid attacks by the Maoists, the applicant left his family and went into hiding for his safety in Kathmandu.
g)The day after the applicant left his home, the Maoists attacked his house at night and abducted his brother. To date, the applicant’s brother has not been found. The applicant’s family farm was ‘captured’ by Maoists and the remaining members of his family were displaced.
h)The Maoists found the applicant in Kathmandu and detained, beat, and threatened to kill him unless he paid them money. After his father paid the Maoists the ransom, the applicant was released. As a result of the incident the applicant received a fractured arm and continues to suffer depression, nightmares, and chills. He is now required to take medication.
i)The applicant lost his job and arranged a fake marriage through an agent in order to move to Australia, which he successfully did in 2007.
j)The applicant claims that the Maoists still harass his family in an effort to locate him.
k)In September 2009, the applicant returned to Nepal and was confronted by Maoists who tried to arrest him. The applicant was escorted by Police back to Kathmandu and returned to Australia.
l)The applicant was unable to extend his visa based on the fraudulent marriage, as the sponsor wished to marry her boyfriend.
m)The applicant fears that if he was to return to Nepal, the Maoists could kill him at any time.

The Delegate’s decision

On 18 November 2011 and 13 December 2011, the applicant attended interviews with the Delegate.
On 23 March 2012, the Delegate refused the applicant’s application for a protection visa, finding that the applicant did not have a well-founded fear of persecution and accordingly is not a person to whom Australia has protection obligations under the Convention.
The Delegate cited concerns as to the applicant’s credibility, noting that at interview the applicant’s statements contained inconsistencies, contradictions and omissions in the claims as to his fear of harm or mistreatment in reference to his written statement.
The Delegate found that the applicant’s “inability to provide a consistent and coherent account of his experiences in Nepal [raised] serious concerns about his claims to have a genuine fear of being harmed… the narrative provided by the applicant was not convincing as a number of the incidents described to not appear to be plausible.”

The RRT’s review and decision

On 18 April 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.
The applicant provided further documents in support of his review application.
On 19 July 2012, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 4 September 2012 to give oral evidence and present arguments.
On 4 September 2012, the applicant attended the RRT hearing and gave evidence. The applicant’s migration agent also attended the RRT hearing and gave submissions in support of the applicant’s review application.
In its decision record, the RRT summarised the applicant’s claims made in his statement lodged in support of his protection visa application. The RRT also summarised various documents provided by the applicant in support of his application and noted other documents on the Department’s file.
The RRT further noted documents and submissions provided by the applicant’s migration agent, in particular, documents made in reference to the applicant’s mental state, including professional medical reports.
The RRT explored in significant detail the applicant’s claims and put to him concerns it had about his evidence, noting his responses. In particular, the RRT had a number of concerns with the applicant’s credibility.
The RRT was particularly troubled by inconsistent evidence given by the applicant as to when his brother was kidnapped. The RRT noted that the applicant’s statement conveyed the clear impression that the day after he left his home to live in Kathmandu in 2003 (Nepali calendar 2060), the Maoists attacked his home and kidnapped his brother. However, in oral evidence given to the RRT, the applicant said his brother was kidnapped five years earlier while the applicant was still living in his village.
The RRT noted the applicant’s explanation of the inconsistency that he had written whatever came into his mind at the time and did not write his statement properly. In rejecting that explanation, the RRT noted that it considered the evidence before it about the applicant’s mental state. However, the RRT found that the applicant’s mental state and the explanations put forward did not excuse or explain “this significant discrepancy.”
In particular, the RRT stated as follows:
“[81] Recalling when his brother was abducted by Maoists and, whether that occurred the day after the applicant the day after the applicant stopped living in his village or five years before that time, is a basic and fundamental matter the applicant can reasonably be expected to consistently recall regardless of his mental state.

[82] Were it true, the abduction and disappearance of his brother would have been a dramatic event in the applicant’s life and, indeed, he claimed that it was one of the reasons the Maoists continued to approach his family looking for him, namely, the family’s willingness to continue a case about that very event. According, the applicant’s failure to give a consistent account of this important event was not credible”
In reaching that adverse conclusion, the RRT noted that the various symptoms provided in the medical report are all self-reported, in particular, that the applicant’s mental state is attributed to his experiences in Nepal at the hands of the Maoists. The RRT noted that the various experts consulted by the applicant were not charged with the task of assessing the credibility of the applicant’s claims. Such tasks are for the RRT.
Whilst the RRT found the applicant’s claims about his past experiences in Nepal to be false, the RRT did accept that the applicant had the mental state assessed and was prescribed medication and had undergone counselling and therapy for that mental state.
The RRT considered in detail the evidence before it with respect to the applicant’s mental state. The RRT accepted that the applicant has the mental state as assessed by the medical professionals in the reports submitted. The RRT otherwise noted that there was no credible evidence before it to verify the cause of the applicant’s mental state and found the applicant’s claimed cause of his mental state to be false.
The RRT noted that it was satisfied that the applicant was able to comprehend the purpose of the hearing, the RRT’s questions, and provide responses. The RRT was satisfied that the applicant was able to participate meaningfully in the hearing and give evidence and present arguments regarding the issues arising in the review.
In particular, the RRT noted the medical report that said the applicant appeared at times vague, confused, disassociated, possibly incoherent with his speech and had problems with memory and concentration. Despite those reported symptoms, the RRT was not satisfied that they overcame the RRT’s concerns about the applicant’s credibility and found they played no role or provided any explanation for the RRT’s particular concerns about the applicant’s evidence.
However, as stated above, the RRT found that the applicant’s symptoms as reported in the medical records did not explain or excuse the concerns the RRT had with the applicant’s credibility.
The RRT also found that the applicant was able to comprehend the purpose of the RRT’s hearing, the RRT’s questions and that the applicant was able to provide responses.
Adding to the RRT’s reasons for its adverse credibility findings, was the RRT’s concern that having arrived in Australia in 2007, the applicant took no steps to find out how he could remain in Australia and avoid being returned to Nepal. The RRT did not accept the applicant’s explanation that he had been reassured of assistance by his false wife.
The RRT also found that if the applicant genuinely feared harm in Nepal he would not be willing to travel back there in December 2009 and visit his village. The RRT also found that the applicant’s conduct in making no inquiries as to how to remain in Australia after his return in 2009, affected the credibility of the applicant’s claims to have a well-founded fear of persecution in Nepal for the reasons claimed.
The RRT considered the applicant’s various explanations to concerns put by it to the applicant, however, concluded that:
“Overall, the tribunal finds that the applicant’s inaction in this respect since arriving in Australia in 2007 along with his willingness to return to Nepal in 2009 demonstrates that the applicant did not flee Nepal in genuine fear of harm from Maoists.”
Ultimately, the RRT noted that, considered cumulatively, its concerns about the applicant’s credibility led the RRT to find that the applicant is not a witness of truth and the account of events on which his protection claims were based was false.
In considering the complementary protection criterion, the RRT noted that the only ground on which the applicant claimed to fear harm in Nepal was his claim about harm from Maoists. The RRT found that the applicant’s claimed fear of Maoists to be false and concluded that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm.
Accordingly the RRT concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act or the alternative criterion in s.36(2)(aa) of the Act and affirmed the decision under review.

The proceeding before this Court

The applicant was represented before this Court by his solicitor, Mr Michael Jones.
On 1 October 2013, the applicant filed an amended application and an affidavit annexing a transcript of the RRT’s decision record conducted on 4 September 2012. The amended application relied on a single ground, as follows:
“1. The Tribunal failed to exercise its jurisdiction by making a definitive finding in respect of the Applicant’s credibility that it did not have the professional expertise to make.
Particulars
The Tribunal accepted professional evidence as to the Applicant’s mental state. When assessing what it saw as inconsistencies in the Applicant’s evidence, the Tribunal formed a view that the Applicant could reasonably be expected to recall events in question regardless of mental state. The Tribunal did not profess to have any professional expertise, or refer to any relevant sources, that would have allowed it to make such a finding. A reasonable person in the position of the Tribunal could not have formed a definite view of the effects of the Applicant’s mental state on his recollection of events. The Tribunal should have made further inquiries or asked itself the question; “what if I am wrong?”

In support of the ground of review, Mr Jones contended that the RRT erred in making a finding concerning the applicant’s credibility, based on an assessment of the applicant’s mental state which it did not have the professional expertise to make.
In particular, Mr Jones referred to the statement by the RRT that the inconsistency in the applicant’s evidence about when his brother was abducted by Maoists was “a basic and fundamental matter the applicant can reasonably be expected to consistently recall regardless of his mental state.”
Mr Jones submitted that in the light of the medical evidence before it, it was not open to the RRT to disregard the applicant’s mental state in assessing his credibility.
Mr Jones submitted that the RRT had before it expert evidence that the applicant suffered psychological problems arising from Post-Traumatic Stress Disorder (“PTSD”). Mr Jones submitted that in accepting the medical reports, it was irrational for the RRT to conclude that PTSD did not explain or excuse the inconsistency in the applicant’s evidence about when his brother was kidnapped. In support, Mr Jones referred the Court to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”). at [133] and [135] per Crennan and Bell JJ.
In Minister for Immigration v Li (2013) 297 ALR 225 (“Li”) at [68] Hayne, Kiefel, and Bell JJ stated as follows:
“The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided.”
Mr Jones submitted that the issue raised by the psychological evidence was not whether the applicant’s mental state was caused by the claimed events in Nepal, but whether applicant’s mental state may have affected his evidence. Mr Jones submitted that, having accepted the medical evidence, the RRT’s finding that the applicant could reasonably be expected to consistently recall the events of his brother’s kidnapping regardless of his mental state, was not open to it.
Mr Jones directed the Court to Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418 (“Fuduche”) at 425, where Burchett J stated as follows:
“Where, upon a medical issue, medical science is unable to offer a conclusion on the probabilities, it may sometimes be open to a lay decision-maker to rely on ordinary human experience in order to bridge the scientific gap to a practical decision. But where medical science offers an answer, it is simply not rational for a lay person to brush that answer aside in favour of some theory of his own. See Adelaide Stevedoring Company Limited v. Forst [1940] HCA 45; (1940) 64 CLR 538 at 564, 569-570; and cf. Bushell v. Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 414-415, 430. In the latter case, Brennan J said (at 430): "
“Although s. 120(3) entrusts the determination ... to the decision-maker, the decision-maker is bound to have regard to its own want of scientific expertise in comparison with the expertise of a responsible medical practitioner…””
However, Fuduche involved the rejection of medical evidence by a delegate of the respondent which supported the applicant’s claim of a person dependant on him who suffered significant mental conditions. Burchett J found that medical evidence demonstrated the extent of the hardship and prejudice that a person dependant on the applicant would suffer if the applicant was removed from Australia. His Honour found that where the medical evidence was such that it offered a conclusion on the probabilities, it was irrational for the delegate of the respondent to have ignored that evidence in making its decision.
In contrast, in the case before this Court, the RRT accepted the medical evidence, but was not persuaded that it provided a satisfactory explanation as to the RRT’s concerns of the applicant’s inconsistent evidence relating to when his brother was kidnapped.
It is well accepted that unreasonableness in judicial review can, in certain circumstances, demonstrate jurisdictional error. In order to do so, it must be shown that the reasoning of the RRT was “simply not open on the evidence” (see SZMDS at [135]) or lacked an “evident and intelligible justification” (see Li at [76]).
It is also well accepted that credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
I also accept that the RTT was not required to accept the opinion or conclusions in the medical report. For example, in Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 476 at [126] - [127] North J stated at follows:
“[126] The applicants submitted that the Tribunal, in breach of s.430(1)(b) [of the Migration Act1958 (Cth)], failed to give reasons for rejecting the psychologist's view that the PTSD was linked to real experiences of rape and persecution in Sri Lanka.
[127] I do not accept this argument. The Tribunal gave extensive reasons for rejecting the applicants' claims of mistreatment. The reason expressed by the Tribunal for rejecting the psychologist's opinion as to the cause of the PTSD was the rejection of the underlying claims of the applicants. Thereby the Tribunal gave reasons for rejecting the psychologist's opinion. The rejection was bold, and perhaps even startling in light of the symptoms observed by the psychologist. On the other hand, the Tribunal most likely had access to a wider range of factual background than did the psychologist. This ground of review depends on the Tribunal failing to give reasons. The Tribunal did give reasons, and it is not the function of the Court to assess the validity of those reasons.”
In the case before this Court, the medical report did not purport to state why the applicant had not given a consistent account of his claims. At their highest, the report suggested that the applicant suffered symptoms of PTSD and depression, however, made no definitive diagnosis of either condition, unlike in Fuduche.
The expert report did state that the applicant at times appeared vague and at other times was “oriented to time and place.” Whilst the medical report stated that symptoms expressed by the applicant are common amongst those who have been traumatised, and if not extinguished within one month of the traumatic episode, come within the diagnosis of PTSD, they were symptoms expressed by the applicant to exist because of distress at his current situation as an asylum seeker and his past experiences. The medical report also referred to the applicant’s claims of past harm in Nepal. It also noted that the applicant was taking medication for depression and diabetes. The report concluded that the applicant’s anxiety symptoms would be significantly reduced if he was able to stay in Australia and work could be done on his PTSD symptoms.

The report is expressed in six identified headings. There is no heading “Diagnosis.” In my view, a fair reading of the report suggests that no diagnosis was made by the psychologist of either depression or PTSD.
The psychologist did state that the applicant “often appears vague, confused, or disassociated during our sessions together and at time is incoherent in speech.” The psychologist states such behaviour is common in an individual who has been traumatised.
A fair reading of the RRT’s decision makes clear that the RRT accepted that the applicant may have behaved in the way reported in the psychologist’s report.
The RRT’s finding was no more than that those behaviours referred to in the psychologist’s report did not explain the inconsistencies in the applicant’s evidence in relation to his brother’s kidnapping, or in general. There was no expert evidence that was contrary to that finding. The RRT was not bound to accept that those behaviours referred to in the expert report were caused by the applicant’s statements to the expert about his alleged past harm. The expert’s reports did not purport to explain why the applicant had not given a consistent account of his claims.
In the circumstances, it was open to the RRT to reject the applicant’s claim relating to the abduction of his brother because he found the two accounts given by the applicant to be significantly inconsistent for the reasons given by the RRT.
Further, the RRT had other concerns about the applicant’s credibility referred to above (at paragraphs 44 and 45) in these Reasons, all of which were open to it on the evidence and material before it and for the reasons given. The RRT’s concerns remained unmet by the applicant’s explanations and were all expressed to form part of its overall adverse credibility finding that the applicant was not a witness of truth and the account of events upon which his protection claims are based is false.
Moreover, the RRT gave careful consideration to the applicant’s medical condition and how it may have affected the applicant’s responses. Those considerations are summarised above ( at paragraphs 35 to 43) in these Reasons.
In the circumstances, it was open to the RRT to accept the medical statements about the observations of the applicant’s mental state, but to find that they did not satisfactorily address the RRT’s concerns about the applicant’s own evidence, in particular, the significant inconsistencies in his evidence.
The ground of the Amended Application also states that the RRT should have made further inquiries or asked itself “what if I am wrong?” The applicant made no written or oral submissions in support of those assertions.
If the applicant is still intending to rely on those complaints, I accept the submissions of counsel for the first respondent, Mr Patrick Knowles, on those issues in finding that they are not made out. Mr Knowles’s submissions are as follows:
“First, it is claimed that the Tribunal should have made further enquiries, presumably in relation to the Applicant’s mental condition. The Tribunal has no general duty to make an inquiry: SZIAI v Minister for Immigration and Citizenship (2009) 259 ALR 429 at [25]. Nor does it have a duty to exercise its power to obtain a medical assessment of the Applicant’s condition: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [41].

Secondly, it is claimed that the Tribunal should have asked itself the question, “what if I am wrong?” The Tribunal expressed no doubt or hesitancy in respect of its findings. As a result, there is no requirement for the Tribunal to expressly consider the possibility that its findings were wrong: MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 at [95]-[100].”
Accordingly, the complaints made in the ground of the Amended Application are not made out.
In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 19 November 2013