FEDERAL COURT OF AUSTRALIA

SCAR v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1481

MIGRATION – protection visa – application for an order of review of the decision of the Refugee Review Tribunal – whether the applicant’s mental state was affected at the hearing before the Tribunal

ADMINISTRATIVE LAW – privative clause – application of the bona fides proviso of the Hickman principles – whether the decision of the Tribunal was not a bona fide attempt to exercise its power notwithstanding the good faith of the Tribunal where the exercise of the power was unfair in its operation

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) subs 420(1), s 474

Re Minister for Immigration and Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407 cited

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 followed

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 followed

O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 cited

R v Murray; Ex parte Proctor (1949) 77 CLR 387 cited

SBAP v Refugee Review Tribunal [2002] FCA 590 cited

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 cited

SCAR V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 66 OF 2002

O’LOUGHLIN J

28 NOVEMBER 2002

ADELAIDE

THE COURT DECLARES THAT:

1. The decision of the Refugee Review Tribunal is invalid and of no effect.

AND THE COURT ORDERS THAT:

1. The application be allowed.

2. The respondent pay the applicant’s costs which costs are to be taxed in default of agreement.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant, a citizen or Iran, arrived in Australia by boat via Malaysia and Indonesia on 6 June 2001. He is a bachelor, aged thirty-one. His application for a protection visa was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) and subsequently, after a review, that decision was affirmed by the Refugee Review Tribunal (“the Tribunal”). On 1 March 2002, the applicant filed an application in this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) seeking that writs of certiorari and prohibition be directed to the Tribunal and the Minister so that the Tribunal’s decision might be quashed and so that the Minister might be prohibited from acting upon or giving effect to the Tribunal’s decision. The power of this court to intervene is now subject to the amendments to the Migration Act 1958 (Cth) (“the Act”) that took effect on 2 October 2001.

2                     In par 6 of his application, the applicant pleaded as follows:

“The applicant seeks relief under s 39B of the Judiciary Act 1903 (Cth) on the grounds that the first respondent:

(a) exceeded jurisdiction in making the decision to affirm the second respondent’s decision not to grant the applicant a protection visa; and

(b) erred in law in arriving at the decision to affirm the second respondent’s decision not to grant the applicant a protection visa.”

3                     The first respondent was the Tribunal and the second respondent was the Minister. On the application of counsel for the Minister I made an order that the Tribunal cease to be a party to the proceedings. Section 479 of the Act provides that, in the circumstance of cases such as this, the only parties shall be the applicant and the Minister.

4                     The applicant’s claim for refugee status was based on his fear that he would be persecuted if he returned to Iran because of his involvement in a University political group. He said that he left Iran because he believed that he had come to the notice of the authorities as a political dissident. He was born in 1971 and in February 2001, when he was aged thirty or thereabouts, he engaged with other students in a silent procession. He said that some of the students were arrested; he was not one of them however. He also claimed that he authored student newsletters that were critical of the authorities. On another occasion, he participated in a demonstration at the University. He said that the Ettelaat agents (who I take to be people in authority) attacked the demonstrators and that he was assaulted. He claimed that he found out, a few days later, that five of the demonstrators had disappeared. He also found out that the people who attacked the students were members of Ansar-e Hezbollah.

5                     Finding out later that more students had disappeared, the applicant said that he became frightened; he did not go to his home but stayed with a relative. He spoke to his father by telephone and was told that “some people” had come to the house, saying that they were friends of the applicant; he believed that they were government agents. The applicant finally left Iran in March 2001 when a relative, who worked for the government, passed on a message that the applicant was about to be arrested. Subsequent to his departure, he spoke to his father by telephone from Malaysia. He claimed that his father told him that people had forced their way into the family home and the applicant’s room. His father was the only member of his immediate family who was still alive. His mother and his two siblings were killed in a motor vehicle accident in 1997. He said that the authorities took his father away and detained him for two days.

6                     The Tribunal did not believe the applicant’s story. It said of him “I do not consider that the applicant was a credible or reliable witness”. Before arriving at that decision, the Tribunal reminded itself, appropriately, of its responsibilities. It said:

“When determining whether an applicant is entitled to protection in Australia I must first make findings of fact on the claims he or she has made. This may involve an assessment of the credibility of the applicant. When assessing credibility, I must be sensitive to the difficulties often faced by asylum seekers and should give the benefit of the doubt to those who are generally credible but unable to substantiate all of their claims. However, I am not required to accept uncritically any and all allegations made by an applicant. In addition, I am not required to have rebutting evidence available to me before I can find that a particular factual assertion by an applicant has not been made out. Moreover, I am not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. See Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547. If I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence, I must proceed to assess the claim on the basis that the claim might possibly be true. (See Minister for Immigration and Multicultural Affairs v Rajalingam (1999) FCR 220).”

7                     In support of his application for review by the Tribunal, a handwritten submission dated 8 January 2002 and prepared on behalf of the applicant had been submitted to the Tribunal together with a written submission dated 25 January 2002 from his migration agents. However, the core issue to this application as it was presented in argument before this Court, was centred upon the applicant’s state of health when the Tribunal heard his application on Tuesday 12 February 2002. On Friday 8 February 2002, that is, four days before the Tribunal hearing, the applicant received telephone advice that his father had died. The Tribunal hearing was conducted through a video transmission with the Tribunal member in Sydney and the applicant in the Woomera Immigration Reception and Processing Centre (“Woomera”). The hearing commenced at 2:01 pm central standard time and concluded at 4:20 pm. There was one recess during the hearing of about twenty minutes duration. The applicant was unrepresented; an interpreter was provided but he was in Sydney.

8                     The submissions that were made on behalf of the applicant in the present proceedings were to the following effect:

• a psychologist, Ms Anne-Marie Rolfe, saw the applicant at Woomera on Friday 8 February 2002 and noted that he “had reportedly collapsed at the telephone on hearing the news of his father’s death”. She added:

“… the man appeared to be suffering from shock and was shaking, crying and incommunicative.”

• notes that were made on Sunday, 10 February 2002 by nursing staff at Woomera indicated that the applicant had reported to the Medical Centre “complaining of having a headache”. He was given medication for the headache and was reported as appearing distressed, feeling tired and not taking food.
• on Monday, 11 February, the psychologist reported that she had checked on the applicant; notes by nursing staff suggested that he had come to the Medical Centre in a wheelchair at about 6:00 pm. Other notes on the same day said that he was “in no condition to begin grief counselling” and that he had received medication. A note at 7:20 pm recorded that the:

“resident remained in Medical Centre until this time. Remains incommunicative. Laying on his bed for most of the time. Staring at the ceiling. Drinking only small amounts of fluids. Resident may need to be seen in Medical Centre again tomorrow”.

• on Tuesday 12 February 2002, the psychologist reported as follows:

“… when I saw him there on the 12^th February his condition had deteriorated and he was complaining of a splitting headache and was unable to stand. At my request, two men carried him to the gate where I had arranged for a wheelchair to meet us. The attendant carried [SCAR] to the Medical Centre and we had to support him in the wheelchair. Again he was observed to be in a state of extreme distress and in need of medical intervention, so I left him at the Medical Centre. I had no further contact until the next day.”

The psychologist went on to say:

“I wish to make it clear that this young man was my client at the time he was removed from the Medical Centre and taken for an RRT hearing on the 12^th February. In my professional opinion, he was in no condition to handle this interview. Not only was he totally unable to think clearly, but he was quite unprepared as he did not even know what day it was, and he had no support during the interview. I do not consider that he was given a fair opportunity to present his case. In addition to my involvement over this period [SCAR] was under observation by officers as part of our High Risk Assessment Protocol. He was placed on observations to ensure his safety during this traumatic time and was not discharged until the 25^th February. This is significant because it corroborates my contention that [SCAR] was extremely emotionally fragile at this time.”

9                     The affidavit of Trudi Lee Case that was sworn and filed on 13 September 2002 was relied on by the Minister. Ms Case is a solicitor in the employ of the Minister’s solicitors. The contents of her affidavit amounted to a challenge about the date upon which the applicant was taken to the Medical Centre in a wheelchair. The copies of the medical occurrence register and the Medical Centre records point to it having been on 11 February not, as Ms Rolfe stated, 12 February. However, in my opinion, nothing turns of that. The matter of importance is that it is common ground that on the day of his Tribunal hearing, the applicant was so distressed, because of his father’s death, that he required medical treatment.

10                  Mr Barrett QC, who appeared as pro bono counsel for the applicant, referred to passages in the transcript of the proceedings before the Tribunal, submitting that they showed a lack of precision in the applicant’s answers, his unresponsiveness to some of the Tribunal’s questions and a slowness to respond on other occasions. These were said to be symptomatic of one who was suffering anguish and distress. I have considered the passages to which Mr Barrett has directed my attention; I must say that his submission does have some appeal.

11                  I am aware of the dangers of relying upon a clinical reading of a transcript. I will do no more than make these observations: the applicant heard of his father’s death on the Friday and over the weekend and the following Monday he sought medical treatment; Ms Rolfe, the psychologist, regarded him as being “in no condition” to handle the interview by the Tribunal. However, in fairness to the Tribunal member, it must be emphasised that there was nothing before me to suggest that the Tribunal knew of the father’s death or of the way in which it had affected the applicant. Bearing in mind that the Tribunal was unaware of the emotional crisis that the applicant was suffering during the time of the hearing, the conclusion at which the Tribunal arrived was one that was open to it. It would be difficult, if not impossible, for this Court to intervene and reject its findings on credit. As McHugh J said in Re Minister for Immigration and Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407 at par 67:

“In addition, the prosecutor alleges that the tribunal breached section 430(1) by failing to set out reasons for its findings that the prosecutor’s claims that members of PLOTE tried to recruit him were “utterly implausible”. However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is a function of the primary decision maker par excellence. If the primary decision maker stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word ‘implausible’. The disbelief arose from the tribunal’s view that it was inherently unlikely that events had occurred as alleged.”

12                  Mr Barrett accepted that the Tribunal’s decision was a “privative clause decision” and that it was one that, prima facie, attracted the application of s 474 of the Migration Act 1958 (Cth) (“the Act”).

13                  As the law presently stands, the decision of the majority of the bench of five in the Full Court of this Court in the five appeals that are referred to as NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 (“NAAV”) binds me to proceed upon the premise that this Court has only a very limited power to review privative clause decisions as defined by s 474 of the Act. Section 474 was introduced into the legislation by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (“the 2001 Amendments”). It was one of a package of eight statutes that were passed in September 2001 amending the Migration Act 1958. Section 474 of the Act now provides that:

“(1) A privative clause decision;

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

(2) In this section:

privative clause decision means a decision of an administrative character made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

(3) A reference in this section to a decision includes a reference to the following:

(a) granting, making, suspending, cancelling, revoking or refusing to make an order or determination;

(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

(c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;

(d) imposing, or refusing to remove, a condition or restriction;

(e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;

(f) retaining, or refusing to deliver up, an article;

(g) doing or refusing to do any other act or thing;

(h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

(i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;

(j) a failure or refusal to make a decision.

(4) …

(5) …”

14                  Subsection 474(4) lists certain provisions of the Act which are not private clause decisions; subs 474(5) provides that regulations may prescribe that other decisions that are made under other provisions of the Act are not privative clause decisions. Neither of those subsections are, however, material in these proceedings.

15                  The 2001 Amendments came into operation on 2 October 2001 and, so far as is relevant to these present proceedings, they apply to any decision of the Refugee Review Tribunal that is made on or after that date: see Sch 1, Pt 2, Cl 8(2) of the 2001 Amendments. In addition, the privative clause provisions apply to any application for judicial review of a decision that was made before 2 October 2001 if the application for judicial review is lodged after that date.

16                  Subsection 474(1) is in a form that is substantially similar to the privative clause that was considered by the High Court in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 (“Hickman”) where Dixon J (as he then was) said at 614-615:

“The particular regulation is expressed in a manner that has grown familiar. Both under Commonwealth law, and in jurisdictions where there is a unitary constitution, the interpretation of provisions of the general nature of [the privative clause] is well established. They are not interpreted as meaning to set at large the courts of other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.”

17                  The Hickman principles were the subject of express comment by the Minister in his Second Reading Speech which was made in the House of Representatives on 26 September 2001 (Hansard 31559-31561). He said at 31561:

“In practice, the decision is lawful provided:

·        the decision maker is acting in good faith;

·        the decision is reasonably capable of reference to the power given to the decision maker – that is, the decision maker had been given the authority to make the decision concerned, for example, had the authority delegated to him or her by the Minister for Immigration and Multicultural Affairs, or had been properly appointed as a tribunal member;

·        the decision relates to the subject matter of the legislation – it is highly unlikely that this ground would be transgressed when making decisions about visas since the major purpose of the Migration Act is dealing with visa decisions; and

·        constitutional limits are not exceeded – given the clear constitutional basis for visa decision making in the Migration Act, this is highly unlikely to arise.”

18                  In O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 274 Brennan J, after citing Dixon J in Hickman, referred to a “fourth condition”. His Honour said that the privative clause will not operate to give validity to a decision if to do so would “infringe ‘inviolable limitations or restraints upon the jurisdiction or powers of the Tribunal’: Reg v Coldham”. von Doussa J, in his judgment in NAAV at par 626, said that the Minister, in his Second Reading Speech, treated the fourth condition as encompassed in the Hickman proviso and that it appeared that Dixon J himself also did so in R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 400-401. His Honour added:

“Whether the ‘fourth condition’ stands separately or is encompassed within the three Hickman provisos, the consequence of the condition is the same.”

19                  Although he wrote a separate judgment in NAAV, Beaumont J at par 277 said:

“For completeness, and in order to avoid any possible doubts, I should say that I agree entirely with the reasons of von Doussa J in all of these appeals.”

20                  Black CJ differed from von Doussa J on a point that was determinative of two of the five appeals that were then under consideration. However, those two appeals are not relevant to the issues that are presently under consideration. One of them concerned the rejection of an application for judicial review of a decision to cancel a visa and place the person in immigration detention as an unlawful non-citizen; it called for a consideration of s 128 of the Act and whether the Minister might reach an unchallengeable state of satisfaction about the circumstances of the holder of a visa. In the second case, a decision had been made to refuse to revoke a visa cancellation even though prior notice, as required by the Act, had not been given to the former holder of the visa. In the remaining three appeals, two of which dealt with persons who had applied for a protection visa, as had the applicant in these proceedings, the Chief Justice said at par 4 that he would dismiss the appeals and that he would do so:

“… essentially for the reasons given by von Doussa J and, subject to what follows [concerning the other two appeals] …”

21                  von Doussa J explained in NAAV that if a decision was purportedly made in pursuance of a power in the Act and it was made in breach of an inviolable limitation or restraint imposed by the Act, or was made in breach of one of the Hickman provisos, it will not be a decision made under the Act. In such circumstances relief would lie under s 39B of the Judiciary Act. On the other hand, his Honour went on to explain at par 628, that if the Hickman provisos were fulfilled, the decision will be made under the Act:

“If that decision, apart from s 474(1), would be invalid as beyond power, and therefore not one made under the Act, the operation of s 474(1) would have the effect of giving validity to the decision so that it is one made under the Act.”

22                  von Doussa J was satisfied in NAAV that the natural justice requirements of procedural fairness had not been met; the Tribunal’s use of important documents, which had not been brought to the attention of the applicant, had the effect, although unintended, of misleading him. However, in the opinion of von Doussa J, the rules of procedural fairness had been excluded by s 474 and the Tribunal’s decision was therefore lawfully made. In the second of the five appeals, NABE v Minister for Immigration and Multicultural and Indigenous Affairs, the majority were of the view that the trial judge had been in error because he had misunderstood the applicant’s claim. He thought that the applicant was claiming that he had suffered detention and torture at the hands of “the authorities” whereas he had claimed that he had been mistreated by the PLOTE. That was, however, an error of fact that did not amount to a jurisdictional error. Even if the error had been a jurisdictional error of the “Craig type” (see Craig v South Australia (1995) 184 CLR 163), von Doussa J considered that the decision was validated by subs 474(1) of the Act as the authority and powers of the Tribunal had been properly engaged as a result of a valid application that had been made to the Tribunal for review of a reviewable decision.

23                  As the decision of the Tribunal related to the application for a protection visa, the decision related to a subject matter of the relevant legislation – the Migration Act and, as such, it satisfied the second of the Hickman provisoes. Furthermore, the decision was obviously capable of reference to the power that the legislation has given to the Tribunal and thus the third of the provisoes was satisfied. That left only the first principle to be considered – was the Tribunal’s decision a bona fide attempt to exercise the Tribunal’s power?

24                  In SBAP v Refugee Review Tribunal [2002] FCA 590, Heerey J made the following observations at par 49:

“In the context of administrative decision making bad faith is a serious matter involving personal fault on the part of the decision maker going beyond errors of fact or law which are inevitable in any such process. As such, it is an allegation not lightly made and must be clearly alleged and proved … The ways in which bad faith can occur are infinite and no comprehensive definition is possible. Nevertheless it can be said that the presence or absence of honesty will often be crucial. So also will be a purpose to achieve some end (perhaps even not one in itself reprehensible) which is not an end for which the statutory power was conferred. …” (references omitted)

25                  von Doussa J in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 emphasised the exceptional nature of such a finding. His Honour was of the view that the same strictures which apply to a finding of actual bias also applied to a finding of lack of good faith. He said at par 38:

“… where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party’s interests such as a hostile attitude throughout the hearing … or a failure to enquire into and to obtain readily available and important information relating to central matters for determination … an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.” (references omitted)

26                  Nothing in these proceedings could possibly suggest bad faith on the part of the Tribunal; nor could it be said that the Tribunal was biased against the applicant. Indeed the Tribunal conducted itself in a most exemplary manner. Nevertheless, the fact remains that the Tribunal innocently failed to have regard to a most important matter when it conducted its review of the applicant’s case; it innocently failed to have regard to the applicant’s distressed state of mind. If, knowing that an applicant was emotionally distressed and not in a fit state to present his or her case, the Tribunal forged ahead, one could say, arguably, that a consequential adverse decision was not a bona fide attempt by the Tribunal to exercise its power. Why then should not a similar conclusion be reached in a like case where the Tribunal was unaware that the applicant was emotionally distressed and unable to present his or her case? It seems to me that the personal circumstances of an applicant are as important as the personal circumstances of the decision-maker when the time comes to determine whether the decision was a bona fide attempt to exercise power. In my opinion, a decision cannot be bona fide if it innocently or knowingly fails to have regard to a material consideration.

27                  Despite the prima facie application of s 474 of the Act, Mr Barrett submitted that the applicant was at such a serious disadvantage during his Tribunal hearing that the hearing was not a fair one as required by subs 420(1) of the Act. That subsection is in the following terms:

“The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”

He submitted that the applicant had been unfairly treated and that unfairness had arisen in two ways. Mr Barrett’s first line of attack was unsuccessful. He submitted there had been a “failure to meet natural justice requirements of procedural fairness” and that such a failure would have resulted in this application being successful but for subs 474(1). As I understand the position, he was reserving his client’s rights by raising this argument, for he acknowledged that von Doussa J had rejected such a submission in par 648 of his judgment in NAAV. His Honour there said:

“I agree with the analysis of the facts made by Wilcox J and with his conclusion that, but for s 474(1), the natural justice requirements of procedural fairness were not met. I agree that the statements made by the Tribunal, and the Tribunal’s subsequent use of important documents that were not brought to the attention of NAAV, had the affect (although unintended) of misleading him. However, in my opinion, the rules of procedural fairness have been excluded by s 474. It follows that the Tribunal’s decision was lawfully made.”

I am, of course, bound by the decision of the majority in NAAV, and for that reason, I must reject Mr Barrett’s first line of attack.

28                  Mr Barrett’s second submission was to the effect that the Tribunal had failed to follow the directory provision of subs 420(1) and, in so doing, the conduct of the Tribunal amounted to an absence of a bona fide attempt to exercise its relevant power. In support of that proposition, Mr Barrett relied upon a passage in the judgment of von Doussa J in NAAV at par 674:

“It does not follow from this conclusion that procedural steps in the decision making process which the Act says ‘must’ be followed have been stripped by the enactment of s 474(1) of any significance whatsoever. The statutory procedures remain, but are directory, not mandatory. A failure by a decision-maker to follow directory provisions in the Act may in the circumstances of a particular decision be important in determining whether its making was ‘an honest attempt to deal with a subject matter confided to the Tribunal and to act in pursuance of the powers of the tribunal …’: R v Murray; Ex parte Proctor per Dixon J at 400. A blatant disregard of statutory directions about a decision making process laid down in the Act is unlikely to meet the Hickman proviso that the decision be one that is a bona fide attempt to exercise the relevant power. Unless that requirement is met, s 474(1) cannot validate the decision.”

I believe that this passage – and the passage from R v Murray; Ex parte Proctor that von Doussa J cited – requires there to be either knowing or reckless conduct on the part of the Tribunal member. If the Tribunal member is not made aware of the applicant’s medical and mental condition (and there is nothing in the papers to suggest that the member was made so aware) I do not see, on the basis of what von Doussa J has said, how the Tribunal member can be accused of failing to make an honest attempt to deal with the subject matter that is before it. Clearly, his Honour was only dealing with those infrequent occasions when the conduct of the decision-maker is, in some shape, manner or form, reprehensible. No such criticism can be made of the decision-maker in this case.

29                  There still remains a question however: might not a person, because of his or her undisclosed medical condition, be a victim of unfairness (even though it was innocently perpetuated) just as much as one who has suffered as a consequence of the deliberate, knowing act of the decision-maker? The language of the Hickman principle – “a bona fide attempt to exercise the Tribunal’s power” – suggests that one looks only at the subjective conduct of the decision-maker. But is that necessarily correct? Should not the “bona fide attempt” be assessed by having regard to the personal circumstances of the applicant as much as the personal circumstances of the decision-maker.

30                  The material in the Appeal Book to which I was referred contained unchallenged evidence that the applicant was not in a fit state to represent himself when the Tribunal considered his application. Because of his emotional and medical condition, he was treated (albeit innocently) unfairly. When an applicant is treated unfairly by a decision-maker, I do not think that it could be said that the decision was a bona fide attempt to exercise the Tribunal’s power. For this reason, I am of the opinion that the application should succeed. The applicant is to have his costs.

Associate:

Dated: 28 November 2002