SCAZ v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 29 January 2002 which affirmed a decision of a delegate of the respondent not to grant the applicant a protection visa. 2 The applicant arrived in Australia on 15 January 2001 without a passport or any other document evidencing his country of nationality. He claimed to be a citizen of Afghanistan. He is about twenty-seven years old and said that he had left a wife and infant son in Afghanistan. He said that before coming to Australia he had always lived in the Khoshi District, Logar Province, Afghanistan. He said he had received no formal education and had worked on his family farm. He claimed to have left Afghanistan on 17 December 2000, and travelled to Australia via Pakistan and Indonesia. He said he was a Shi'a Muslim of Tajik ethnicity. He said he had fled Afghanistan fearing persecution by the Taliban. He gave an account of persecution of other family members. 3 In the decision under challenge the Tribunal accepted the applicant as a truthful witness. The Tribunal found that he is a national of Afghanistan who lived and worked in the Khoshi District as he said. The Tribunal accepted that the Taliban took away two of his brothers in February 2000 and that he does not know their whereabouts; and that the Taliban tortured his father, causing his death in June 2000. The Tribunal accepted that the applicant genuinely feared that he would be persecuted by the Taliban because he was a Tajik and Shi'a Muslim at the time that he left Afghanistan. 4 Further, the Tribunal accepted that the applicant genuinely fears being persecuted in Afghanistan because of his race and religion if political instability continues in the country. On that topic, the Tribunal in its reasons for decision said: "The applicant was asked [at an oral hearing on 10 January 2002] to comment on the recent, substantial political and military developments in Afghanistan. He said that the last 25 years of war in Afghanistan had been based on religion, race and tribal differences. Those differences were greater under the Taliban. He is very happy and delighted that the UN has been involved in the installation of a new government in Afghanistan. If there is peace, he would be happy to join his family. But he is afraid that the new Afghan government will not be able to stop fighting between commanders; and that it will not be able to solve the ethnic differences in Afghanistan. He also said that as long as international peacekeepers remain in Afghanistan, the commanders will lie low; once they leave Afghanistan, the commanders will use young people to fight for them." 5 The Tribunal, however, found that: "There is a significant amount of historical evidence to support a finding that Hazaras returning to the Hazarajat region of Afghanistan face a real chance of being persecuted by Pushtuns or Sunni Muslims for Convention reasons - despite the demise of the Taliban. However, there is no probative evidence before the Tribunal to support a finding that Tajiks (whether Shi'a or Sunni Muslims) face a real risk of being persecuted because of race, religion or (imputed) political opinion in Afghanistan now that the Taliban has effectively been eliminated. I therefore find that the applicant's fear of being persecuted for a Convention reason if he returns to Afghanistan is not well-founded." 6 The Tribunal concluded that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (those expressions being defined in s 5 of the Migration Act 1958 (Cth) (the Act)), and that the applicant therefore did not satisfy the criterion set out in s 36(2) of the Act for a protection visa. 7 The present application for review was first argued before the decision of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 (NAAV), and at a time when the Court did not have available to it a transcript of the oral hearing before the Tribunal on 10 January 2002 at which the applicant gave evidence. The primary submission advanced in support of the application was that it is clear from the Tribunal's reasons that no reference was made to how the changed situation in Afghanistan might affect the applicant himself. The Tribunal referred only to the supposed situation of Tajiks generally. By not asking itself what are the implications for the applicant of the supposed political changes on Tajiks generally, the Tribunal failed to exercise its jurisdiction. In these circumstances it was contended that the purported decision is invalid and should be set aside. Alternatively it was contended that the Tribunal had made a jurisdictional error of the type identified by the High Court in Craig v The State of South Australia (1995) 184 CLR 163 at 179 and found by Wilcox J in Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438 at [61] - [70]. 8 Reference was also made in submissions to the past history of the applicant's endeavours to obtain a protection visa following his arrival in Australia, and to the short notice which he received from the Tribunal of the oral hearing which occurred on 10 January 2002, but these matters did not loom large in the submissions. 9 Were the matter to be decided solely upon the submission that the Tribunal failed to exercise its function, and failed to ask itself what are the implications for the applicant of the supposed political changes on Tajiks generally in Afghanistan, and without regard to the short notice of the hearing which the applicant received, I think the application would inevitably fail because of the operation of the privative clause in s 474(1) of the Act. In NAAV the majority of the Full Court (Black CJ, Beaumont and von Doussa JJ; Wilcox and French JJ dissenting) held that s 474(1) operates by changing the substantive meaning of the Act so that the jurisdiction and powers of decision makers are expanded. In this way decisions that might otherwise have been invalid for reason of jurisdictional error of the type identified by the High Court in Craig v The State of South Australia are validated by the effect of s 474(1) of the Act. The majority decision in NAAV overrules Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs. 10 The decision in NAAV confirms that the privative clause in s 474(1) is to be construed and applied according to the principles enunciated by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615. In particular, the validating effect of the clause is subject to three conditions, namely that the decision maker's 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" (per Dixon J at 615) and to the further condition that the Tribunal has not contravened an "inviolable statutory condition" (see NAAV at [618] - [624] per von Doussa J, with whom Black CJ and Beaumont J agreed on this point, and NAAQ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 300 at [23]). 11 As counsel for the applicant at the original hearing based his primary submission on the footing that the Tribunal had made a jurisdictional error, it was not contended that in all the circumstances the decision of the Tribunal did not reflect a bona fide attempt by it to exercise its power. After the decision was handed down in NAAV, I re-listed the matter for further submissions to provide an opportunity for counsel for the applicant to re-cast his submissions to put in issue whether the Hickman condition as to the bona fide exercise of power was met. By that time the transcript of the oral hearing before the Tribunal had also become available. Counsel took advantage of the opportunity, and as re-cast, the challenge to the Tribunal's decision now includes reliance upon the past history of the matter and the short notice which the applicant received of the hearing on 10 January 2002. I turn to those matters. 12 After his unlawful arrival in Australia, the applicant applied for a protection visa. On 10 April 2001 the Minister's delegate refused to grant a protection visa. The delegate said: "I consider that the applicant is almost certainly concealing his true identity, is now seeking to take advantage of the current conflict in Afghanistan to leave his country of former habitual residence, and to masquerade as an Afghan refugee." The applicant sought to review the delegate's decision. On 27 July 2001 the Tribunal found that the applicant had been truthful in his background, but did not find truthful his account of his experiences. The Tribunal affirmed the decision not to grant a protection visa. 13 The applicant applied to the Federal Court for review of the Tribunal's decision on 27 July 2001. The hearing date was fixed for 27 November 2001. However, on the day preceding the hearing the respondent consented to the matter being remitted to a differently constituted Tribunal. 14 The applicant, from the time of his arrival, had been in immigration detention and that detention continued. After the order by consent for remittal, the next communication which the applicant received from the Tribunal was on the afternoon of 3 January 2002 when he was handed a letter from the Tribunal informing him that the Tribunal was not prepared to make a favourable decision on the information in his file, and inviting him to a hearing to give oral evidence and present arguments before the Tribunal at 1.30 pm on Thursday, 10 January 2002. That notice was given in purported compliance with s 425 of the Act which by its terms requires that an applicant must be invited to appear before the Tribunal if a favourable decision is not made on the file material. However, s 425A provides: "(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear. (2) The notice must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period. (4) …" 15 The Migration Regulations 1994, reg 4.35D provides for the purpose of s 425A(3) that the prescribed period, where the applicant is a detainee, starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of seven days after the day on which the notice is received. 16 The invitation to appear given to the applicant therefore failed to meet the prescribed time requirement laid down in s 425A(3). The notice to the applicant stipulated a time that was two days short of the prescribed period. 17 On 4 January 2002 the applicant completed a pro forma "Response to Hearing Invitation" saying that he wished to attend to give evidence. He also forwarded to the Tribunal a number of documents intended to establish his Afghan nationality, contrary to the decision of the Minister's delegate that was to be reviewed by the Tribunal. The inference from this information is that the applicant understood the question of his nationality to be the central question for decision. 18 At the earlier hearing before the Tribunal the applicant had been represented by a migration agent. The applicant also made contact with that agent who, on 8 January 2001, wrote to the Tribunal saying that the applicant had written to the agent requesting that the agent act on his behalf under the IAAAS scheme at the forthcoming Tribunal hearing. The agent pointed out that the agent's firm had represented the applicant at the earlier hearing. The agent's letter continued: "[the applicant's] hearing is scheduled for the 10th of January. We have received instructions to act on his behalf today, which is the 8th of January. Given that we will not have time to adequately prepare any supporting submissions for [the applicant] we ask that the Member postpone the hearing to a later date. We enclose authorisation from [the applicant] to have the hearing postponed and for us to act on his behalf. We regret any inconvenience that this causes the Tribunal but we stress the importance of the applicant being given the opportunity for full participation in the legal system and adequate representation at his hearing." 19 On 9 January 2002 a Deputy Registrar of the Tribunal wrote to the applicant, with a copy to the applicant's migration agent, saying that an application to postpone the hearing had been received but that: "The member reviewing your case has asked me to tell you that a postponement of your hearing is not granted. The hearing will therefore proceed on Thursday, 10 January 2002 at 2.00 pm as scheduled. If you do not come to the hearing, your case may be decided by the Tribunal on the evidence it already has." The agent responded on the applicant's behalf to this letter saying that an agent would be present at the Tribunal in Melbourne the next day for the hearing, but that in the short time available it was not possible to provide any further written submissions. The agent noted that the matter had been remitted to the Tribunal because the Tribunal at the earlier hearing failed to put to the applicant the Tribunal's concern in relation to the applicant's allegation to the delegate that the Taliban never returned to the farm after his father had been released by the Taliban (injured and shortly before he died). The agent also noted that the applicant himself had sent information in support of his Afghan nationality. 20 The oral hearing occurred on 10 January 2002. The Tribunal member who constituted the Tribunal was in Melbourne and the applicant was present by video link from Woomera. When the hearing commenced the applicant's agent was not present. The applicant requested an adjournment to prepare himself. He said he had a few recent documents and he needed a few days to study them. The Tribunal member responded: "No, we would not adjourn today's hearing, but that doesn't explain why your adviser is not present today. It also doesn't explain why your adviser hasn't forwarded documents to us. He could have simply forwarded those documents and done a submission in relation to them later." At that point the Tribunal received a note that the applicant's agent was on his way, and the agent attended shortly afterwards. The transcript indicates that the documents which the agent brought with him from the applicant were copies of documents which the applicant had already sent to the Tribunal regarding his nationality. 21 After questioning the applicant on oath as to his life experiences in Afghanistan, the Tribunal member said that she was satisfied that the applicant was an Afghan. The member then said that she now wanted to talk to the applicant about the changes that had occurred in Afghanistan. The member gave the applicant a short summary of significant changes which had occurred following the overthrow of the Taliban, and informed the applicant that the Tribunal would like his comment about how he felt about returning to Afghanistan given those changes. The substance of the applicant's response was as summarised in the Tribunal's reasons for decision: see par [4] above. The member then asked the agent if there was anything that he would like the applicant to be asked. The agent responded that he could not see that any question from him would add to the credibility of his client in light of the Tribunal's acceptance that he was an Afghan national. The member and the agent then discussed the changed circumstances in Afghanistan. The agent said that he had put together a "fairly generic written submissions citing a number of sources that cast doubt on the efficacy of the broad-based government, rather than the national unity government". It is plain from the submission, that it is a collection of material that was put together in relation to another matter that concerned a claim for a protection visa by an Hazara Afghan. It is not specific to the applicant or to an Afghan of Tajik ethnicity. The Tribunal's immediate response was to say to the agent "I bet I've got better ones than you've got", obviously referring to the country information sources. The Tribunal referred to a number of recent country information reports, and then said to the applicant through the interpreter "I'm just looking at your adviser's submission. I have seen these reports." 22 The Tribunal asked the agent if the agent could "get something to (the member) about the humanitarian aspect of this case by tomorrow afternoon", and then said to the applicant: "I shall give some more thought to your case. Thank you for appearing today. I understand that you wanted a bit more time, but I think it's better to proceed with these hearings at the moment. Also I appreciate that you were concerned at not having time to put in a submission. I would just like to say there have already been submissions that were before me, and as I expected this has turned on one narrow issue, so I have probably saved you some work … I have been a little slow with a couple of my decisions, because I have been trying to be consistent and do a lot of work on what my assessment is of the situation. I have done most of that work now. So for the time being, that is unless and until something else changes, I should be able to do a decision which will be faxed to you very soon. About a week or so." The Tribunal member had earlier in the hearing identified the "narrow issue" to the applicant as whether, if he were to go back to Afghanistan now, he would be at risk of being harmed because he is a Tajik or a Shi'a Muslim or for some other Convention reason. The member's reference to "the situation" about which she was to make her "assessment" is a reference to the present political and security situation in Afghanistan. 23 On this material counsel for the applicant made two broad submissions, both of which were premised on an acceptance of the conclusion that standing alone the failure of the Tribunal to give to the applicant the prescribed period of notice of the hearing required by the terms of s 425 and s 425A was an irregularity that would be validated by the effect of s 474(1) of the Act. Acceptance of that conclusion was required by the authority of NAAV, in particular at [631] and [635] per von Doussa J, Black CJ and Beaumont J agreeing on this point. 24 First, counsel contended that the Tribunal had demonstrated, by the way the hearing was conducted, that the Tribunal entered on the hearing with a mind that was not open to persuasion on the "narrow issue". Counsel conceded that the Tribunal correctly posed the "narrow issue" which required decision. However, by saying that the Tribunal had better sources of country information than the agent, by not inviting further submissions from the agent on the political and security situation in Afghanistan, and by asking the agent to get something to her about the humanitarian aspect of the case, the Tribunal demonstrated that she had already formed a final view about the answer to the narrow issue before the hearing commenced. This submission amounts to an allegation of actual bias through pre-judgment of the issue. 25 In the performance of its administrative functions, the Tribunal and its members inevitably come into possession of a great deal of country information and accumulate country information from researching past cases. The accumulation and storage in electronic form of country information, and access to it by Tribunal members, is described in Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [107] and [109]. A specialist Tribunal will bring knowledge of this kind to bear on future cases: see Re Minister for Immigration and Multicultural Affairs; Ex parte "A" (2001) 185 ALR 489 at [46]. By January 2002 it is hardly surprising that members of the Tribunal dealing with claims for protection visas by nationals of Afghanistan who had fled persecution by the Taliban regime would draw on information gathered in other cases, and enter upon the consideration of a new matter with a view about the current political and security situation in Afghanistan. Moreover the practical effect of s 425 is to require the Tribunal to consider material about an applicant's case and to form a considered view about its merits before embarking on a hearing. A hearing will only take place after the Tribunal has concluded that it should not decide the review in the applicant's favour on the material before it: see s 425(2)(a). In reaching that conclusion the ascertainment and assessment of country information is an essential part. That the Tribunal entered the hearing in this case with a particular view about the current situation in Afghanistan does not indicate improper pre-judgment on the part of the Tribunal, so long as the Tribunal remained open to persuasion should additional information be forthcoming. I am not satisfied that the mind of the Tribunal in the present case was not open to persuasion. Rather, the statements of the Tribunal at the end of the hearing indicate that the current situation in Afghanistan had been, and was still being, conscientiously researched by the member: see in particular the Tribunal's statement set out above at [22]. 26 No notice following the hearing was given to the applicant by the Tribunal under s 424A. Section 424A(1) provides that the Tribunal must give to the applicant 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, and invite the applicant to comment on it. However, insofar as the information is general country information the Tribunal would not be under a statutory obligation to bring it to the applicant's attention by notice under s 424A as that section does not apply to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member: s 424A(3)(a). In Re Minister for Immigration and Multicultural Affairs; Ex parte "A" at [48] Kirby J suggested that it is possibly arguable that s 424A(3)(a) should be narrowly construed so that country information of the type referred to by the Tribunal in its decision in this case should have been the subject of a notice under s 424A(1). However, even on such a narrow construction, and apart from the operation of s 474 of the Act, the failure to give notice under s 424A(1) could provide no ground to challenge the Tribunal's decision in this case as the applicant has not placed before the Court any indication of the type of evidence or material that he would have placed before the Tribunal if he had been given such a notice. Absent some indication of the nature of the opportunity which the applicant says he was denied, any omission by the Tribunal to disclose country information is not shown to be material. 27 Although the Tribunal said that the sources of country information available to her could be better than the sources available to the agent, no attempt has been made before this Court to show that the content of the information referred to in the Tribunal's decision differed from that referred to in the "fairly generic written submissions" produced by the agent during the hearing. 28 I am not persuaded that the failure to give a notice under s 424A(1) of the Act, or the failure by the Tribunal to articulate all the sources of country information available to the Tribunal, should be treated as being indicative of a closed mind by the Tribunal. 29 The second broad submission made by counsel for the applicant is that because of the refusal to adjourn the hearing to allow the applicant to properly instruct his agent, and to allow the agent to consider those instructions and prepare a submission that addressed the situation of people of Tajik ethnicity in Afghanistan in the changed political circumstances, the decision that was made does not reflect a bona fide attempt by the member to exercise her power. Accordingly, the Court should find that the decision is not protected by s 474 of the Act and is invalid. 30 In NAAV at [107] Black CJ, in considering the Hickman condition as to the bona fide exercise of power, quoted with approval the following passage from the judgment of Allsop J in NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 at [24]: "Dixon J in R v Murray; Ex parte Proctor [(1949) 77 CLR 387, at 400] made it clear that the phrase involves an 'honest' attempt to deal with the subject matter conferred to the executive. Bad faith is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question. Finn J in Daihatsu Australia v Federal Commissioner of Taxation (2001) 184 ALR 576 at [36] referred, by way of exemplification, to the exercise of a power knowingly for an improper purpose or where no attempt is made, knowingly, to act conformably with duty. Heerey J in SBAP v Refugee Review Tribunal [2002] FCA 590 at [47] said that the phrase 'bona fide' involved a serious question involving personal fault on the part of the decision-maker going beyond error of fact or law. It must be clearly identified and proved. I agree. I also agree with the statements of principle made by Mansfield J in SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547 at [34] to [36]." 31 Earlier in his judgment in NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs Allsop J at [13] also said that by enacting s 474 of the Act: "… Parliament has widened the authority of the executive in respect of the decision in question. That widened authority means that the state, or lack, of satisfaction, however reached, with whatever attendance there may have been to what, absent s 474, may have been irrelevant considerations, or with whatever misunderstanding of the right question to answer, whether capricious, arbitrary or lacking a probative foundation or a rational connection with circumstances present, or fanciful, is within the lawful authority and jurisdiction of the decision-maker to reach, so long as the decision was reached bona fide and in compliance with the other requirements laid down in Hickman. Of course, erstwhile vitiating factors of the kind just mentioned may be relevant in an enquiry as to whether the Hickman test has been satisfied. Thus, if a decision can be described as capricious or arbitrary, that, and the reasons why one can say that, might be very relevant to the question whether there was a bona fide attempt to exercise the power." 32 In Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 276, Brennan CJ, Toohey, McHugh and Gummow JJ quoted with approval the following passage from the judgment of Gibbs J in Buck v Barone (1976) 135 CLR 110 at 118 - 119 where his Honour equated a bona fide exercise of power with the absence of arbitrariness or capriciousness. His Honour said: "Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously." 33 In SBAP v Refugee Review Tribunal [2002] FCA 590 Heerey J at [49] said: "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 one not in itself reprehensible) which is not an end for which the statutory power was conferred." This passage implicitly recognises that to establish that an attempted exercise of power was not bona fide it may not be necessary for the applicant to go so far as to show that the power was exercised in a way that the decision maker actually knew was wrong. An exercise of power that was reckless as to whether it was in a manner required by law may not be a bona fide exercise. In Forsyth v Blundell (1973) 129 CLR 477 Walsh and Mason JJ held that it was open to the Court when considering the powers and duties of a mortgagee to find that the mortgagee in making the sale had acted with calculated indifference to the interests of the mortgagor and, accordingly, that it had not exercised its power of sale in good faith. Mason J at 506 said: "… the conclusion which I reach is that A.S.L. was in breach of its duty to the mortgagors in that it exercised its power of sale without taking reasonable steps to obtain a proper price and in so doing acted otherwise than bona fide, that is, recklessly, not caring whether the price obtained was in the circumstances a proper price or not." See also Davis v Taylor (1948) 48 NSWSR 514 at 519. 34 In the present case the Tribunal failed to meet the requirements of s 425 and s 425A of the Act in that the applicant was not given the prescribed period of notice of the intended hearing of the review. As I have earlier observed, the submissions of counsel for the applicant accept that the mere failure to give the prescribed period of notice is a procedural irregularity that would be validated by s 474. Notwithstanding that s 474 may have this effect, the Act still requires that procedural steps such as those laid down in s 425 and s 425A be followed, and it is a duty of the Tribunal to do so in the performance of its functions. In NAAV, in a passage with which Black CJ and Beaumont J agreed, I said at [674]: "It does not follow from this conclusion [i.e. the validating effect of s 474] 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." 35 I find it is extraordinary that the applicant's request for an adjournment of the hearing on 10 January 2002 was refused. Why the prescribed period of notice was not given remains unexplained. However, the Deputy Registrar's letter of 9 January 2002 indicates that the request for the adjournment was brought specifically to the attention of the member constituting the Tribunal and it was the member who refused the adjournment. The member must have known from the correspondence that the applicant had previously been represented by the agent. In the face of the complaint by the agent that the agent had inadequate time to prepare a submission, and having regard to the failure to give the prescribed notice, to refuse the adjournment was an arbitrary, capricious decision. Not only was it a decision that was likely to have the effect anticipated by the agent in the agent's letter of 8 January 2002, namely that the agent would have inadequate time to prepare a submission on the applicant's behalf, at the hearing this proved to be the case. 36 It must have been apparent to the member at the time when the adjournment was refused on 9 January 2002, that the applicant thought the central issue in his case concerned his nationality. As events turned out this became a non-issue, and the critical question concerned the potential risk to the applicant of persecution for a Convention reason if he were to return to Afghanistan. In my opinion it should have been apparent to any Tribunal member genuinely attempting to carry out the Tribunal's review function that in this case the inadequate notice of the hearing, and the Tribunal's decision to refuse an adjournment, would deprive the applicant of a fair hearing on the real issue that required decision. 37 In refusing the adjournment and in pressing on with the hearing in the face of the requests for an adjournment, I consider there was a reckless disregard by the Tribunal for the provisions of s 425A. No good reason for refusing the adjournment has been shown or suggested by the respondent. Hence, my view that the decision to refuse the adjournment was arbitrary and capricious, especially once it had become clear that the agent had not had time to prepare a submission directed to the situation that could confront the applicant if he were to return to Afghanistan. In my opinion the decision under review cannot be characterised as a bona fide attempt to exercise the review power. 38 In my opinion the application should be allowed and the declaration made that the decision of the Tribunal is invalid and of no effect. The matter should be remitted to the Tribunal to be heard according to law. The respondent must pay the applicant's costs of the application. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa .