Hasani v Minister for Immigration and Multicultural Affairs

[2000] FCA 1435

FEDERAL COURT OF AUSTRALIA

Hasani v Minister for Immigration & Multicultural Affairs [2000] FCA 1435

MIGRATION – review of decision by Migration Review Tribunal affirming refusal to grant bridging visa – Tribunal found as a fact that a medical specialist appointed by the Immigration Department had not certified that the applicant could not properly be cared for in a detention environment – whether Tribunal erred in law by misconstruing the relevant regulation – whether the Tribunal made any other reviewable error – no reviewable error – application dismissed.

Migration Act 1968 (Cth), ss 72(1)(b), 476
Migration Regulations 1958 (Cth), 2.20(9)(c)

BESNIK HASANI v MINISTER FOR IMMIGRATION AND MULTICULTURAL
AFFAIRS

W 145 of 2000

CARR J
12 OCTOBER 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA	W145 OF 2000
WESTERN AUSTRALIA DISTRICT REGISTRY

BETWEEN:	BESNIK HASANI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	CARR J
DATE OF ORDER:	12 OCTOBER 2000
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA	W145 OF 2000
WESTERN AUSTRALIA DISTRICT REGISTRY

BETWEEN:	BESNIK HASANI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	CARR J
DATE:	12 OCTOBER 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application for an order of review of a decision of the Migration Review Tribunal made on 28 July 2000 by which the Tribunal affirmed the decision of a delegate of the respondent not to grant to the applicant a Bridging E visa (Subclass 051). This subclass of visa is described, in the heading to the relevant item in Schedule 2 of the Migration Regulations 1994, as a “Bridging (Protection Visa Applicant)”. I shall refer to it as “the Bridging Visa”.

   FACTUAL AND PROCEDURAL BACKGROUND AND THE LEGISLATIVE FRAMEWORK

2. The factual background to this matter is set out in a judgment which I have delivered today in respect of the applicant’s application for review of a decision in relation to his application for a protection visa.

3. On 8 November 1999, the day before the Refugee Review Tribunal affirmed the primary decision-maker’s decision not to grant a protection visa to him, the applicant applied for the Bridging Visa. I shall refer to that application as “the First Bridging Visa Application”. An “eligible non-citizen”, a term defined in s 2 of the Migration Act 1958 (Cth) (“the Act”), may be granted a bridging visa under subdivision AF of Division 3 of Part 2 of the Act. Regulation 2.20 relevantly prescribes who is an eligible non-citizen for the purposes of that part of the definition provided in s 72(1)(b). In summary, and so far as is relevant to this matter, the Bridging Visa may be issued to a non-citizen whose application for a protection visa has not been finally determined or who has applied for judicial review of a decision to refuse a protection visa and who satisfies at least two further conditions. The first of those two further conditions is that he or she has a special need, based on health or previous experience of torture or trauma, in respect of which a medical specialist appointed by the Immigration Department has certified that the non-citizen cannot properly be cared for in a detention environment. The second further condition is that the Minister is satisfied that adequate arrangements have been made for his or her support in the community – see Regulation 2.20(9)(c) and (d). As the first of these two further conditions lies at the heart of this matter, I shall set out its terms in full, as expressed in Regulation 2.20(9)(c):

   “(c)who has a special need (based on health or previous experience of torture or trauma) in respect of which a medical specialist appointed by Immigration has certified that the non-citizen cannot properly be cared for in a detention environment; and …”

   [Regulation 1.03 defines “Immigration” as meaning the Department of Immigration and Multicultural Affairs]

4. It may be useful briefly to summarise the history of the applicant’s various applications for the Bridging Visa, because the decision under review is the latest in a series of three similar decisions.

5. On 12 November 1999 a delegate of the respondent refused to grant the Bridging Visa.  On 26 November 1999 the applicant applied to the Tribunal for review of that decision.  The Tribunal conducted a hearing on 15 December 1999 at which a Dr P W Skerritt, a psychiatrist, gave evidence.  Dr Skerritt was a medical specialist appointed by the Immigration Department to make an assessment of the applicant for the purposes of Regulation 2.20(9)(c).  At least one other specialist was appointed by the Immigration Department to review the applicant, but Dr Skerritt was the only such appointed specialist who assessed him.  Dr Skerritt also provided two written reports.  I return later in these reasons to the subject of Dr Skerritt’s reports and oral evidence.  On 16 December 1999 the Tribunal affirmed the delegate’s decision refusing to grant the Bridging Visa.

6. The next day (17 December 1999) the applicant again applied for the Bridging Visa (“the Second Bridging Visa Application”).  That application was refused by a delegate of the respondent on 12 January 2000.  On 14 January 2000 the applicant applied to the Tribunal for review of that decision.  On 13 March 2000 the Tribunal made a decision setting aside the delegate’s decision and substituting a new decision “… that there being no valid application, the Tribunal was unable to consider the substance of the application before it.”  On 29 March 2000 the applicant lodged an application in this Court (No W46 of 2000) to review the Tribunal’s decision of 13 March 2000.  On 26 April 2000 the applicant discontinued that application.  In the meantime, on 12 April 2000 the applicant’s solicitors lodged a further application in this Court (No W60 of 2000) to review the Tribunal’s decision of 13 March 2000.  That application was dismissed by consent on 10 October 2000.  Also on 12 April 2000 the applicant’s solicitors filed an application in this Court (No W7 of 2000) to review the Tribunal’s decision of 16 December 1999.  That application was discontinued on 13 September 2000.

7. On 6 April 2000 the applicant lodged a further application for the Bridging Visa (“the Third Bridging Visa Application”).  On 12 July 2000 a delegate of the respondent refused to grant that visa to the applicant.  On 14 July 2000 the applicant applied to the Tribunal for review of the delegate’s decision of 12 July 2000.  On 28 July 2000 the Tribunal made a decision setting aside the delegate’s decision and substituting a new decision that there being no valid application, the Tribunal was unable to consider the substance of the application before it.  On 25 August 2000 the applicant lodged this application (No W145 of 2000) for review of the Tribunal’s decision of 28 July 2000.

8. When this application and application No W60 of 2000 came on for hearing before me on 10 October 2000, counsel for the respondent submitted that as the Tribunal’s decision of 13 March 2000 had been superseded by its subsequent decision of 28 July 2000, the appropriate course was for the Court to review the later decision but not the earlier one.  After some debate, counsel for the applicant consented to Application No W60 of 2000 being dismissed subject to the applicant having leave in this application to amend his particulars to incorporate a matter raised in the former application, but not previously raised in this application.  Leave was given for that amendment and another amendment to the particulars of the grounds of application filed in this application.

   THE TRIBUNAL’S DECISION

9. The Tribunal set out in its reasons the factual and procedural background to the matter.  It also referred to the relevant legislation and policy.  It then referred to the evidence which was before it.  It stated (see para 9) that it had had regard to the material, including copies of numerous medical reports and submissions, contained in the files of the Immigration Department and the Tribunal.  It noted that it had conducted a hearing on 25 July 2000 at which the applicant’s migration agent (Mr C G Narayanan, who also appeared as counsel for the applicant in this matter) and an interpreter had attended. 

10. The Tribunal then turned to the question whether the applicant was an eligible non-citizen.  It noted, and this is not in dispute, that the only relevant regulation was Regulation 2.20(9).  It then reasoned as follows:

    “20.     The requirement for certification by an immigration appointed medical specialist [2.20(9)(c)] is one that must be satisfied at time of application.  At the hearing the agent claimed that the Applicant comes within the terms of regulation 2.20(9) because his mental condition is deteriorating, he cannot be properly cared for at PIDC [Perth Immigration Detention Centre] and therefore has a special need based on health reasons.  He further told the Tribunal the Applicant had already been assessed by an appointed medical specialist, Dr Skerritt, who in 1999, had supplied two reports commenting on the Applicant’s health.  The Tribunal notes however that Dr Skerritt’s report dated 11 October 1999 does not certify that the Applicant cannot be properly cared for in a detention facility.  Dr Skerritt’s opinion is that a treatment combination of pharmacotherapy and visits with a psychiatrist to the PIDC would be prohibitively expensive and it would be easier and more convenient for him (the applicant) if he were to be released from detention.  Dr Skerritt states ‘on the other hand, there is nothing about the detention environment which would particularly inhibit the application of appropriate treatment’.

    21.      The Tribunal acknowledges that several months have passed since these reports were issued.  The Applicant is now an involuntary-patient at BHC [Bentley Health Service] and has been treated at times by the consulting psychiatrist Dr Brown.  At the hearing the Tribunal indicated to the Applicant that in this instance Dr Brown is not an immigration appointed medical specialist.  The agent told the Tribunal that the Applicant had received good treatment from Dr Brown at BHS, but that the Applicant no longer trusted doctors.  The Tribunal is given to understand that since Dr Skerritt has ceased seeing the Applicant, DIMA has made several attempts for the Applicant to be assessed by another an (sic) immigration appointed specialist, including an Albanian speaking doctor.  The Applicant refused to meet with them.  The last appointment was scheduled for 12 July 2000 with Dr A Bell.  It would appear, that on the advice of his agent, the Applicant also failed to keep this appointment.  Indeed the agent suggested that the Applicant considers it is not in his interest to be seen by another doctor.

    22.      Notwithstanding all of the above, the Tribunal, at the time of this review, finds no evidence that an immigration appointed medical specialist has certified, that the Applicant has a special need which cannot be properly cared for in a detention environment.  Reference has been made to the fact that the Applicant, since arriving illegally in Australia, has made several applications for a bridging visa E.  From the material in the files it is clear that Dr Skerritt, the only immigration appointed medical specialist to examine the Applicant in 1999, has not certified that the Applicant has a special need which cannot be properly cared for in a detention environment.  MSI No 131, (Para 7.7.1) in referring to the legislation and policy pertinent to subclass 051 applications states, inter alia, upon notification that a person is seeking a Bridging E visa and may come within re.2.20(9), immediate contact should be made with an Australian Government Medical Officer to have the person examined by an appropriate medical specialist and that an assessment against 2.20(9)(c) requires DIMA to appoint a medical specialist even where a medical assessment has already been submitted by the applicant.

    23.      Therefore the Tribunal finds on balance that sub-regulation 2.20(9) is not satisfied.  Accordingly, the Visa Applicant is not eligible for the grant of a Bridging visa Subclass 051 and this application is invalid.”

    THE GROUNDS OF REVIEW

11. The application contains five grounds of review, but at the hearing counsel for the applicant pressed only grounds 1, 3 and 5.  I shall deal with them in sequence.

    Ground 1 – Error of Law

12. The error of law which the applicant identified is to be gleaned from four paragraphs of particulars filed in relation to this ground, and from what counsel for the applicant put to the Court.  Those particulars included the setting out of extracts from the transcript of Dr Skerritt’s evidence before the Tribunal as constituted at the time when it conducted a hearing on 15 December 1999 in relation to the First Bridging Visa Application.  Parts of those extracts in the particulars were in bold type.  Counsel for the applicant explained that those parts were the ones on which the applicant particularly relied.  The applicant contended that Dr Skerritt’s oral evidence, and in particular those portions shown in bold type in the particulars, amounted to a certification by Dr Skerritt within Regulation 2.20(9)(c).  The applicant further contended that the Tribunal which made the decision under review in this application erred in law by failing correctly to interpret or construe the term “properly” in Regulation 2.20(9)(c).  Dr Skerritt’s oral evidence amounted, so it was put, to a certificate that the applicant cannot properly be cared for in a detention environment.  

13. In his amended particulars, the applicant also contended that the Tribunal had erred in law by failing to consider and apply Article 10(1) of the International Covenant on Civil and Political Rights (“the ICCPR”) which forms Schedule 2 of the Human Rights and Equal Opportunity Commission Act 1986, when it “interpreted construed and applied” Regulation 2.20(9)(c) of the Migration Regulations.  Article 10(1) of the ICCPR states:

    “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”

14. Counsel explained that the Tribunal, by its construction and application of Regulation 2.20(9)(c), had deprived the applicant of medical treatment in an environment best suited to him.  In oral argument counsel for the applicant stated that if the Tribunal had correctly applied Regulation 2.20(9) then this ground of further error of law would not be made out.  In those circumstances, this amended additional particular does not require separate consideration.  The question is whether the Tribunal erred in law in the manner contended for by the applicant and described in paragraph 12 above.

    Ground 3 – No Evidence

15. The applicant submitted that the Tribunal was required by law to reach its decision only if a particular matter was established. That particular matter was, on the applicant’s case, the Tribunal’s satisfaction that Dr Skerritt had not certified that the applicant could not properly be cared for in a detention environment. The applicant contended that there was no evidence or other material from which the Tribunal could reasonably be satisfied that this matter was established. Alternatively, the applicant submitted that the Tribunal based its decision on the existence of a particular fact i.e. that Dr Skerritt had not certified that the applicant could not properly be cared for in a detention environment, and that fact did not exist. These two propositions can be seen to mirror the requirements of s 476(4)(a) and (b) of the Act.

    Ground 5 – Exercise of a discretionary statutory power in accordance with a rule or policy without regard to the merits

16. In relation to this ground, the applicant relied upon the particulars supplied in respect of ground 1 and submitted that it was implicit that the Tribunal made its decision in what was described as “… a cursory and perfunctory manner …” as it had failed properly to assess and pay proper regard to all the evidence adduced.  In so doing, so it was put, it was a fair and reasonable inference, in all the circumstances, that the Tribunal had “… exercised its discretionary statutory power in accordance with a rule of (sic) policy (whether written or unwritten) without proper or ‘fair and just’ regard to the merits of the applicant’s case.”

    MY REASONING

17. The respondent conceded, for the purposes of this case, that the certification referred to in Regulation 2.20(9)(c) did not have to be a written certification. 

18. I think that it is appropriate to assess the situation on the basis that the tapes of Dr Skerritt’s evidence to the Tribunal as constituted at the time of the hearing on 15 December 1999 were in evidence before the Tribunal which made the decision which is the subject of this application.  I shall approach the matter on that basis, principally because (see para 9 of its reasons) the Tribunal stated that it had had regard to the material contained in the files of the Immigration Department and the Tribunal itself.

19. It is true that the Tribunal does not make any express reference to Dr Skerritt’s oral evidence at the hearing on 15 December 1999.  The Tribunal is not, in my view, to be criticised on that score.  The applicant’s solicitor was present at the hearing conducted by the Tribunal on 25 July 2000 and furnished the Tribunal with some 3½ pages of closely-typed submissions.  Those submissions relevantly referred to Dr Skerritt’s two reports and two further reports from a Dr P Brown (see para 3.2.4 of the applicant’s submissions to the Tribunal).  There was no reference in those submissions to Dr Skerritt’s oral evidence before the Tribunal on 15 December 1999. 

20. In my opinion, it is appropriate to consider grounds 1 and 3 of the application together.  That is partly because the respondent conceded that the Tribunal did base its decision on the fact that Dr Skerritt had not certified that the applicant could not properly be cared for in a detention environment.  Also, if Dr Skerritt’s reports and oral evidence together amount to a certification to that effect, then in my opinion, it becomes apparent that the Tribunal must have incorrectly interpreted the applicable law. 

21. As counsel for the respondent submitted, in relation to Ground 3 the applicant has to establish that the fact did not exist – Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212.

22. The first of Dr Skerritt’s written reports was dated 30 September 1999.  In it Dr Skerritt described the psychiatric assessment which he performed on the applicant.  In the last paragraph of that report he commented that a good start had been made on the pharmacological side of the applicant’s treatment.  He recommended some changes in medication.  Dr Skerritt then said that it would be helpful if the applicant understood more about the genesis of his anxiety and depressive symptoms and that he could well be taught some ways of dealing with the unpleasant thoughts in his mind.  He added “such treatment would, of course, be easier to deliver outside the present detention centre and the support of his community and any relatives that he might have would be useful, provided this support did not reinforce his symptoms but encouraged him to strive for further independence”.

23. It would appear that, subsequently, Dr Skerritt’s attention was specifically directed to the terms of Regulation 2.20(9)(c).  In his further report dated 11 October 1999 Dr Skerritt set out the text of that sub-regulation.  He also referred to details which he had been given by the Immigration Department by way of description of the detention environment, including availability of medical and nursing attention and some of the physical facilities.  He concluded that report with the following observations:

    “In my opinion, Mr Hasani’s symptoms are more the result of trauma than torture.  The treatment would consist of more detailed attention to his psychotropic medication than has been available at present and, I think, specialist psychiatric attention.  Psychological modalities may well be added to the pharmacotherapy.

    This would require a number of visits to a psychiatrist, perhaps in the range of a dozen.  For a psychiatrist to attend the detention centre would be prohibitively expensive when travelling time was taken into account and probably not available at all.  On the other hand, there is nothing about the detention environment which would particularly inhibit the application of appropriate treatment. 

    Were he, for example, released to the care of his relatives in Adelaide, it would be easier and more convenient for him to attend the treatment.  This would assume, of course, that such treatment was available and that it could be paid for.  I assume that he is not eligible for a Medicare card and the cost of the sort of treatment that I have outlined without this would be in the range of a few thousand dollars. 

    Thus, one cannot say that the sort of treatment I have outlined cannot properly be catered for in a detention environment but, if it were able to be funded outside it would certainly be a more convenient mode of delivery.”

1. The transcript of Dr Skerritt’s oral evidence on 15 December 1999 extended over some nine pages [see attachment CN1 to Exhibit A2].

2. From the transcript it can be seen that the Tribunal hearing that evidence (which I shall refer to as “the First Tribunal”) appreciated that Dr Skerritt had not addressed the specific requirements of Regulation 2.20(9) when he provided his report dated 30 September 1999.  The First Tribunal put the terms of that sub-regulation to Dr Skerritt and first asked him to confirm that the applicant had a special need for treatment.  Dr Skerritt did so.  At p 3 of the transcript the First Tribunal asked Dr Skerritt whether he was certifying that the applicant could not properly be cared for in the detention environment.  Dr Skerritt’s initial response was that the recommended medication could be given in the Detention Centre.  But he then can be seen to have had difficulty with the word “properly”.  Dr Skerritt stated that the treatment could be properly given at the pharmacological level in the Detention Centre, but that there would be advantages if he were with his family in Adelaide.  At p 4 of the transcript Dr Skerritt expressed his understanding that, in relation to the recommended psychiatric services, arrangements could be made for the applicant to attend upon a psychiatrist for that purpose. 

3. The First Tribunal then put to Dr Skerritt that the expression “properly cared for in the detention environment” might be equated to “thoroughly cared for in the detention environment”.  Dr Skerritt then said this:

   “Well I certainly had certified that in my opinion that it could be done properly, but with respect to the importance of that word it was necessary to give it some more thought.  With respect to the simple mechanics of the treatment such as getting him to the appropriate professional and the treatment being delivered, it seems as if that can be done properly.

   However the success or failure of psychiatric treatment often depends on other more peripheral factors and the correct diagnosis and the correct treatment.  It is perhaps not appropriate for me to comment on the word properly but I think that those peripheral factors would certainly mean that his treatment would be much more likely to be successful in a better environment than the confined one that he is in.  So were I embarking on treatment for Mr Hasani I would certainly give a higher predictive value of success were he free to move in the community and with his family than in the Detention Centre.”

4. Dr Skerritt, in response to a further question from the Tribunal said:

   “It depends what you mean by proper or improper really.  It’s not a word we would normally use to describe psychiatric treatment …”

5. The Tribunal then pointed out that it did not think that the antonym of proper was improper, and that it was a question of the efficacy of the treatment in the detention environment compared with the efficacy of it outside the detention environment.  Dr Skerritt’s response was “I think you have summed that up quite correctly”.

6. There was then (at p 7 of the transcript) the following exchange between the First Tribunal and Dr Skerritt:

   [The First Tribunal]: Dr Skerritt can I put this a slightly different way.  If the applicant remains in the Detention Centre and is given the sort of chemical therapy that you envisage and is being given access to the frequency of visits to a psychiatrist that you envisage, would you then say that he is properly being cared for?

   [Dr Skerritt]: Yes I would according to the ordinary English usage of the term regard that a[s] proper treatment. The question is as you mentioned yourself Sir of standards as to whether something less than optimum standard is what is meant by properly with respect to the wording of the Act.

   [The First Tribunal]:  And on that same basis would you say then that he was thoroughly keep (sic) in the detention environment?

   [Dr Skerritt]:  I think the treatment could be thorough, yes from the point of view of its actual delivery from what I understand.

   [The First Tribunal]:  Well just to put the other dictionary synonyms or new synonyms on that same basis Dr Skerritt would the applicant in those circumstances be fittingly kept?

   [Dr Skerritt]:  I think it would be more fitting that he were given the treatment that had the best chance of working …

   [The First Tribunal]:  And the other synonyms were suitably and rightly would he be suitably cared for?

   [Dr Skerritt]:  I suppose it’s a question of what one means by suitable in our particular society.  I suppose we all like to have what is known as best practice and would regard that as suitable. 

   [The First Tribunal]:  And rightly doesn’t seem so … to me but I will put the same question.  Would he rightly be cared for in a detention environment?

   [Dr Skerritt]:  Well I think go (sic) right back to the beginning of my answer that from the simple mechanics point of view right treatment could be given.  It’s a question of whether one would regard something at less than optimum effectiveness as right or indeed right and proper I suppose you might even have said.”

   GROUND 1 – MY REASONING

7. It can be seen from the transcript that much (if not all) of the debate between the First Tribunal and Dr Skerritt was at the suggestion or insistence of the applicant's solicitor.  In a sense, that may have been unfortunate because, in my view, it distracted the First Tribunal from the actual requirement of Regulation 2.20(9)(c).

8. In my opinion, what is required by the sub-regulation is a subjective assessment, by a medical specialist appointed by the Immigration Department, that in the opinion of that specialist the non-citizen cannot properly be cared for in a detention environment.  It is, in those circumstances, in my view, entirely up to the medical specialist to assess the special needs of the non-citizen, and the facilities and medical and nursing services available to satisfy those special needs, and to provide his or her opinion about whether the non-citizen can properly be cared for in a detention environment.

9. An examination of Dr Skerritt’s reports and his oral evidence both separately and together shows that Dr Skerritt did not certify that the applicant could not properly be cared for in the relevant detention environment.  He expressed various views, but none of them, in my opinion, could properly be characterised as a certificate of the type described in the sub-regulation.

10. It follows that, in my opinion, the Tribunal whose decision is under review, did not err in law when it found that Dr Skerritt had not certified that the applicant had a special need which could not be properly cared for in a detention environment.

    GROUND 3 – MY REASONING

11. I do not think that it is correct to say, as the applicant does in his particulars, that the Tribunal was required by law to make its decision only if it made a finding on a particular matter i.e. that it was satisfied that Dr Skerritt had not certified that the applicant could not properly be cared for in a detention environment.  It could have made its decision on other grounds. 

12. However, as the respondent conceded (rightly) I think that it based its decision on the fact that Dr Skerritt had not so certified.  But, for the reasons which I have set out above, its decision was soundly based.  The fact did not exist.  Accordingly the applicant’s “no evidence” ground also fails. 

13. Furthermore, the uncontradicted evidence was that at the time of the decision under review (i.e. the Tribunal’s decision), the applicant was detained not only under the Act but also as an involuntary patient at Bentley Health Service under s 26 of the Mental Health Act 1962 (WA). There was also evidence that Bentley Health Service was an “approved place of detention” for the purposes of subparagraph (b)(v) of s 5(1) of the Act. The conditions which Regulation 2.20(9)(c) require to be satisfied, have to be satisfied both at the time of application (Item 051.211 of Schedule 2) and at the time of the decision (Item 051.221 of Schedule 2). There was no suggestion from the applicant that a medical specialist appointed by the Immigration Department had certified that the applicant could not properly be cared for in a detention environment which included Bentley Health Service. It is not necessary to decide whether this evidence is relevant to either of the two above grounds or to the exercise of any discretion to grant relief if any of the applicant’s grounds had been made out.

    GROUND 5 – MY REASONING

14. I now turn to the last of the three grounds upon which the applicant relied i.e. that the decision was an exercise of a discretionary statutory power in accordance with a rule or policy without regard to the merits of the particular case.  The applicant’s counsel made no attempt to identify any rule or policy which he said had been applied by the Tribunal without regard to the merits of the applicant’s case.  I think that it is doubtful whether the Tribunal exercised a discretionary power, but it is not necessary for me to decide that point.

15. In my view, the applicant has not established that the Tribunal exercised its power in accordance with a rule or policy without regard to the merits of the particular case.  It noted, correctly in my view, that the particular certificate was required from a medical specialist and found that, on the facts, there had been no such certification.  It was, in my opinion, clearly open to the Tribunal to reach that conclusion and in doing so it did not make any reviewable error.

    CONCLUSION

16. For the above reasons the application will be dismissed.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr.

Associate:

Dated:             12 October 2000

Counsel for the Applicant:	Mr C G Narayanan
Solicitor for the Applicant:	CGN Legal
Counsel for the Respondent:	Mr P R Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 October 2000
Date of Judgment:	12 October 2000