Wednesday, June 12, 2019
Try again. Fail again. Fail better.
Haven’t we seen it all before? A person wants something, they are refused with reasons. They make another request, supposedly in the light of those reasons, and they get what they want even if the second request is flawed.
This must be a psychological thing on the part of the decider. It might be a simple planning issue - whether to give permission for a helicopter landing site, for example, or a deportation surrender matter that the Minister of Justice has to decide. It’s a sort of regression: a person who is criticised on one performance of a test, is expected to do better on a further similar test: see Daniel Kahneman, Thinking, Fast and Slow.
A spectacular example of the latter occurred in Kim v Minister of Justice  NZCA 209. The Minister ordered deportation. The High Court on review said the Minister’s decision was flawed and referred the issue back. The Minister considered more evidence and ordered deportation again (cf, Kahneman’s repeated test), and the High Court on review said OK, you got it right this time (cf, Kahneman’s regression: the punished - by criticism - person is expected to perform better next time), but on appeal the Court of Appeal said, no, High Court, although you were right with the first review, you got the second review wrong. (This is another regression: the praise for one decision is followed by criticism for the second decision.) It ordered the Minister to reconsider the matter with particular reference to specific points (listed at ).
Wearing a decision-maker down with repeated applications, a practice learnt very early in life, is successful often enough for it to be an enduring behaviour. At least the Court of Appeal in Kim didn’t trouble the High Court by remitting it back, instead it left it with the Minister (a different person now) to say, “Oh, merde, not this again.”