Minister for Immigration & Ethnic Affairs v Pochi

"For the purposes of this Part, the Secretary may treat the whole or part of a compensation payment as: (a) not having been made; or (b) not liable to be made; if the Secretary thinks it is appropriate to do so in the special circumstances of the case." If a lump sum compensation amount were to be disregarded under s 1184(1) as not having been paid, the consequence would be if some part only of the lump sum compensation is treated as not having been paid, a reduction in the lump sum preclusion period, to be calculated under s 1165(4). If the whole of the lump sum compensation was to be treated as not being paid, then the provisions of s 1165(1) would have no operation and in consequence it would be irrelevant that there was a lump sum preclusion period and indeed the provisions of s 1165(4) would produce a nil figure. It will be noted that the power to treat the lump sum compensation as not having been made, or not liable to be made, as the case may be, is conditional on the Secretary and, in the event of an appeal, ultimately to the Administrative Appeals Tribunal, that Tribunal forming the view that there are special circumstances of the case which make it appropriate for the Secretary to exercise the discretion under s 1184. If that discretion be exercised favourably to a person who claims a pension then the discretion is to be exercised having regard to those special circumstances. The Tribunal found that there were special circumstances in this case justifying an exercise of the discretion under s 1184(1) of the Act. The Secretary, who had consistently at all stages up to and including the decision of the Tribunal protested that the circumstances were not in any way special, now accepts the Tribunal's decision in that regard. In its reasons the Tribunal listed a number of factors which Mr Haidar's counsel submitted constituted special circumstances. It accepted most, although not all, of these factors. It would unduly lengthen the present reasons if I repeated everything that the Tribunal said. In summarising the factors which the Tribunal found to be relevant, it may be said that I have over simplified the facts. For this reason it is necessary to read the present judgment along with paragraphs 67 to 72 inclusive of the Tribunal's reasons.

It suffices to say that a complex matrix of facts were accepted by the Tribunal as constituting special circumstances. These were the combined effects of: 1. Ill health of Mr Haidar resulting from the accident which gave rise to the workers compensation claim. 2. Particular ill health in his family. His daughter, Dalida, spent the first three years of her life in hospital, which required Mr Haidar to visit her on a daily basis. This medical condition arose apparently as a consequence of his wife's alcoholism. His son from a former marriage, who lived in Lebanon, also required two operations and medical treatment to which Mr Haidar contributed. Mr Haidar was, as well, responsible for the financial welfare of two other children in Lebanon. 3. Another factor was the breakdown of his marriage with his second wife and, perhaps arising out of that, the difficulties of becoming a sole parent, carrying with it resulting emotional strain. Perhaps less relevant, or even not taken into account, it is not clear, was the impact of Mr Haidar's limited understanding of English and the effect this had on a number of matters including, perhaps, not comprehending his rights to receive both compensation and social security benefits or otherwise not understanding such legal advice as may have been given about the interrelationship between workers compensation lump sum payments on the one hand and social security payments on the other. It is relevant to also note that during most of the period in which no pension was said to be payable Mr Haidar survived on an amount of money far below that which he was used to receiving in employment. His own and his family's even basic needs far exceeded his income and indeed there was a period of some days when he received no income from any source whatsoever, with the result that the Tribunal concluded that the circumstances were not only very difficult for him but were beyond those suffered by the ordinary person on social security benefits in that he was left with no furnishing or household goods and only limited clothing for his children after separation from his wife. He had to completely set up home for his family from the beginning and, in the result, was required to borrow money from friends and family which had to be repaid. His lifestyle was far from extravagant and such as was necessary to maintain a household with two children "at a basic level". Although he had the advantage of government housing, at least from March 1995, he did not have the range of household items considered to be necessities which other social security recipients would have. His financial circumstances were summarised by the Tribunal as "dire". He was, as the Tribunal said, prior to receiving the settlement monies in "straitened and impecunious circumstances". He believed, when borrowing money upon which to live and support his family, that the settlement which he received would cover his debts and that he would also survive on a pension. Although the Tribunal did not find that the advice given to Mr Haidar by his solicitor about the implications of the lump sum settlement and his lack of awareness of the effect it would have on his pension in itself constituted a special circumstance, the Tribunal found that it contributed to the special circumstances which did exist. As I have said, no dispute now arises between the parties as to the fact that special circumstances did exist. The remainder of the Tribunal's reasons following upon its finding that special circumstances existed, was quite short so far as concerned the exercise of discretion. To understand the argument it is necessary now to set out verbatim precisely what the Tribunal said: "73. Once special circumstances have been found to exist, it remains to be determined how that discretion should be exercised. Mr Haidar is in a position that differs from many other applicants, in that he has served his preclusion period and is currently receiving benefits. Hence the effect of exercising the discretion would be that the Department would be required to repay a sum of money to Mr Haidar. 74. In the decision of Thompson (supra) Einfeld J held that a decision maker does not have to engage in a theoretical mathematical exercise when exercising the discretion under section 1184, in a way that would distort the true nature of and reasons for the decision. He held that the Tribunal could reduce the preclusion period in a number of ways including, by deducting an amount of money from the lump sum which the respondent had invested inefficiently and by reducing the preclusion period by a 12 month period on consideration of Mr Thompson's 'background, psychological state and poor management skills'. 75. The Tribunal has therefore decided that in exercising the discretion under subsection 1184(1) of the Act, the preclusion period should be reduced from 63 to 47 weeks, and that the appropriate sum of money should be calculated and on that basis, should be repaid to Mr Haidar. It is the view of the Tribunal that this amount reflects the hardship and difficulties experienced by Mr Haidar and his family, in the period before, during and after the preclusion period. In particular it takes into account Mr Haidar's present circumstances which, while they remain straitened, have improved considerably since the end of the preclusion period. It is on this basis that the Tribunal has decided not to reduce the preclusion period in its entirety, as Mr Haidar is currently meeting his living expenses and has reduced his debts to $3,500, which he is currently repaying at the rate of $50.00 a fortnight. In all of the circumstances the Tribunal is of the opinion that this is the most reasonable and appropriate decision." It may be observed that the decision in paragraph 75 above can be said to be not strictly in accordance with the language of the legislation although its impact is clear enough. The decision in paragraph 75 really wraps up two matters. The first is an exercise of discretion under s 1184. That exercise of discretion requires the Secretary or, in the event of an appeal to the Administrative Appeals Tribunal, the Tribunal to form the opinion that it is appropriate to treat the whole or part of the compensation payment as not having been made. In a case such as the present where the Tribunal is of the view that part of the compensation should be treated as having been made and part not, s 1184 elliptically requires the relevant part to be treated as not having been made to be determined. Once the determination has been made under s 1184 it will follow legislatively from the definition of the lump sum preclusion period and in particular the formula in s 1165(4) that the period in respect of which compensation will not be paid will be reduced by substituting for the statutory amount, representing the compensation part of the lump sum, the figure which has been derived after the application of the discretion in s 1184(1). Although I would personally have found it easier to follow the decision if the statutory scheme had been followed through without truncation, ultimately it is clear enough what is contemplated by paragraph 75 and by the suggestion that the exercise of discretion under s 1184 brings about a reduction of the preclusion period and in consequence a deduction of the relevant pension entitlement to which a claimant is entitled (if any).

Counsel for the Applicant relied upon what was said to be the following errors of law: 1. Failure of the Tribunal to provide adequate reasons to support the manner in which the Tribunal exercised the discretion conferred upon it by s 1184(1) having found that special circumstances did exist. 2. Placing of too much weight or undue emphasis upon findings made by the Tribunal as to the Applicant's financial living circumstances at the time of hearing, well after the expiry of the proposed exclusion period. 3. The failure to give sufficient weight or emphasis in the exercise of its discretion to the significant findings of fact made by the Tribunal in deciding that there were special circumstances. 4. The Tribunal's decision was unreasonable in the Wednesbury sense, namely that it was so manifestly unfair or so unreasonable that no reasonable decision maker would come to it. 5. Failure to take into account relevant circumstances including, inter alia, that the legal costs of the applicant in the proceedings in the Tribunal would bring about the result that there would be nothing much, if at all, left to the Applicant if the result was that that the Tribunal reached. 6. The taking into account of irrelevant factors in the exercise of the discretion.

It is unnecessary to say much about the first three of the complaints made on behalf of the Applicant. As to the adequacy of reasons, it is not in dispute that there exists an obligation on the part of the Tribunal reflected in s 43(2B) of the Administrative Appeals Tribunal Act 1975 that the Tribunal give reasons including findings on material questions of fact and law. It is generally accepted that failure to give reasons will constitute an error of law: Minister for Immigration & Ethnic Affairs v Pochi (1980) 44 FLR 41 (per Deane J at 67); Collins v Repatriation Commission (1980) 48 FLR 198 (at p.205, 211-12); Australian Telecommunications Corp. v Davis (1991) 30 FCR 467 (at 471-2); Dornan v Riordan (1990) 95 ALR 451 at 457; (1990) 24 FCR 564; Australian Telecommunications Commission v Barker (1990) 12 AAR 490 at 492-3; Farrelly v Minister for Immigration, Local Government & Ethnic Affairs, unreported, Federal Court, 9 May 1991, Hill J; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279; Apps v Pilet (1987) 11 NSWLR 350; O'Brien v Repatriation Commission (1984) 1 FCR 472; Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 at 182; Commonwealth of Australia v Smith (1988) 10 ALR 277; Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 62 FCR 402. There may still be some residual doubt whether, in the event that such an error of law is committed, the appropriate remedy is to remit the matter to the Tribunal to supply adequate reasons or to set aside the decision altogether. Be that as it may, the question does not arise here. It is important however to observe that the reasons of the Tribunal should not be looked at pedantically nor should an attempt be made to find some lacuna in the reasons when overall the Tribunal has dealt with the substantial issues in the case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. Where, as here, the Tribunal indicates the matters it takes into account in exercising its discretion (a minimum requirement in the giving of reasons) having found all relevant facts and the result of its exercise of discretion, it will not always be necessary that the Tribunal be explicit in pointing out the contribution the relevant facts make to the decision making process. In some cases, however, there may be no indication from the factors said to have been taken into account how the figure arrived at was reached so that the reasons do not explain why the Tribunal arrived at a particular figure rather than some other figure: cf Dornan v Riordan (1990) 24 FCR 564. It may well be a fair criticism of the Tribunal's decision in the present case that this was such a case. But it seems to me in the present case to be preferable to consider whether the Tribunal took into account irrelevant considerations or arrived at an unreasonable decision rather than reaching a conclusion that its failure to expose a reasoning process amounted to an error of law. The grounds of appeal dealing with weight given to relevant factors on the exercise of discretion pose questions not yet finally resolved either by the High Court of Australia or this Court. Any exercise of discretion will involve placing weight or emphasis on some matters rather than others. So it may often, perhaps usually, be the case that an argument that a decision maker has placed too much weight or undue emphasis on a matter otherwise relevant will involve no question of law at all. When the matter is expressed in that way it tends to involve the Court in merits review and not judicial review of an error of law. It goes without saying that the Court's function is one of judicial review only. There are statements in this Court and in the High Court from which it can be argued that an improper attribution of weight by a Tribunal in the exercise of discretion may amount to an error of law. In this Court, Woodward J in Sordini v Wilcox (1983) 70 FLR 326 at 343 commented: "It is clear that the taking into account by an administrative tribunal of irrelevant factors, or the failure to give any, or any sufficient, weight to significant factors in the exercise of a discretion, will open the door to a judicial review of that discretion." In the same case it may be said that Blackburn J appeared to agree with the comments which Woodward J had made. No doubt if a decision maker fails to give any weight at all to a relevant factor, then the failure to take into account that relevant factor will constitute an error of law. But that is quite a different thing from saying that allocation of weight to relevant factors of itself leads to an error or law. In Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39 to 42, Mason J, as his Honour then was, at 41 said: "… in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power." However, his Honour continued by saying: "… in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable'. This ground of review was considered by Lord Greene M.R. in Associated Provincial Picture Houses Ltd v Wednesbury Corporation in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it." In my view it is preferable to divorce the present question from a discussion of weight and instead to concentrate either upon whether there was a taking into account of any irrelevant matter or failure to take account of a relevant matter or, on the basis of Wednesbury, unreasonableness. Each of these matters clearly involves a question of law and if the applicant be successful requires no additional consideration of the issue by reference to matters such as weight where expression of the underlying ground of complaint tends to be ambiguous.

The taking account of irrelevant matters A close reading of paragraphs 73 to 75, set out earlier in these reasons, suggests that the Tribunal took into account three matters in the exercise of its discretion. The first of these matters is that expressed in paragraph 73, namely that the preclusion period had been served by Mr Haidar and that the result of a successful application by him would be that the Department would be required to repay a sum of money to him. It is true that by the time the matter came before the Tribunal the preclusion period claimed to apply had ended. But it is hard to see why that fact, if regarded as of any significance by the Tribunal, was relevant to its exercise of discretion. More importantly, however, I find it impossible to see how the fact that the Government would be required to pay a sum of money to Mr Haidar would be a relevant matter, certainly once the preclusion period had terminated, in deciding to exercise a discretion in a way not overly favourable to Mr Haidar. It is, of course, a consequence of the exercise of the discretion, particularly where the preclusion period applicable, but for the exercise of discretion, had expired and in circumstances where during that preclusion period no pension had been paid, that the Government would be required to pay money to a claimant. But it is hard to see how that would be relevant to the exercise of discretion. Counsel for the Secretary submitted that it would be relevant to the exercise of discretion if Mr Haidar had to pay money to the Government. That is no doubt true but the statement of the obverse of that proposition, namely that the effect of an exercise of discretion would be that the Secretary would be required to pay money to Mr Haidar hardly appears in its context to have been stated as a mere comment negating the obvious possibility that Mr Haidar might have to repay the Government, when it was common ground that the Secretary had not exercised his discretion and that no relevant pension had been paid to Mr Haidar in the preclusion period. Had the learned Tribunal Member intended to state, not for the purpose of taking the matter into account as part of the exercise of discretion, but merely as a comment on a matter of fact, that there was no obligation on the part of Mr Haidar to pay money to the Government, then no doubt the point could be well taken. But that is not what the Tribunal appears to have intended. In my view the Tribunal took into account a wrong and irrelevant consideration and, in consequence, committed an error of law. The second factor, namely the hardship and difficulties experienced by Mr Haidar and family in the period before, during and after the preclusion period would, perhaps with some qualification as to the relevance of the period after the preclusion period had been served, obviously be relevant. The contemplation under s 1184(1) is that the decision maker will look at all relevant facts taking into account those which make the case special in determining to treat the lump sum compensation amount as not having been made. Whether difficulties experienced after the preclusion period are relevant is a more difficult question. It relates as well to the third matter to which the Tribunal had regard. The third matter on which the Tribunal based its decision was the fact that Mr Haidar's "present circumstances", that is to say those which existed at the time of the hearing of the Administrative Appeals Tribunal appeal, had improved considerably since the preclusion period came to an end. This seems to have been an important factor in the Tribunal deciding not to reduce the preclusion period in its entirety particularly as Mr Haidar was currently meeting his living expenses and reducing his debts. There appears to be no case that has been decided in the Tribunal, or in the Courts, which has been required to consider whether circumstances existing after the preclusion period but at the time of an Administrative Appeals Tribunal appeal are relevant matters properly to be taken into account under s 1184(1). This is probably because most decisions reach finality before the preclusion period has finished rather than after. Where a statute enumerates factors to be taken into account the relevant considerations necessary to the exercise of discretion are manifest. However, in most cases where a discretion is conferred upon a decision maker, resort to the specific language of the statute produces no explicit answer. As Mason J observed in Peko-Wallsend at 39-40 (although those pages are in the context of matters which a decision maker is "bound to take into account"): "What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. …If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act." So, too, where an argument is raised that an irrelevant matter has been taken into account. The question whether the matter is indeed irrelevant must likewise be determined by reference to the subject matter, scope and purpose of the legislation, pursuant to which the discretion is conferred. The discretion under s 1184(1) is expressed in wide terms untrammelled by specificity. Some assistance is, however, given from the legislative history. The concept that social security payments might be affected in a particular way by the receipt of a lump sum compensation amount stems, it would seem, from the Social Security Amendment Act 1988 making amendments to the now repealed Social Security Act 1947. The Second Reading Speech to the 1988 Amendment Act said: "This Bill contains measures to improve the administration and integrity of compensation recovery provisions. Where a person receives personal injury compensation that makes up for lost income the Social Security Act provides that pension or benefit may be reduced or recovered. This is one way in which social security expenditures are directed to those most in need. Settlements of lump sum compensation particularly in the workers compensation jurisdiction are being manipulated to obscure the economic loss component and to avoid recovery of social security payments. To prevent this abuse the Minister announced on 8 February 1988 that, for future personal injury settlements made by agreement or by consent order, 50 per cent of lump sum compensation will be deemed to be in respect of economic loss. This Bill gives effect to that proposal." So, as von Doussa J observed in Secretary, Department of Social Security v Smith (1991) 30 FCR 56, in a passage quoted by Einfeld J in Secretary, Department of Social Security v Thompson (1994) 53 FCR 580 at 583-4, an attempt was made to balance on the one hand finite budgetary allocations against the interests of the recipient of the payment. Without putting too fine a point upon it, the purpose of the basic thrust of the legislation was to avoid a claimant being entitled both to social security benefits and benefits in the nature of income through lump sum payments. However, the legislature was conscious of the possible harshness of a rule structured in an arbitrary way. Section 1184, therefore, provided the means whereby the Secretary or, in the event ultimately of an appeal to the Administrative Appeals Tribunal, that Tribunal, could alleviate the harshness of the statutory provision in an appropriate case but only where there were special circumstances. The question of what constitutes special circumstances has been the subject of a number of decisions of this Court. It suffices here to say no more than that something is required which would take the matter out of the usual ordinary case: Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545 per Kiefel J, Secretary Department of Social Security v Ellis (1997) 46 ALD 1 at 5 per Carr J. As the Full Court of this Court said in Beadle v Director-General of Social Security (1985) 60 ALR 225 at 228, albeit in a slightly different context, special circumstances will be those matters which render circumstances unfair or inappropriate. In the case such as the present where the preclusion period required by the statutory formula in the absence of discretion had finished, it cannot be said that events at the time of hearing would necessarily be irrelevant. It is clear enough that the Tribunal sitting on appeal from a decision maker, be it the Minister or another Tribunal, must take into account the facts as they exist at the time the matter is heard by the Administrative Appeals Tribunal, to the extent those facts are relevant to the decision. It is not limited to taking into account events which occurred at the time the original decision was made, nor for that matter facts as they were known at that time, notwithstanding that later knowledge would lead to a revision of the earlier factual assessment. However, the fact that the Tribunal can consider facts after the date the initial decision was made does not mean that every fact after that date is necessarily relevant. Where, between the end of the preclusion period and the time of the decision, a claimant's economic situation is good and that arose as a result of receipt of a lump sum compensation amount, clearly the decision maker or Tribunal in place of the decision maker could take into account the economic circumstances existing at the time of the decision. But that is because those economic circumstances bear some relationship to the matter under decision, namely the relevance of the lump sum payment and its impact upon the question whether a pension be paid notwithstanding the receipt of a lump sum. Conversely, should it be the case, that some event which happened after the expiration of the preclusion period but before the Tribunal heard the matter, and which event was wholly unrelated to the relationship between the lump sum and pension, have any significance at all? It is hard to see how it could. Two examples may help to illustrate the point. Let it be assumed that a claimant for pension has between the preclusion date and the date of hearing had a serious accident which imposes serious financial constraint upon that person but in circumstances where otherwise no relevant special circumstance existed that would permit a pension to be paid during the preclusion period. Why should the Secretary be required to take into account the happening of the accident when there appears to be no relationship between the accident and the calculation of the preclusion period? The alternative is equally difficult. Let it be assumed that after the preclusion period ordained by statute, perhaps some considerable time after, a claimant won the lottery. There would seem to be no relationship between the lottery on the one hand and the question whether, in the circumstances, the Government should pay a pension to the claimant during the preclusion period on the other. It seems to me that events after the expiration of the ordained preclusion period could only have relevance as factors to be considered in the exercise of discretion if those facts in some way related to the events occurring during the preclusion period. In the present case it cannot be said in abstract that the fact that Mr Haidar's present circumstances had improved after the preclusion period was necessarily irrelevant to the exercise of discretion. But that would be so only if the improvement in his circumstances had something to do with the matter at hand. However, a perusal of the Tribunal's reasons indicates how it came about that Mr Haidar's circumstances did improve. It seems that they improved because, once the preclusion period had ended, Mr Haidar applied for and was granted in addition to the sole parent's pension, the subject of the present controversy, a further $159 a week for child disability allowance. It is hardly surprising therefore that he was better off than he had been in the period when he was receiving absolutely nothing at all by way of social security assistance. But, it may be asked, what, if any relevance would this have to the question whether, during the so-called preclusion period, it was appropriate in all the circumstances and having regard to the legislative policy which the relevant part of the legislation enshrines that Mr Haidar receive some part of the pension rather than some other part or none at all. In my view if there is any relevance at all, and I doubt there was, the relevance was so insignificant that the taking of this factor into account involved the taking into account of an irrelevant factor such that the Tribunal erred in law in so doing. The final matter considered by the Tribunal and reflected in paragrpah 75 of its reasons, namely the hardships and difficulties which Mr Haidar and his family experienced in the preclusion period was, undoubtedly relevant. It was not suggested otherwise.

Wednesbury unreasonabless It is not strictly necessary that I deal specifically with this ground since I have found that an error of law occurred in the Tribunal taking into account irrelevant matters. In one sense it can be said that not only does the fact that the Tribunal placed undue weight on a factor of little significance or placed no or little weight on a factor of great significance bring about an unreasonable decision so that the decision can be attacked on that basis but also so does the taking into account of an irrelevant matter. The conclusion, otherwise, that a decision is so unreasonable that no reasonable decision maker could come to it involves considerable difficulty, for it requires the Court to draw a fine line between its own view of how the discretion might be exercised, which is impermissible and the more stark view that no reasonable decision maker at all could come to the result which involves an error of law and is permissible. Although I have some doubt that the present case ultimately reaches the required standard of reasonableness I have concluded that it does. The circumstances under which Mr Haidar suffered were, to say the least special. Although the Tribunal recognised this and gave effect to it by reducing the preclusion period from 63 weeks to 47 weeks, in the circumstances of the case that was a small reduction indeed. I should not be taken to suggest that the circumstances were such as to require the preclusion period to be reduced to nil - clearly there is a range of weeks within which the Tribunal can reach a result which is not unreasonable in the relevant administrative law sense. I do no more than state my conclusion that the result the Tribunal in fact reached in the present case was unreasonable.

Failure to take into account relevant circumstances - namely the Applicant's Legal Costs

With all respect to the submission to this effect made by counsel for Mr Haidar I fail to see why the fact that Mr Haidar was represented in the Tribunal by a legal practitioner and in the result incurred legal costs, if indeed he did, has any relevance to the issue of exercise of discretion by the Tribunal. Nor is the fact that the Tribunal had no power to make a cost order.

I can accept that a represented litigant not on legal aid will incur costs and that the end result of a successful application to the Tribunal in a case such as the present may be that those costs will eat into any catch up payment which the Government may make to the claimant as a result of the exercise of discretion. But the question whether to employ a legal practitioner or legal practitioners is one for the claimant. The claimant may if he choses appear in person in the Tribunal whose business is directed by statute to be conducted with a minimum of formality. No doubt in some cases legal representation may improve the chance of success. The legal profession would no doubt say it did and my own empirical experience would suggest so, although there is little or no research in regard to matters coming before the Tribunal. But there seems to me no relationship between the costs of challenging the decision on the one hand and the reaching of the correct or preferable decision on the other.

The matter is compounded because there was no evidence in any event before the Tribunal of the level of legal costs, or indeed if any legal costs at all were expended by Mr Haidar. Although I have no reason to disbelieve the statement of counsel from the bar table that costs were incurred, the Tribunal could only proceed on the evidence which Mr Haidar through his representatives chose to present. I am not prepared to take judicial notice that legal costs associated with preparation for and appearance at the hearing would completely account for the amount of $2,800, that being the amount which the Government as a consequence of the Tribunal's exercise of discretion would have had to pay, let alone conclude, without any evidence, that Mr Haidar was not receiving legal aid. In the result it can not be said that the Tribunal erred in law in failing to take into account legal costs in the computation of the preclusion period.

In the result the applicant has been successful in demonstrating that the Tribunal erred in law. The application will, accordingly, be allowed and the Tribunal's decision will be set aside. The matter will be remitted to a Tribunal differently constituted to be determined, with or without the admission of further evidence as the Tribunal may decide and in accordance with law. The Secretary will pay the costs of Mr Haidar.

I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill

Solicitor for the Respondent: Australian Government Solicitor