(iii) On 26 September 1991 the applicant sought to include Mr Sepulveda in her application for residency status.

(iv) On 14 October 1993, Mr Sepulveda lodged with the Australian Embassy in Santiago, Chile, an application for a Permanent Entry Visa (Class 100) for Australia. Such a visa was available under the Migration (1993) Regulations, Schedule 2, Chapter 1.1, to certain spouses of Australian citizens or permanent residents. Mr Sepulveda stated that he was the de facto spouse of the applicant. He described his usual occupation as a "VIP security guard".

(v) On 18 April 1994, Mr Mullaney, a Principal Migration Officer at the Australian Embassy in Santiago, prepared a case note in connection with Mr Sepulveda's application. The note recorded that, as Mr Sepulveda and the present applicant had been separated for several years, he did not satisfy the test for a de facto spouse. Mr Mullaney added a file note as follows:

"If this case goes to an appeal, the reviewing officer should also note that this applicant, due to his former CNI association, fails to meet the character requirements as set out in the Migration Act 1958, s180A (1)(b)(iii) and (iv), also (2) (b)."

The reference to the "CNI" is to the Central Nacional de Informaciones, which, among other activities, provided the bodyguard for General Pinochet, the former head of government of Chile.

(vi) On 21 April 1994, the Visa Section of the Australian Embassy advised Mr Sepulveda that his application for a visa had been unsuccessful. The letter enclosed a Decision Record, which stated that the "applicant does not qualify as the de facto spouse of the sponsor".

(vii) On 3 June 1994, the applicant sought review by the Migration Internal Review Office ("MIRO") of the decision to refuse Mr Sepulveda an entry visa. MIRO initially refused the request for review, on the ground that the decision was based in part upon Mr Sepulveda's character and that therefore the only appeal lay to the AAT.

(viii) On 12 July 1994, the applicant applied to the AAT for review of the decision to refuse an entry visa to Mr Sepulveda. Although the applicant did not specifically say so, it was apparently intended to review the decision, insofar as it was based upon s501 (or s180A) of the Act.

(ix) On 21 September 1994, the Minister filed the documents required by s37 of the AAT Act. However, these documents did not include a statement of reasons, as required by s37(1)(a) of the AAT Act.

(x) On 17 January 1995, the AAT gave reasons for deciding that it had jurisdiction to review the decision made by Mr Mullaney on 18 April 1994. The AAT held that two decisions had been made affecting Mr Sepulveda's right to enter Australia. One was a decision as to his marital status, which was initially reviewable by MIRO. The other was a decision made under s501 of the Act, which was reviewable only by the AAT. The AAT noted that the "character" decision had arisen in a casual manner. However, the fact that the decision was not formalised and that particulars of the failure to meet the character requirements were not provided to Mr Sepulveda, was irrelevant to the existence of a decision. Accordingly, the applicant had a statutory right of review of this decision. The issue to be determined by the AAT was whether the decision made under s501 of the Act was the correct or preferable decision.

(xi) On 6 February 1995, Deputy President McMahon gave directions for the conduct of the proceedings. These included a direction that the Minister file and serve a statement of reasons for that part of the decision relating to the character requirements of Mr Sepulveda. Although the directions identified the decision as having been made on 23 June 1994 (the date MIRO declined to undertake the review), it is clear that the directions were intended to refer to the decision made by Mr Mullaney. A further directions hearing was to be held on 10 April 1995, for the purpose of fixing an early date for hearing.

(xii) On 17 March 1995, Mr Mullaney provided a statement of his reasons for the decision. In his statement, Mr Mullaney recorded that in 1992, following the application to include Mr Sepulveda in the applicant's claim for residency status, the Embassy was asked to provide a character assessment for Mr Sepulveda. Mr Mullaney at that time recommended that the issue of Mr Sepulveda's character be referred to the Minister's office for a decision. He had done this because of press articles stating that former members of the Chilean secret police had gained entry to Australia and "were causing trauma to former Chilean residents". It was also Mr Mullaney's understanding, based on his contact with leading members of the Chilean support groups in Australia, that

"approval of a self confessed member of the CNI would cause undue harm to those members of the Australian community who fled from Chile during the years of the Pinochet Military Government."

The final section of the statement of reasons is as follows:

"(a) Being mindful that the Australian Government established a [sic] In- country Special Humanitarian Program with the aim of providing a refuge in Australia for those persons who suffered persecution, or were tortured, by the members of the Pinochet regime. Several thousand persons who were affected by this regime applied for protection, and following assessment of their claims, were settled in Australia;

(b) Further, there is now a sizeable Chilean community in Australia, most of whom have suffered some form of persecution in their former country; and

(c) I was aware of Mr Sepulveda's and Ms Morales's [sic.] admissions in their previous applications of his involvement with the CNI.

2. In assessing the above facts, it is clear that the issue of Mr Sepulveda's involvement with the CNI was not verified with any authoritative source, but was based on his admission.

3. I am aware that authoritative sources have, since Chile's return to democracy, been wound down and it is no longer possible to confirm or deny Mr Sepulveda's past service history.

[4] I find that, on balance, there is insufficient evidence to determine that Mr Sepulveda falls within the scope of S180 [sic]."

(xiii) On 29 March 1995 the Minister filed supplementary s37 documents. At a telephone conference held by the AAT on the same date, the applicant's representative advised that the matter should be heard quickly because the applicant's children were anxious to be reunited with their father. The representative also advised that the hearing relating to "character" had to proceed first, because the Immigration Review Tribunal would not proceed with the other aspect of the case until the AAT had decided the issues arising under s501. The AAT suggested a hearing date of 10 April 1995. The Minister's representative replied that this was too soon. Nonetheless, the AAT set down the matter for that day.

(xiv) On 5 April 1995 the Department of Immigration and Ethnic Affairs wrote to the Registrar of the AAT. The letter stated that the Minister had initiated investigations overseas and through the Australian Intelligence community, to satisfy himself that Mr Sepulveda did not come within s501 of the Act. These investigations were incomplete and it was unlikely that any material would be available to the Department for several weeks. The Minister foreshadowed an application for an adjournment of the proceedings.

(xv) On 6 April 1995, the Department wrote to the AAT confirming advice that it proposed to seek an adjournment of the proceedings "due to a present inability to adduce evidence". The letter recorded that the applicant's representative had advised that the applicant did not intend to call any evidence at the hearing. In those circumstances, it was said to be difficult for the AAT to "reach a meritorious decision".

(xvi) On 10 April 1995, the hearing took place before Deputy President McMahon. The Minister requested an adjournment to enable additional evidence to be put before the AAT as to Mr Sepulveda's conduct while a member of CNI (if such evidence were available). The application for adjournment was refused. The AAT ruled that the matter should proceed on the basis of the s37 documents and any submissions the parties wished to make.

Having rejected the application for adjournment, the AAT considered the merits of the application to review the decision to refuse an entry visa to Mr Sepulveda. The reasons recorded that the decision under review was based on s501(2)(b) of the Act. This was not correct, as Mr Mullaney's file note of 18 April 1995 shows that he relied not only on s501(2)(b), but also on s501(1)(b)(iii) and (iv) of the Act.

In any event, the AAT found that Mr Sepulveda had served with the CNI from 1983 to 1988 and had been a bodyguard to President Pinochet of Chile. Interviewing officers had not investigated Mr Sepulveda's activities with the CNI in depth, since they had acted under the misapprehension that there was a ministerial policy in force, forbidding former CNI members from being admitted to Australia. The AAT also observed that, although the CNI was notoriously associated with unacceptable conduct, there was no positive evidence that Mr Sepulveda himself had engaged in such conduct.

The AAT commented that "the evidence from both the applicant and the respondent was unsatisfactory". In the case of the Minister, despite the application having been on foot for some nine months, and despite the passage of three months from the preliminary decision of 17 January 1995, no attempt had apparently been made to collect evidence about Mr Sepulveda's activities in Chile. In the case of the applicant, a deliberate decision had been made, on legal advice, that Mr Sepulveda would not give evidence, despite the fact that the Deputy President had been told at a directions hearing that Mr Sepulveda would visit a notary in Santiago and make a statement. Furthermore, the applicant herself had not given evidence. The AAT stated that it would have been helpful, for example, to know the exact nature of Mr Sepulveda's duties with the CNI. However, counsel for the applicant had submitted that the s37 documents disclosed no basis for the decision under review and that it was not up to the applicant to provide that basis.

The AAT therefore decided to hear and determine the matter on the basis of the "abbreviated evidence" available. The AAT found that it could not be satisfied that s501(2) of the Act applied to Mr Sepulveda. The fact that he had not submitted himself to cross-examination did not mean that an inference could be drawn that he had been guilty of misconduct, not established by his interview or by the documents. The evidence in relation to s501(2)(a) ("past criminal conduct" or "general conduct") was simply "too tenuous". Nor did the evidence satisfy s501(2)(b) (a lack of good character because of association with an organisation that has been involved in criminal conduct). The AAT said that the

"degree of 'association' required by the paragraph must be sufficient to ground a reasonable connection between the corporate conduct of the organisation and the personal conduct of the applicant for a visa."

The AAT considered it "more meaningful" to examine the decision in the light of s501(1)(b)(iii) (inciting discord in a segment of the Australian community). Although Mr Mullaney had not been called to give evidence in the proceedings, his recorded comments were sufficient

"to put one on notice that there would be among the Chilean community dismay, to put it mildly, if a former member of the CNI was granted a visa enabling entry into this country."

The AAT cited a letter from a senior adviser to the Minister, dated 27 August 1991. That letter responded to an inquiry by a person preparing an article, apparently on the topic of war crimes legislation. The inquiry had referred to allegations that had appeared in several newspapers, that former (unnamed) secret police and death squad members had entered Australia under refugee programs. The adviser's letter stated that the Australian Embassy had established procedures for dealing with the risk of former CNI agents seeking to enter Australia, including consultations with Chilean human rights organisations. In the AAT's view, the letter indicated a "general policy of the Australian Government to investigate closely any applications by former members of the CNI to enter Australia, so as to allay fears among the expatriate community".

The AAT quoted at length from the applicant's statutory declaration in support of her 1989 application for residency status. The reasons continued:

"22. ...Nevertheless, having regard to the fact that, according to Mr Mullaney, most of the Australian Chilean community suffered under the Pinochet regime, and having regard to the fact that their representatives have expressed concern as to the consequences of the presence in their midst of a former member of the CNI of some standing, I have come to the conclusion there must be a real risk of discord if the application is granted....Mr Gonzales' appearance on television or in newspaper photographs [as recounted by the applicant] would have given him a higher than normal profile. It is not unreasonable to assume that this profile would continue among members of the Australian Chilean community.

23. It is not unreasonable to assume that discord would be fomented by the mere presence of Mr Gonzales. Whether or not he indulged in unacceptable conduct in Chile is beside the point. On that subject, however, it has to be noted that even if he was not a member of the secret police, he was in a position of trust as a member of the personal bodyguard of the President and remained in that position for 5 years....In the application of placitum (iii) it is the perception of the segment of the Australian community, and the likely consequential discord, that have to be considered, rather than the actual conduct of Mr Gonzales.

24. The placitum is intended to preserve the integrity and good order of Australian society. It is not to be viewed as a reward or punishment for a visa applicant. The policy of subs(1), evident in the language used in the subsection, is to protect the Australian community from conduct which may take the form of the conduct referred to in Ms Morales' statutory declaration, or may take the form of any other type of unacceptable conduct in this community. It is not necessary that the "discord" consists of stone throwing or other physical violence. The Macquarie Dictionary includes among the meanings of the word "discord" when used in the statute to mean more than a mere difference of opinions or a rational debate of various points of view. It is not necessary, however, to elevate the meaning of discord to civil commotion. Any disharmony or perturbation in community relations falling between those 2 extremes could well be encompassed in the meaning of "discord". The evidence is not strong, but having regard to the evident policy of the Act and to what little uncontradicted evidence has been placed before me, I consider that the risk of incitement of such perturbation or "discord" in the relevant segment of the community is so unacceptably high as to entitle the Minister to be satisfied that discord would ensue.

25. I am also of the view that the conduct contemplated by placitum (iii) need not necessarily involve active participation on the part of the applicant for visa. If, as I believe, what evidence I have shows that it is likely that the mere presence of Mr Gonzales in the Chilean community would incite discord, then the fact that he did not set out to do so would not, of itself, take the case out of the operation of placitum (iii).

The appeal from the AAT to this Court was scheduled to be heard on 15 November 1995. On 2 November 1995 the Australian Government Solicitor sent a letter to the applicant's solicitors by facsimile. The letter, relevantly, was as follows:

"It is the Minister's view that the decision of the Administrative Appeals Tribunal dated 19 April 1995, from which you have appealed, contains material errors of law in the following respects. First, the Tribunal erred in determining, on the basis of the material before it and the facts found by it, that subpara501(1)(b)(iii) of the Migration Act 1958 (as amended) applied to Mr Gonzales. Second, having made a determination that Mr Gonzales was a person to whom subs501(1) applied, the Tribunal failed to consider whether, as a matter of the exercise of the Minister's discretion under s501, Mr Gonzales should be refused the visa for which he applied.

The Minister's view is that the first error arose largely from the fact that the Tribunal proceeded to determine this matter without sufficient evidence. I note that in your letter to the Department of Immigration and Ethnic Affairs of 5 November 1994 you stated that you 'would be in a position to provide the Department with fulsome evidence as to the relationship and Mr Sepulveda's character. We are now in a position to directly refute the assertion that he was a member of the CNI. In this way a fresh decision would be taken based upon the whole of the available evidence'. It would also appear to be the case, from a reading of the Tribunal's decision, that you indicated at a directions hearing that would put on evidence relevant to the question of Mr Gonzales' background and character. Notwithstanding these matters, no evidence was put on behalf of the applicant at the hearing of this matter, nor was Mr Gonzales made available for cross-examination.

It was in this context that the Minister's representative in those proceedings sought, and was refused, an adjournment of the hearing in order to undertake further investigations to address the doubts as to Mr Gonzales' background and character raised by, amongst other things, the statutory declaration made by your client on 13 September 1989.

I note that the position of the Minister taken throughout the proceedings in the Administrative Appeals Tribunal was that the Minister would settle the matter favourably to the applicant on the production of evidence allaying the prima facie concerns as to Mr Gonzales' background and character raised by the available evidence.

I am mindful of your client's concerns that this matter be resolved as quickly as possible in the best interests of her children. The Minister does not wish the final determination of this matter to be delayed any longer than is necessary bearing in mind the serious issues raised by these proceedings.

Accordingly, I am instructed to propose that these proceedings be resolved on the basis that the decision of the Administrative Appeals Tribunal be set aside and the matter be remitted to the Administrative Appeals Tribunal for reconsideration. The Minister would then wish to have the opportunity to put additional evidence before the Tribunal."

On 3 November 1995, at a directions hearing, it was noted that the applicant was considering the Minister's offer as expressed in the letter.

On 10 November 1995, the applicant's solicitors replied in the following terms:

"Your letter does not fairly reflect the circumstances leading to refusal of the Minister's application for adjournment of the AAT proceedings.

Those circumstances are clearly set out in the Tribunal's reasons (particularly at AB 165-166). In any event, the Tribunal's decision to refuse an adjournment is not the subject of review in these proceedings.

On 3 November 1995, Mr Robertson SC informed Mr Craddock that currently the Minister has no further evidence touching upon the application of s501 to Mr Sepulveda.

For the above reasons, the Applicant opposes remittal to the AAT with the hearing of further evidence by the Tribunal.

The Applicant wishes to obtain orders in accordance with the enclosed draft Amended Notice of Appeal and, on 13 November 1995, will seek to file that document."

The reference to 13 November 1995 is to a pre-trial directions hearing that took place on that date.

Ms Murrell submitted on behalf of the applicant that, in the light of the concession made by the Minister, there was no material before the AAT that was capable of supporting a finding that Mr Sepulveda, if allowed to enter Australia, would either:

(i) incite discord in a segment of the Australian community (s501(1)(b)(iii)); or

(ii) represent a danger to the Australian community (s501(1)(b)(iv)).

Furthermore, the correctness of the AAT's decision not to adjourn the proceedings was not in issue before the Court. The only decision subject to appeal was the decision to affirm the refusal to grant an entry visa to Mr Sepulveda.

In these circumstances, so Ms Murrell argued, no occasion arose for the exercise of a discretion by the AAT. On the material before the AAT only one conclusion was available, namely, that s501 of the Act did not apply to the applicant. Accordingly, it was appropriate to exercise the powers conferred by s44(4) of the AAT Act to remit the matter to the AAT, subject to a direction that s501 of the Act has no application to Mr Sepulveda.

Mr Robertson, on behalf of the Minister, did not dispute that the Court had a discretion under s44(4) of the AAT Act to make the orders sought by the applicant. However, it was relevant to the exercise of the discretion that the AAT had expressed dissatisfaction with the evidence before it and that, therefore, the facts were not beyond dispute.

It was also relevant to take account of the history of the matter. The case had been set down for hearing in the AAT on only twelve days notice and, until a few days before the hearing, the AAT and the Minister thought that Mr Sepulveda would be giving evidence. Furthermore, the AAT's view of the scope of s501(1)(b)(iii) may well have affected its approach to the evidence and to the desirability of obtaining further material. In these circumstances, it was not for the Court to exercise the administrative discretion conferred on the AAT or to order the AAT not to hear further evidence, should it desire to do so.

In the alternative, Mr Robertson pointed out that the AAT had not considered at all the possible application of s501(1)(b)(iv) of the Act to Mr Sepulveda. The evidence, although slight, may have been sufficient to support a finding that that person applied to him. This was a matter for the AAT to consider when the case was remitted to it.

In general, if the Court decides that the AAT has erred in law in its consideration of a matter, the AAT's decision is set aside and the matter is remitted for determination according to law: Harradine v Secretary, Department of Social Security [1989] FCA 200; (1989) 25 FCR 35 (FCA/FC), at 36, per Wilcox J. In the ordinary course, where a matter is remitted in this way, it is open to the AAT to act on all material properly placed before it, including additional material, provided that it acts in accordance with the requirements of procedural fairness: Perpetual Trustee Company (Canberra) Ltd v Commissioner for Australian Capital Territory Revenue (1994) 123 ACTR 17 (SC ACT/Miles CJ), at 24-26.

In certain circumstances, however, the Court may exercise the power in s44(4) of the AAT Act and make orders finally resolving the matter. In Harradine v Secretary, DSS, for example, the only question was the construction of a particular section of an Act. The parties agreed that whoever succeeded on that issue was entitled, as a matter of law, to succeed in the AAT. Accordingly, the Court made orders finally disposing of the case without remitting the matter to the AAT (at 36, 43, 49). Similarly, if the Court hearing an appeal from the AAT finds an error of law in its reasons, but nonetheless considers that the decision was clearly correct on the material before the AAT it is open to the Court to dismiss the appeal: Austin v Deputy Secretary, Attorney-General's Department (1986) 12 FCR 22 (FCA/FC), at 26-27; McAuliffe v Secretary, Department of Social Security [1991] FCA 268; (1991) 23 ALD 284 (FCA/von Doussa J), at 295-296, aff'd at (1992) 28 ALD 609 (FCA/FC), at 618-619; State Rail Authority of New South Wales v Collector of Customs [1991] FCA 610; (1991) 33 FCR 211 (FCA/FC), at 217.

The scope of the power conferred by s44(4) of the AAT Act is, however, subject to limitations. These flow from both the fact that an appeal from the AAT is on a question of law only and from the language of s44(4) and (5). The limitations were explained by Sheppard J in Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441 (FCA/FC), at 454- 455:

"It is in my opinion not correct to say that this Court is by these provisions given wide powers to make such orders as it thinks fit. Implicit in its powers are a number of restrictions. The appeal is expressly limited to error of law, which alleged error is the sole matter before this Court and is the only subject matter of any order made consequent on the appeal. The order which this Court can make after hearing the appeal is also similarly restricted to an order which is appropriate by reason of its decision. It follows that the only order which can be properly made is one the propriety of which is circumscribed by and necessary to reflect this Court's view on the alleged or found error of law. To go further I would see as amounting to exceeding the jurisdiction of this Court under this section. A power to make "such order as it thinks appropriate by reason of its decision" is much more restrictive than a power "to make such order as it sees fit" or a power "to make a decision in substitution for the decision" the subject of the appeal. S44(5) confirms, though it states that it does not purport to limit, this as an appropriate reading of the power in s44(4) when it limits its statement to the express power of the Court when setting aside a decision to the making of an order remitting the case to be heard again. Having set aside a decision, it has no express power to substitute what it sees as the correct decision unless such is the appropriate order by reason of its decision on the point of law in the context of the particular proceedings."

This passage was approved in Director-General of Social Services v Hangan [1982] FCA 262; (1982) 70 FLR 212 (FCA/FC), at 223, per Toohey J.

In Secretary, Department of Social Security v McKenzie (1992) 31 ALD 55 (FCA/Ryan J), Ryan J observed (at 58) that the

"reports contain examples of cases in which this court, having detected an error of law by the AAT, has itself made orders disposing of the matter which had been before that tribunal. However, an examination of those cases reveals that in most of them only one result could have been reached by the AAT had it correctly applied the law."

Among the cases referred to by his Honour was Secretary, Department of Community Services and Health v Theologidis [1991] FCA 628; (1991) 33 FCR 186 (FCA/FC). In that case, the AAT had reviewed a decision of the Secretary requiring a refund of amounts paid to the respondent under the First Home Owners Act 1983 (Cth). The AAT decided that a lesser sum than the Secretary had demanded was payable and remitted the application to the Secretary to recalculate the precise amount due. The Court held that the AAT had erred in its construction of the Act. It therefore allowed the appeal. However, the AAT's reasons indicated that it would have affirmed the Secretary's decision, had it adopted the construction of the Act held to be correct. In these circumstances, the Court did not remit the case to the AAT for further consideration, but affirmed the Secretary's decision.

In Secretary, DSS v McKenzie itself, Ryan J dismissed an appeal from the AAT, notwithstanding that it had made an error of law in the course of exercising a discretionary power to waive the recovery of an overpayment of benefits. His Honour considered (at 61-62) that the AAT's reasons showed that, had the error of law not been made, it would have reached the same result.

The considerations relied upon by Ms Murrell provide not inconsiderable support for the orders sought in the amended notice of appeal. The Minister sought an adjournment of the proceedings before the AAT, but was unsuccessful. The AAT refused the application, in large measure because the Minister had had sufficient opportunity to investigate the issues raised by the application for review of the delegate's decision. The AAT also took into account the welfare of the applicant's children, who have not seen their father for some years and who have the strongest interest in having Mr Sepulveda's application determined swiftly. No challenge has been made to the AAT's decision on the adjournment application. The factors identified by the AAT support the view that further delays in resolving the matter should be avoided, so far as it is practicable to do so.

The concession by the Minister that the AAT erred in law acknowledges that the material before the AAT was insufficient to justify a finding that s501(1)(b)(iii) of the Act applied to Mr Sepulveda. The AAT itself found that there was no basis for concluding that either s501(2)(a) or s501(2)(b) could apply to him. Furthermore, the Minister did not adduce any evidence in this Court to demonstrate that its inquiries since the AAT hearing had borne fruit or even that they were expected to yield early results.

There is also considerable force in Ms Murrell's submission that, although the AAT did not address whether s501(1)(b)(iv) could apply to Mr Sepulveda, the material before the AAT could not have justified a finding that Mr Sepulveda's entry or presence in Australia represent a danger to a segment of the Australian community. Mr Robertson correctly pointed out that a person may "become involved in activities that are disruptive to" a segment of the community without actually instigating or participating in disruptive activities themselves. So much follows from Irving v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 457; (1993) 44 FCR 540 (FCA/FC), at 543, 551-552, 558-559, a decision on a provision with some similarities to s501(1)(b)(iv) of the Act. By contrast, s501(1)(b)(iii) applies only if the person entering Australia would "incite discord" in the community, suggesting that that person must play an active part in inducing the discord.

But s501(1)(b)(iv) applies only if the Minister is satisfied that if the person were allowed to enter or remain in Australia, he or she would "represent a danger to the Australian community or to a segment of that community", whether for the two reasons specified in the sub-paragraph, or "in any other way". It is extremely difficult to see how the material before the AAT could have been sufficient to justify a finding that, if Mr Sepulveda were allowed to enter or remain in Australia, he would represent a danger to any segment of the Australian community. The material before the AAT seems to fall well short of providing an evidentiary foundation for the conclusion that the Chilean community in Australia would be exposed to disruptive activities or violence, even if disruption or violence flowing from Mr Sepulveda's mere presence in Australia (as distinct from his activities in this country) were enough to render s501(1) (b)(iv) applicable.

Despite the force of the considerations relied on by Ms Murrell, I do not think that, in the exercise of my discretion under s44(4) of the AAT Act, I should remit the matter to the AAT, with a direction that s501 does not apply to the applicant. Nor do I think that a direction should be given that the AAT should receive no further evidence in relation to the application to review.

The present case is different from others in which orders have been made under s44(4) of the AAT Act. It is not clear from the reasons of the AAT what course would have been followed had the AAT not made an error of law in deciding that s501(1)(b)(iii) applied to Mr Sepulveda. Unlike cases such as Secretary, DSS v McKenzie or Secretary, DCSH v Theologidis, the AAT's reasons do not make it clear, either expressly or by necessary implication, what decision would have been reached but for the error of law. Nor is there any agreement between the parties, as there was in Harradine v Secretary, that the case depends entirely on the issue of law raised before this Court.

As Mr Robertson pointed out, the AAT repeatedly emphasised in its reasons that it was dissatisfied with the quality of the evidence presented to it. The Deputy President identified at least two topics on which he would have been assisted, especially (but not exclusively) by evidence from Mr Sepulveda or the applicant. Had the AAT not mistakenly taken the view that the evidence was sufficient to satisfy s501(1)(b)(iii), it is possible that it may have requested or even required further documentation or information to assist it in relation to the matters which it had to decide, including the applicability of s501(1)(b)(iv). It is true that an adjournment application by the Minister had been refused and the propriety of that refusal is not presently in issue, but the request (as the AAT recorded) was for an "indefinite" adjournment. A short adjournment may have been considered appropriate to enable limited categories of information to be obtained or for particular inquiries to be undertaken. In this respect, for example, the AAT is empowered to require additional statements from the person making the s37 statement if the original statement is considered inadequate in certain respects: AAT Act, s38; see also s33(1)(c).

In determining what orders should be made, it is also relevant to take into account that history of the matter, both before the AAT and before this Court. The Deputy President found that the Minister had had sufficient time to elicit evidence before the scheduled hearing date of 10 April 1995. As I have said, that finding is not presently in question. But until a few days before the hearing, the expectation of the AAT and the Minister was that Mr Sepulveda would give evidence, by telephone if necessary. Similarly, until a few days before the hearing of the appeal, the notice of appeal sought only orders remitting the matter to the AAT to be dealt with according to law. Until a copy of the proposed amended notice of appeal was provided, the Minister was not on notice that final orders, in effect disposing of the application for review, were sought by the applicant. Although not detracting from the conclusion reached by the AAT on the adjournment application, the history provides some explanation as to why the Minister has not adduced or sought to adduce evidence beyond that which was presented to the AAT at the hearing.

In my view, the appropriate course is for the matter to be remitted to the AAT for determination according to law. In view of the history of the proceedings and the fact that Mr Sepulveda's children are resident in the country, every effort should be made for any further hearing to take place as soon as is practicable.

For the reasons I have given, I do not think that it is appropriate to make the orders sought in the proposed amended notice of appeal. It follows that leave to file an amended notice of appeal should not be granted. The orders I propose to make are in accordance with the notice of appeal as originally filed. They are as follows:

1. The decision of the AAT made on 19 April 1995 is set aside.

2. The matter is remitted to the AAT to be dealt with according to law.

As at present advised, I am disposed to order the Minister to pay the applicant's costs up to and including 3 November 1995. On that date, a directions hearing of these proceedings was held, after the offer had been made on behalf of the Minister, in a letter sent on 2 November 1995, to dispose of this matter in accordance with the orders that I propose to make. I am inclined to make no order in respect of costs incurred after that date. However, I shall provide an opportunity for submissions on costs, if either party wishes to adopt that course.

1. The decision of the Administrative Appeals Tribunal, made on 19 April 1995, be set aside.

2. The matter be remitted to the Administrative Appeals Tribunal to be dealt with according to law.

3. The respondent pay the applicant's costs incurred on or before 3 November 1995.

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