Re Max Opitz v Repatriation Commission [1991] FCA 149; 29 FCR 50/23 ALD 40 (17 April 1991)

FEDERAL COURT OF AUSTRALIA

Re: MAX OPITZ
And: REPATRIATION COMMISSION
No. G487 of 1990
FED No. 161
Administrative Law
[1991] FCA 149; 29 FCR 50/23 ALD 40

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)

CATCHWORDS

Administrative Law - Veterans' Entitlements - appeal from administrative Appeals Tribunal - whether appellant resident or residing in Australia in terms of s. 43(4) Veterans' Entitlements Act 1986 (Cth) at time of application - inconsistent statements of appellant already in evidence - application sought to make statement over telephone from overseas - communication impossible due to earthquake - content of evidence to be provided unknown - whether failure to grant an adjournment amounts to denial of natural justice - concept of procedural fairness discussed - principles applicable to issue of ostensible bias discussed - whether failure to give adequate reasons in writing constitutes an error of law - extent to which Tribunal must give reasons in writing.

Veterans' Entitlements Act 1986 (Cth): ss. 35, 43(4), 58 and 63.

Administrative Appeals Tribunal Act 1975 (Cth): s. 39.

HEARING

SYDNEY
17:4:1991

Counsel and Solicitors M.B. Smith instructed by the Legal
for Appellant: Aid Commission of New South Wales

Counsel and Solicitors Miss R. Henderson instructed by
for Respondent: The Australian Government Solicitor

ORDER

The appeal be allowed.

The decision of the Tribunal be set aside.

The matter be remitted to the Tribunal for further hearing.

The respondent pay the appellant's costs of the appeal.

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

DECISION

The appellant, Mr Max Opitz, appeals against the decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by a Deputy President, Mr C.J. Bannon QC, affirming the decision of the respondent, Repatriation Commission, made on 22 July 1988, cancelling the appellant's service pension as and from 11 August 1986.

2. Mr Opitz served in the Royal Australian Airforce during the Second World War and is in receipt of a war disability pension payable under Part II of the Veterans' Entitlements Act 1986 (Cth) ("the Act"). He is divorced from his first wife, albeit that he has a family including grandchildren living in Australia. In August 1983 he entered into a de facto relationship with Anna Josie Allo, a citizen of the Philippines, whom he married on 20 June 1985. They have a son and Mr Opitz has lived with his wife and son in the Philippines for some years.

3. On 26 July 1986 Mr Opitz arrived in Australia. Shortly after his arrival he was arrested and subsequently indicted on a charge of conspiring to defraud the Commonwealth in contravention of s. 86(1)(e) of the Commonwealth Crimes Act 1914 (Cth). To this count he pleaded guilty before his Honour Judge Wall in the District Court of New South Wales and ultimately received a sentence of 15 months' imprisonment with a non-parole period of six months. In fact he was released on license from prison on or about 17 February 1987 and returned to the Philippines in early March of that same year. So far as appears he has not since been in Australia.

4. The application by Mr Opitz for a service pension under Part III of the Act was made on 19 August 1986, that is to say shortly after his return to Australia but subsequent to his arrest on the charge for which he ultimately received a custodial sentence. Accompanying the application was a statement signed by Mr Opitz in the following terms:

"I, Max Opitz
of 18 Munn St, Millers Point 20... (illegible)
hereby state THAT I ARRIVED BACK IN AUSTRALIA
FROM THE PHILLIPINES (sic) ON THE 26th JULY 1986.
I WILL BE RESIDING PERMANENTLY IN
AUSTRALIA. MY WIFE AND CHILD ARE STILL LIVING
IN THE PHILLIPINES (sic) AND WILL BE JOINING ME
IN THE NOT TOO DISTANT FUTURE APPROX 6-12 MONTHS.
I WILL BE FORWARDING APPROX $400
(AUSTRALIAN) PER MONTH ALLOWANCE FOR MY CHILD.
MY CHILD RECEIVES NO ALLOWANCE FROM THE
GOVERNMENT OVERSEAS.
I HAVE NO PLANS AT THE PRESENT TIME TO
TRAVEL OUTSIDE AUSTRALIA BUT WILL NOTIFY THE
DEPARTMENT SHOULD THESE CIRCUMSTANCES CHANGE."

5. On 29 October 1986 Mr Opitz was granted a service pension. On 22 July 1988 the delegate of the Repatriation Commission purporting to act under s.59 of the Act reviewed the grant to Mr Opitz of the pension and determined that as he was not an Australian resident at the time of the lodging of a claim on 19 August 1986, the pension should be cancelled with effect from the date of application. There was subsequently a demand made of him for repayment of the totality of the monies paid to him as pension totalling $13,540.84 for the period 19 August 1986 to 10 August 1988.

6. In the proceedings before Judge Wall, Mr Opitz was asked by his own counsel about his medical disabilities. In the course of questions concerning this matter the following passage appears:

"Q. Did you come to Australia to receive some
medical attention?
A. I came to Australia this time for the
reasons, one although I have been granted the
facilities of the Philippine medical facilities,
I have to travel great distances to Manila to
take advantage of them, although suffering from
a small growth which may or may not be benign
and other odds and ends, and I feel if I
submitted myself to Green Slopes I could receive
Australian medical attention. The second reason
is that my brother had just recently lost all
his family, they were all wiped out in a head on
collision. He is much older than me. ...
Q. And so that was another reason for your
return to Australia?
A. That was another reason. There were others,
to see two more grandchildren, my youngest son
has provided me with and to see both sons whom I
haven't seen since I left Australia. It's a
primary reason. The medical situation was more
or less the primary reason."

7. Shortly after, his Honour asked questions about Mr Opitz's arrival in Australia and then said:

"Q. When did you intend to return to the
Philippines after you arrived in Australia which
was 15 July?
A. I intended to spend about four weeks
minimum, 6 weeks maximum, hospitalise myself in
Brisbane then to Sydney to see my grandchildren
and sons, then to Melbourne to see my brother
and then return to the Philippines. That was
the intention and that was what my wife thought."

8. At the time Mr Opitz lodged his claim for a pension, s.43(4) of the Act provided:

"Subject to sub-section 63(4), a veteran is not
eligible to lodge a claim for a service pension
unless the veteran is residing in, and is
physically present in, Australia."

9. The section was amended as and from 1 October 1987 to provide:

"Subject to sub-section 63(4), a veteran is not
eligible to lodge a claim for a service pension
unless the veteran is an Australian resident and
is in Australia."

10. At the same time, a definition of "Australian Resident" was inserted into s.35 of the Act in the following terms:

"`Australian Resident' means a person who
resides in Australia and who is:
(a) an Australian citizen;
(b) a person who has been granted, or who is
included in:
(i) an entry permit (not being a
temporary entry permit) in force
under the Migration Act 1958; or
(ii) a return endorsement in force under
that Act; or
(c) a person to whom Division 1 of Part II of
that Act does not apply because of sub-section
8(1) of that Act, being a person who is likely
to remain permanently in Australia."

11. The case before the Tribunal apparently proceeded on the basis that the appropriate law was that as at the time of the hearing. The parties before me, however, were in agreement that the proper law to be applied was that as at the time Mr Opitz lodged his application. Despite submissions to the contrary on behalf of Mr Opitz, I do not see that the issue to be determined on the facts of the present case, differs whichever version of s.43(4) was applicable. So far as an Australian citizen is concerned under both sections it was necessary to show that he was residing in Australia at the relevant time and was physically present in the country. The words "who resides" and "is residing" in the context of the two sub-sections carry with them the same idea. The person as a matter of fact must be resident in Australia.

12. It can be seen from the facts so far referred to, that the issue before the Tribunal was accordingly whether at the time of the application Mr Opitz was residing or resident in Australia. On this question, without further evidence, there was an immediate conflict. There was a statement made by Mr Opitz with his application to the effect that he had returned to Australia and intended to remain here. If that statement were accepted, Mr Opitz was a resident of Australia. On the other hand, there was the statement made on oath by him to which I have already referred, which unexplained, appeared in complete contradiction to the statement accompanying the application.

13. I was told from the bar table that at a preliminary conference prior to the hearing the Tribunal had been advised that although Mr Opitz was out of the country he wished to give evidence to the Tribunal by telephone. The respondent acquiesced in this course.

14. Thus, at the outset of the hearing in the Tribunal, at which Mr Opitz was represented by a lay advocate, the advocate informed the Deputy President that Mr Opitz was to be at the Australian Embassy in Manila, which was arranging for him to have telephone facilities to give evidence by telephone. The Deputy President commented on the difficulty of giving evidence on the telephone and expressed doubt as to whether it was possible for the Tribunal to administer an oath over the telephone. The advocate responded that the Embassy might be asked to swear him. The Deputy President conceded that this might be possible but said that he would accept the man's statement on the telephone for what it was worth. He commented that it was not the same as the witness going into the witness box, where his demeanour could be observed. The advocate then tendered a statement of facts received from the Australian Embassy in Manila on 6 July 1990 prepared by Mr Opitz indicating his reasons for absence from Australia. In admitting that statement into evidence, the Deputy President commented that it had less weight than a sworn statement from someone who could be cross-examined and whose demeanour could be observed.

15. The evidence continued for a short time and then the proceedings were adjourned to enable the Embassy in Manila to be contacted. It would seem that the call was placed by the Deputy President or his associate. While the telephone call was awaited the proceedings resumed and the Deputy President returned to the question whether oaths could be administered by telephone. He obtained the acquiescence of the lay representative to the telephone call being treated as an unsworn statement without an oath or affirmation being taken. At this stage the Deputy President remarked that he had been told that there was an earthquake in Manila. The proceedings were then again adjourned for a short time.

16. There is no dispute that around that time the Philippines was hit by an extremely bad earthquake, the epicentre of which was at Baggio, some distance from Manila and where Mr Opitz lived at the time with his wife and family. Ultimately the proceedings were again resumed. The Deputy President said that he had been informed that the Australian Embassy in Manila was not going to reopen until a later time owing to the earthquake. The Deputy President indicated that it was best to give Mr Opitz every opportunity of saying what he wanted to say, even if that involved some delay. The parties agreed to adjourn until 2.45pm to see what had happened. The transcript does not indicate what happened when the matter was resumed at 2.45pm, but I was advised from the bar table that it was impossible to obtain contact with Manila, as a result of which the matter was adjourned for two days.

17. On the resumption there was an argument about bias to which I will return later. The Deputy President asked the lay advocate whether her client was still seeking to make a statement on the telephone from Manila. She advised she had been able to speak to Mr Opitz in the intervening day. She said:

"His village is quite near to Baggio which is
the resort which was the epicentre of the
earthquake and he feared for his family so he
did not want to remain any longer in Manila.
The roads were cut off in several places and
communications with his village were difficult.
So he has set upon the journey to try and get
through to go back to his village.
So unfortunately that does put the question of
telephone evidence out of the question at this stage.
The Deputy President then asked:
"So you are not seeking now to take evidence on
the telephone?"
To this the representative said:
"Sir, I think with the state of communications
with Manila and the Philippines generally at the
moment it could be quite a long time before we
could be assured of being able to do that, and
indeed getting Mr Opitz back to Manila.
May I perhaps suggest that I accept the Deputy
President's suggestion on Tuesday and that I
obtain a statement from Mr Opitz, perhaps sworn
I think, according to the law in Manila if that
can be arranged and I will seek to have - and we
will rely upon that statement."

18. The Deputy President then asked whether there was any point in going ahead with that and asked what it was that Mr Opitz wanted to say. The Deputy President said:

"Is there any point in this procedure? I mean,
so far I have gone ahead with the idea that if
there was something he wanted to say, all right;
but what is it that he wants to say that he has
not already said that is in evidence? I mean,
we do not waste time just on the hope that
somebody may or may not - what is it that he
wants to give evidence about?"
The advocate said, before she was interrupted:
"I think that his aim is to have the chance ---"
The Deputy President then said:
"I am not interested in his aim, I want to know
what is the substance of the evidence that you
seek to put in which is not in evidence already."

19. The discussion between the Deputy President and the advocate continued as follows:

"Ms Weeks: My client seeks, sir, to have the
opportunity to be questioned about parts of his
evidence that he has submitted so far that may
need clarification.
The D.President: But nobody has asked to
question him. Mr Emerson-Elliott (the
representative for the respondent) has not asked
to ask him questions. We are not interested in
whether he would like to be questioned; what we
want to know is what is the fresh evidence that
he wishes to give which he so far has not given?
Ms Weeks: Yes sir. In terms of the fresh
evidence I do not believe that there is a great
deal that he can say that is not already in T
documents. The context of some of that evidence
may be elucidated by questioning Mr Opitz.
There is, however, some fresh evidence that is
not in Mr Opitz's oral evidence that I would
like to raise."

20. The advocate then discussed some evidence that Mr Opitz had been seeking to obtain from the Australian Embassy in Manila which apparently tended to show that he planned to come to Australia to apply for a pension and went to the Embassy and went through the motions of making arrangements for his family to emigrate to Australia.

21. At the end of the discussion, the Deputy President expressed the view that it was unnecessary that Mr Opitz be given further time to make a statement on the telephone or to make a further written statement. He said:

"I am always prepared to give people an
opportunity, but there does come a limit. These
are administrative proceedings and one of the
characteristics of these things is that
decisions have to be made and they cannot be
held up indefinitely on the off chance that
people might be able to think of something new.
They have been given an opportunity to make
statements and they have done it."

22. He declined to adjourn the matter further.

23. In due course the Tribunal found against Mr Opitz. In so doing the sworn evidence given by Mr Opitz before his Honour Judge Wall was preferred to the unsworn documents and statements. The Tribunal accordingly came to the view that at the relevant time Mr Opitz was not residing in Australia. On the question of the adjournment application, the Deputy President remarked:

"At the hearing, an application was made to take
a statement from the appellant by telephone from
Manila. He was not available on the first
hearing date, due it was said to the earthquake
occurring at Manila that day. The hearing
resumed two days later but he was still not
available, although his legal adviser told the
Tribunal she had spoken to him by telephone the
previous evening. It appeared to me that there
was no good purpose in further delay. The
appellant had been given the opportunity to
tender an unsworn statement, which became
exhibit C, and his legal representative was not
able to suggest there was any fresh evidence
bearing on the legal issues which could be
adduced, so further adjournment was refused. In
any event, oral statements by telephone are of
extremely limited value when the demeanour of
the witness cannot be observed, and there is an
issue as to his credit."

24. Before me, it was submitted on behalf of Mr Opitz that the decision of the Tribunal should be set aside on the following grounds:-

1. That the Deputy President should have disqualified himself on the
grounds of ostensible bias.
2. That the Tribunal in refusing to grant an adjournment to enable a
statement to be made by Mr Opitz denied to him procedural fairness
and otherwise acted in breach of its obligations under s.39 of the
Administrative Appeals Tribunal Act 1975 (Cth).
3. That in coming to the conclusion that Mr Opitz was an Australian
resident, the Tribunal applied the wrong test, applying as it did
the provisions of s.43(4) as amended in October 1987 and not the
provisions of that section as at the date Mr Opitz made his
application for a pension.
4. The evidence given before his Honour Judge Wall could not
reasonably bear the conclusion that Mr Opitz was not residing in
Australia.
5. That in concluding that the provisions of s.58(2) should be
applied to cancel Mr Opitz' entitlement to a pension
retrospectively to the date of his application, the Tribunal erred
in law by failing to give any or any adequate reasons why s.58(2)
should be applied.
6. That the Tribunal failed to give any or any adequate reasons to
explain its alternative conclusion that there was no ground for
exercising a discretion under s.63(3).

Ostensible Bias

25. The parties were not in dispute as to the proper test to determine whether the Deputy President should have agreed to disqualify himself, that being whether "the parties or the public might entertain a reasonable apprehension that (the Tribunal) might not bring an impartial and unprejudiced mind to the resolution of the matter before him": Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at 20-21; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568. The dispute between the parties centred upon whether comments made by the Deputy President during the course of the proceedings were such that such a reasonable apprehension might arise.

26. During the course of the hearing the lay advocate had submitted, unsuccessfully, that a tender of the transcript of proceedings before his Honour Judge Wall should be rejected on the grounds that its being made available contravened the provisions of the Privacy Act 1988 (Cth). The Deputy President said:

"I do not think criminals should be given any
privacy. I think they should be held up to the
greatest publicity so that people find out the
crimes that are committed, especially crimes
against the Commonwealth Government which this
man committed."
The following discussion ensued:
"Ms Weeks: Indeed. Perhaps my client is being retried.
The D.President: He will not be retried. It
is relevant to know why he came to Australia.
Ms Weeks: I would hope the Tribunal would
approach him ...
The D.President: I approach him as a man who is
an Australian citizen who does not live in
Australia, who lives in the Philippines, but who
wants the grant of an Australian pension.
Ms Weeks: Indeed he does.
The D.President: He gave evidence before Judge Wall.
Ms Weeks: He did.
The D.President: That evidence may be very
relevant. I cannot say now - I have not read it
all - but it may be relevant as to why he came
to Australia."

27. A little later on, after a discussion of the decision of the High Court in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, upon which the lay advocate relied, the Deputy President said:

"Now, this man has his good points and his bad
points. He gave good military service,
apparently, in the Air Force. I understand from
the papers he received a disability pension. He
has also been engaged in crimes which are public
crimes."

28. Later, when the case resumed after the adjournment, Ms Weeks returned to what the Deputy President said about her client's criminal antecedents. She submitted that a fair minded observer might entertain the apprehension of bias by way of prejudgment as a result of what the Deputy President had said and asked him to disqualify himself. She had no record of the precise words he had used as no transcript was available at that time. The Deputy President said:

"Whereas I have not expressed any criticism at
all of Mr Opitz. All that I have done is to say
that I consider certain material should be
admitted in evidence. I do not see that it has
the faintest relevance to this case."

29. He commented later that even the worst criminal was entitled to proper consideration and refused to disqualify himself.

30. I have carefully considered the remarks made by the Deputy President on the first day and what was said by him on the next occasion, the latter comment being said to have further exacerbated the impression of bias. I should say that on the second day a further matter arose upon which the appellant relies before me. The Deputy President said:

"But I am not swayed, I hope, by emotion or
sympathy or sentiment; and if a man is an
ex-serviceman but is not entitled to a pension,
then he does not get a pension, and I do not
care how many ministers write letters about it
or how many politicians send submissions - that
does not worry me one inch.
I see there is a letter in the file from one
member of parliament. That does not interest
me. In fact I think it is somewhat sad that
people occupying elected positions in the
community sometimes take the step of writing
letters which sometimes can be misconstrued as
an attempt to influence decision-makers. But if
that is intended, and I am not saying it is, it
does not influence me."

31. The transcript does not indicate what letters the Tribunal referred to. There were however, it seems, letters written long before the Tribunal proceedings by a politician to the Department, at the time of internal review, making submissions on behalf of Mr Opitz. It may well be that these letters were the letters to which the Deputy President referred, or it may well be that there were other letters not produced before me.

32. The suggestion that either the parties or the public might entertain a reasonable apprehension in the circumstances of this case, that the Deputy President might lack the necessary impartiality to resolve the matter before him, is in my view of no substance at all. His remarks on the first day have to be seen in the context of the submission that was put to him. Although he expressed an abhorrence of criminality, and perhaps an emphasis on criminality against the Commonwealth Government, the context in which this was said and the subsequent remarks, made it clear that he regarded that as a totally irrelevant matter to the problem before him. No fair minded observer would, in my opinion, see the comments made as in any way suggesting the possibility that the Deputy President would not proceed impartially and in an unprejudiced fashion. Denial of Natural Justice

33. I have found this issue extremely difficult. The case in the Tribunal was one where there was a significant matter calling out for explanation. No doubt, if from the outset it had been known the oral testimony which Mr Opitz proposed to give was not to be accepted, then at the very least, he could have reduced to writing what he wanted to say. There was, of course, one written statement from Mr Opitz already accepted in evidence and various letters from him in the T documents. However, apparently Mr Opitz regarded the statement he had prepared as inadequate. He wanted questions to be asked, presumably by his own advocate, that would enable an explanation to be given, in all probability directed to attempts he had made to obtain permission for his family to migrate to Australia prior to his arrival in Australia in 1986. Given the concurrence of the respondent that such a statement by telephone could be made, whether on oath or otherwise, no further written statement was obviously necessary. The matter could wait until the hearing and be dealt with then.

34. The circumstances of the present case were extremely unusual. The communication with the appellant was obstructed by an earthquake of calamitous proportions. Although the Deputy President in his reasons may have seemed to have cast doubt on whether there was an earthquake at all, the parties were in agreement that there was, and it is hard to disassociate that concession from the media reports of the time. Given the fact of the earthquake and the consequent difficulty of telecommunication contact, the Deputy President on the first day very properly expressed the view that it was better that the case be adjourned to see if contact could be established.

35. When ultimately resumed, the Tribunal was faced with a difficult problem in that the advocate expressed her doubt whether there was a great deal that her client could say. The desire on the part of the Deputy President to bring an administrative appeal to a conclusion was no doubt laudable. However, I have formed the view that in the particular circumstances of this case, where the appellant must be taken to have regarded the statement tendered to the Tribunal as inadequate and wished to explain further the discrepancy in his statements, the failure to grant the appellant an adjournment was a denial to him of the right of procedural fairness.

36. Counsel referred me to the provisions of s.39 of the Administrative Appeals Tribunal Act 1975 (Cth) which provides, so far as is relevant:

"... the Tribunal shall ensure that every party
to a proceeding before the Tribunal is given a
reasonable opportunity to present his case ..."

37. It is not necessary in this case to determine the precise ambit of the obligation denoted by the words "to present" a case or whether s.39 adds anything to the common law precepts of procedural fairness. As Deane J said in Sullivan v Department of Transport (1978) 20 ALR 323 at 342-44, a refusal to grant an adjournment can constitute a failure to afford the opportunity to a party to adequately present his case. On the facts of Sullivan's Case, however, there had been no application for an adjournment and his Honour was of the view that no error of law had arisen. See too per Smithers J (at 331-2).

38. Although it might be thought unlikely on the facts of the present case that the statement, sworn or unsworn, of Mr Opitz over the telephone could have explained satisfactorily the statement he had made under oath before Judge Wall, and notwithstanding the opinion of the lay advocate as to the possible content of Mr Opitz's proposed evidence, these matters are not to the point. Mr Opitz apparently regarded the statement theretofore made by him as inadequate and wanted the ability to put the matter to the Tribunal by telephone. The failure to afford the appellant this opportunity in the circumstances of this case was, in my view, a breach of procedural fairness and constituted an error of law which requires the matter to be remitted to the Tribunal: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 582 per Mason J, at 628 per Brennan J and the cases discussed by me in Minister for Immigration, Local Government and Ethnic Affairs v Mayur Kumar and Manju Govind (unreported, Full Federal Court, 31 May 1990).
Submissions 3 and 4 - residency

39. As I have already said, while the Tribunal applied the wrong form of s.43(4) being not that applicable at the time the appellant made his application (an error of law) the error is one which makes no difference to the outcome and as a matter of discretion I would not, for this reason, remit the proceedings to be heard in accordance with law. The Tribunal applied the right principles of law in determining whether the appellant was an Australian resident and its application of those principles to the facts of this case involves no question of law. Essentially the question whether a person is a resident of Australia, or for that matter is residing in Australia, is a question of fact. No doubt the meaning of the words "residing in Australia" must depend upon the context in which they are used (cf Hafza v Director General of Social Security [1985] FCA 164; (1985) 6 FCR 444 at 450) but the context of s.43(4) as amended in October 1987 does not differ from its context as at 19 August 1986 so far as concerns Australian citizens.

40. Further, once it is accepted that the evidence of Mr Opitz before his Honour Judge Wall was to be preferred to the unsworn testimony of the appellant, it was clearly open to the Tribunal to find, indeed one might say irresistibly open to find, that the appellant was a person who was not residing in Australia.

41. The way in which the submission on this matter was put on behalf of Mr Opitz was that Mr Opitz had arrived in Australia and following his arrest his circumstances had changed. The answers he gave before Judge Wall, it was said, were directed to his state of mind and position prior to his arrest when he was held in Australia, perhaps indefinitely, in circumstances which either could lead to his imprisonment or at the very least take years before a hearing might take place and were not directed at the position on 19 August 1986. However, it can hardly be said that the Tribunal erred in law in accepting the statement made after the fact by Mr Opitz under oath of his intentions but a matter of weeks prior to his application for a pension. In so doing the Tribunal did not act in a way that was unreasonable or capricious.
Absence of reasons concerning s.58(2)

42. Section 58 of the Act, as in force at the relevant time, provided relevantly as follows:

"(1)... where the Commission is satisfied
that -
(a) having regard to any matter that
affects the payment of a service
pension; or
(b) by reason of the refusal or failure
of any person to comply with a
provision of this Act,
a service pension should be cancelled or
suspended ... the Commission may, by
determination in writing, cancel or suspend ...
the service pension with effect, subject to
sub-section (2), from the date of the determination
or such later date as is specified in the
determination.
(2) Where a determination is made under
sub-section (1) -
(a) by reason of the refusal or failure
of a person to comply with the
provisions of this Act other than
... or
(b) by reason that an amount has been
paid by way of pension or allowance
that, but for the full statement or
misrepresentation of any person,
would not have been paid,
a date earlier than the date of the
determination may be specified in the
determination as to the date as from which the
cancellation, suspension or decrease, as the
case may be, is to take effect."

43. The Deputy President, after setting out the terms of the section, made the following comments:

"Section 58(2) allowed the backdating of the
determination in cases such as the present. In
my opinion, the power set out is ample
justification for the respondent's determination
set out in the letter of 26 July 1988 ..."

44. The determination referred to was the determination to cancel the pension retrospectively.

45. In that passage, it is true the Deputy President gave no express reasons for applying s.58(2). Certainly it is not clear whether in applying the section the Tribunal took into account either or both of the matters referred to in sub-ss.(1)(a) and (b) or formed the view that there had been a failure of Mr Opitz to comply with the provisions of the Act or a full statement or misrepresentation within the terms of sub-ss.(2)(a) or (b).

46. However, the Tribunal did not leave the matter entirely without reasons. Earlier the Tribunal had said:

"However, I do not accept as correct, his claim
in that document (the application for pension)
that he would be residing permanently in
Australia, or his statement that he had no plans
at the present time to travel outside Australia."

47. There is no doubt that the Tribunal is under an obligation where it gives in writing the reasons for its decision, to include in those reasons its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. Its failure so to do may constitute an error of law: Sullivan v Department of Transport (supra) at 349; Minister of Immigration v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 686; Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179; (1983) 48 ALR 500; East Finchley Pty Ltd v Commissioner of Taxation (1989) 90 ALR 457. See too Dornon and Ors v Riordan and Ors. (1990) 95 ALR 451 at 460-61 and Australian Telecommunications Commission v Barker (unreported, Full Federal Court, 7 December 1990).

48. However, as Lockhart J said in Bisely Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 251, it is necessary to determine whether adequate reasons are given by reference to a reading of the reasons of the Tribunal as a whole. As Sheppard J said in the same case (at 255), what is required is "substantial compliance".

49. Adopting a "restrained approach" (cf Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (NSW) [1980] FCA 96; (1980) 47 FLR 131 at 145, to the question, it seems to me that the Tribunal did not err in law in failing to give reasons for its application of the provisions of s.58(2) to backdate the cancellation of the pension previously granted to Mr Opitz. The Tribunal found that as at the time of the application, the appellant was not residing in Australia. Having so found it was satisfied of both of the matters referred to in ss.58(1)(a) and (b). That finding was adequate also to ground a determination on the part of the Tribunal that Mr Opitz had failed to comply with the provisions of s.43(4) of the Act and so fell within s.58(2)(a). The finding that the application was false also provided adequate reasons for the making of a determination, having regard to s.58(2)(b).

50. Perhaps it might be desirable in an ideal world, if the Tribunal purporting to exercise a power under a particular section, there being alternative sources of power, avert to which sub-section it acts upon, and set out at that point its reasons for so doing. However, the court is cognisant of the practical difficulties under which the Administrative Appeals Tribunal functions including the time constraints and work load imposed upon it. Where, as in the present case, the conclusion follows inevitably from the findings of fact which the Tribunal has made, it clearly is an unnecessary luxury for the Tribunal to set out once again those facts in support of the determination to which it has come.

51. In my view the Tribunal committed no error of law in the conclusion which it reached.
Failure to give reasons in respect of s.63(3)

52. The parties were in agreement that s.63(3) was irrelevant once a finding of lack of residency had been made and the provisions of s.58(2) had been applied. In these circumstances, even if there were a failure on the part of the Tribunal to give reasons for failing to exercise any discretion under s.63(3), that section not arising, failure so to do could not have affected the decision. In so saying I do not suggest that the Tribunal did fail to give adequate reasons.

53. It follows in my view, that the matter must nevertheless be remitted to the Tribunal for further hearing. Accordingly, the orders which I would make are that the appeal be allowed, that the decision of the Tribunal be set aside and that the matter be remitted to the Tribunal for further hearing. The parties were in agreement that the costs of the present appeal should follow the event, and accordingly I would order that the respondent pay the appellant's costs of the appeal.