Repatriation Commission v Norman Kenneth Boyle [1997] FCA 1269 (24 November 1997)

FEDERAL COURT OF AUSTRALIA

VETERANS' AFFAIRS - appeal from decision of Administrative Appeals Tribunal ("AAT") that respondent eligible for special rate of pension - whether error of law - whether AAT failed to address and decide material question - whether AAT failed to give reasons for decision - whether failure to give reasons an error of law

Veterans Entitlements Act 1975 (Cth), s 24(1)(c)

Administrative Appeals Tribunal Act 1975 (Cth), ss 43, 44

Repatriation Commission v O'Brien [1985] HCA 10; (1985) 155 CLR 422, cited

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, applied

Brackenreg v Comcare Australia (1995) 56 FCR 335, cited

Flentjar v Repatriation Commission (unreported, 10 October 1997, Full Federal Court), applied

REPATRIATION COMMISSION v

NORMAN KENNETH BOYLE

VG 719 of 1996

TAMBERLIN J

SYDNEY (HEARD IN MELBOURNE)

24 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 719 of 1996

BETWEEN:	REPATRIATION COMMISSION Applicant
AND:	NORMAN KENNETH BOYLE Respondent
JUDGE:	TAMBERLIN J
DATE OF ORDER:	24 NOVEMBER 1997
WHERE MADE:	SYDNEY (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal in relation to s 24(1)(c) of the Veterans' Entitlements Act 1975 (Cth) be set aside.

3. The matter be remitted to the Administrative Appeals Tribunal for determination in accordance with law.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 719 of 1996

BETWEEN:	REPATRIATION COMMISSION Applicant
AND:	NORMAN KENNETH BOYLE Respondent

JUDGE:	TAMBERLIN J
DATE:	24 NOVEMBER 1997
PLACE:	SYDNEY (heard in melbourne)

REASONS FOR JUDGMENT

On 8 November 1996, a Senior Member of the Veterans' Appeal Division of the Administrative Appeals Tribunal ("the AAT") delivered a decision that the respondent, Mr Boyle, was eligible for payment of pension at a special rate from 23 February 1994 pursuant to s 24 of the Veterans' Entitlements Act 1975 (Cth) ("the Entitlements Act").

The Repatriation Commission ("the Commission") appeals to this Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). The "questions of law" as framed in the Notice of Appeal are:

(a) Whether it was incumbent on the Tribunal, before concluding that Mr Boyle met the requirements to qualify for the Special Rate of pension, to decide that the loss of earnings being suffered by Mr Boyle was a loss of earnings that he would not be suffering if he was free of his incapacity from war-caused disabilities.

(b) Whether the failure of the Tribunal to decide the question referred to in question (b) constituted an error of law.

(c) Whether the Tribunal failed to discharge its obligation to provide reasons for its decision, in conformity with subs-ss 43(2) and 43(2B) of the Administrative Appeals Act 1975.

Legislative Provisions

The relevant provisions of the AAT Act are:

"s 43 Review by Tribunal

(1A) This section has effect subject to section 43AAA and to subsection 65(3) of the Australian Security Intelligence Organization Act 1979.

....

(2) Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.

(2A) Where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may, within 28 days after the day on which a copy of the decision of the Tribunal is served on that party, request the Tribunal to furnish to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, furnish to that party such a statement.

(2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

....

s 44 Appeals to Federal Court of Australia from decisions of Tribunal.

(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

..." (emphases added)

Section 24 of the Entitlements Act relevantly provides:

"24.(1) This section applies to a veteran other than a veteran to whom section 25 applies, if -

(a) either:

(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or

(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was underrating and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity.

(2) For the purpose of paragraph (1)(c):

(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

(b) ..." (Emphasis added)

The question for decision concerns the construction and operation of s 24(1)(c) of the Entitlements Act. It is common ground that the requirements of pars (1)(a) and (b) of that section are satisfied in the present case.

In broad form, the question is whether the AAT failed to give reasons for its decision on a material question, and, if so, whether that failure was an error of law. More precisely, the Commission submits, firstly, that the AAT failed to address and decide one of the questions that it was required to answer before concluding that Mr Boyle met the requirements of par 124(1)(c) namely the hypothetical question whether but for war-caused injury or disease he would have continued working and, secondly, that the AAT failed to meet its statutory obligations to provide reasons for its decision. Each failure is said to be an error of law.

Background

It is not in dispute that Mr Boyle is a "veteran" and that he rendered eligible war service, including operational service, within the meaning of the Entitlements Act: see s 5C(1), s 6 and s 7. The parties were in agreement that Mr Boyle's degree of incapacity for the purpose of payment of pension was assessed at seventy percent of the general rate. The effective date for payment of pension of seventy percent was agreed as 23 February 1994. The AAT accepted that Mr Boyle had the following war-caused disabilities:

* Acne Conglobate

* Adenocarcinoma of the Prostate

* Post-Traumatic Stress Disorder

* Alcohol Dependence

The evidence adverted to by the AAT is set out in pars 34-41 of the reasons for decision. Those paragraphs read as follows:

"34. Mr Boyle's evidence was that he owned and operated a Service Station for some years but that in 1978 due to his war-caused disabilities he was forced to retire.

35. Mr Boyle provided a written statement for the purpose of these proceedings dated 12 July 1996 (Exhibit A5). The text of the statement was as follows:

`1. I was forced to retire from my service station business in Riversdale Road, Camberwell in 1978.

2. The business was a very profitable one, and I was employing a mechanic, a lube operator and a pump attendant.

3. My wife was assisting me with the keeping of the books.

4. I survived the price-wars of the early and mid-1970's and was poised to run a very profitable enterprise.

5. My accepted disabilities prevented me from continuing.

6. There is no reason why I should have not continued as I enjoyed my work and it was providing good remuneration.

7. But for my accepted disabilities, I believe I could still have been in the same business at the time of lodgement of my application with the Department of Veterans' Affairs.

8. I had no intention of plans for early retirement, these were forced upon me solely because of my accepted disabilities.

9. My wife was employed on a casual basis and if the business had continued, her work would have been carried out by an employee.

10. As a result if my inability to continue the operation, I have lost considerable remuneration.'

36. Mr Boyle said in evidence that since discharge from the Army he has suffered from sleeping difficulties, including night sweats. He said that he suffers from anxiety and headaches and that these affected the running of his business. He used alcohol to obtain relief. However, because of the effect of alcohol on his health he has reduced his consumption rate.

37. Mr Boyle said that he gets neuralgia with his headaches and that this is worse when he becomes anxious. He said this had made it difficult for him to concentrate on his work. It also meant that he would return home after work and fall asleep.

38. Mr Boyle had a prostate operation four and a half years ago.

39. When he ceased work in 1978 Mr Boyle was 58 years of age. At the time of his claim in December 1992 he was 72 years and 11 months and is now 76 years of age. He said that, looking back between December 1992 and the present time, he was unable to say whether he would have been interested in continuing as a Service Station proprietor during that time.

40. During cross-examination Mr Boyle confirmed that one of the reasons he stopped working was because of migraine. These, he said, would cause him `awful pain and then you get to the stage of vomiting', and have to lie down.

41. Mr Boyle stated that now and again he gets sciatica and x-rays taken in February 1992 showed a lumbar condition. He also suffers from leg cramps and pains in his calves, thighs and shins. These seem to date back to at least May 1990. According to the clinical records of Dr Galbraith, his local doctor, the leg problems are symptoms of a `jumping leg syndrome'. The notes also refer to episodes of dizziness. However, Mr Boyle said that none of these conditions would have stopped him from working."

Immediately following the above passages, the AAT summarised the submissions of Mr Rudge, who appeared for the Commission, as follows:

"42. In addition to the abovementioned conditions Mr Rudge pointed out that the clinical notes also record Mr Boyle as suffering hypertension. He also referred to the fact that Mr Boyle had poor balance, needing support rails in his bathroom and the occasional use of a walking stick. He also takes Tegretol for his non-accepted Trigeminal Neuralgia and Codral Forte every four hours. The latter is a pain killer.

43. It was Mr Rudge's submission that when all of these factors are taken together, the picture was one of a rather frail man, the question being whether a person nearly 73 years of age with all these non-accepted disabilities would have continued on as a Service Station proprietor? It was Mr Rudge's submission that when assessed on the balance of probabilities, the conclusion is that such a person would find it extremely difficult to do so. Therefore, he said, the requirements of section 24(1)(c) are not met." (Emphasis added)

There is then a brief reference to Mrs Boyle being employed in the business and keeping the books to assist her husband. These paragraphs read:

"44. As indicated, in his written statement Mr Boyle referred to the fact that his wife was employed in the business, keeping the books.

45. In her evidence Mrs Boyle stated that she enjoyed the work At the commencement of the assessment period she was 70 years of age and is now 74. while it is not clear from the evidence whether Mrs Boyle was in fact a financial partner in the business, it is nevertheless clear from her evidence that she played an equal part in operating the business.

46. When asked whether she would have worked beyond the age of 70, Mrs Boyle stated that she really did not know. She did say, however, that her health is generally satisfactory. But if she had decided not to continue working beyond the age of 70 she said that one of her daughters might have been able to replace her. However, she really did not know about this, one way or the other.

47. When asked whether she was able to confirm that it was her husband's anxiety and to some extent his headaches, that caused him to cease working, Mrs Boyle responded by stating that it was."

Immediately following the reference to the testimony of Mrs Boyle, the AAT expressed its conclusion in the following critical paragraphs:

"48. From the material before me I find that the requirements set out in section 24(1)(c) are satisfied. While I accept that the clinical notes of Mr Boyle's treating local doctor reveal that he has experienced several medical conditions which are not war-caused, and while I have given careful consideration to the question of Mr Boyle's age, I find that, on the balance of probabilities, he is, by reason of incapacity from war-caused disabilities, alone, prevented from continuing with his Service Station business. The [war-caused] disabilities in question are his PTSD, associated tension headaches and alcohol dependence. As I indicated earlier, the tension headaches may properly be taken to be a symptom of his PTSD.

49. Although documentation relevant to the issue was not available for the Tribunal's consideration, there appears to be no dispute that through ceasing work Mr Boyle is suffering a loss of earnings within the meaning of section 24(1)(c) and I find accordingly." (Emphasis added)

It is noteworthy that par 48 does not itemise or make any reference to non-war-caused disabilities or incapacity and their effect on Mr Boyle's continued employment.

Submissions for the Commission

Counsel for the Commission points out that the issue before the Tribunal was whether Mr Boyle was entitled to payment of pension at a special rate and that this question was to be answered by considering whether he met the requirements of s 24(1) at some time during the assessment period which was between 22 December 1992 and 8 November 1996. See ss 19(5) and 19(9) of the Entitlements Act, as in force before the amendments effected by the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth). The question in broad terms is therefore whether at some time during the assessment period the applicant met the three requirements prescribed in s 24(1)(a), (b) and (c) of the Act. The requirements are, of course, cumulative.

This question was to be determined to the reasonable satisfaction of the AAT on the balance of probabilities and without there being any onus of proof: see Repatriation Commission v Smith (1987) 15 FCR 327 at 335-336.

The Commission submits that there are two questions which must be answered when applying s 24(1)(c). The first is to ask whether "the veteran, by reason of incapacity from war-caused injury or disease alone, was during the assessment period prevented from continuing to undertake remunerative work that he was undertaking". In relation to this element the AAT answered the question in the affirmative. The applicant does not challenge that finding.

The second is whether the veteran, by reason of his being prevented from undertaking remunerative work that he had previously undertaken, suffered a loss of income, which he would not have lost if he were free of war-caused incapacity. The words emphasised express the hypothetical question. It is in relation to this question that the Commission says that the AAT made an error of law.

The submission is that the AAT found that through ceasing work Mr Boyle was suffering a loss of earnings but did not address the hypothetical question, whether it was satisfied that Mr Boyle would, but for the incapacity, still be working in the assessment period. The Commission says that the finding that Mr Boyle was suffering a loss of earnings was not sufficient to satisfy s 24(1)(c). The hypothetical question was not addressed and no reasons were given for the rolled up conclusion that s 24(1)(c) had been satisfied.

The Commission further submits that this error is demonstrated by the fact that the AAT did not attempt to set out or balance the competing considerations relevant to a determination of the hypothetical question. The Commission had submitted to the AAT that Mr Boyle would not, given his age and general poor health, have been working as a service station proprietor at the application date. It is further said that these considerations would have supported the conclusion that, even if not incapacitated by war-caused injury or disease, Mr Boyle would not have continued working as a service station proprietor. Accordingly, the Commission submits that the decision of the AAT should be set aside insofar as it determined that the requirements of s 24(1)(c) had been satisfied and that the matter should be remitted to the AAT. The Commission does not seek costs if successful.

Submissions for Mr Boyle

For Mr Boyle it is pointed out that the Entitlements Act is beneficial legislation and must be construed in favour of the claimant where the meaning is doubtful. Reference is made to assertions by Mr Boyle that he would have kept going at the age of 72, although his evidence was somewhat equivocal on this point. Counsel points to evidence that his wife would have undertaken the book work. Reference was made to the evidence that Mr Boyle was not being treated for his non-service related problems and that the problems would only have slowed him down, but would not have stopped him from working. It was therefore open on the evidence for the Tribunal to reject the Commission's contention that the respondent would not have continued to work as a service station operator or proprietor and it was open to find that, by reason of war-caused incapacity alone, Mr Boyle was prevented from continuing to operate his service station business. The submission referred to the oft cited observations of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 to the effect that on judicial review, the Court should look at the substance of the matter in a broad practical way and not subject the reasons to a narrow and technical scrutiny directed to seeking out every possible error or infelicitous phrase.

Counsel for Mr Boyle also submitted that pars 42 and 43 which set out the submissions of Mr Rudge are crucial in understanding the Tribunal's decision. It is said to be clear from par 48 that the submissions of Mr Rudge were rejected because the first sentence in that paragraph is directly counter to the submission in par 43 by Mr Rudge, which was that the requirements of s 24 (1)(c) were not met, specifically, in relation to the likelihood of his continuing as a service station proprietor or operator. It is said that the Tribunal provided adequate and cogent reasons for its determinations on this question.

The present appeal - inadvertence

On a fair and reasonable reading of the whole of the reasons for decision by the AAT in this matter, I am not satisfied that the Senior Member overlooked or did not advert to the question whether Mr Boyle would have continued as a service station proprietor or operator as at 22 December 1992. The AAT summary of the submissions made by Mr Rudge in pars 42 and 43 reflected a clear appreciation by the Senior Member of the question presented as to the likelihood of his continuance in employment. That submission, as formulated, focused directly on the precise issue whether Mr Boyle was likely to continue. Leaving aside pars 44-47 inclusive, which relate to a collateral issue of Mrs Boyle being able to work in the business, it is apparent from the first sentence in par 48 that the Member squarely rejected the proposition advanced by Mr Rudge in the last sentence of par 43. Accordingly, in my view, the real issue in the present case is not whether the hypothetical question was ignored. It was clearly not ignored. It was answered in the affirmative. The issue is rather whether the decision sufficiently exposes the reasoning for the AAT's conclusion that the hypothetical question in s 24(1)(c) should be answered in the affirmative.

Failure to give reasons

An appeal to this Court, under s 44(1) of the AAT Act lies only on a question of law. This raises the issue whether a failure to give reasons for the decision under ss 43(2) and 43(2B) raises a question of law.

In Repatriation Commission v O'Brien [1985] HCA 10; (1985) 155 CLR 422 at 445-446, Brennan J expressed the view that if a failure to give adequate reasons for making an administrative decision warrants an inference that the Tribunal has failed in some respect to exercise its powers according to law (eg taking account of irrelevant considerations or failing to consider material issues or facts), the Court may act upon the inference that there was an error law and set the decision aside. His Honour considered that in such a case the decision is set aside not because of the failure to state the reason for making the decision, but because of a failure to make the decision according to law. He observed that while an obligation to give oral or written reasons for a decision under s 43(2) might entitle a party to a mandatory order from the Court to provide such reasons it was not necessarily an error of law merely to fail to expose the reasons for making the decision.

In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281, McHugh JA after discussing the authorities, said (at 281):

"In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done." (Emphasis added)

In the same case Mahoney JA (at 270-271), speaking of the requirement that reasons be given, quoted what he had said in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 (at 385-386):

"... the requirement that reasons be given should not be limited to cases where there is an appeal.. There is as yet no finally authoritative decision on this question. I think the requirement should be seen as an incident of the judicial process. However, the fact that the function of the requirement is, at least, in part, to allow a party to exercise appeal rights is of significance in determining the extent of the duty and what would be discharge of it.

...

Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard. ...

... the basis of the decision of a trial judge should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it."

His Honour also pointed out that it was not necessary for the reasons given by a judge to be seen to progress from one fact to the next along a chain of reasoning to the ultimate conclusion.

As Sheppard J pointed out in Brackenreg v Comcare Australia (1995) 56 FCR 335 at 348, the above observations were made in relation to decisions by a court and not by an administrative tribunal. It seems to me, particularly in view of Wu, that a less stringent approach is appropriate in the case of a review of the reasons from administrative tribunals. His Honour's decision in Brackenreg contains a helpful analysis of the leading authorities on the question of the obligation of administrative tribunals to give reasons for their determinations.

Some guidance can also be obtained from decisions under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). In Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179; (1983) 48 ALR 500 Woodward J remarked (at 507):

"... s 13(1) of the Judicial Review Act requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect: `Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law which is worth challenging.'"

An example of the importance of reasons is to be seen in Riverina Broadcasters (Holdings) Pty Ltd v Australian Broadcasting Tribunal [1992] FCA 490; (1992) 28 ALD 813 where Drummond J set aside the Tribunal decision because its reasons showed that it had misunderstood a decision construing the Broadcasting Act 1942 (Cth). If no reasons had been given this error would not have been evident.

Closer to the present circumstances, however, is the recent decision of the Full Court in Flentjar v Repatriation Commission (unreported, 10 October 1997). The principal judgment was given by Branson J, with whom Beaumont and Merkel JJ agreed.

In that case Mr Flentjar's age had prevented him working as a taxi driver between the application day, namely 7 August 1991, and February 1994. In February 1994 the Victorian Taxi Directorate had changed its policy so as to allow persons aged over seventy to obtain a taxi driver's certificate, subject to medical fitness. The evidence indicated Mr Flentjar had the medical capacity to hold a taxi driver's licence after 1994 but the Tribunal did not in its reasons for decision address the issue of whether it was likely that, war-caused incapacity aside, Mr Flentjar would have continued in remunerative employment as a taxi driver after February 1994. In February 1994 Mr Flentjar was more than seventy-seven years of age. In her Honour's view a proper consideration of s 24(1)(c) of the Act required consideration of the following four questions:

"1. What was the relevant `remunerative work that the veteran was undertaking' within the meaning of s 24(1)(c) of the Act?

2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?

3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?" (Emphasis added)

The conclusion reached in that case was that the Tribunal had not given proper, genuine and realistic consideration to issue 4 which throws up for consideration what Mr Flentjar probably would have done if he had none of his service disabilities. The Court dismissed the appeal and agreed with Spender J, the primary judge, that the Tribunal had erred in law in reaching its conclusion that Mr Flentjar was entitled to payment of a pension at the special rate. That of course was not a case of failure to give reasons but rather to address a relevant question.

In my view, the determination of the question whether the requirements of s 24(1)(c) had been complied with, raised a question of law or of mixed law and fact as to the proper interpretation and application of that provision. Accordingly, I am satisfied that the failure to provide reasons as required by ss 43(2) and 43(2B) raised a question of law for the purposes of s 44 of the AAT Act, consistently with the approach taken by McHugh JA in Soulemezis in the extract quoted earlier.

While bearing in mind the cautions sounded in Wu and the observations of Brennan J in O'Brien, I have reached the conclusion that there has been an error of law arising from the failure to provide any reasoning with respect to the hypothetical question. Although, in my opinion, the Senior Member was aware of the specific question which needed to be decided and although it can be inferred that he decided the question, no reasons were disclosed for reaching that conclusion.

This is not a case of insufficient reasons or wrong reasons but rather one in which no reasons were developed on the hypothetical question.

It was suggested that from the reasoning in par 48 it can be inferred that the decision-maker overlooked the issue. I am satisfied that having summarised the reasoning of Mr Rudge, the Senior Member was well apprised of the hypothetical. The position, in my view, is that while there was a careful summary of the argument advanced by Mr Rudge and a statement of conclusion, there is nothing to indicate how the conclusion was arrived at, either by a chain of reasoning or logic or by a recounting of a series of factors or considerations which were taken into account and weighed or balanced. There is simply a direct move from argument to conclusion without any reasoned discussion of the section or the evidence or to any specified findings on the question. Nor is there any analysis or balancing of any particular considerations in reaching that conclusion. In the light of the cumulative effect of these omissions, it is my view that there has been a failure to provide reasons as required by ss 43(2) and 43(2B) of the AAT Act and, for reasons given earlier, I consider that this failure discloses an error of law. See also Francis v Department of Immigration and Ethnic Affairs (1996) 42 ALD 555 and Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513; (1991) 25 ALD 27 at 28.

Accordingly, for the reasons given above the appeal should be allowed, the decision set aside as to the finding in relation to s 24(1)(c), and the matter remitted to the AAT for determination in accordance with law.

I certify that this and the preceding fourteen(14) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated: 24 November 1997

Counsel for the Applicant:	Mr P J Hanks
Solicitor for the Applicant:	Australian Government Solicitor
Solicitor for the Respondent:	De Marchi & Associates
Date of Hearing:	14 November 1997
Date of Judgment:	24 November 1997