FEDERAL COURT OF AUSTRALIA

Applicant S214 of 2002 v Attorney-General of Australia [2004] FCA 1635

ADMINISTRATIVE LAW – judicial review – request for funding under s 69 of the Administrative Appeals Tribunal Act 1975 (Cth) – request refused by delegate of Attorney-General – delegate’s decision made pursuant to departmental guidelines – guidelines treated by delegate as mandatory criteria to be substituted for the statutory test – consequent neglect of relevant consideration – error demonstrated – application allowed – decision set aside – matter referred to Attorney-General for further consideration

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5, 5(3), 16(1)(b), 16(1)(d)

Administrative Appeals Tribunal Act 1975 (Cth) s 35, 35(2), 69, 69(1), 69(2)

Convention Relating to the Status of Refugees (1951)

Protocol Relating to the Status of Refugees (1967)

Brehoi v Attorney-General for the Commonwealth [2000] FCA 1747 cited

British Oxygen Co Ltd v Minister of Technology [1971] AC 610 cited

Chumbairux v Minister for Immigration & Ethnic Affairs (1986) 74 ALR 480 applied

Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 applied

Howells v Nagrad Nominees Pty Ltd (1982) 66 FLR 169 considered

Minister for Immigration & Ethnic Affairs v Conyngham (1986) 68 ALR 441 cited

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied

MLC Investments Ltd v Commissioner of Taxation (2003) 205 ALR 207 applied

Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 applied

Surinakova v Minister for Immigration, Local Government & Ethnic Affairs (1991) 33 FCR 87 considered

Drake v Minister for Immigration & Ethnic Affairs  (1979) 46 FLR 409 applied

APPLICANT S214 OF 2002 v ATTORNEY-GENERAL OF AUSTRALIA

NSD 1750 OF 2004

HELY J

13 DECEMBER 2004

SYDNEY

THE COURT ORDERS THAT:

1.         The decisions of the respondent dated 15 September 2004 and 8 November 2004 refusing to grant financial assistance to the applicant pursuant to s 69 of the AAT Act be set aside.

2.         The application for financial assistance be referred to the respondent for further consideration.

3.         The respondent determine that application on or prior to 22 December 2004, or, if prior to that date the applicant submits further material to the respondent in support of the application, within 10 days of the receipt of that further material.

4.         The respondent pay the costs of these proceedings.

5.         Liberty to apply generally, and in particular liberty to the respondent to apply to a duty judge for an extension of the times fixed by Order 3 for cause shown.

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

REASONS FOR JUDGMENT

1                     This is an application pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’) for review of two decisions made by delegates of the respondent.  Those decisions, made on 15 September 2004 (‘the first decision’) and 8 November 2004 (‘the review decision’) were both decisions to refuse to grant legal assistance to the applicant under s 69 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’).  The review decision was an internal administrative review of the first decision and was made by a different delegate.

2                     It is common ground that following its making, the review decision became the only operative or final decision refusing the applicant legal assistance under the AAT Act.  Whilst this may raise an issue as to whether the first decision remains a decision to which the ADJR Act applies, nothing ultimately turns on this point because essentially the same challenge is made to the first decision as is made to the review decision.  Counsel for the respondent accepted that if the review decision is liable to be quashed or set aside, so too is the first decision.

Background

3                     In 1999, the applicant applied to the AAT for a review of a decision by a delegate of the Minister for Immigration & Multicultural Affairs refusing him a protection visa.  The application for a protection visa was rejected because the delegate decided that the applicant is a person who falls within Article 1F of the Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967) which, in very general terms, provides that the provisions of the Convention do not apply to any person with respect to whom there are serious reasons for considering that he has committed a war crime, or a crime against humanity.

4                     The hearing before the AAT took place over the course of six days during which the applicant was legally represented.  The applicant paid for that legal representation.  On 12 October 2001 the AAT affirmed the decision of the Minister’s delegate to refuse the applicant a protection visa. 

5                     The applicant then applied to the High Court of Australia for the issue of constitutional writs on the ground that the AAT had denied him procedural fairness.  The High Court remitted the matter to this Court, and on 30 September 2003 Emmett J found in favour of the Minister.  The applicant appealed from that decision to the Full Court which, in a decision given on 26 March 2004, unanimously found in favour of the applicant.  The AAT’s decision was quashed and a re-hearing has been ordered.  That hearing is currently listed to be heard in the AAT in the week commencing Monday 28 February 2005, with seven days being set aside for the conduct of the hearing.

6                     By letter dated 7 May 2004 the applicant applied to the respondent for legal assistance under s 69 of the AAT Act in respect of the re-hearing before the AAT.  The letter described the background to the application and enclosed a copy of the judgment of the Full Court of 26 March 2004.  The letter gave details of the applicant’s personal circumstances including that he had been detained in immigration detention for nearly five years and that as a result of his detention and the emotional hardship he has endured throughout the proceedings, the applicant now suffers from psychiatric illness.  Financial assistance in the sum of $104,000 was requested, including the sum of $10,000 for the cost of travel of witnesses from Afghanistan and the United States of America.

7                     On 13 June 2004 a formal application for financial assistance was completed and lodged with the respondent.  That application disclosed that the applicant was at risk of deportation to Afghanistan and potential execution because of an allegation that he had been in charge of a secret police organisation whilst he was living in Afghanistan.  The application disclosed a costs estimate of $115,500 including an allowance of $12,000 for four overseas witnesses.  It also asserted that the applicant spent the last of his funds on previous solicitors and counsel, and in consequence was unable to afford representation at the re-hearing before the AAT.

8                     By letter dated 15 September 2004 the respondent’s delegate refused the application for financial assistance.  A document styled ‘Reasons for Decision – Application for Grant of Financial Assistance’ was given to the applicant.  The ‘Reasons for Decision’ took the form of recommendations made to, and accepted by, the delegate.  The parties agreed that the delegate accepted the recommendations for the reasons stated: cf Brehoi v Attorney-General for the Commonwealth [2000] FCA 1747 at [43].  The Reasons for Decision were forwarded to the applicant’s solicitors under cover of a letter dated 15 September 2004, which included the following:

‘After careful consideration of your client’s matter, I have refused the application for financial assistance on the basis that it is not reasonable in all the circumstances to grant assistance as there is no demonstrated public benefit.  A copy of the decision note is attached.’

(emphasis added) 

9                     By letter dated 28 October 2004 the applicant requested a review of the subject decision (in part) on the grounds that the Attorney-General had not properly considered or given sufficient weight as to whether there is a ‘public interest’ or ‘benefit to the public’ in providing funds to enable the matter to be properly and expeditiously heard.  The letter included the following:

‘Specifically we suggest that there is considerable benefit to the public and public interest in ensuring that in circumstances where the Minister adopted an approach to the hearing at first instance which denied the applicant procedural fairness and natural justice, ultimately giving rise to a need for a re-hearing, that in itself ought to be considered sufficient.  The general interest the public has in ensuring that persons are given proper access to the legal system particularly where, as in this instance, the applicant spent considerable sums of money on what the Federal Court considered to be a flawed hearing.’

10                  On 8 November 2004 the respondent’s delegate affirmed the original decision and refused the application for financial assistance.  The covering letter forwarding a copy of the Decision Note included the following:

‘After careful consideration of your client’s matter, I have affirmed the decision of the delegate, Ms Amanda Bush, to refuse a grant of financial assistance on the basis that there is no demonstrated public benefit.’

(emphasis added)

That letter was signed by the delegate who refused the application.  Again, it was common ground that the delegate accepted the recommendations recorded in the Decision Note for the reasons stated therein.

Applicable legislation

11                  Section 69 of the AAT Act provides:

‘1         A person who:

            (a)        has made, …, an application to the Tribunal for a review of a decision;

            (b)        …

            (c)        …

            may apply to the Attorney-General for the provision of assistance under this section in respect of the proceeding.

2          Where an application is made by a person under subsection (1), the Attorney-General may, if he or she is satisfied that it would involve hardship to that person to refuse the application and that, in all the circumstances, it is reasonable that the application should be granted, authorise the provision by the Commonwealth to that person, either unconditionally or subject to such conditions as the Attorney-General determines, of such legal or financial assistance in relation to the proceedings as the Attorney-General determines.’

12                  A number of Commonwealth Acts contain provisions in terms similar to s 69 of the AAT Act.  Guidelines (Guidelines for the Provision of Legal or Financial Assistance by the Commonwealth other than under the Industrial Relations Act) (‘the Guidelines’) have been published in relation to the exercise of the discretion given to the Attorney-General under those Acts.  The Guidelines include the following:

‘4         It is a condition precedent to the exercise of the discretion that the Attorney-General is satisfied in regard to hardship and reasonableness.  If he is so satisfied the exercise of the discretion is unfettered and accordingly each case must be in the end determined on its own merits and all relevant circumstances must be taken into account.

5          “Hardship” is interpreted to mean financial hardship and consideration is given to all relevant matters such as income, expenditure, assets and liabilities of the applicant and the estimated costs of the proceedings.

…

8          In determining whether it is reasonable to provide assistance regard is had, amongst other things, to:

(a)       the prospects of success;

(b)       the nature and extent of the benefit or detriment that may accrue to the applicant;

(c)        the availability of legal aid generally;

(d)       the benefit to the public or any section of the public.

…

10        The Attorney-General has regard to the legislative purpose of the provisions under which assistance is sought.  Each statutory provision is based upon an element of public interest but its degree may vary from case to case.

11        If there is little or no public interest, aid will normally be granted only in circumstances similar to those which govern the grant of legal aid generally.

…

15        In deportation cases under section 69 of the Administrative Appeals Tribunal Act 1975, the Attorney-General gives lesser weight to the prospects of success, as the liberty of the subject is involved.

…

17        Conditions are imposed to ensure that the costs incurred are reasonable and proper costs.  The assistance granted will be a specified percentage of those costs.  Alternatively, lump sum fees may be set.  The engagement of counsel is not approved as of course.’

13                  The applicant did not contend that the Guidelines themselves were invalid as impermissibly acting as a fetter on the statutory discretion.  Subject to one qualification referred to later in these reasons, any such contention would have failed, because the Guidelines do not, in their terms, inflexibly truncate the discretion given to the respondent or provide that it can only be exercised in a limited range of circumstances.  Rather, they provide that, once the respondent is satisfied as to hardship and reasonableness, the discretion is unfettered and ‘each case must in the end be determined on its own merits’ (par 4), specify what matters a decision-maker would have regard to ‘amongst other things’ (par 8), say in relation to one of those matters – ‘public interest’ – that the ‘degree of public interest may vary from case to case’ (par 10) and provide ‘guidance’ as to whether a discretion will ‘normally’ be exercised (par 11).  Nothing in the Guidelines prevents a decision-maker from having regard to the individual merits of each case, including considerations that may fall outside those referred to in the Guidelines.

14                  Rather, the applicant’s case was put upon the basis that the delegates treated the Guidelines as creating mandatory conditions or criteria which each must be satisfied before assistance will be granted.  Whilst par 8 of the Guidelines is itself unexceptional, the error in the present case is submitted to arise from the checklist approach which was adopted by the decision-maker.

Applicable legal principles

15                  There was no dispute between the parties as to the relevant legal principles; the issue is as to their application in the circumstances of the present case.  Section 69(2) of the AAT Act confers a broad discretion on the respondent to grant legal or financial assistance to a person who satisfies the criteria in subs 69(1).  Subject to considerations of hardship and reasonableness, that discretion is unconfined, except insofar as some implied limitation on the factors to which the respondent may legitimately have regard may be found in the subject matter, scope and purpose of the AAT Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.  In these circumstances it is for the respondent, in the light of the matters placed before him, to determine which matters he regards as relevant and the comparative importance to be accorded to them: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375.  There has never been any dispute that the applicant satisfied subs 69(1).  The only matters that are mandatory for the respondent to consider are whether a refusal to provide assistance would involve hardship and whether it is reasonable that the application be granted.

16                  A decision-maker such as the respondent is entitled to adopt a policy to provide guidance as to the exercise of a discretion, such as the discretion to grant legal or financial assistance under s 69 of the AAT Act, provided the policy is consistent with the statutory provision, does not truncate or confine the discretion by inflexible policy which prevents the decision-maker from considering the merits of individual cases, or prevents an applicant from putting forward reasons why the policy should be changed or not applied in the circumstances of a particular case: Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 at 420; Chumbairux v Minister for Immigration & Ethnic Affairs (1986) 74 ALR 480 at 492-493; Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at 506-507.

17                  Subject to those qualifications, it is open to a decision-maker to take guidelines into account when exercising a discretion, and no challenge can be made to a decision merely because it is made in accordance with a policy.  In Surinakova v Minister for Immigration, Local Government & Ethnic Affairs (1991) 33 FCR 87, Hill J said (at 98):

‘There can be no challenge to a decision merely because a decision was made in accordance with a policy.  To ensure consistency in administrative decision making, it will often be appropriate for a policy to be issued containing guidelines. …  However, a decision-maker must take care to ensure that he does not slavishly follow a policy and disregard the particular circumstances of a case.  As Gummow J said in Khan’s case [(1987) 14 ALD 291]:

            “… what was required of the decision-maker, in respect of each of the applications, was that in considering all relevant material placed before him, he gave proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy …”.’

18                  Guidelines cannot be treated as mandatory criteria to be substituted for the statutory test: Drake (supra) at 420, nor can they be applied in such a way that the merits of the individual case are ignored: MLC Investments Ltd v Commissioner of Taxation (2003) 205 ALR 207 at [48] – [51].  A decision-maker cannot ‘shut his ears to an application’: British Oxygen Co Ltd v Minister of Technology [1971] AC 610 at 625 or disregard otherwise relevant information or arguments put to him by an applicant by reason of the existence of guidelines: MLC Investments Ltd (supra) at [48].  In Howells v Nagrad Nominees Pty Ltd (1982) 66 FLR 169 at 195 Fox and Franke JJ said:

‘Where the power given relates to the consideration of individual cases, it is not to be denied that the predominant aspect must be the consideration of the particular case.  The merits of that case must be considered genuinely and realistically; there must always be a readiness to depart from policy.  The policy does a disservice to those who have to measure it against the individual situation if it expressed in dogmatic or mandatory terms.’

See also Chumbairux (supra) at 493.

The review decision

19                  The review decision records that the application was originally refused by Ms Amanda Bush ‘on the basis that there was no demonstrated public benefit’ (par 7).  The Decision Note describes the background leading up to the application, noting that the applicant paid for legal representation for the original hearing before the AAT, and that a costs order was made by the Full Federal Court in favour of the applicant covering the cost of both appeals.  The Decision Note goes on to state that ‘the applicant has been detained at Villawood Immigration Detention Centre for 5 years and unable to earn money to pay for legal representation for the rehearing’.

20                  The Decision Note then addressed the issue of hardship, noting that, under the Guidelines, ‘hardship’ is interpreted to mean financial hardship, and that the broad test of hardship is whether the applicant has the means to meet the costs of the proceedings without incurring serious financial difficulty.  The decision-maker then addressed the applicant’s cost estimate of $115,000, which it reduced to $40,272.36 upon the basis that the delegate was not of the view that counsel was necessary in the matter because it was not particularly complex.  Solicitors’ costs were reduced to the cost of one solicitor at the standard rates payable under a grant of financial assistance, should a grant be approved for the matter.  The delegate went on to state that he was satisfied that the applicant does not have the means to meet the estimated costs of the matter without incurring serious financial difficulty.

21                  The delegate then addressed the issue of reasonableness considering, in turn, each of the matters referred to in par 8 of the Guidelines.

22                  The delegate appears to have accepted the advice of the applicant’s solicitors that his prospects of success in relation to the matter are strong.  The delegate also accepted that the applicant will suffer significant detriment if his interests are not represented in relation to the matter, in view of his claim that if he is unsuccessful in securing a protection visa in Australia, he will be deported to Afghanistan and face potential execution because of allegations against him that he had been in charge of a secret police organisation.  The delegate then endorsed the potential benefits found by the original decision-maker, where she had stated that if the applicant’s protection visa application was successful, he could leave the detention centre and resume occupation with his family who were all granted protection visas and have since become Australian citizens.  The delegate was also satisfied that legal aid was not available to the applicant.

23                  The delegate then turned to the issue of benefit to the public, noting that generally consideration is given as to whether the proceedings raise an important question arising under a law of the Commonwealth, the determination of which is in the interests of the general public or a significant section of the public.  The delegate noted the submission by the applicant’s solicitors that when an applicant has been denied procedural fairness and natural justice due to the approach taken by the Minister to the hearing, and this gives rise to the need for a re-hearing, the matter is of benefit to the public because it is ensuring people are given proper access to the legal system, and, in any event, questions as to the proper construction of s 35(2) of the AAT Act are involved, the resolution of which is in the public interest.

24                  Paragraph 29 of the Decision Note is as follows:

‘In order for a matter to be of benefit to the public for the purpose of applications to this Department, it is not sufficient that a re-hearing of this matter will ensure the applicant is provided with procedural fairness and natural justice.  Procedural fairness is an important principle in all matters before the Court and Tribunal.  However, a re-hearing to have the principle of procedural fairness applied correctly to an individual party does not further clarify any uncertainty in relation to the issue of procedural fairness, nor does it have a wider impact.  The correct application of the principle of procedural fairness in this matter will have no consequences that extend beyond the individual matter nor would it ensure that “persons are given proper access to the legal system”, as was submitted by the applicant’s solicitors.’

The delegate also rejected the submission that the matter would resolve important questions of law as to the proper construction of s35(2) of the AAT Act, as these matters had already been fully addressed by the Full Court’s decision.

25                  Paragraphs 31 and 32 of the Decision Note are as follows:

‘31       As discussed in paragraph 29, this matter will not benefit the public, within the Department’s understanding of this phrase.  This re-hearing will not further clarify “the extent and boundaries within which the principles of natural justice apply”.

32        Having regard to all the available information, I consider that there is unlikely to be significant benefit to the public or a significant section of the public arising out of the proceedings.’

26                  The Decision Note records the delegate’s conclusion as follows:

‘33       In all the circumstances, and having particular regard to my conclusions above in relation to the reasonableness criteria and, in particular, the benefit to the public, I am not satisfied that it would be reasonable to approve a grant of financial assistance for this matter.’

The competing contentions

27                  Section 69(2) of the AAT Act requires that the Attorney-General consider granting an application for the provision of legal or financial assistance if satisfied that it would involve hardship to the applicant to refuse the application and that, in all the circumstances, it is reasonable that the application should be granted.  In the present case, the application was confined to the provision of financial assistance for the purpose of bringing witnesses from overseas and for the purpose of paying the fees of lawyers to be engaged by the applicant to appear in the AAT proceedings on his behalf.

28                  Considerations of both hardship and reasonableness are thus matters which the legislation requires the respondent to take into account.  Under the Guidelines, ‘hardship’ is interpreted to mean financial hardship, and the delegate confined his consideration of ‘hardship’ in that way.  I accept the applicant’s submission that financial hardship is but one instance of hardship, and that there is no warrant for confining the generality of the statutory expression in that way.  A refusal of aid may further increase or exacerbate existing financial hardship, or it may cause hardship in other ways.  For example, refusal of assistance may leave the applicant without legal representation in the AAT proceedings, unable properly to present his case, which may in turn result in an adverse finding causing further hardship extending to deportation and possible death.

29                  The delegate was induced by the Guidelines to adopt an unduly narrow approach to his consideration of the ‘hardship’ which may accrue to the applicant from a refusal of his application for assistance.  This is the ‘qualification’ to which I referred in par 13 above.  However, in the respondent’s submission, nothing flows from this error because the delegate in substance addressed hardship in the broader sense, not constrained by the suggestion that hardship is limited to financial hardship, in his consideration of the reasonableness condition.  I will return to this issue later in these reasons.

30                  Although the Guidelines assert in par 4 that the discretion to be exercised is unfettered, and must be exercised on the merits, taking into account all relevant circumstances, the applicant submits that the Guidelines were not applied by the delegate in that fashion.  Rather, the applicant submits that the delegate treated par 8 of the Guidelines as comprising a ‘check list’, or a list of conditions precedent to the granting of assistance, each of which had to be satisfied if a grant of assistance is to be made.

31                  In the applicant’s submission, the assessment of reasonableness involves identifying all of the relevant characteristics and taking into account the respective weight of the factors.  Sometimes a case may display certain factors and they may have great weight.  However, in other cases those factors may be completely absent.  But the mere absence of a factor that might be relevant ought not to result automatically in a refusal of the application.  In such a case it would be irrational or perverse to conclude that the condition of reasonableness is not made out merely because one possibly relevant factor, in this case benefit to the public or a section of the public, is absent.

32                  The applicant also submits that the delegate, in his adherence to the Guidelines, did not appropriately consider or give any weight to aspects of the case which did not fall directly within par 8 of the Guidelines.  Thus, in the present case, an important factor which was not taken into account by the delegate in his reasoning process was that the applicant initially had some money and paid for private representation at the first hearing before the AAT.  Through no fault of the applicant or its lawyers that hearing miscarried, and he lost the benefit of that privately funded representation.

33                  Finally, the applicant submits that the Guidelines ‘take little account’ of the nature and complexity of the hearing, and the extent to which legal representation is necessary to ensure a fair hearing.

34                  The respondent accepts, correctly, that if the delegate treated the Guidelines as creating mandatory conditions or criteria and thereby decided the matter in accordance with the Guidelines without regard to the merits of the particular case, then there is a reviewable error.  Similarly, if the delegate’s decision was so much shaped by the Guidelines that relevant matters falling outside the Guidelines were not taken into account, then again there is a reviewable error.  The respondent denies, however, that the delegate’s decision exhibited either of these features, or that the Guidelines were treated as mandatory criteria to be substituted for the statutory test.

Decision

35                  Notwithstanding the terms of the Guidelines, I accept the applicant’s submission that the delegate treated cl 8 of the Guidelines as establishing a check list of conditions, each of which had to be satisfied before the application for assistance would be granted.  I come to that conclusion based on a reading of the decision record as a whole, and because of the absence in that record of any consideration of the relative potency or significance of the three conditions which were satisfied, and of the one that was not.  There is no sign that the issue of whether it was reasonable that assistance be given was subject to any weighing process or evaluation.  Further, the terms of the covering letter (see par 10 above) are to the effect that the grant of financial assistance was refused on the basis that there was no demonstrated public benefit, that also being the stated basis on which the application was refused in the first decision.  Whilst these are merely covering letters sent by the delegates, in each of the letters the delegates express their respective conclusions in terms of the criteria in the Guidelines, rather than in the terms of the statute, although the conclusions in the decision records employ the language of the statute.

36                  In my view, the delegate treated the Guidelines as mandatory criteria to be substituted for the statutory test.

37                  The delegate does refer under the heading ‘Background’ to the fact that the first AAT hearing miscarried because the applicant was denied procedural fairness (the hearing having consumed all of his funds), but the delegate does not thereafter refer to this matter either in the delegate’s consideration of ‘hardship’ or in his consideration of ‘reasonableness’.  This suggests that the delegate regarded this matter merely as a piece of background, rather than as a factor which bore upon the outcome of the application.

38                  The delegate was in error in regarding the matter in this way.  It was a factor put forward by the applicant as favouring a grant of assistance.  In my view, this error arose either by reason of the overly narrow construction which the delegate adopted to the notion of ‘hardship’, or because it did not fall within any of the matters listed in cl 8 of the Guidelines.  It is true that the delegate did refer to the fact that the applicant was at risk of deportation to Afghanistan and potential execution if he is unsuccessful in securing a protection visa.  But this was a very incomplete statement of the matters which the applicant had put forward in support of his claim.

39                  Finally, I would add generally that decision-makers who approach the resolution of a claim for financial assistance utilising the Guidelines must be astute to balance the factors which point in favour of the grant of the application against those which point in a different direction.  Otherwise the evident legislative intention of assisting a person who cannot afford to engage legal representation if in all the circumstances it is reasonable to render assistance will be frustrated.

40                  For these reasons, the review decision should be set aside.  In order to avoid any possible contention (which has not been put) that the effect of this order is to revive the first decision, I will also order that the first decision be set aside.

Relief

41                  The application seeks an order declaring that the applicant is entitled to financial assistance for legal costs in the sum of $115,000 pursuant to s 69 of the Act, and an order directing the respondent to pay that sum to the applicant.  Reliance is placed on s 16(1)(d) of the ADJR Act, and upon the decision of the Full Court in Minister for Immigration & Ethnic Affairs v Conyngham (1986) 68 ALR 441 at 448.

42                  The applicant submits that there is no evidence or other material to justify the decision made in relation to the reduction of the costs estimate advanced by the applicant’s solicitors.  However, this submission fails to take account, or sufficient account, of subs 5(3) of the ADJR Act.

43                  Where a decision is quashed on administrative law grounds, more often than not the accompanying order will be an order pursuant to subs 16(1)(b) remitting the matter for further decision.  The applicant urges me not to adopt that course because of the exigencies of time, and considerations of speed and efficiency.  At the very least, the applicant submits that I should make a direction under s 16(1)(d) of the ADJR Act directing the respondent to provide financial assistance in a sum to be determined.

44                  Whilst I recognise the practical problem with which the applicant is confronted having regard to the anticipated hearing date of the AAT proceedings, I am unable to accede to the application that I should go beyond quashing the decisions and remitting the matter to the respondent for redetermination.  That is essentially for two reasons.  First, the merits of the application for financial assistance are outside my province.  The applicant did not challenge the propriety of the delegate taking into account the limited funds which are said to be available to meet requests for assistance under s 69 of the AAT Act and the number of requests for assistance which are made under that Act.  I have no knowledge of either of those matters, and if it is accepted that they are not irrelevant considerations, I cannot conclude that the only decision properly open to a decision-maker is to grant the present application for assistance.  Second, whilst based on such knowledge as I acquired of the likely course of the AAT proceedings during the hearing of the present application, a conclusion that the matter is not sufficiently complex to warrant the retention of counsel strikes me as surprising, it is for the applicant to place before the respondent such materials on which it wishes to rely in support of the assistance extending to the provision of fees for one or more barristers.  On the materials before me, I cannot conclude that a decision not to provide assistance at this level would necessarily involve reviewable error.

Orders

45                  I make the following orders:

            1.         That the decisions of the respondent dated 15 September 2004 and 8 November 2004 refusing to grant financial assistance to the applicant pursuant to s 69 of the AAT Act be set aside.

            2.         That the application for financial assistance be referred to the respondent for further consideration.

            3.         That the respondent determine that application on or prior to 22 December 2004, or, if prior to that date the applicant submits further material to the respondent in support of the application, within 10 days of the receipt of that further material.

            4.         The respondent pay the costs of these proceedings.

            5.         Liberty to apply generally, and in particular liberty to the respondent to apply to a duty judge for an extension of the times fixed by Order 3 for cause shown.

Associate:

Dated:              13 December 2004