FEDERAL COURT OF AUSTRALIA

Mulligan v National Disability Insurance Agency [2015] FCA 544

THE COURT ORDERS THAT:

1.    The decision of the Administrative Appeals Tribunal dated 13 June 2014 be set aside.

2.    The matter be remitted to the Tribunal for determination according to law.

3.    The respondent pay the applicant’s costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION AND SUMMARY

1    Mr Mulligan appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) in respect of a decision made by the Administrative Appeals Tribunal on 13 June 2014. In that decision, the Tribunal affirmed the decision of the National Disability Insurance Agency (the NDIA) that Mr Mulligan did not meet the disability requirements in s 24(1) of the National Disability Insurance Scheme Act 2013 (Cth) (the Act).

2    Mr Mulligan appeals on two questions of law. There was no challenge by the respondent to this Court’s jurisdiction under s 44 of the AAT Act, and I am satisfied that there are two questions of law raised in this appeal.

3    For the reasons I set out below the Tribunal’s decision should be set aside, and the matter remitted for determination according to law.

FACTUAL BACKGROUND

4    There was no debate between the parties about the factual background in this Court, nor about the approach taken by the Tribunal to its fact finding.

5    Mr Mulligan is 62 years old and suffers from a number of medical conditions which have meant that although he has worked in a variety of jobs, since 1994 he has received a disability support pension. As the Tribunal found, Mr Mulligan has continued to work since that time as he has felt able to do so. At the time of the Tribunal’s decision Mr Mulligan held a part-time position with the Samaritans, supporting people with autism and schizophrenia to live independently. This involved him visiting them, driving them to and from appointments or shopping, and accompanying them on social outings. He took extended leave from that position in March 2014, because of his sciatic pain.

6    There was no dispute before the Tribunal that Mr Mulligan suffers from conditions which include chronic ischaemic heart disease, cardiomyopathy, Conn’s syndrome and sciatica.

7    The Tribunal’s reasons describe Mr Mulligan as having given evidence before it “frankly”. The Tribunal said (at [4] of its reasons) Mr Mulligan was someone who “impressed us as a person determined not to let his conditions get the better of him”. It accepted his evidence describing the ways in which his medical conditions affected his daily life, and summarised his evidence in its reasons (at [30]-[33]):

Mr Mulligan says he could manage his work with the Samaritans despite his heart condition because he could go at his own pace, but his back pain made it too difficult for him to continue. However, the shortness of breath he experiences when he exerts himself, combined with his back pain, make it very difficult to perform many everyday activities. He also has panic attacks every couple of months when his heart starts beating arhythmically, sometimes for no apparent reason. When this happens he becomes extremely fearful that he will have a heart attack. He uses self-talk and physical strategies to calm down but he has been taken by ambulance to hospital on 15 to 20 occasions over the years.

After walking about 100 metres on level ground, Mr Mulligan becomes breathless and has to rest. After about 50 metres on an incline, he becomes breathless and the pain in his legs becomes severe. He uses a walking stick outdoors and hand rails on his back steps. Mr Mulligan told us the pain affects almost everything he does but he agreed that, other than mowing his lawn, he can manage most activities, although he has to push himself through the pain.

Mr Mulligan told us he can dress himself from the waist up but it can take 15 to 20 minutes to get fully dressed on his own and his wife generally helps him. He has developed ways of putting on underwear and trousers without help, and wears what he calls “convenience” clothing such as track pants, and shoes with Velcro fastenings instead of laces. He bathes himself with difficulty and manages to dry his feet by putting them one after the other on the bath and pulling the towel against them. He has a grab rail in the shower. Using the toilet is very difficult but he does not wish to call on his wife for help.

Mr Mulligan’s social life has become restricted because he is often fearful of having a panic attack while out. He has given up riding his motorcycle for this reason, and he and his wife no longer see friends as often as they used to. Not surprisingly, he finds these restrictions depressing.

8    Although the Tribunal expressed some difficulty with her conclusions, the Tribunal also appeared to accept as reliable the descriptions given by the occupational therapist who assessed Mr Mulligan’s impairments at the request of the NDIA. The Tribunal’s reasons summarised her descriptions of Mr Mulligan’s level of activity and capacity, having visited him in his home, in the following terms (at [36]-[40]):

Ms Hedditch reported that Mr Mulligan’s severe shortness of breath is “significantly limiting”, and he has debilitating pain in his legs that he can only relieve temporarily with painkillers, stretching, hot baths, and sitting. He also has numbness and a burning sensation in both feet due to nerve damage, and panic attacks.

Ms Hedditch reported that Mr Mulligan mobilises independently but with a discernible limp; he uses a walking stick outdoors and when his pain is particularly bad. He is able independently to complete transfers to the toilet and bed, but with difficulty because of the pain and the energy he expends. She observed him become short of breath and flushed after walking up his nine metre-long ascending driveway and after walking 100 metres in level ground; he has to rest after negotiating two flights of stairs, and carries heavy items with difficulty. He is unable to bend down to the floor because of his lower back pain and feels pain after sitting for 30 minutes or driving for more than one hour.

Ms Hedditch reported that Mr Mulligan can feed himself and manage his medication independently. He bathes and dresses independently but with some difficulty because of his restricted movement. He can complete toileting independently but leans against the top of the toilet and the wall to overcome his restricted movement. The pain leads to significant sleep disturbances which make him fatigued and affect his energy levels.

Mr Mulligan’s wife does most of the cleaning and laundry. He can do light household duties and, with rests, some vacuuming. He occasionally helps hang out the washing but has to take frequent rest breaks. He and his wife share meal preparation and he will sit if he is experiencing pain. They complete larger shops together but he cannot carry heavy items and he uses the shopping trolley to manage his pain and conserve his energy.

Mr Mulligan told Ms Hedditch he feels breathless and fatigued, and his heart rate increases, after mowing three lengths of the backyard. On one of the last occasions he mowed his lawn, he continued despite his symptoms and was unable to settle his breathing and heart rate for eight hours. His symptoms were compounded by a panic attack.

9    Mr Mulligan applied to participate in the National Disability Insurance Scheme (the NDIS) on 29 August 2013. Although as I set out below the nature of the assistance which should be provided is a matter considered later in the staged decision-making process established by the legislative scheme, the submissions on this appeal described the assistance Mr Mulligan sought under the NDIS as assistance with home maintenance duties, and in particular lawn maintenance.

10    Mr Mulligan’s access request was rejected on 11 October 2013 and he sought internal review on 13 November 2013. The internal reviewer affirmed the decision on 3 January 2014. Mr Mulligan applied for review by the Tribunal on 15 January 2014.

RELEVANT LEGISLATIVE PROVISIONS

11    The Act commenced progressively during 2013, with most of its operative parts commencing on 1 July 2013. It was the result of a lengthy process of review, reports and consideration by the government about what reforms should be made to the manner and level of assistance provided to members of the Australian community who live with disabilities, and those who care for them.

12    The revised Explanatory Memorandum (at p 1) described the process which led to the Act in the following way:

In August 2011, the Prime Minister released the Productivity Commission Inquiry Report, Disability Care and Support, which identified that disability care and support in Australia was ‘underfunded, unfair, fragmented and inefficient’, and that major reform was needed.

Since the release of this report, the Commonwealth and all state and territory governments have agreed on the need for major reform in the form of a National Disability Insurance Scheme, which:

•    will take an insurance approach that shares the costs of disability services and supports across the community;

•    will fund reasonable and necessary services and supports directly related to an eligible person’s individual ongoing disability support needs; and

•    will enable people with disability to exercise more choice and control in their lives, through a person-centred, self-directed approach, with individualised funding.

The Bill establishes a scheme that gives effect to these critical principles, and gives effect in part to Australia’s obligations under the United Nations Convention on the Rights of Persons with Disabilities.

13    The Act states as its first object, in s 3(1)(a), the giving of effect to the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006. In s 3(1)(i), the Act also states as an object, in conjunction with other laws, the giving of effect to certain obligations which Australia has assumed through the ratification of a series of other treaties. These obligations, it may be inferred, were seen by the Parliament as touching on or connected with the Act’s objects in relation to people with disabilities. The treaties listed in para (i) are:

(i)    the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23); and

(ii)    the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5); and

(iii)    the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4); and

(iv)    the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9); and

(v)    the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40).

14    The remainder of the objectives in s 3(1) have common themes: enhancing supports for people with a disability in a way which promotes their autonomy over their lives and full inclusion in the Australian community; and doing so in a nationally coordinated way.

15    Although it uses the word frequently, the Act does not define “disability”. There is a definition in Art 1 of the Convention on the Rights of Persons with Disabilities:

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

16    The Act also uses the word “impairment”, especially in Ch 3. That is also not a defined term, although “participant’s impairment” is: see s 9. The link between “disability” and “impairment” is not explained in the Act. The use of both the term “disability” and the term “impairment” in their context indicates that one matter the Act is not concerned with, at least in terms of access to the NDIS as a participant, is how a person came to have a disability. Whether it be through birth, disease, injury or accident, all persons with disabilities who meet the access criteria can be participants, and all persons with disabilities may be otherwise assisted in the way contemplated by Ch 2 of the Act. Arrangements concerning the nature and extent of support where a person may be in receipt of funding from other sources (depending, for example, on how the person came to have a disability) are dealt with in Ch 5.

17    The separate function conferred on the NDIA by s 13 of the Act indicates the Act intends a wide concept of “disability”. Section 13 provides:

Agency may provide coordination, strategic and referral services etc. to people with disability

(1)    The Agency may provide general supports to, or in relation to, people with disability who are not participants.

Note:    Chapter 3 deals with the provision of general supports to, or in relation to, participants.

(2)        In this Act:

general support means:

(a)    a service provided by the Agency to a person; or

(b)    an activity engaged in by the Agency in relation to a person;

that is in the nature of a coordination, strategic or referral service or activity, including a locally provided coordination, strategic or referral service or activity.

18    This more specific function is consistent with the more general functions in s 118(1)(c) to (f) to which I refer below, and indicates that the undefined statutory phrase “people with a disability” is not to be construed as limited to people who meet the access criteria in Ch 3 of the Act. The access criteria have a number of components and thresholds and, as I discuss below, are used to determine who is eligible to be a “participant” in the NDIS. The presence of the function in s 13 is, as the applicant submits, a contextual indicator that the Act uses the word “disability” in a wider sense.

19    Section 4 of the Act sets out 16 “general principles”. The first role of these general principles in the legislative scheme is set out in s 4(17), which provides:

It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:

(a)    the progressive implementation of the National Disability Insurance Scheme; and

(b)    the need to ensure the financial sustainability of the National Disability Insurance Scheme.

20    Thus, the role of the 16 general principles is qualified by decision-makers being required to take into account the two more pragmatic considerations in s 4(17)(a) and (b).

21    Section 5 then provides for a second role for the s 4 general principles, together with a further set of six principles, all of which deal with the importance of autonomy, social inclusion and equality of opportunity for people with a disability, as well as principles protective of the best interests of children with a disability.

22    The NDIA – formally referred to under the Act by the somewhat lengthy title of the “National Disability Insurance Scheme Launch Transition Agency” – is given the function under the Act of “delivering” the NDIS (see s 118(1)(a) and Ch 6 of the Act generally). It also has more general functions under s 118(1) such as:

…

(c)    to develop and enhance the disability sector, including by facilitating innovation, research and contemporary best practice in the sector;

(d)    to build community awareness of disabilities and the social contributors to disabilities;

(e)    to collect, analyse and exchange data about disabilities and the supports (including early intervention supports) for people with disability;

(f)    to undertake research relating to disabilities, the supports (including early intervention supports) for people with disability and the social contributors to disabilities;

(g)    any other functions conferred on the Agency by or under this Act, the regulations or an instrument made under this Act;

(h)    to do anything incidental or conducive to the performance of the above functions.

23    A key concept to the operation of relevant provisions of the Act in the current proceeding is the concept of a “participant”, which is defined in s 9 (read with ss 28, 29 and 30) to mean a person who is a participant in the NDIS launch. By s 28, a person becomes a participant on the day the CEO of the NDIA decides that the person meets the access criteria in ss 22 to 25.

24    By s 9, a “participant’s impairment” is an impairment in relation to which the participant meets the disability requirements, or the early intervention requirements, to any extent. The phrase “meets the disability requirements” is, by s 9, given the meaning set out in s 24.

25    Chapter 3 is, as the applicant submitted, the key chapter for the purpose of this appeal. By s 18, a person can make an access request to become a participant in the NDIS, the form of an access request being set out in s 19. By ss 20 and 21, a person can be a participant if the person meets the “access criteria”. There are a number of components to the access criteria: the age requirements (s 22), the residence requirements (s 23) and either the disability requirements (s 24) or the early intervention requirements (s 25).

26    Section 24 provides:

Disability requirements

(1)        A person meets the disability requirements if:

(a)    the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and

(b)    the impairment or impairments are, or are likely to be, permanent; and

(c)    the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

(i)    communication;

(ii)    social interaction;

(iii)    learning;

(iv)    mobility;

(v)    self-care;

(vi)    self-management; and

(d)    the impairment or impairments affect the person’s capacity for social     or economic participation; and

(e)    the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.

(2)        For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

27    The determination of whether a person has a “substantially reduced functional capacity” in s 24(1)(c) is central to the applicant’s questions of law on this appeal.

28    Circumstances or criteria may be prescribed to govern the assessment of the matters set out in the disability requirements (see s 27). By s 27(b), this can include prescription of the circumstances in which:

one or more impairments result in substantially reduced functional capacity of a person to undertake, or psychosocial functioning of a person in undertaking, one or more activities for the purposes of paragraph 24(1)(c).

29    Rules to govern decision-making about access to the scheme, and other matters, can be made by legislative instrument: see s 209.

30    Relevantly, the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth) (the Rules) have been promulgated under s 209 of the Act. Part 5 of those Rules is of most relevance.

31    The power conferred by s 27(b) of the Act has been exercised, and there exists in the Rules a prescription of the kind contemplated by that provision. Rule 5.8 of the Rules provides:

An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:

(a)    the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

(b)    the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

(c)    the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

32    Once a person is determined to be a participant within the meaning of the Act, a plan must be prepared for that person (see Pt 2 of Ch 3 of the Act). It is at this stage that a decision must be made, pursuant to ss 32 to 33, about what “supports” the person needs and, in particular, what “reasonable and necessary supports” (see s 34) will be funded under the NDIS. Once a plan is in effect for a person (see s 37), the NDIA must comply with the statement of supports in the plan: see s 39. Various processes are then set out to determine whether a person can manage her or his plan herself or himself, or whether an independent provider, the NDIA or a nominee will do so: see s 42(2).

33    Decisions about whether a person satisfies the criteria to be assessed as a participant can be internally reviewed (s 99) and then reviewed externally by the Tribunal (s 103).

34    It is clear from the legislative scheme that the decision whether a person is or is not a participant is the threshold decision under the scheme, and the decision which enables access to the majority of benefits and funding available under the NDIS. However, what benefits and supports are provided, and how they are funded is subject to a separate decision-making process.

THE TRIBUNAL’S REVIEW

35    The Tribunal accepted, and there was no debate between the parties, that Mr Mulligan met the age and residence requirements in ss 22 and 23 to be a participant in the NDIS.

36    The Tribunal gave consideration to each of the five factors set out in s 24(1), although it did not make concluded findings on all of them, given its view about Mr Mulligan not meeting the requirements in s 24(1)(c). It is the Tribunal’s reasoning process about that factor which gives rise to the two questions of law on the appeal.

37    The Tribunal’s reasoning as to why Mr Mulligan did not meet the criteria in s 24(1)(c) is expressed at [45] and [46] of its reasons:

The National Disability Insurance Scheme (Becoming a Participant) Rules 2013 explain at paragraph 5.8 that a person has a substantially reduced functional capacity to undertake the relevant activities if:

(a)    the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

(b)    the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

(c)    the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

There is no question that Mr Mulligan performs most activities with difficulty, often with a great deal of pain, and more slowly than he would without his impairments. His capacity for functioning in the areas of mobility, self-care and social interaction is undoubtedly reduced, but considering everything we have heard, we are not satisfied that his capacity in those areas is substantially reduced. In the areas of mobility and self-care, he participates effectively, if not efficiently, and he can complete tasks within a reasonable time, for the most part without aids of any sort. The aids that he does use, being handrails on his back steps, a grab rail in the shower, and an Easi-reacher, are commonly used by many people.

38    There follows a paragraph (at [47]) where the Tribunal deals with Mr Mulligan’s ability to mow his own lawns, and whether this is within the concept of “self-management” in s 24(1)(c)(vi).

39    I note there were a number of points in its reasoning where the Tribunal concentrated on Mr Mulligan’s references in his access application to needing someone to help him mow the lawns: see for example at [3] (where the Tribunal expresses the reason for his application as being that he “seeks funding … for someone to mow his lawn”); at [40] (describing the evidence of the occupational therapist about the difficulties Mr Mulligan had experienced in mowing his lawns); and at [55] (the length of support Mr Mulligan might need – where the Tribunal seems to focus on whether Mr Mulligan’s son could perform the lawn mowing).

40    To be fair, the lawn mowing appears to have been a focus of those advising Mr Mulligan as well. I do not see how one support need identified by an applicant should be so relevant to the question whether she or he is eligible to be a participant in the scheme. Notoriously, the needs (whether day-to-day, or on a longer term basis) of a person with a disability may be subject to change. The determination of what kind of assistance a person should receive under the NDIS is the subject of an entirely separate aspect of the legislative scheme, and one which is relevant only after a person has been found to be a participant. In my opinion, that part of the Tribunal’s reasoning (and for that matter, of the submissions made on behalf of Mr Mulligan to the Tribunal) which focused on his request for assistance with lawn mowing was a distraction from the task under Ch 3 of the Act.

41    Paragraphs [45] to [47] constitute the whole of the Tribunal’s written reasons as to why it did not accept Mr Mulligan had a substantially reduced functional capacity for any of the six activities set out in s 24(1)(c). In turn this was the sole substantive basis for affirming the decision under review since the Tribunal elected not to determine finally whether Mr Mulligan met all of the remaining criteria.

THE APPEAL TO THIS COURT

42    The applicant sought and was granted leave to rely on an amended notice of appeal under s 44 of the AAT Act. The respondent did not oppose leave being granted, and both parties addressed the new Question 2 in their oral submissions.

43    The two questions of law identified by the applicant were expressed as follows:

1    Did the Tribunal err in law in deciding that the appellant did not satisfy the statutory requirement under s 24(1)(c) of the NDIS Act, that is, that his impairment(s) “result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

i.     communication;

ii.     social interaction;

iii.     learning;

iv.     mobility;

v.     self-care;

vi.     self-management?”,

in circumstances where the Tribunal failed to respond to the claim articulated by the appellant in relation to his meeting the statutory criteria set out by s 24(1)(c)?

2    Did the Tribunal err in failing to provide any or adequate reasons for its decision (s 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)) and in failing to identify its findings on material questions of fact (s 43(2B))?

44    With particular reference to the requirement in s 24(1)(c) that the person’s impairment must “result in substantially reduced functional capacity” to undertake one or more of the list of six identified activities, the applicant submitted he had put his case on review to the Tribunal by reference to his reduced functional capacity to undertake a number of those activities, and in each case, corresponding to each of the subparagraphs, different evidence was relied on, a separate argument was made, and each argument was supported by reference to the corresponding part of the Rules. The Tribunal, he submitted, made a summary or global finding, and did not in its findings and reasoning address his case as it was put.

45    In his reply submissions prior to trial the applicant sought leave to add a second question of law. He submitted that the Tribunal’s reasons concerning the application of s 24(1)(c) to his circumstances are so brief on that central issue as to be inadequate to meet the reasons obligation set out in s 43(2) of the AAT Act. Nor, he submitted, do the reasons given on that issue identify the “findings on material questions of fact”, in breach of the Tribunal’s obligation under s 43(2B) of the AAT Act.

46    The respondent submitted that it is clear from the Tribunal’s reasons that it had regard to the matters it was required to consider under s 24 of the Act, and did so in the context of the submissions made by Mr Mulligan. It was not obliged, as a matter of law, to address each submission made by Mr Mulligan separately, nor refer to every piece of evidence. Most of the authorities on which the applicant relied were, the respondent submitted, distinguishable because they concerned situations where a decision-maker had wholly overlooked a material submission. In the Tribunal’s review, the evidence overlapped as between the different aspects of s 24(1) as a whole and s 24(1)(c) in particular, and there is no legal error in the Tribunal dealing with the whole of s 24(1)(c) compendiously as it did. The Tribunal’s reasons were compliant with its statutory obligations, the respondent submitted, because the reasoning at [45]-[47] of its reasons dealt with each of the matters in s 24(1)(c), and must be considered together with all the evidence to which the Tribunal referred.

47    As to relief, the applicant initially sought orders setting aside the decision of the Tribunal and a declaration that the applicant meets the requirements of s 24(1) of the Act. The Tribunal’s alleged error in its approach to s 24(1)(c) meant it did not make findings in relation to s 24(1)(a) and (e) (although it expressed the view that Mr Mulligan was likely to satisfy both paragraphs), and it did make findings in his favour in relation to s 24(1)(b) and (d). In those circumstances, the applicant submitted there was no utility in a remitter, and the declaration could be granted. Alternatively, if findings of fact were required, there were no real contested issues of fact and no credibility issues before the Tribunal, and the Court was in as good a position to make findings on the outstanding s 24(1) criteria, pursuant to s 44(7) of the AAT Act. As to the criteria in s 24(1)(a) and (e), all the applicant sought from the Court was that it make findings confirming the expressed views of the Tribunal in paragraphs [25] and [57] respectively of its decision. In his amended notice of appeal the applicant confined himself either to seeking remitter, or the determination of outstanding factual issues by the Court. It appeared this relief was sought as to both questions of law.

48    The respondent submitted that if the Court found the Tribunal’s decision should be set aside, there should be an order for remitter because evaluative judgments needed to be made on the outstanding access criteria in s 24(1).

49    The parties made detailed and helpful written and oral submissions, which I have taken into account, and address as necessary below.

CONSIDERATION

Some issues of construction

50    The access criteria in Ch 3 of the Act are an essential component of the NDIS as conceived. They are designed to impose a number of thresholds on access to the NDIS. By s 13, broad and general provision may be made for persons with disabilities – but access to the NDIS, and the supports, funding and autonomy it is intended to deliver, is reserved for a subcategory of persons with disabilities. One of the issues which this appeal presents is the height of the thresholds set, and the focus of the thresholds, at least through the operation of s 24(1).

51    Some general observations should be made about these matters. The term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function.

52    Although an impairment may, in general terms (and, for example, in the terms of Art 1 of the Convention on the Rights of Persons with Disabilities extracted above) be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the “reasonable and necessary supports” to which participants may be entitled, after assessment in accordance with Pt 2 of Ch 3 of the Act.

53    At p 14 of the revised Explanatory Memorandum, the purpose of what became s 24 is described:

Clause 24 sets out the disability requirements a person must satisfy in order to become a participant in the NDIS launch. The disability requirements are designed to assess whether a prospective participant has a current need for support under the scheme, based on one or more permanent impairments that have consequences for the person’s daily living and social and economic participation on an ongoing basis. This clause also implements recommendation 3.2 of the Productivity Commission report.

54    Recommendation 3.2 of the Productivity Commission Inquiry Report, “Disability Care and Support” (31 July 2011), stated:

Individuals receiving individually tailored, funded supports through the NDIS:

•    should have a disability that is, or is likely to be, permanent, and

•    would meet one of the following conditions:

•    have significantly reduced functioning in self-care, communication, mobility or self-management and require significant ongoing support

•    be in an early intervention group, comprising individuals for whom there is good evidence that the intervention is safe, significantly improves outcomes and is cost effective

In exceptional cases, the scheme should also include people who would receive large identifiable benefits from support that would otherwise not be realised, and that are not covered by the groups above. Guidelines should be developed to inform the scope of this criterion and there should be rigorous monitoring of its effects on scheme costs.

55    Using the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.

56    That being the case, no arbitrary limits are placed on access to the NDIS. No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.

General approach to the characterisation of the Tribunal’s error

57    Recognising that there are often different ways to characterise legal error in the approach taken by an administrative decision-maker to a statutory task, the applicant submitted the Tribunal had constructively failed to exercise its jurisdiction under s 43 of the AAT Act to review the delegate’s decision. That was because the criteria in s 24(1) of the Act (including s 24(1)(c), read with r 5.8 of the Rules) were key jurisdictional preconditions for participation in the NDIS. By failing to respond to the detailed submissions made in relation to the individual aspects of s 24(1)(c) the Tribunal had not reviewed the NDIA decision, and in particular had not reviewed whether Mr Mulligan could meet any of the factors set out in para (c). Rather, the Tribunal made a global finding, which subsumed and replaced the detailed consideration of each factor the statute required.

58    This submission should be accepted. Characterising the Tribunal’s error as a failure to perform the task of review, especially reviewing whether Mr Mulligan met any of the factors set out in s 24(1)(c) is, in my opinion, the most appropriate way to identify the error of law made by the Tribunal. The alternative suggested by the applicant that the Tribunal had failed to deal with his submissions suffers from the difficulty identified by Flick J in Australian Postal Corporation v Hughes (2009) 111 ALD 579; [2009] FCA 1057 where his Honour said at [65]:

There is considered to be no necessity for the tribunal to expressly identify any particular submission being advanced for resolution, or to identify it in the same or similar terms to that being advanced by a party, and to then expressly address and resolve that submission. The manner in which the tribunal resolves competing submissions, and the manner in which it expresses those submissions, is a matter for it to determine. That which is required, however, is for it to be readily apparent that a submission of “substance” or one “worthy of consideration” has in fact been addressed and resolved. The tribunal discharged that task in the case at hand.

59    In the present case, the Tribunal did address and resolve the submission by Mr Mulligan that he could satisfy s 24(1)(c). It decided to do that in a global fashion. For the reasons set out by Flick J in Australian Postal Corporation v Hughes, that does not, in my opinion, reflect a failure to consider a submission “worthy of consideration”, being one of the descriptions used by the authorities when dealing with this kind of legal error: see, for example, Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276-7 per Jenkinson J.

60    However, where a decision-maker deals globally, or in a summary way, with detailed submissions, especially where the scheme makes detailed provision for assessment, it may be more likely the decision-maker will stray from the task in the statute. That in my opinion, and with great respect to the Tribunal, is what occurred here. By not examining individually, and by reference to the specific evidence and material before it, whether Mr Mulligan’s circumstances satisfied any of the four categories in s 24(1)(c) he relied upon, the Tribunal did not perform its task on review. That task required, in my opinion, a more detailed and particular consideration of each activity in s 24(1)(c) than the Tribunal embarked upon. That is because the evidence and material before the Tribunal did differ in respect of each category, and each category in s 24(1)(c) has a different focus. Parliament had made it clear an applicant need only satisfy one of the six categories set out in s 24(1)(c). Global consideration is likely to obscure particular aspects of the evidence and material before the Tribunal, as in my opinion it did in this case.

61    I consider this approach to be consistent with the approach of the Full Court in Chief Executive Officer of Customs v AMI Toyota Limited (2000) 102 FCR 578; [2000] FCA 1343 at [45], where the Court said:

Thus, in failing to address a central question raised by the Toyota Australia’s case and by the material before it, the AAT erred in law. It breached its “duty to arrive at the correct or preferable decision in the case before it according to the material before it” (see Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425 per Brennan J and Noble v Repatriation Commission (unreported, Full Court, Federal Court, No VG 308 of 1997, 3 November 1997, at pp 15-16). It also failed to apply itself to, and address, the correct legal question which the law prescribes and thereby constructively failed to exercise its jurisdiction: see Ex parte Hebburn; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420, Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 483 and Craig v South Australia (1995) 184 CLR 163 at 179. Thus, the appeal to the primary judge plainly involved a question of law.

(Emphasis in original.)

The Tribunal’s fact finding

62    The parties both submitted that, although they are not expressed directly in this manner, the passages at [26]-[44] of the Tribunal’s reasons were its findings based on the evidence and material before it. I agree with that submission. Although most of those parts of its reasons read more like a recitation of the evidence and material, it is clear that, by setting it out in the way it does, the Tribunal is indicating its acceptance of that evidence and material. Recognising those parts of the Tribunal’s reasons as its factual findings is of some importance to the resolution of the first (and, possibly, the second) question of law because it highlights the omission of the Tribunal to deal with the independent criteria in s 24(1)(c) of the Act and r 5.8 of the Rules, based on the facts and opinions it had accepted about Mr Mulligan’s impairments.

Approach to the Tribunal’s reasons

63    The reasons of an administrative decision-maker, where given pursuant to a statutory obligation of the kind found in s 43(2) and (2B) of the AAT Act, enable a supervising court to see what the repository of the power herself or himself saw as relevant and irrelevant, and to see how the decision-maker conceived her or his statutory task: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [10] per Gleeson CJ.

64    In Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547; [2013] FCAFC 114, the Full Court said at [49]:

The court is entitled to take the reasons of the tribunal as setting out the findings of fact the tribunal itself considered material to its decision, and as reciting the evidence and other material which the tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225; [2001] HCA 30 at [10], [34] and [68] (Yusuf). Representing as it does what the tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a court on review to find jurisdictional error: see Yusuf at [10], [44], [69].

65    Brevity may therefore not necessarily indicate or reveal legal error. However a reviewing court (including review by way of an appeal under s 44 of the AAT Act) is entitled to approach the reasons of an administrative decision-maker as wholly reflective of its reasoning process.

First question of law: failure to respond to the claim as put

66    Rule 5.8 of the Rules defines the circumstances in which a person must be taken to have “substantially reduced functional capacity” for the purposes of s 24(1)(c) of the Act. Whether the content of r 5.8 exhausts the concept of “substantially reduced functional capacity” in s 24(1)(c) is not a matter which need be determined in this appeal.

67    Rule 5.8 operates expressly by reference to each of the activities in s 24(1)(c)(i) to (vi). It requires the decision-maker to look, as a matter of factual assessment, at the outcome or effect of a person’s impairment on the performance of each, and any, of those six activities. If the outcome or effect is any of the outcomes or effects specified in r 5.8(a), (b) or (c), the deeming effect of r 5.8 operates.

68    In the present appeal, there were no submissions that r 5.8(c) was relevant to Mr Mulligan’s situation. There was but slight reference to para (c) before the Tribunal. The terms of r 5.8(c) are directed at persons with a higher or greater level of incapacity. Unlike r 5.8(a), the concept of participation under r 5.8(c) is not qualified by the words “effectively or completely”. And unlike r 5.8(b), there are no qualifications such as “usually requires”. Rather r 5.8(c) is directed towards people who are not able, at all, to perform any one of the six activities in s 24(1)(c).

69    There is no doubt that the issue of whether Mr Mulligan’s impairments met the threshold in s 24(1)(c), read with r 5.8, was the subject of detailed submissions on Mr Mulligan’s behalf before the Tribunal. The submissions, which were in evidence on the appeal, state at [34] that it was contended Mr Mulligan met the criteria in s 24(1)(c)(ii), (iv), (v) and (vi). Under separate subheadings and in some detail, the submissions then set out why it was contended that was so. Those submissions should be set out in full:

Mobility

The Applicant relies on Mr Mulligan meeting subsection 24(1)(c)(iv). It is the Applicant’s contention that Mr Mulligan’s impairments of cardiomyopathy and back impairments result in substantially reduced functional capacity in relation to his ability to mobilise. It is this restriction on his mobility that has also led to substantially reduced functional capacity in the areas of self-care and self-management.

The evidence from Laura Hedditch (occupational therapist), Mr Mulligan and his doctors reveal a substantial functional reduction in mobility. Mr Mulligan becomes breathless after walking 100 metres and is prevented from walking more than 500 metres due to severe lower back and leg pain. His mobility is further restricted when walking up a gradient. His breathlessness is exacerbated when he is carrying heavy items (such as shopping bags) or completing activities above shoulder height.

He is unable to bend safely or comfortably without experiencing significant pain. He is in constant pain from his sciatica from which he must also frequently take rest. Not only is his mobility extremely curtailed and restricted but it is contended he is unable to mobilise safely or within an acceptable time period. He is at all times at risk of being suddenly hospitalised, particularly if he mobilises too quickly. He is in constant pain from his sciatica from which he must also frequently take rest. In the future it is very likely he will require a wheelchair (T14/47).

It is contended that Mr Mulligan would benefit significantly from assistive technology if something suitable was available. However, the only assistive technology available is likely to be a wheelchair which is at this time unsuitable, though likely in the future when his condition worsens. To exclude him from the criteria because there is no suitable technology currently available notwithstanding that he has substantially reduced functional capacity would be the incorrect interpretation of the NDIS Act and Rules.

The Applicant notes that the evidence is that Mr Mulligan usually requires the day to day assistance of his wife in performing tasks that involve mobility, such as doing the shopping and carrying groceries, vacuuming, laundry and house maintenance. It is contended that these fall within both “mobility” and “self-management”. It is submitted that he meets Rule 5.8(b).

The evidence is that Mr Mulligan is unable to move about the community by foot for a distance of more than 100 metres and must rely on a car to travel any further without gravely risking his health and another hospitalisation. He is unable to perform other tasks involving movement, for example pushing a lawn mower. The Applicant therefore contends he meets Rule 5.8(a).

Self-Management

Additionally the Applicant contends that Mr Mulligan has substantially reduced functional capacity in regards to his self-management (s 24(1)(c)(vi)).

Clause 18.b of the Operational Guidelines – Access – Disability Requirements provides examples of what self-management includes:

•    Self-management (planning and organising daily life and managing household personal finances), ...

The Applicant submits that Mr Mulligan meets Rule 5.8(b) in that he is unable to participate effectively in self-management without assistance. The Applicant contends that self-management includes being able to complete food shopping, laundry, house cleaning and maintenance of his garden in accordance with the terms of his lease with the Department of Housing.

The occupational therapist report details the assistance that Mr Mulligan requires from his wife. This includes with activities such as food shopping, laundry, house cleaning and maintenance of his garden. His capacity in regard to doing his laundry is limited and takes more than an acceptable time to complete the task. He is unable to mow his lawns safely or within an acceptable time period or without the risk of being hospitalised. He is also unable to complete larger shops without his wife and cannot carry heavy grocery items.

Mr Mulligan needs rest breaks when cleaning his home and sometimes is completely unable to complete his domestic duties such as vacuuming without the assistance of his wife. He takes more than an acceptable time to complete his washing and is unable to mow more than three lengths of his lawns without becoming breathless and fatigued and must present himself to hospital if he cannot settle his breathing within 15 minutes.

Self-care

The Applicant relies on Mr Mulligan meeting subsection 24(1)(c)(v). It is the Applicant’s contention that Mr Mulligan’s impairments of cardiomyopathy and back impairments result in substantially reduced functional capacity in relation to his ability to self-care.

The Operational Guidelines – Access – Disability Requirements at 18.b provide examples of what self-care includes:

(e.g. daily showering, bathing, dressing, eating, toileting and grooming; and / or special health care needs attended to by self, family members or carers)

The Applicant submits that Mr Mulligan is unable to participate effectively in self-care activities without equipment and therefore meets the description in Rule 5.8(a). The occupational therapist report lists activities that Mr Mulligan cannot do properly and requires assistance with including drying his feet properly; lower limb dressing such as putting on shoes; and difficulties with toileting such that it is difficult for him to complete toilet hygiene. She lists a number of pieces of equipment that will assist Mr Mulligan to complete self care activities.

Social interaction

The Applicant contends that Mr Mulligan meets the requirements in subsection 24(1)(c)(ii). That is, his impairments result in substantially reduced functional capacity in relation to social interaction.

Mr Mulligan states that he has difficulties with social interaction because he cannot socialise in a lot of activities he previously participated in with his friends, such as watching a football match, because of a risk of exacerbating his heart condition. Riding his motorcycle with his group of motorcycling friends poses the same risk and also seriously aggravates his sciatica.

He sold his motor bike because his back pain was so great that he feared a panic attack which could affect the stability of his heart, resulting in him losing control of his motor bike and harming other people.

Mr Mulligan has also experienced difficulties in his relationship with his wife because of the loss of his mobility: he has become increasingly needy and reliant on her, causing pressure and strain on their relationship. His circumstances have resulted in periods of depression. He must also avoid emotionally high stress situations so as not to bring on another acute episode of hypertension. In her report, Laura Hedditch, occupational therapist writes:

Mood and Behaviour

Violet reported that Mr Mulligan's mood has changed since his sciatica emerged last year. He stated that he was once a “very laid back” person and confirmed that he has become more frustrated and angry secondary to the constant pain he is experiencing.

In relation to substantially reduced functional capacity for social interaction the Applicant contends Mr Mulligan meets Rule 5.8(a) and (c).

(Emphasis in original.)

70    In its reasons, the Tribunal reproduced and, it can be inferred, understood the deeming effect of r 5.8 of the Rules. It then examined whether Mr Mulligan met s 24(1)(c) of the Act only through the prism of r 5.8, and then, in my opinion, only through the prism of r 5.8(a). In other words, the question the Tribunal asked itself was not whether Mr Mulligan had a “substantially reduced functional capacity”, but rather, whether he met the terms of r 5.8 and then only r 5.8(a).

71    In the single paragraph (at [46]) where the Tribunal deals with what was, in substance, the major issue in its review, the only references to what Mr Mulligan can do are references concerning what he can or cannot do without assistive technologies – aids such as handrails, shower grab rails and an “Easi-reacher”.

72    Even on its approach to r 5.8(a), the Tribunal does not address the totality of the evidence which was before it about the level of Mr Mulligan’s need for assistive technologies. Previously, the Tribunal had noted (at [41]) the evidence of the occupational therapist that:

Ms Hedditch recommended Mr Mulligan use aids to help conserve his energy and to compensate for his reduced range of movement in his lower legs. As well as a toe dryer, sponge, sock aid, shoe horn and an “Easi-reacher”, she recommended he use an over-toilet aid for toilet transfers, and a bed stick to help get in and out of bed. She recommended a damaged roller mechanism on the sliding panels in the shower be repaired, and that he have assistance with lawn mowing. She also recommended he be referred to a pain clinic to manage his pain, and to a disability employment service for help with a job capacity evaluation and a supported return to work.

73    It also noted (at [44]) Ms Hedditch’s recommendation that although Mr Mulligan is independent in mobility and self-care “with difficulty, and with pain, and he expends a lot of energy in compensatory strategies”, she recommended “aids would make his life easier, and would reduce his pain and conserve his energy”.

74    Yet in that part of its decision where it was required to consider whether Mr Mulligan’s impairments resulted in substantially reduced functional capacity to undertake any of the specified activities, the Tribunal did not address any of this evidence, even by reference to r 5.8(a). It may have rejected it, or given it little weight, but it did not say so.

75    At the end of [46] of its reasons, the Tribunal notes the aids it has referred to in that paragraph (handrails, shower grab rails, Easi-reacher) are “commonly used by many people”. It appears to incorporate that observation into its reasons for determining that Mr Mulligan does not have a substantially reduced functional capacity for any of the six activities in s 24(1)(c) of the Act. It is unclear why, at that level of generality, this observation could be seen as necessarily a disqualifying feature so far as the criterion in s 24(1)(c) is concerned. The statutory concept of “substantially reduced functional capacity” requires no assessment by the decision-maker of how common the reduction in functional capacity might be, or whether the way in which the reduced functional capacity manifests itself is something that can be seen in a certain number of people. The Tribunal has, in my opinion, placed a gloss on the statutory requirements in s 24(1)(c). If the Tribunal intended to refer to that part of r 5.8(a) that excises “commonly used items such as glasses”, it needed to do so expressly, and to explain how the aids to which it referred were in its opinion caught by this excision.

76    Further, nowhere does the Tribunal address what was on any view a significant aspect of the evidence: namely the amount of assistance Mr Mulligan claimed to receive from his wife. Such assistance is the express subject matter of r 5.8(b), but is not addressed by the Tribunal at all, despite the evidence given on this issue and the submissions made about it.

77    I note that the Tribunal appears to have approached the concept of “substantially reduced functional capacity” in s 24(1)(c) as if it is exhaustively defined by r 5.8. That is not necessarily the case. As a deeming provision, r 5.8 has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met. In that sense, a decision-maker must turn his or her mind to whether an applicant falls within the deeming effect of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas. Whether or not this constitutes a separate error by the Tribunal need not be determined, for it is clear that even within the terms of r 5.8, the Tribunal only examined para (a) and not para (b), although they were both relevant and relied upon by Mr Mulligan.

78    I do not accept the respondent’s submissions that the Tribunal’s reasoning about s 24(1)(c) discloses no more than a failure to refer to pieces of evidence, or contentions. Nor do I consider the Tribunal’s global finding legally sufficient. Rather, I consider the Tribunal has failed to grapple with the statutory question posed by s 24(1)(c), on the evidence and material before it. It can be accepted that the Tribunal made a conclusionary finding about s 24(1)(c), but it did not do so by reference to each of the legislative criteria set out in para (c). It did not do so by reference to each of the deeming provisions in r 5.8(a) and (b). It did not do so by reference to the evidence about the assistance provided to Mr Mulligan by his wife. It did not do so by reference to the evidence of the occupational therapist. Instead, it selected two or three aspects of the evidence, at a general level, and reached a conclusion based only on those aspects, including, in my opinion, one aspect (the use of aids “commonly used by many people”) which was a gloss on the statutory threshold.

79    I do not consider the Tribunal performed the task the statute required of it. In MZYTS at [46] the Full Court said:

Although in one sense this might be described as a “failure to consider” most recent country information, or a failure to consider a claim about increased risk of persecution on return to Zimbabwe, in our opinion the error is, fundamentally, a failure to form the state of satisfaction (one way or the other) required for the purposes of the review in respect of the criterion in s 36(2)(a). Judicial review of the formation, by an inferior tribunal, of the state of satisfaction required by the empowering provision may be, as the High Court pointed out in Kirk v Industrial Court (NSW) (2010) 239 CLR 531; 262 ALR 569; 113 ALD 1; [2010] HCA 1 at [64] (Kirk) best described as a “functional exercise” (citing Jaffe, 1957). Affixing a pre-existing label or meta-description to what a decision-maker did in purported exercise of a statutory power, for example “a failure to consider”, may assist the analysis, although it may also provide a distraction. To the extent Robertson J made similar observations in SZRKT at [98] and [111], we respectfully agree.

80    As I have noted, characterisation of legal error on judicial review, or in an appeal pursuant to s 44 of the AAT Act, is something on which reasonable legal minds may differ. A failure to consider submissions which are relevant to the statutory question is a case in point. What underlies the reasoning and outcome in a case such as Dennis Willcox, in my respectful opinion, is a recognition that the submissions which were overlooked, or not considered, were material to the statutory task of the decision-maker. Where that is the case, it is highly likely that the decision-maker will not have performed the statutory task required. That conclusion is, in a sense, independent of the argument that a party’s submissions were not considered, although the failure to consider submissions may be the cause. In such circumstances, what matters is that the content of the submissions concerned matters material to the review of a decision by the Tribunal, and to its task of arriving at the correct or preferable decision on the material and evidence before it. That is why, in my respectful opinion, the more appropriate characterisation of the error is a constructive failure of jurisdiction, or a failure to conduct the review required by the statute. That is the approach taken by the Full Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 in passages set out between [44]-[52] of the Court’s reasons. There, French, Sackville and Hely JJ said:

It is central to the exercise of the dispositive powers conferred by s 415 that the tribunal has first conducted a review. That is to say it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself.

…

The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.

…

It was submitted for the respondent that the intermarriage issue was somehow subsumed in the generality of the tribunal’s finding that, although the applicant would be subject to some discrimination if he returned to Iran, the discrimination would not amount to persecution and that proper protection would be forthcoming from the authorities in Iran. In this connection the respondent cited a passage from the joint judgment of McHugh, Gummow and Hayne JJ in Yusuf at [91] where reference was made to “a finding at a higher level of generality than the question of specific incidents”. Such findings it was said could well explain why a decision-maker would make no detailed finding about a particular incident.

….

We respectfully disagree with this contention. As appears from the review of material put before the tribunal, the failure by the tribunal to consider the evidence about S’s marriage and the repercussions flowing from it and the contentions based on that evidence, amounted to a failure to consider an issue going directly to the question whether the criterion under s 36 of the Act was satisfied. The tribunal therefore in our opinion, failed to discharge its duty of review and made a jurisdictional error.

81    In other circumstances, a failure to consider submissions made by a party may be characterised as involving a denial of procedural fairness. There is no bright line between these characterisations, and in many circumstances either may be available. It will often be the case that where the content of submissions made on behalf of a party is not adequately dealt with by a decision-maker, there is a failure to accord procedural fairness to that party. This was recognised by the majority of the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 at [24]. The majority held at [25] that in some circumstances, the failure may be “more” than a failure to accord natural justice, as indeed the majority found to be the case with the claim by Mr Dranichnikov that he was a member of a specifically defined social group for the purpose of his protection visa claim. In Dranichnikov, the tribunal’s failure to consider, with sufficient particularity, the nature of the social group to which Mr Dranichnikov contended he belonged meant, in the majority’s view, that the tribunal had constructively failed to exercise its jurisdiction because (just as in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11) it had not afforded Mr Dranichnikov a review of the kind contemplated by the function conferred on the tribunal under the Migration Act 1958 (Cth): Dranichnikov at [32].

82    I do not consider the Tribunal can be said to have turned its mind, as the statute requires, to the question whether, on all of the evidence and material before it, Mr Mulligan had a substantially reduced functional capacity to undertake any of the activities set out in s 24(1)(c)(i) to (vi) of the Act, read with r 5.8 of the Rules. Rather, it turned its mind, as demonstrated by its reasons, to some of the evidence and part of the statutory question. Characterising this as a constructive failure to exercise its jurisdiction is an alternative description to characterising it as a failure to complete or perform a statutory task. Either way, the Tribunal’s decision is affected by a legal error of sufficient substance and materiality to justify its decision being set aside.

83    The respondent’s invitation to the Court to examine the transcript of the hearing before the Tribunal, and the way submissions were put on behalf of Mr Mulligan at the hearing, does not assist the respondent. The statement of reasons given by the Tribunal is the location for its findings on material questions of fact, its references to the evidence on which those findings are based and its reasoning process. As I have noted at [63]-[65] above, what is said, and not said, in the reasons provides the source for findings, and inferences, about how the Tribunal approached its task.

84    While it is correct to point to a sequence of paragraphs in the Tribunal’s reasons where it sets out the evidence given by the witnesses on the review, and which (as I have already said) appears to reflect the Tribunal’s acceptance of that evidence, the problem is the Tribunal then does not appear to employ, evaluate or consider significant parts of that evidence in its analysis whether Mr Mulligan satisfied any part of s 24(1)(c) or not. The Tribunal does not employ its factual findings in its assessment.

The Tribunal’s Practice Direction

85    The respondent relied on the existence and content of a Practice Direction given by the Tribunal. On 1 July 2013, the President of the Tribunal issued a Practice Direction governing matters such as Mr Mulligan’s application for review. It relevantly states that:

The Member will give you a decision at the end of the Hearing if that is possible. If he or she cannot make a decision immediately, the Member will write his or her decision and we will send it to you as soon as possible. Even if your case involves novel or complex issues, we will give you our decision no later than 60 days after the Hearing.

86    The respondent correctly submitted the Tribunal’s decision was delivered very promptly. Mr Mulligan’s hearing was conducted on Thursday 12 June 2014, concluding at 4.34pm. The Tribunal delivered its reasons for decision orally on Friday 13 June 2014 at 3.00pm, and in written form on Monday 16 June 2014.

87    These features, and the requirements of the Practice Direction, were said to explain the comparative brevity of the Tribunal’s reasons, and to illustrate the competing considerations at work in the Tribunal’s decision-making – notably, determination of reviews with appropriate efficiency. This was submitted by the respondent to be a matter the Court should take into account in assessing the nature and scope of the reasons given by the Tribunal, not only in determining the second question of law, but also the first.

88    Brevity, while of itself insufficient to establish error, may be an indicator of a failure to perform the statutory task committed to a decision-maker, just as inadequate reasons in other ways may also be an indicator, irrespective of a provision such as s 43(2B) of the AAT Act. Reasons are the mechanism through which a reviewing court can scrutinise the decision-making process of an administrative decision-maker. Their nature and quality can be indicative of legal error, although insufficient to make it out. The Practice Direction does not alter the content of the Tribunal’s reasons obligations.

89    Whatever might be said about the desirability of prompt decision-making, especially in a busy jurisdiction like the Tribunal’s, it is not a substitute for performance of the statutory tasks committed to the Tribunal, and there is no basis to suppose the Practice Direction was intended to have this effect.

Second question of law: whether adequate reasons

90    Section 43(2) of the AAT Act provides:

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

91    Section 43(2B) of the AAT Act provides:

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.

92    My conclusions on the first question of law render it unnecessary for me to determine the second question of law. The Tribunal’s decision must be set aside because of the errors I have identified above. However, it is appropriate for me to make clear that had I not answered the first question of law in a way which was favourable to Mr Mulligan, I would in any event have answered the second question of law favourably to him, and I would have set the Tribunal’s decision aside on that basis.

93    In Repatriation Commission v Holden (2014) 142 ALD 267; [2014] FCA 605 at [69]-[74], I discussed the content of the reasons obligations found in s 43(2) and (2B) of the AAT Act, and need not repeat those matters here.

94    The applicant submits that the Tribunal’s finding about s 24(1)(c) of the Act (at [46] of its reasons) is not tied at all to the evidence. This, the applicant submits, does not accord with the obligation in s 43(2B) of the AAT Act. I accept this submission. While paragraph [46] might be said, at least in a global sense, to set out the Tribunal’s finding of fact about whether Mr Mulligan had substantially reduced functional capacity in relation to any of the six activities set out in s 24(1)(c), there are no references to the evidence on which this global finding is based. The passage is conclusionary. In and of itself this is not problematic, but the Tribunal did in my opinion need to refer in this part of its reasons to the evidence it relied on and gave weight to, and the evidence it did not rely on or did not give weight to. It was not enough to say, as it did, “considering everything we have heard”. It is not possible for a person reading the Tribunal’s reasons, including Mr Mulligan, to understand the Tribunal’s explanation or reasoning process as to why the evidence it appeared to accept as accurate and reliable earlier in its reasons did not, in relation to each of the four activities in s 24(1)(c) Mr Mulligan relied upon, meet the threshold of substantially reduced functional capacity.

95    In Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21; [2014] FCAFC 17 at [43], the Full Court referred to the judgment of French J (as his Honour then was) in Secretary, Department of Employment and Workplace Relations v Homewood (2006) 91 ALD 103; [2006] FCA 779 at [40]:

… the tribunal will have discharged its duty under s 43 if its reasons disclose its findings of fact, the evidence on which they were based and the logical process by which it moved from those findings to the result in the case.

96    I consider the approach I have taken to be consistent with what French J said: his Honour’s description expressly contemplates what is missing from the Tribunal’s reasons here; namely, disclosure of the evidence on which its findings at [46] were based.

97    It can be accepted that examination by a court of the reasons of an administrative decision-maker for compliance with a statutory obligation to give reasons should not be approached with undue strictness, nor any expectations of formality or the detail one might sometimes find in reasons consequent upon an exercise of judicial power. I have borne those constraints in mind. In the present case, paragraph [46] of the Tribunal’s reasons is the paragraph which actually explains why the Tribunal affirmed the decision under review. Paragraph [47] adds something, but not very much. The applicant attacks the sufficiency of [46] as, correctly, the central part of the Tribunal’s reasoning process. In my opinion, it is not to approach the matter too strictly to require the Tribunal to have set out the evidence on which it based its findings in this paragraph rather than simply say it had considered everything it had heard.

98    For the reasons I have set out above, I do not consider that the existence and content of the Tribunal’s Practice Direction suggest any different approach should be taken to the Tribunal’s reasons obligations.

99    In Holden at [84]-[87], I set out the approach I consider should be taken to the question whether a failure to comply with s 43(2) and (2B) of the AAT Act should result in the setting aside of a Tribunal’s decision. It is worthwhile extracting again the relevant part of the Full Court’s reasons for judgment in Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554; [2009] FCAFC 137 at [55], cited at [85] of my reasons in Holden:

Notwithstanding the divergence in authority, a failure to comply with s 43(2) of the AAT Act should not inevitably lead to an order pursuant to s 44(5) that the Tribunal’s decision should be set aside in its entirety or, alternatively, lead to the reasons alone being set aside and an order being made for reasons to be provided. The appropriate order to be made pursuant to s 44 will depend upon the facts and circumstances of each individual case and the exercise of the discretion thereby conferred.

100    Unlike the situation as I found it to be in Holden, in this case I have found there to be a failure by the Tribunal to perform the task the statute imposed upon it. That is a function, in part, of what is and is not said by the Tribunal in its reasons. In those circumstances, if it were necessary to determine the question of the appropriate relief on the basis of an answer favourable to Mr Mulligan on the second question of law only, given that references to the evidence on which paragraph [46] of the Tribunal’s reasons is based were almost entirely absent, I would have been inclined to set aside the Tribunal’s decision and remit the review for determination again according to law.

Whether the Court should make findings of fact: s 44(7) of the AAT Act

101    It will be apparent from what I have said above that I accept the respondent’s submission that what is involved in the performance of the task under s 24(1)(c) of the Act, read with r 5.8 of the Rules, is an evaluative exercise. The Tribunal needs carefully to weigh the evidence before it, and to do so on a particularised and individual basis in relation to each of the six activities set out in s 24(1)(c), subject to an applicant not putting some of those activities in issue.

102    The conclusion the Tribunal reaches after that process is properly a matter for it, and not this Court, depending as it does on an evaluation of both lay and medical evidence. Remitter is the appropriate order: Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis (2012) 200 FCR 464; [2012] FCAFC 29 at [35]-[36].

Conclusion

103    The appeal should be allowed, the Tribunal’s decision set aside and the matter remitted to the Tribunal. There is nothing in the material to suggest anything but the usual orders as to costs should be made.

Associate:

Dated:    3 June 2015