FEDERAL COURT OF AUSTRALIA

Sesalim v Secretary, Department of Social Services [2018] FCA 1159

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth), the time for the applicant to institute the appeal is extended to 31 October 2016.

2.    On or before two weeks after the publication of the Court’s reasons, the parties file a minute of the orders they propose should be made or, in the absence of agreement or complete agreement, the parties inform the Court as to the issues in relation to relief which remain in dispute.

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

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    On or before two weeks after the publication of the Court’s reasons, the parties file a minute of the orders they propose should be made on the question of costs or, in the absence of agreement or complete agreement, the parties inform the Court as to the issues in relation to costs which remain in dispute.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    There are two related appeals before me which, in accordance with the order made on 8 June 2017, have been heard together. In these reasons I will refer to VID 1297 of 2016 as the “2016 appeal” and VID 166 of 2017 as the “2017 appeal”. Each of the appeals is brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) which provides that a party before the Tribunal may appeal to this Court, on a question of law, from any decision of the Tribunal.

2    In the 2016 appeal, Mr Dean Al Sesalim seeks an extension of time to appeal from a decision of the Administrative Appeals Tribunal (“Tribunal”) (in its General Division) affirming a decision of the Social Services and Child Support Division (“SSCSD”) of the Tribunal made under the Social Security Act 1991 (Cth) (“SS Act”) to cancel Mr Sesalim’s disability support pension (“DSP”). In these reasons I will refer to the decision of the Tribunal on appeal as the “2016 Tribunal Decision”. For reasons I will later give, I will grant Mr Sesalim an extension of time in which to institute his appeal. On the basis that leave may be granted, Mr Sesalim’s appeal was heard instanter.

3    There are two respondents to the 2016 appeal. The first is the Secretary, Department of Social Services (“Secretary”). The Tribunal is the second respondent. The 2016 Tribunal Decision concerned Mr Sesalim’s entitlement to the DSP for the period 10 July 2015 to 1 April 2016. Mr Sesalim seeks orders quashing the 2016 Tribunal Decision to deny him a DSP. He does not seek, as his primary relief, the remittal of the matter for further consideration by the Tribunal should his appeal succeed. Instead he seeks that under s 44(7) of the AAT Act, the Court make further findings of fact and determine his entitlement to the DSP.

4    In the 2017 appeal, the Secretary appeals a decision of the Tribunal in which the Tribunal (in its General Division) set aside a decision of the SSCSD and determined that Mr Sesalim qualified for a DSP as from 1 April 2016. Mr Sesalim is the only respondent to that appeal. In these reasons I will refer to the decision of the Tribunal on appeal as the “2017 Tribunal Decision”.

5    The key issue before the Tribunal, in each instance, was whether Mr Sesalim was entitled to a DSP. Such an entitlement was largely dependent upon the severity of Mr Sesalim’s impairments, a matter which needed to be assessed against the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Determination”).

6    Mr Sesalim suffers from both psychological and physical impairment. He has anxiety, depression and Post-Traumatic Stress Disorder (“PTSD”). He has also been diagnosed with canal stenosis of the cervical spine.

THE statutory framework

7    It is necessary to identify the key features of the statutory framework and the Determination.

8    Section 94 of the SS Act relevantly provides:

(1)    A person is qualified for disability support pension if:

(a)    the person has a physical, intellectual or psychiatric impairment; and

(b)     the person's impairment is of 20 points or more under the Impairment Tables; and

(c)     one of the following applies:

(i)    the person has a continuing inability to work;

(ii)    the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;

…

9    In each appeal, s 94(1)(a) and (c) were not in contest. The only issue was whether the Tribunal had correctly determined whether Mr Sesalim’s impairment is of 20 points or more under the “Impairment Tables”.

10    The reference in s 94(1)(b) to the “Impairment Tables” is a reference to the tables set out in the Determination and made by the designated Minister by legislative instrument under s 26 of the SS Act. Section 27 requires the Secretary to apply the Determination in determining a claim for a DSP as at the date of the claim.

11    The Determination commences with preliminary matters and in Part 2 specifies rules for applying the Impairment Tables. I shall return to those rules but at this point it is convenient, including in order to provide context for understanding those rules, that I set out the table of the Impairment Tables of primary relevance to the present appeals.

12    There are fifteen tables in the Impairment Tables. As Mr Sesalim was found to have an impairment to his mental health function, Table 5 was the relevant table to apply in relation to that impairment. Table 5 directs attention to whether, and if so the extent to which, a person has a permanent condition resulting in functional impairment due to a mental health condition. Table 5 is in the following terms:

Table 5 – Mental Health Function

13    Of importance to my determination of each of the appeals is an identification of the statutory task which Table 5, in conjunction with the rules or principles of the Determination, requires. Relevantly, what must the Tribunal do in carrying out the task of assigning either a “no” (0 points), “mild” (5 points), “moderate” (10 points), “severe” (20 points) or “extreme” (30 points) level of functional impact to a mental health impairment? I do not intend to comprehensively outline all that the Tribunal needs to do as that would transcend the issues raised by these appeals. I will confine the analysis to the particular aspects of the task relevant to the issues raised by the appeals.

14    Section 5(1) of the Determination provides that in applying the Impairment Tables, regard must be had to the principles set out in ss 5(2) and (3). As its heading indicates, s 5(2) deals with the purpose and general design of the Impairment Tables. It emphasises that the Impairment Tables are function-based rather than diagnosis-based and that they describe functional activities, abilities, symptoms and limitations. The Impairment Tables are designed to assign ratings to determine the level of a person’s impairment by reference to the functional impact of that impairment. That is, the impact that the impairment has on a person’s ordinary function.

15    Sections 5(3) and 11(2) of the Determination are significant because they identify the purpose and role of the examples which form part of the descriptors in the Impairment Tables and set out the requirement that, in assigning a level or grade, a comparison of descriptors is required. Those provisions are as follows (emphasis added):

Scaling system and descriptors

5(3)    In the Tables:

(a)    subject to section 11, where a descriptor applies in relation to an impairment, an impairment rating can be assigned to that impairment; and

Note:    For impairment rating and descriptor see section 3.

(b)    the first line of each descriptor, which is formatted in italics, describes the level of impact of the impairment to be identified by reference to the particular examples of functional activities, abilities, symptoms and limitations contained in the numbered paragraphs below it, if any; and

(c)    the introduction to each Table sets out further rules with which to apply the Tables and rate an impairment.

…

11(2)    In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied.

16    Additionally, the word “descriptor” is defined in s 3 of the Determination as follows:

descriptor means the information set out under the column headed “Descriptors” in each Table, describing the level of functional impact resulting from a permanent condition.

17    Before analysing those provisions as they apply to Table 5 more closely, it is necessary to stand back from the detail and consider the inherent nature of the task of assessing and then grading a person’s functional impairment. This is not a mechanical task amenable to a precise answer. It is a task which inevitably involves broad evaluative judgment and must have been recognised as such in the development and making of the Determination. Reasonable minds are likely to differ, and perhaps substantially so, as to the extent of a person’s functional impairment and whether it justifies being rated as “no”, “mild”, “moderate”, “severe” or “extreme”.

18    Recognising that those ordinary words are undefined and capable of several and disparate interpretation, the Impairment Tables, and the rules made to guide their application, may be understood as an attempt to provide an interpretative framework for the broad evaluative exercise which gives meaning and content and thereby greater consistency to the grading exercise. As I shall explain, the adjectival words used to describe each rating or level of functional impairment are not merely labels. The ordinary meaning of the words “no”, “mild”, “moderate”, etc, is intended to have application but their meaning is to be further informed and clarified by the structure of Table 5 and the examples and other information given by each descriptor. I note in that respect that, as s 5(3)(b) and the defined meaning of “descriptor” provide, the examples and other information contained in each rating or level of the Impairment Tables form part of the descriptor for that rating.

19    The structure of the scaling exercise provided for by Table 5 is to provide for five ratings or levels - “no”, “mild”, “moderate”, “severe” or “extreme”. Where one level ends another begins. Therefore there is a relative relationship between levels in which the content of one level necessarily informs the content and coverage of the neighbouring level. This structure requires that, in performing its assessment task, the Tribunal make a comparison of the descriptors in each level. Such a comparison is expressly required by s 11(2). As I said in Negri v Secretary, Department of Social Services [2016] FCA 879 at [40] by reference to the terms of s 11(2) of the Determination, “[d]eciding a level of functional impact requires comparison of the relative descriptors for each impairment rating in the Table …”.

20    As I also said in Negri at [41] by reference to s 5(3)(b) of the Determination, functional impact is to be assessed “by reference to the particular examples” appearing under the first line of the descriptor. The examples are not definitional but are illustrative in the sense they provide examples of the extent of the functional difficulties that a person who falls within that particular rating may be expected to have in relation to the activities exemplified. The particular exemplified activities may not be directly relevant to the person being assessed but they nevertheless throw light upon the degree of impairment intended to fall within the particular rating or level in which the example is found. The assistance provided by the examples may be particularly evident when the examples given under one descriptor are compared with the examples given for a neighbouring and related descriptor. In Negri at [43] I said this:

Ms Negri’s submission treats each of the functional activities, abilities, symptoms and limitations as though they were conditions of eligibility for the particular impairment level. They are not that. The examples are there to give content to each level. The examples provided are not definitional, but rather illustrative. Consideration must be given to each of the relevant examples specified, but only to give content to the criteria applicable to the impairment level being considered.

21    In my view, in the task of assigning a rating, the Determination exhorts assessors to compare and contrast between descriptors having considered the content of the relative descriptors including to the examples (if any) given in each.

22    However, none of that analysis is intended to suggest that the words “no”, “mild”, “moderate”, “severe” and “extreme” used in Table 5 (in both the first and second lines of each descriptor) have no work to do in the rating exercise which the Determination requires. Table 5 does not utilise a grading system based upon the distribution of the population of persons impaired by percentile according to the severity of the person’s impairment. For example, the criteria for the “severe” level of impairment is not that the person falls within the 50th to 75th percentile of the population of functionally impaired persons due to a mental health condition. The word “severe” cannot be replaced by a number. It is not merely a label, it is part of the essence of the criteria for the third level or grade in Table 5. The ordinary meaning of that word, and that of each of its counterparts, is intended to have application informed by the exercise of comparing and contrasting the levels required by the Determination.

23    Part 2 of the Determination sets out other rules for applying the Impairment Tables which are relevant for other issues raised by these appeals. Relevantly:

(1)    An impairment rating under the Impairment Tables can only be assigned to the impairment, if the person’s condition causing that impairment is permanent and the impairment that results from that condition is more likely than not to persist for more than 2 years (s 6(3) of the Determination).

(2)    A condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, fully treated and fully stabilised, and the condition is more likely than not to persist for more than 2 years (s 6(4) of the Determination).

(3)    The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned (s 6(8) of the Determination).

(4)    In applying the Tables the following information must be taken into account: (a) the information provided by the health professionals specified in the relevant Table; and (b) any additional medical or work capacity information that may be available; and (c) any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table (s 7(1) of the Determination).

(5)    Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence (s 8(1) of the Determination).

(6)    If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (s 11(1)(c) of the Determination).

The 2016 Appeal

24    The key background facts to this appeal are as follows.

25    Mr Sesalim was granted DSP on 22 January 2014 following an assessment conducted by the Health Professional Advisory Unit (“HPAU”), a group of health professional employed by Centrelink.

26    On 25 June 2015, a decision was made on behalf of the Secretary to suspend the DSP from 11 July 2015 (“suspension decision”). The DSP was suspended because it was determined that Mr Sesalim was undertaking travel in circumstances where he was not eligible for a further period of travel under the applicable portability rules. Those rules permitted four weeks of portability in a 12 month period unless it was for an approved reason (such as “eligible medical treatment”) or the applicant had been assessed for “unlimited portability”.

27    On 10 July 2015 a further decision was made on behalf of the Secretary that Mr Sesalim was not entitled to “unlimited portability” and his DSP was cancelled (“cancellation decision”).

28    Mr Sesalim requested an internal review of those decisions. That review was unsuccessful. The relevant decisions were then reviewed by the SSCSD which, on 1 September 2015, affirmed the decisions under review.

29    Mr Sesalim then sought a further review of the decisions by the General Division of the Tribunal. The 22 March 2016 decision of General Division of the Tribunal is the 2016 Tribunal Decision the subject of this appeal.

30    In relation to the cancellation decision, Mr Sesalim’s challenge was rejected in the 2016 Tribunal Decision for essentially two reasons. First, and by reference to Table 5 of the Determination, the Tribunal assessed Mr Sesalim’s PTSD as having a “moderate” functional impact when assessed against most of the activities listed at the “moderate” level in Table 5. The Tribunal therefore determined that only 10 points should be assigned in relation to that condition. Second, the Tribunal determined that no points should be assigned in relation to Mr Sesalim’s cervical canal stenosis. That was because that condition was determined to be not “fully treated and stabilised”.

31    It will be recalled that one of the rules specified by Part 2 of the Determination is that an impairment rating may only be assigned where an impairment is “permanent” and, relevantly, a condition is not permanent if the condition has not been “fully treated” and is not “fully stabilised” (s 6(3) and (4)).

32    For those reasons the Tribunal determined that Mr Sesalim failed to meet the 20 point requirement made by s 94(1)(b) of the SS Act.

33    In relation to the suspension decision, the Tribunal also determined that Mr Sesalim was not eligible for unlimited portability. That was because, having determined that Mr Sesalim did not qualify for 20 points under Table 5, the Tribunal reasoned that Mr Sesalim did not have a “severe impairment” under s 94B for the purpose of s 128AA(1)(b) of the SS Act.

34    Mr Sesalim raises six grounds of appeal.

Grounds 1, 2 and 3 – Whether Mr Sesalim’s Spinal Canal Stenosis was “permanent”?

35    These grounds all address the manner in which the Tribunal dealt with Mr Sesalim’s claim that he ought to be assigned points for his spinal canal stenosis. The Tribunal rejected that claim because it determined that the qualifying criteria for assigning an impairment rating, in particular, that the condition be “fully treated and fully stabilised” and thus “permanent” (s 6(3) and (4) of the Determination), was not established. At [52]-[54] the Tribunal said this:

[52]    As regards the accepted condition of cervical canal stenosis I agree with the Respondent that the Applicant’s condition cannot be regarded, as required, as fully treated and stabilised. In that regard I rely upon the HPAU report expressing the view the Applicant at the time was awaiting appointment with a neurosurgeon. The Applicant says this is highly unreasonable but it clearly goes to the question whether at the relevant time the criteria for an impairment rating under the Tables can be given. What happened with the Applicant’s physiotherapy in this regard at a time as far back as 2013—which he points to it seems —is not relevant.

[53]    I note that the Applicant expressed no difficulty in being able to lift his 13 kilograms of personal luggage into the overhead lockers on his flight. He obviously had nothing in the way of incapacity or impairment which prevented him from doing that.

[54]    Hence for his condition of cervical canal stenosis no points can be awarded under the Tables as the qualifying criteria have not been met.

36    Ground 1 is that the Tribunal failed to take into account relevant material available to it. The material in question is a report of a neurosurgeon dated 29 September 2015 about Mr Sesalim’s spinal canal stenosis.

37    Mr Sesalim contended that the neurosurgeon’s report was relevant to whether Mr Sesalim’s condition was “fully treated and fully stabilised”. That Mr Sesalim’s condition was “fully diagnosed” (s 6(4) of the Determination) was accepted by the Tribunal in the review conducted by the SSCSD and was not the subject of any apparent contest before the Tribunal member who made the 2016 Tribunal Decision. However, by the 2016 Tribunal Decision the Tribunal concluded that the spinal canal stenosis condition was not fully treated and stabilised. As is apparent from [52] of the Tribunal’s reasons, that conclusion was based upon a report of the HPAU dated 29 June 2015 in which it was stated that, at the time of that report, Mr Sesalim was awaiting an appointment with a neurosurgeon.

38    By the time of the hearing which led to the 2016 Tribunal Decision, Mr Sesalim had seen the neurosurgeon and the neurosurgeon’s report was before the Tribunal. It is not in contest that the Tribunal did not consider the content of that report.

39    Nor is it in contest that what was in issue was the correctness of the cancellation decision as at 10 July 2015, when that decision was made: Freeman v Secretary of Social Security (1988) 19 FCR 342 at 345 (Davies J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 300 [44] (Kirby J), 315 [101] (Hayne and Heydon JJ). Mr Sesalim contended, and I accept, that information which post-dates a cancelation decision may nevertheless be relevant to the correctness of that decision when made “insofar as it may cast light on the position at the relevant time”: Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [1] (Gyles J); Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 at [31]-[32] (Handley DP); Shields and Secretary, Department of Social Services (Social services second review) [2015] AATA 759 at [44] (Alpins DP).

40    Mr Sesalim contended that the neurosurgeon’s report was a critical piece of evidence that bore on whether the spinal canal stenosis was fully treated and stabilised at the time of the cancellation decision. The report of the neurosurgeon stated that he had recommended to Mr Sesalim that it would be appropriate for him to continue with conservative care and that surgical treatment was not appropriate. The neurosurgeon further recommended that Mr Sesalim undergo a scan on a 12 monthly basis.

41    Mr Sesalim contended that the diagnosis of the neurosurgeon was made only shortly after the cancellation decision and that it would have been open to the Tribunal to infer that, in light of the information in the neurosurgeon’s report, as at the time of the cancelation decision, there was no different treatment that Mr Sesalim required or should have been receiving. In other words, as at 10 July 2015, just as in September 2015 when the neurosurgeon provided his report, the factual position was that no surgical or other intervention was required. Mr Sesalim contended that those matters were relevant to a consideration of whether the spinal canal stenosis was fully treated and stabilised as at 10 July 2015.

42    Sections 6(5) and (6) of the Determination give expression to what is meant by the requirement in s 6(4) that the condition be “full treated” and “fully stabilised”:

Fully diagnosed and fully treated

(5)    In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

(a)    whether there is corroborating evidence of the condition; and

(b)    what treatment or rehabilitation has occurred in relation to the condition; and

(c)    whether treatment is continuing or is planned in the next 2 years.

Fully stabilised

(6)    For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

(a)    either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

(b)    the person has not undertaken reasonable treatment for the condition and:

(i)    significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

(ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.

Note:     For reasonable treatment see subsection 6(7)

43    The Secretary did not dispute that the Tribunal may fall into error if it fails to consider especially probative evidence, in that the failure to do so can constitute a constructive failure to exercise jurisdiction: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [70] (Kenny, Griffiths and Mortimer JJ); Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [98] (Robertson J).

44    The Secretary contended however that the neurosurgeon’s report was not “especially probative”. The essence of that submission is that the neurosurgeon’s report was only dealing with what was required at the point in time at which Mr Sesalim was diagnosed by the neurosurgeon. A similar contention that the neurosurgeon’s report was not referable to 10 July 2015 was also relied upon.

45    In my view, the diagnosis made in September 2015 that Mr Sesalim’s conservative care continue and that no surgical intervention was required as at that time, was logically probative of whether, as at 10 July 2016, surgical intervention or any different treatment was required. Given the nature of the condition in question, from the fact that no surgical intervention was required as at September 2016, an inference was capable of being drawn that no surgical intervention was required as at 10 July 2016. The drawing of such an inference was logically probative of whether as at 10 July 2016 Mr Sesalim’s condition was fully treated and fully stabilised (and thus permanent), including by reference to the matters dealt with by ss 6(5)(c) and 6(6)(a) or (b) of the Determination.

46    The Secretary takes an overly narrow approach to the relevance of the diagnosis made in September 2015. That diagnosis was capable of casting light on whether Mr Sesalim’s spinal canal stenosis condition was fully treated and stabilised as at the time of the cancellation decision. It was of sufficient importance to the question of whether Mr Sesalim’s condition was fully treated and stabilised to warrant it being considered by the Tribunal. In failing to consider that diagnosis, the Tribunal failed to consider probative evidence critical to Mr Sesalim’s case that his condition was “fully treated” and “fully stabilised” and, by reason of s 6(3) and (4) of the Determination, critical to Mr Sesalim’s case that this particular condition should be assigned an impairment rating under the Impairment Tables. In so doing the Tribunal erred because it failed to consider “material centrally relevant” to its task: Aerocare Flight Support Pty Ltd v Transport Workers’ Union of Australia [2018] FCAFC 74 at [19] (Jagot, Bromberg and Rangiah JJ).

47    Given my conclusion as to Ground 1 it is unnecessary for Mr Sesalim to rely upon Grounds 2 and 3. For completeness I will address those grounds but reject each.

48    By Grounds 2 and 3, Mr Sesalim contended that the Tribunal failed to understand or carry out its statutory task or, alternatively, failed to consider Mr Sesalim’s claims that:

(1)    he had received treatment (physiotherapy) for his cervical canal stenosis condition in deciding whether that condition was “fully treated”; and

(2)    that his appointment with the neurosurgeon had been delayed through no fault of his own when deciding whether his condition was “fully stabilised”.

49    The allegation that the Tribunal failed to carry out its statutory task relies on the two matters identified above as well as a contention that the matters addressed at [53] of the Tribunal’s reasons were irrelevant to the statutory task.

50    Absent the Tribunal’s failure to take into account the report of the neurosurgeon (addressed by Ground 1), none of the matters relied upon by Mr Sesalim under Grounds 2 and 3 suffice to demonstrate, either independently or collectively, a failure by the Tribunal to carry out its statutory task including by a failure to consider Mr Sesalim’s claims.

51    The observation made at [53] by the Tribunal about Mr Sesalim not expressing any difficulty in lifting luggage may be regarded as an unnecessary aside but, of itself, is not demonstrative of a failure to carry out the Tribunal’s statutory task. The observation at [52], that Mr Sesalim physiotherapy “is not relevant”, is fairly to be read as indicating that the fact that Mr Sesalim had that treatment was regarded by the Tribunal as of no significance rather than that the treatment was not to be taken into account. I do not accept that the Tribunal did not consider Mr Sesalim’s evidence about the physiotherapy he had received.

52    I also reject Mr Sesalim’s reliance upon the pending appointment with the neurosurgeon. As the Secretary contended, that Mr Sesalim’s appointment had been delayed through no fault of his own was not capable of satisfying the requirements of s 6(6)(b)(ii) of the Determination as the reason for the delay is not the kind of reason contemplated by that provision.

Ground 4 – The “moderate” rating for mental health impairment

53    Broadly stated Ground 4 raises three matters challenging the Tribunal’s rating of Mr Sesalim’s mental health impairment.

54    The first is that irrelevant considerations were taken into account. There were various factual matters which Mr Sesalim said were not before the Tribunal but were nevertheless taken into account. However, as the Secretary identified, those factual references were taken by the Tribunal from the earlier decision made by the SSCSD. It must be accepted that evidence given by Mr Sesalim at the earlier hearing was relevant to the Tribunal’s determination. That aspect of Ground 4 must be rejected.

55    A second aspect of Ground 4, which must also be rejected, is that the Tribunal unreasonably made adverse credit findings against Mr Sesalim. The Secretary properly acknowledged that erroneous findings as to credit are capable of evincing error (see my reasons in CIC15 v Minister for Immigration and Border Protection [2018] FCA 795 at [7]-[11], and AIC15 v Minister for Immigration and Border Protection [2018] FCA 774 at [13]), but contended that the findings that were made were open on the material before the Tribunal.

56    If open, the findings were nevertheless peculiar, and with respect to the Tribunal, if those findings are justifiable, the Tribunal’s reasons do not articulate the justification. I record that concern noting in particular that at [19] the finding made is one of dishonesty and not simply unreliability. Whilst I am not unsympathetic to Mr Sesalim’s complaint, the reason I reject it is that he has not established that the adverse credit findings actually affected the Tribunal’s determination on the issue of the extent of his mental health impairment.

57    The only finding made by the Tribunal as to Mr Sesalim’s mental health impairment where his evidence was rejected was made at [48] where the Tribunal said this:

I am not satisfied furthermore that I can rely on what the Applicant says in detailing matters relating to his own mental health functions. His self–analysis mostly focuses on his pain and discomfort as opposed to functional impairment. I accept he has pain and discomfort of course but functional impairment is the relevant criterion.

58    As is apparent, the basis for the rejection Mr Sesalim’s evidence was not his credibility but the fact that the evidence was not focussed upon his functional impairment.

59    The third aspect of Ground 4 is Mr Sesalim contention that, in the assessment made, the Tribunal failed to engage with the evidence, including in particular, the extensive medical evidence put before the Tribunal. He contends that, as a result, the Tribunal’s overall approach was cursory or impressionistic rather than one which conformed with the statutory task required of it.

60    There is no doubt that the Tribunal recognised its ultimate task of assessing the appellant’s mental impairment and assigning a rating of either “no”, “mild”, “moderate”, “severe” or “extreme” functional impairment. The Tribunal set out its reasons for assigning a “moderate” rating at [43]-[51]. With respect, the reasoning is difficult to follow. Particular evidence is referred to, followed by a conclusion that that evidence “seems to account for” a particular rating. The approach taken may be characterised as cursory. For instance, three of the six criteria in the descriptors in Table 5 are dealt with in four short sentences at [43], and one criteria – “concentration and task completion” is not mentioned at all.

61    That Mr Sesalim had “severe” difficulties with “self-care and independent living” was rejected for no other reason than that “the applicant is renting accommodation on his own”. As Mr Sesalim contended, that a person is living on his own does not, of itself, indicate the extent of the difficulty experienced with his self-care and independent living. On that aspect, as well as the other criteria considered, Mr Sesalim contended that the Tribunal failed to engage with the evidence before it, and in particular, that its engagement with the medical evidence before it was wholly inadequate. It was primarily for that reason that Mr Sesalim contended that the reasoning and conclusion of the Tribunal at [43]-[51] reflected conclusions reached on the basis of an overall general impression rather than on the basis of a proper engagement with the statutory task.

62    There is force in that submission particularly in respect of what I consider to be a failure by the Tribunal to engage with most of the medical evidence before it. I appreciate that the fact that particular evidence is not mentioned in the reasons of the Tribunal may not necessarily indicate a failure to consider that material. It may, for instance, merely indicate a failure of the Tribunal’s reasons to adequately explain how that material was taken into account: see my reasons in Alexander v Australian Community Pharmacy Authority [2010] FCA 189 at [85]-[88]. The adequacy of the Tribunal’s reasons is not the subject of challenge under this ground and need not be further considered. I am however of the view that, in the circumstances, I should infer that the Tribunal’s failure to mention the several reports of clinical psychologist relied upon by Mr Sesalim is indicative of the Tribunal’s failure to take that material into account. An inference that material not mentioned was not considered is available particularly where the decision-maker is, as is the case here, under a statutory duty to provide reasons, although the mere fact that not every issue was addressed does not prove that the material was not considered: Soliman v University of Technology, Sydney [2012] FCAFC 146 at [54] (Marshall, North and Flick JJ). The centrality of the material not mentioned to the task required of the decision-maker and the matters in dispute is important. The more central the material the more available is the inference: see my reasons in Alexander at [60]-[61] and [84]-[89].

63    Section 6(2) of the Determination requires that the Impairment Tables may only be applied to a person’s impairment “after the person’s medical history, in relation to the condition causing the impairment, has been considered”. Additionally, the introduction to Table 5 says this:

The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

64    Section 7 of the Determination provides:

7    Information that must be taken into account in applying the Tables

(1)    Subject to subsection (2), in applying the Tables the following information must be taken into account:

(a)    the information provided by the health professionals specified in the relevant Table; and

(b)    any additional medical or work capacity information that may be available; and

(c)    any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.

(2)    A person may be asked to demonstrate abilities described in the Tables     

65    In that context, the medical opinion of a clinical psychologist may be regarded as material which the Tribunal was obliged to consider and was centrally relevant to the assessment task required by Table 5. It is notable that no reference was made in the reasons of the Tribunal to the medical opinions of at least three psychologists (Mr Jaubert, Ms Bender and Dr Witt) upon whom Mr Sesalim relied. The only medical evidence referred to in the Tribunal’s reasons was a reference made at [49] and [50] to a letter from Mr Sesalim’s treating doctor, Dr Olszewski.

66    The Secretary gave two answers to the Tribunal’s failure to refer to the evidence of the psychologists. The first is that the Tribunal was focussed on the most recent medical evidence. Whilst it is true that Dr Olszweski’s letter post-dates the opinions of the psychologists, that fact does not diminish the importance of the opinion of the psychologists, particularly given the requirement of s 6(2) of the Determination that the person’s medical history be considered and the requirement in the introduction to Table 5 that a diagnosis of the condition must be made by either a psychiatrist or a clinical psychologist.

67    The second answer given by the Secretary is that this is a case in which the Tribunal fundamentally did not believe the applicant’s evidence, and the medical evidence relied upon by Mr Sesalim depended at least in part upon his self-reporting. I do not accept that submission. There is nothing said in the reasons to support it. If the Tribunal did consider the evidence of the psychologist but dismissed it for the reasons proffered by the Secretary, it would also have not referred to the opinion given by Dr Olszweski which was also dependent, at least in part, on Mr Sesalim’s self-reporting.

68    Whether an inference should be drawn that an issue or that material not mentioned in a decision-maker’s reasons was not dealt with or taken into account requires that all of the circumstances be considered: see my observations in Alexander at [52]-[101]. Although no hard or fixed assumption should be made, the starting point is that identified by French J in Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162. I said at [55] of Alexander, by reference to reasons provided under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) which I consider to have equal application to reasons provided under s 44(2B) of the AAT Act, that:

A statement of reasons provided under s 13 of the ADJR Act can provide evidence of the material put before the decision-maker, the way in which that material was dealt with and the reasons for which the decision was made: Taveli at 182 per French J. A properly authenticated statement of reasons provided under s 13 may, absent any contra-indication, sustain the inference that it is an accurate account of the findings and reasons actually relied upon by the decision-maker: Taveli at 179 per French J.

69    The Tribunal was obliged by the Determination to take the evidence of the three psychologists into account. Given that requirement, the significance of the material in question suggests that, if it was considered, some mention of it would have been made in the reasons. There is no mention of it and absent any other “contra-indication” that it was taken into account, I am satisfied that the material was not considered.

70    I am satisfied that by failing to take into account and properly consider the evidence of the three psychologists, the Tribunal erred by failing to consider “material centrally relevant” to its task: Aerocare at [19]. Ground 4 of Mr Sesalim’s appeal is therefore made out.

Ground 6

71    As Mr Sesalim did not press Ground 5, the only remaining ground of appeal that I need to address is Ground 6.

72    Ground 6 related to the suspension decision and the Tribunal’s consideration of the portability requirement. One of the issues before the Tribunal was whether the periods of time spent by Mr Sesalim outside of Australia should be exempted from his portability requirement. In that respect the Tribunal had to consider whether his travel was for the purposes of seeking eligible medical treatment. The Tribunal found that the treatment being received by Mr Sesalim was not eligible medical treatment on the basis that the treatment was available in Australia.

73    Mr Sesalim contended that the Tribunal failed to meet its obligation under s 44(2B) of the AAT Act to give reasons.

74    Mr Sesalim contended that he had presented evidence from Thai and Australian doctors to the effect that the medical treatment he had been receiving in Thailand was effective for him and was not available in Australia. He contended that the Tribunal was obliged to give its reasons why it rejected that evidence and preferred the evidence of the HPAU to the effect that the treatment was available in Australia.

75    This ground of appeal should be rejected.

76    The Tribunal described at [29] the nature of the treatment that Mr Sesalim had been having in Thailand. At [28] the Tribunal said of the various therapies concerned that “there was nothing special” about those treatments “that cannot be obtained in Australia”. At [30] the Tribunal accepted the view of the HPAU that the treatments were almost certainly not unique to Thailand and were available in Australia. In coming to that view, the Tribunal stated that the evidence of Mr Sesalim’s general practitioner that such treatments are not available in Australia should be rejected. The basis for that rejection was then given at [31] where the Tribunal stated that the “general practitioner’s assertion … seems absurd”.

77    The Tribunal was faced with choosing between one of two unparticularised assertions as to the availability of particular treatments in Australia. In preferring one assertion over the other it gave the basis for the preference that it made. That basis was the Tribunal’s view that there was “nothing special” about the treatments to support the assertion that the treatments were unique to Thailand and were unlikely to be available in Australia. The Tribunal may have been wrong about the conclusion it reached, but “the logic of its decision” is sufficiently apparent (Dodds v Comcare Australia (1993) 31 ALD 690 at 691 (Burchett J)).

78    For those reasons I agree with the contentions of the Secretary that the reasons given by the Tribunal were sufficient to discharge its statutory obligation to provide reasons.

THE 2017 APPEAL

79    On 1 April 2016, Mr Sesalim lodged a claim for DSP. Centrelink rejected that claim on 7 August 2017, which rejection was then affirmed by an authorised review officer on 16 August 2016.

80    Mr Sesalim then lodged an application for review by the Tribunal. The SSCSD affirmed the rejection on 7 September 2017 on the basis that Mr Sesalim did not meet the eligibility criteria set out in s 94 of the SS Act.

81    On 25 January 2017, the Tribunal (in its General Division) set aside that rejection. Before the Tribunal, the Secretary accepted that Mr Sesalim suffered from a number of medical conditions, including a mental health condition, a cervical spine condition, malaria vivax and proteinuria, and that his mental health condition was permanent within s 6(4) of the Determination (that is, it was fully diagnosed, fully treated and fully stabilised). While they are not the subject of this appeal, I note that the Tribunal considered that Mr Sesalim’s cervical spine condition was considered fully diagnosed but not fully treated and stabilised, and that there was insufficient evidence to conclude whether Mr Sesalim’s other conditions were fully treated and stabilised.

82    In dispute before the Tribunal was what rating should assigned to Mr Sesalim’s functional impairments in accordance with the Impairment Tables. The Tribunal concluded Mr Sesalim attracted 20 impairment points under Table 5 because “there is a severe functional impact on activities involving mental health function”. The Tribunal found that his “mental health condition causes severe functional impact on activities and warrants a rating of 20 points under the Impairment Tables”.

83    The Secretary brings four grounds of appeal (each with several elements) arising from the findings relied upon by the Tribunal in reaching this conclusion.

Ground 1

84    The Secretary challenged the finding made by the Tribunal at [43] of the 2017 Tribunal Decision, that Mr Sesalim had “severe difficulties” in “behaviour, planning and decision-making”. The challenge was put in four different ways although, as was common in the submissions of the Secretary, there is substantial overlap between the different bases relied upon in support of the grounds of appeal.

85    First, the Secretary contended that the Tribunal’s reasons were inadequate and contrary to the requirements of s 43(2B) of the AAT Act (“Ground 1(a)”). Second, on the assumptions that the findings relevant to “behaviour, planning and decision-making” are solely contained at [42] of the Tribunal’s reasons, the Secretary contends that [42] is not logically probative (in the sense discussed in FTZK v Minister for Immigration and Border Protection (2014) 88 ALJR 754 at 763 [31] (Hayne J)) of a severe difficulty with behaviour, planning and decision-making or, alternatively, that those findings simply do not meet the statutory criterion (in the sense discussed in BYI16 v Child Support Registrar [2017] FCA 139 (Pagone J)) (“Ground 1(b)”). Third, again on the presumption that it is only [42] where findings of relevance are to be found, the Secretary contended that given that the matters in [42] appear to fit a “moderate” difficulty with “behaviour, planning and decision-making”, the absence of any comparative exercise should be taken to mean that the Tribunal did not compare the relative descriptors for each impairment rating and consequently failed to follow the mandated statutory procedure (“Ground 1(c)”). Fourth, the finding at [43] is challenged is legally unreasonable in the sense discussed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 367 [76] (Hayne, Kiefel and Bell JJ) (“Ground 1(d)”).

86    In my view there is a difficulty with the way in which the Secretary has identified the Tribunal’s reasons for its finding at [43] that Mr Sesalim has “severe” difficulties in relation to the criteria of “behaviour, planning and decision-making”. To explain, it is necessary to set out paragraphs [41]-[43]:

41.    Mr Sesalim advised that he is trying the best he can to obtain his education. His persistence is evident from the evidence before me. I am satisfied that he has severe difficulties with concentration, task completion and work/training capacity. He has severe difficulties with time management, organisation and keeping to deadlines and commitments.

42.    At hearing, Mr Sesalim, although obviously very intelligent, fluctuated in thought and struggled to maintain concentration. It was evident that he had difficulty presenting his case, even though he was well prepared and had some written submissions.

43.    For all the above reasons and having careful regard to the criteria in Table 5 of the Impairment Tables, I find that Mr Sesalim's has severe difficulties with most of the criteria in the severe category, being work/training capacity; interpersonal relationships; concentration and task completion; behaviour, planning and decision-making. His mental health condition causes severe functional impact on activities and warrants a rating of 20 points under the Impairment Tables.

87    The obligation of the Tribunal to provide reasons requires it to make the basis of its decision intelligible, namely, to explain its actual path of reasoning in sufficient detail to enable the parties and a court to see whether the decision does or does not involve error: see Ansett Transport v Wraith (1983) ALR 500 at 507 (Woodward J); Dornan v Riordan (1990) 24 FCR 564 at 568 (Sweeney, Davies and Burchett JJ); Taveli at 179 (French J); Alexander at [65] (Bromberg J); and in the comparable context of the requirement of a Medical Panel to give reasons see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at [56] (French CJ, Crennan, Bell, Gageler and Keane JJ) and St Luke’s Anglicare v Handrinos [2018] VSC 356 at [41]-[43] (Richards J). However, in discerning whether there has been an error of law, the reasons of the Tribunal must be read fairly and should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ). The Court ought not be concerned merely with looseness in language or with unhappy phrasing: Oak Valley (Maralinga) Inc v Aboriginal & Torres Strait Islander Commissioner (1999) 98 FCR 1 at [22] (O’Loughlin J).

88    A fair reading of the Tribunal’s decision requires that some attention be given to its structure. At [19] the Tribunal correctly identified the nature of its task when it said that the question in the proceeding “is the level of functional impairment suffered by Mr Sesalim as a result of the condition having regard to the criteria in Table 5 of the Impairment Tables”. At [20] each of the criteria in each of the descriptors in Table 5 which need to be considered was expressly identified. After some discussion, the first criteria of “self-care and independent living” was addressed at [24]. At [25] through to its conclusion at [29], the Tribunal’s reasons dealt with the second criteria of “social/recreational activities and travel”. At [30] the Tribunal turned to address the fourth criteria of “interpersonal relationships”. That discussion continues through to [32]. At [33] the Tribunal began to address, collectively, the fourth and sixth criteria of “concentration and task completion” and “work training capacity”. Those matters appear to be dealt with through to the second sentence of [41] where the Tribunal gives its conclusion that it is satisfied that Mr Sesalim has severe difficulties with concentration, task completion and work/training capacity.

89    Having to that point addressed each of the criteria other than “behaviour, planning and decision-making” and given its conclusion on the penultimate criteria considered, the better view is that the Tribunal then turned to consider the only remaining criteria in the last sentence of [41] and in [42]. If the last sentence of [41] had begun with a paragraph break the approach of the Tribunal would have been more obvious. But the lack thereof ought not to distract from what the structure of the reasons suggests to be the subject of that part of the Tribunal’s reasons. That conclusion is supported by the content of the last sentence of [41] and the whole of [42], recognising that there is significant overlap between the content of the various criteria to be considered.

90    The subject of the last sentence of [41] appears to be directed at the subject of “behaviour, planning and decision-making”. The observation made at [42] that Mr Sesalim “fluctuated in thought” seems directed at the example given for the functional descriptor “behaviour, planning and decision-making” at the “severe” level of Table 5. As is the observation made in the last sentence of [42] that Mr Sesalim had “difficulty presenting his case” which resonates with the example’s reference to the person conversing in a way which is significantly and frequently disturbed.

91    Viewed in that light, it is apparent that the Tribunal had a range of reasons for supporting its conclusion that Mr Sesalim had severe difficulties with “behaviour, planning and decision-making”. The Secretary’s contention by Ground 1(a) that the Tribunal erred because it gave no reasons addressing that criteria must be rejected.

92    Ground 1(b) proceeded on the assumption that the Tribunal’s reasons for its finding that Mr Sesalim had “severe” difficulties with “behaviour, planning and decision-making” were only contained at [42]. On that basis, the Secretary contended that the findings in [42] are not logically probative of a severe difficulty with behaviour, planning and decision-making or alternatively do not meet the statutory criterion.

93    I have difficulty with the assumption on which the Secretary’s contention is based. For the reasons indicated above, the basis for the Tribunal’s finding that Mr Sesalim had severe difficulty was not confined to those matters identified at [42] dealing with presentation at the hearing, but also included those matters in the last sentence of [41]. Once that is recognised, the first limb of Ground 1(b), that contrary to the express requirement in the introduction to Table 5 “the person’s presentation on the day of the assessment should not solely be relied on” (emphasis added), falls away.

94    The second limb of Ground 1(b), being that the matters described at [42] fit a “moderate” difficulty and not a “severe difficulty”, also ignores the last sentence of [41]. The Secretary contended that the matters dealt with at [42] resonate with the examples given for “behaviour, planning and decision-making” at the “moderate” rather than the “severe” level or rating of Table 5. That proposition is debatable. As I have said, the content of [42] resonates with the examples given for the “severe” rating of Table 5. In any event, that proposition is not sufficiently apparent to support the Secretary’s contention that [42] reveals that the Tribunal’s findings were not logically probative of a “severe” difficulty or, alternatively, that the findings did not meet the requisite statutory criterion

95    The third limb of Ground 1(b) is also not made out. The Secretary contended that the Tribunal appears to have given no weight whatsoever to the fact that Mr Sesalim was able to make oral and written submissions and that “he was well prepared”. It is not apparent that no weight was given to those matters. In any event, the erroneous attribution of weight does not support the Secretary’s contention that the Tribunal’s findings are not logically probative of a severe difficulty with behaviour, planning and decision-making, or that they fail to meet the statutory criterion.

96    By Ground 1(c) the Secretary contended that the Tribunal failed to follow the mandated statutory procedure, namely, the rule laid down by s 11(2) of the Determination that the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied. Consistently with the observations I have earlier made about the statutory task that Table 5 requires, the Secretary contended that the examples are part of the descriptors and therefore part of the requisite comparison required.

97    From that starting point, the Secretary contended that there is nothing in the Tribunal’s reasons to suggest that it made the requisite comparison, and that the absence of any comparative exercise in the reasons should be taken to mean that the Tribunal did not compare the relative descriptors for each impairment rating.

98    I do not consider that any such case is made out.

99    The Tribunal’s reasons demonstrate that it understood that its task was to assign a rating to Mr Sesalim’s mental health condition having regard to Table 5. The Tribunal said so at [19] in posing the question it regarded itself as being required to answer.

100    At [20] the Tribunal continued:

Table 5 of the Impairment Tables outlines a number of criteria to consider when determining the functional impact functional impact on activities involving mental health function. The criteria are self-care and independent living; social/recreational activities and travel; interpersonal relationships; concentration and task completion; behaviour, planning and decision-making; and work/training capacity.

101    The remainder of the Tribunal’s reasons, as already recorded, address each of the criteria identified at [20]. The criteria referred to by the Tribunal form part of each of the descriptors found under each one of the ratings or levels in Table 5.

102    It is clear that the Tribunal appreciated that its task was to choose between the available ratings in Table 5 and it is manifest from the Tribunal’s reasons that it did so by choosing the “severe” rating. Inherent in the task of making an appropriate choice between competing alternatives is the making of a comparison as between the alternatives to determine which should be chosen. If the Secretary’s case is that I should be satisfied that the Tribunal made no comparison between the relevant descriptors, that case must fail. The Tribunal understood that it was required to make a comparison and there is no basis for me to conclude that it failed to undertake what that task inherently involved.

103    However, the Secretary’s position, as put in both its written and oral submissions, is more correctly characterised as a contention that the statutory task requires that common parts in the relative descriptors must be compared. Each of the descriptors in Table 5 is divided into six criteria. The Secretary’s written submission contended that the Tribunal failed to compare that part of each descriptor dealing with the criteria of “behaviour, planning and decision-making” with its counterpart in the other descriptors. In oral submissions, the Secretary went further and contended that the examples under each of the criteria in the descriptors needed to be compared as against the other examples appearing under the same criteria in the other descriptors.

104    The difficulty with those contentions is that the statutory task does not require a direct comparison of a part of a descriptor with a part of another descriptor. Whilst each of the six criteria set out in each descriptor form part of the descriptor, and the examples there found also form part of the descriptor, s 11(12) of the Determination requires a comparison of each of the relative descriptors as a whole and not a direct comparison as between parts thereof.

105    That is not to say that in the comparison between descriptors, a comparison across the examples given in relation to each criteria is not permitted or may not serve a useful purpose. To the contrary, given the illustrative nature of the examples and their purpose of providing content to each of the descriptors, such a comparison may be useful for understanding the intended scope of each descriptor. But no direct comparison between examples or any part or parts of the descriptors is required by s 11(2) and, accordingly, the Secretary’s challenge is based on a mischaracterisation of the statutory task and must be rejected.

106    I would have been more receptive to a finding of error if I had been satisfied that in comparing one descriptor with the next, the Tribunal had failed to take into account a relevant criteria or the examples there given, for the purpose of understanding the ground a particular rating is intended to cover. But such an inference is not available. I am not satisfied, for example, that in coming to a view that Mr Sesalim suffered a “severe” functional impact on activities involving his mental health function, the Tribunal did not take into account his “behaviour, planning and decision-making” and the example that “a person’s behaviour, thought and conversation are significantly and frequently disturbed”. For reasons given earlier, the better view is that the reasons reveal an engagement with both that criteria and that example.

107    Even if that was not so, the inference that the Tribunal failed to have reference to the examples would be difficult to draw if the only basis for it was the Tribunal’s failure to mention the examples in its reasons. The examples have an interpretative function. Given the Tribunal’s task as earlier identified, including that it must apply the ordinary meaning of the words “no”, “mild”, “moderate”, etc, as informed by the remainder of the relevant descriptor, it would be onerous to expect, that in providing an understanding through its reasons of how the Tribunal reached the highly evaluative decision it is required to make by assigning a rating under Table 5, it is necessary for the Tribunal to record how each of the interpretative tools provided by Table 5 fed into its decision. The highly evaluative nature of the decision which is required of the Tribunal provides the context in which it is made. As French CJ, Crennan, Bell, Gageler and Keane JJ stated in Wingfoot at [45], “[t]he standard of reasons required even of courts making judicial decisions can vary markedly with the context”.

108    By Ground 1(d), the Secretary contended that the finding at [43], that Mr Sesalim had severe difficulty with behaviour, planning and decision-making, was legally unreasonable. That challenge constituted no more than a re-packaging, in the language of legal unreasonableness, of the complaints already addressed. That challenge should also be rejected.

Ground 2

109    Ground 2 challenged the finding made by the Tribunal at [30] that Mr Sesalim has “severe difficulty with interpersonal relationships”. Three challenges are made under this ground. First, that the Tribunal’s reasons are inadequate (“Ground 2(a)”). Second, that the matters referred to by the Tribunal do not support the finding (“Ground 2(b)”). Third, that the finding is legally unreasonable (“Ground 2(c)”).

110    The Tribunal gave the following reasons for the finding made at [30]:

30.     I am satisfied that Mr Sesalim has severe difficulty with interpersonal relationships. This is fundamentally based on the medical evidence before me. Some of which I have summarised below.

31.     Lyn Bender states in her report the following:

"Aladdin in my view exhibits chronic enduring symptoms of acute traumatic stress and PTSD. These include extreme in disabling anxiety and agitation, chronic excessive feelings of guilt related to his survival, severe loss of trust, depression, despair, agitation and anger, hopelessness, cognitive disorganisation, poor concentration, intrusive thoughts and flashbacks, numbing and avoidance and sleep disturbance.

The symptoms can be quite disabling."

32.    Dr Witt says in her letter dated 16 June 2015 that Mr Sesalim suffers from a range of clinical symptoms some of which include depressed mood, irritability, guilt, elevated anxiety, agitation, avoidance and emotional numbing. All of these symptoms would impact on Mr Sesalim's interpersonal relationships.

111    In respect of Ground 2(a), the Secretary’s contention was that there “is no explanation whatsoever of how the particular evidence quoted from leads to the finding of severe difficulty”.

112    I reject that contention. The Tribunal’s reasons sufficiently provide an understanding of how its conclusion was reached. As the Tribunal said at the foot of [32] the symptoms identified in the medical reports referred to are symptoms that would impact upon Mr Sesalim’s interpersonal relationships. The relevance of the medical evidence to the criteria being considered was therefore made apparent. That the severity of the symptoms as described in the medical reports was a basis for the Tribunal’s finding that Mr Sesalim has “severe” difficulty with interpersonal relationships is also plain. The logic of the Tribunal’s reasoning process or its path of reasoning was sufficiently exposed. The severity of the symptoms and their relevance to Mr Sesalim’s capacity for interpersonal relationships justified Mr Sesalim’s difficulty with interpersonal relationships being characterised as “severe” in accordance with the meaning of that term in Table 5.

113    By Ground 2(b) the Secretary contended that the matters referred to by the Tribunal did not support its finding because the medical evidence was not logically probative of a severe difficulty with interpersonal relationships. In the alternative, by Ground 2(c), it was said that the finding did not meet the statutory criterion and that moreover, for the same reasons, the finding is legally unreasonable. I reject those contentions. The medical evidence relied on by the Tribunal was logically probative of Mr Sesalim’s capacity for interpersonal relationships. The medical evidence dealt with matters probative of that capacity and informed the extent to which Mr Sesalim may have difficulties with those relationships. Reliance upon that evidence did not render the conclusion legally unreasonable. Neither ss 6(8) or 8(1) of the Determination is of assistance to the Secretary in support of an argument that the evidence in question was not logically probative or that the finding was legally unreasonable.

114    For those reasons, appeal ground 2 must be rejected.

Ground 3

115    Ground 3 challenges the Tribunal’s finding at [41] that Mr Sesalim has “severe difficulties with concentration, task completion and work-training capacity”. The appeal ground is said to be put in five different ways. First, that the Tribunal’s reasons are inadequate (“Ground 3(a)”). Second, that the matters referred to by the Tribunal did not support the finding (“Ground 3(b)”). Third, that the Tribunal failed to apply the rules of the Determination (“Ground 3(c)”). Fourth, that the Tribunal failed to refer to centrally relevant evidence (“Ground 3(d)”). Finally, that the Tribunal’s finding is legally unreasonable (“Ground 3(e)”).

116    As to Ground 3(a), the Secretary contended that the Tribunal’s reasons provide no explanation as to how the evidence concerning Mr Sesalim’s educational history, namely that he was enrolled in a masters level course, could support a finding of severe difficulty with his concentration, task completion and work-training capacity. That submission must be rejected. It is founded upon the absence of a detailed comparison of the examples given in Table 5. In line with my observations above, I do not accept that in providing an understanding of how it reached its conclusion, the Tribunal was obliged to descend to the level of detail that the Secretary’s submission calls for.

117    The reasoning process adopted by the Tribunal is plain. The Tribunal considered a range of evidence as to Mr Sesalim’s educational history including that it took him five years to complete a two year diploma, that the educational history involved many failures and many repeated subjects including a failure of one subject two or more times which led to an academic progress warning. Furthermore, the Tribunal relied on the fact that the educational institution with whom Mr Sesalim was enrolled decided to restrict Mr Sesalim’s enrolment because of his poor performance. Additionally, the educational institution had determined that Mr Sesalim required various concessions regarding his studies and examinations.

118    It is plain that the Tribunal’s consideration of those matters was informed the criteria in question. It is also apparent that the severity of Mr Sesalim’s difficulties with his education and the perceived relevance of those difficulties to the criteria in question, was regarded by the Tribunal as justifying Mr Sesalim’s difficulty with concentration, task completion and work/training being characterised as “severe” within the meaning of Table 5. Different minds may differ as to whether that characterisation was justified by reference to the material relied upon, but the reasons given by the Tribunal sufficiently expose its path or reasoning.

119    By Grounds 3(b) and (c), the Secretary submitted that the matters referred to by the Tribunal do not support the finding made and that the finding was legally unreasonable. The Secretary contended that it was simply not open to find a “severe” difficulty on the evidence before the Tribunal. I do not accept the contention. There is a logical and probative nexus between the evidence relied upon by the Tribunal and Mr Sesalim’s ability to concentrate, complete tasks and his capacity to undertake work/training. The Secretary’s contention was inappropriately fixed upon the examples as though they are to be regarded as determinative. The Secretary’s submission cavils with the merit of the Tribunal’s characterisation but fails to establish that the evidence relied upon by the Tribunal in support of that characterisation was not logically probative of that conclusion, or that the finding was legally unreasonable.

120    Ground 3(c) was that the Tribunal failed to comply with s 11(2) of the Determination. For the same reasons earlier expressed at [96]-[107], this complaint must also be rejected.

121    In support of Ground 3(d) the Secretary contended that there was evidence before the Tribunal to the effect that Mr Sesalim cannot “focus on tasks for longer than two hours per day” (the evidence of Dr Witt) and other evidence that “he was capable of concentrating for more than 10 minutes” (evidence of Dr Olzszewski). The Secretary contended that the fact that that evidence was not mentioned in the Tribunal’s reasons grounds an inference that it was not considered. The Secretary then contended that the failure to take into account that evidence constitutes an error because the evidence was plainly germane if not critical to the issue the Tribunal had to determine. For that reason, the Secretary contended that the Tribunal failed to discharge its statutory task.

122    The Secretary’s contention as to the importance of the material in question is based upon the example found under the “concentration and task completion” criteria in the “severe” rating that “[t]he person has difficulty concentrating on any task or conversation for more than 10 minutes”.

123    The importance of the material in question needs to be evaluated. The first matter relied upon, Dr Witt’s view that Mr Sesalim cannot “focus on tasks for longer than two hours per day” is not as relevant as the Secretary’s submission suggests. The opinion deals with the sum of the time per day that Dr Witt regarded Mr Sesalim as having a capacity to focus and does not directly address the length of time Mr Sesalim was capable of concentrating for “any task or conversation”. The second opinion relied upon by the Secretary is a statement found in a HPAU report that records an opinion expressed by Dr Olzszewski dated 29 June 2016. Dr Olzszewski, as the Tribunal’s reasons state at [23], has been Mr Sesalim’s treating doctor for over 10 years. Whilst the Tribunal makes no specific reference to the opinion expressed by Dr Olzszewski as reported in the HPAU report, the Tribunal did take into account a report from Dr Olzszewski dated 4 January 2016 that Mr Sesalim’s PTSD impacts upon his “ability to concentrate for any extended period”, and that his condition was exacerbated to severe levels by stress (at [23]).

124    It is therefore apparent that the Tribunal had regard to Dr Olzszewski’s view as to Mr Sesalim’s ability to concentrate. Further, it is not surprising that the Tribunal referred directly to Dr Olzszewski’s 4 January 2016 report rather than to a comment said to have been made by him in a report prepared by others and made at an earlier time.

125    Those matters tend to diminish the centrality or importance of the material in question. Furthermore, the Secretary’s submission is dependent on the view that the example in question posed a critical consideration in the Tribunal’s task. The examples found in Table 5 are interpretative tools designed to give meaning to the expressions “mild”, “moderate”, “severe” etc. They are not determinative considerations and the Secretary’s submission overstates their criticality.

126    In those circumstances, even if I were satisfied that the material in question had not been considered, I would not be satisfied that the Tribunal had failed to give consideration to “material centrally relevant” to the statutory task the Tribunal was required to perform (see Aerocare at [19]).

Ground 4

127    Ground 4 challenges the Tribunal’s finding at [29] that Mr Sesalim has “moderate difficulties with social/recreational activities in travel”. That finding is challenged in six different ways. However, it is unnecessary that I determine this ground of appeal.

128    The Tribunal came to the view that there is a “severe” functional impact on activities involving Mr Sesalim’s mental health function because Mr Sesalim had “severe difficulties with most of” the six criteria identified at the “severe” rating or level of Table 5. That state of satisfaction was reached by the Tribunal without any reliance upon the extent of Mr Sesalim’s difficulties with “social/recreational activities and travel”. Accordingly, even if the Secretary was correct that the Tribunal erred in regarding the difficulties relating to that criteria as “moderate”, the Tribunal’s ultimate conclusion that a “severe” rating ought to be assigned to Mr Sesalim would not be affected.

Conclusion     

129    For all of those reasons, the Secretary’s appeal must be dismissed.

relief

130    The parties requested an opportunity to consider these reasons before the Court makes orders providing for relief. There are three matters raised in relation to relief. The first is whether in relation to the 2016 appeal the Court should, pursuant to s 44(7) of the AAT Act, make further findings and determine Mr Sesalim’s entitlement to a DSP for the period in question. The second issue is whether, if the Court declines to do that and remits that matter for reconsideration by the Tribunal, any limitation should be imposed on the scope of the remittal. Thirdly, there is the question of costs.

131    In order that the parties may give consideration to those matters and that they may be efficiently resolved by agreement, I set out my preliminary views on each of the issues. Having not fully heard from the parties, I emphasise that those views are preliminary. They may nevertheless be of assistance. As to the first and second issues (in respect of which some submissions from the parties have already been received) my preliminary view is that the Court ought not to make further findings but that the matter underlying the 2016 appeal should be remitted to the Tribunal for determination without limitation by a differently constituted Tribunal. As to the third issue, there is no reason apparent to me as to why costs should not follow the event.

132    If the parties are able to reach agreement on these matters, minutes of the orders they propose should be provided to my Chambers within two weeks of the publication of these reasons. If no agreement is reached or the extent of the agreement is limited, the Court should be informed of the issues in dispute. In the absence of opposition from the parties, I will seek short written submissions from the parties in order to deal with any outstanding issue on the papers.

The 2016 appeal – the grant of leave

133    As earlier indicated, I have determined to extend the time for Mr Sesalim to institute his appeal. The final matter I need to address is why that leave was granted.

134    Pursuant to s 44(2A) of the AAT Act an appeal may be instituted no later than 28 days after an applicant is given the decision of the AAT, or within such further time as the Court allows. The principles relevant to the determination of an application for an extension of time are well known and are not in contest. Consideration must be given to the length of the delay, the explanation for the delay, any prejudice to the respondent if time is extended and the merits of the applicant's proposed appeal. None of those matters is of itself determinative and the discretion reposed in the court must be exercised according to the individual facts of the case.

135    Mr Sesalim’s appeal is some 195 days out of time. An explanation for the delay is given in an affidavit of Mr Sesalim’s solicitor. The delay is sought to be explained on the basis that, initially, for some 91 days after the 28 day prima facie limited expired, Mr Sesalim did not understand that he had a right to institute an appeal. In April 2016, Mr Sesalim telephoned his solicitors seeking legal advice on an issue unrelated to this appeal. Whilst acting for Mr Sesalim in relation to that other issue, the solicitor involved had cause to read the 2016 Tribunal and advised Mr Sesalim that it was possible for him to appeal from that decision and that he had reasonable prospects of succeeding on such an appeal. A further delay through to August 2016 is explained on the basis of time taken up by the need to engage the internal processes of Mr Sesalim’s solicitors so that those solicitors could provide him with their services on a pro bono or conditional fee basis. On 26 August 2016, Mr Sesalim retained his solicitors to act for him on a pro bono basis. Counsel were instructed on 12 September 2016.

136    There were some 83 days which elapsed between when pro bono assistance was approved for Mr Sesalim and when he filed his application for an extension of time. So far as that is explained, it appears that there was an attempt made by Mr Sesalim’s solicitors to negotiate with the Secretary in an endeavour to have the Secretary reinstate Mr Sesalim’s DSP as an alternative to instituting an appeal. Correspondence ensued between Mr Sesalim’s solicitors and the Secretary through to 5 October 2016 when the Secretary confirmed that there would be no reinstatement. As a result of that refusal, it was determined that it was necessary to institute the appeal. No explanation has been given as to why about four weeks elapsed between when the Secretary’s refusal to reinstate was communicated to Mr Sesalim’s solicitors and the lodging of the application for an extension of time.

137    The delay in question is undoubtedly long and the explanation for it is less than complete. It must be accepted, however, that pro bono assistance is not always able to be provided in a timely manner and some latitude ought to be given for processes which are reliant on the goodwill and generosity of lawyers prepared to act on a pro bono basis. There are, of course, limits.

138    Any such limits ought to reflect the prejudice suffered by others and, importantly, the merits of the application in question. On the question of prejudice, I do not consider that the Secretary has suffered any prejudice additional to that which would have been suffered if a timely appeal had been brought. I disagree that there is prejudice in Mr Sesalim having made a further application for a DSP on 1 April 2016 which led to the 2017 appeal. Mr Sesalim was always entitled to appeal the 2016 Tribunal decision and, at the same time, make a further application for a DSP. His delay in instituting his appeal does not demonstrate that a further application for a DSP would not have been made in any event.

139    On the issue of the merit of Mr Sesalim’s appeal, for the reasons I have already given, not only do I consider there to be merit in the appeal, I have come to the view that the appeal should succeed. For those reasons I consider that the interests of justice favoured the grant of the extension of time sought by Mr Sesalim.

Associate:

Dated:    7 August 2018