MYBV v Secretary, Department of Social Services

THE AAT'S REASONS 10 The AAT provided comprehensive reasons for its decision. It commenced with a summary of the history of the processing of MYBV's claims. It then summarised the evidence which was before it. That evidence included evidence from MYBV herself, her clinical psychologist, and a considerable number of medical reports. It then set out the relevant legislation. This included s 94 of the Act, which contains the eligibility criteria for a DSP. Relevantly, those criteria include that: the applicant has a physical, intellectual or psychiatric impairment (s 94(1)(a)); the impairment rates 20 points or more under "the impairment tables" (s 94(1)(b)); and he or she has a continuing inability to work (s 94(1)(c)(i)) or the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system (s 94(1)(c)(ii)). 11 The AAT then set out relevant parts of what it referred to as "the Impairment Table Rules", which appear in Part 2 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ("the Determination") made under the Act. The AAT extracted s 6, which relevantly provides as follows: 6 Applying the Tables … (2) The 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. … Impairment ratings (3) An impairment rating can only be assigned to an impairment if: (a) the person's condition causing that impairment is permanent; and Note: For permanent see subsection 6(4). (b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years. Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years - if this is the case, an impairment rating under the Tables cannot be assigned to the impairment. Permanency of conditions (4) For the purposes of paragraph 6(3)(a) a condition is permanent if: (a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and (b) the condition has been fully treated; and Note: For fully diagnosed and fully treated see subsection 6(5). (c) the condition has been fully stabilised; and Note: For fully stabilised see subsection 6(6). (d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years. … 12 At this point it is necessary to interpolate reference to some additional statutory material relating to impairment tables and the rules pertaining to them, the promulgation of which is provided for in s 26 of the Act. Section 26(1) provides that the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for the purposes of a DSP. Under s 26(3), the Minister may also, in such an instrument, determine rules that are to be complied with in applying the tables or other provisions relating to those tables. As identified above, the relevant instrument made by the Minister pursuant to s 26 of the Act is the Determination. Part 2 of the Determination specifies rules for applying the impairment tables. The impairment tables are set out in Part 3 of the Determination. 13 Having examined the medical evidence, the AAT concluded at [67] that MYBV had "physical and possibly psychiatric impairments" for the purposes of s 94(1)(a) of the Act. However, the AAT also concluded at [69] and [71] that her conditions causing those impairments had not been fully diagnosed, fully treated, and fully stabilised at the time of the decision. For this reason, she did not satisfy s 94(1)(b) and did not qualify for a DSP. 14 Following the hearing, but before the AAT had made its decision, MYBV submitted a number of additional medical reports. The AAT recorded (at [73]) that this had occurred and continued: The Tribunal has examined all the reports and attaches an appendix to this decision detailing the source of the report with comments by the Tribunal where appropriate. None of these reports have any bearing on the decision. 15 The appendix identified each report (and some other documents) that had been filed after the hearing and commented on the contents or explained why they were not of assistance.

PROCEDURAL FAIRNESS 16 MYBV contended that the AAT had denied her procedural fairness. This allegation was effectively particularised in questions 1-3 in her notice of appeal. She alleged that the AAT had: not permitted her to give evidence on affirmation when she was recalled; refused itself to call or allow her to call medical evidence in support of her claim; and refused and/or not permitted her to file and serve a statement of facts and contentions. 17 None of these specific allegations was referred to in MYBV's first written submissions. There was passing mention of them in the second set of submissions. 18 In relation to the applicant's first complaint, counsel for MYBV accepted, at the hearing of her appeal, that he was unable to point to any direction by the AAT that she not give evidence on affirmation. He conceded that, following opening submissions before the AAT, the applicant had been affirmed and then gave evidence. In the end, the allegation was that MYBV had not been reaffirmed when she resumed her evidence following evidence from another witness who had been interposed. As refined by counsel during the hearing, the other element of this complaint was that, having been recalled, she had not been invited to give evidence or told that she had a right to do so. 19 MYBV's second complaint had two elements: the first was that the AAT had refused to allow her to call medical evidence in support of her claim; the second was that the AAT had not itself called evidence which might have assisted her case. This latter failure was said to involve a contravention of s 33(1)(c) of the AAT Act, which provides that the AAT "is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate". 20 MYBV contended that the AAT had an obligation to provide her with assistance by itself calling evidence about her medical conditions once it had determined that the evidence provided by her did not support her claim. This contention was said to be supported by the AAT's decision in Re Willey and Repatriation Commission (1989) 17 ALD 314 and the decision of this Court in Adamou v Director-General of Social Security (1985) 7 ALN N203; [1985] FCA 81. An examination of the transcript did not disclose any express refusal by the AAT to receive evidence (either oral or documentary) from MYBV. 21 The third instance of denial of procedural fairness was said to be the refusal, by the AAT, to permit MYBV to file and serve a statement of facts and contentions. Alternatively, it was said that she had not been permitted to do so. She was not directed to do so. Counsel for MYBV was unable to point to any such express refusal or denial of permission. She did file written submissions in response to a statement filed by the Secretary. 22 The Secretary contended that no denial of procedural fairness had occurred. He conceded that, were MYBV to make good one or more of her allegations of denial of procedural fairness, this would give rise to a relevant question of law for the purposes of s 44 of the AAT Act: see Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 at 385; [2015] FCAFC 92 at [202]. 23 The AAT was obliged to provide MYBV with an opportunity to "propound … her case for a favourable exercise of [its] power" by granting the relief which she sought and to do so in a manner that avoided "practical injustice": see Minister for Immigration and Border Protection v SZSSJ (2016) 333 ALR 653 at 670; [2016] HCA 29 at [82]. See also: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 160; [2006] HCA 63 at [25]. 24 MYBV was not denied procedural fairness. She laboured under the disability that many unrepresented litigants experience when she appeared before the AAT. A review of the transcript confirms the Secretary's contention that she was accorded a fair hearing. She had the opportunity to explain her case, develop her arguments and deal with those ranged against her. She was affirmed before she gave her oral evidence and there was no requirement for her to be reaffirmed later during the hearing. 25 MYBV filed extensive medical evidence both before and after the AAT hearing. All of this evidence was considered by the AAT. Simply because the AAT ultimately considered that there was a paucity of evidence to support a finding that certain of the psychiatric and physical conditions from which MYBV claimed to suffer had not been fully diagnosed, treated and stabilised at relevant times, did not oblige it, acting under s 33(1)(c) of the AAT Act or otherwise, to obtain or to give MYBV a further opportunity to obtain and present evidence to rectify this deficiency. 26 Section 33(1)(c) of the AAT Act confers a discretionary power on the AAT. It does not impose any obligation. Neither Willey nor Adamou hold otherwise. In Willey, the AAT determined to exercise its power under s 33(1)(c) to call for further evidence "because it was dissatisfied with the evidence it had received which was so disparate that it was unable to make a properly informed decision" (at 316). In Adamou, Wilcox J said no more than that, had the AAT during the hearing of a claim thought that the evidence before it was "so inadequate as to provide no proper basis for a conclusion", it "could have adjourned the hearing for the purpose of having the parties place relevant evidence before it" pursuant to s 33(1)(a) or "could have directly informed itself upon the matter" pursuant to s 33(1)(c) (at N207). 27 In the present case, the AAT did not find itself confronted with the difficulties experienced by it in Willey or find itself bereft of evidence which would allowed it to reach a conclusion. It was not invited to exercise its discretion under s 33(1)(c) and it did not refuse to do so. The occasion for the exercise of the discretion simply did not arise. 28 It is also to be observed that the "paucity" to which the AAT referred at [70] related to only one of the medical conditions from which MYBV claimed to suffer, namely her joint conditions, and specifically their limit on her range of movement. (The Tribunal also referred at [38], [70] and [71] to the lack of expert opinions relating to the impact of her orthopaedic and joint conditions on her capacity for work.) Furthermore, MYBV did not identify any particular additional evidence which she might have been minded to call had she been aware, at the hearing, of the conclusion to which the AAT ultimately came. 29 Prior to the hearing, the AAT directed the Secretary to file and serve a statement of facts and contentions. A similar obligation was not imposed on MYBV, consistently with the AAT's practice of not imposing such a burden on unrepresented parties. It did, however, direct MYBV to file and serve evidence and she chose to file written submissions in answer to the Secretary's statement of facts and contentions. All this material was considered by the AAT. 30 MYBV suffered no practical injustice at the hands of the AAT. This ground must fail.

FAILURE TO HAVE REGARD TO RELEVANT CONSIDERATIONS 31 This ground alleges that the AAT "fail[ed] to take into account relevant evidence namely medical reports forwarded by [MYBV] to the [AAT's] Sydney and/or Melbourne registry". This is the documentary material which MYBV sent to the AAT registries following the hearing of her appeal and before the AAT's decision was handed down. That material is identified in the appendix to the AAT's reasons. 32 MYBV did not suggest that she had filed any documents additional to those identified in the appendix. Some of these documents had already been submitted to the AAT prior to the hearing. The letter from Doctor E Papier dated 21 June 2006, to which reference is made in paragraph (b) of the appendix had, for example, earlier been submitted and considered by the AAT in its reasons at [45]. Similarly, the report from Doctor Baskin, dated 24 May 2010 and recorded at para (c), had been lodged before the hearing. 33 The AAT, as it said at [73] of its reasons, examined all of these reports but found that none of them had any bearing on its decision. 34 The AAT would only have committed a jurisdictional error if it had failed to take into account a matter which it was bound to consider: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. MYBV did not develop any submissions which were directed at establishing that the AAT was obliged to have regard to some or all of the material identified in the appendix. What was put, in her written submissions, was that: [t]he reports forwarded after the hearing by [MYBV] are not identified in the body of the report but rather listed without reference to either the Melbourne or Sydney registry as being received. The [AAT] impermissibly does not examine each and every report and nor are they itemised in the decision. (Emphasis added.) 35 The AAT did, as it said, consider the material tendered and found it to be irrelevant. MYBV did not point to any passages in any of the documents which in any way touched on the issue on which her appeal foundered. The fact that the AAT chose to identify the documents and comment on them in an appendix to its reasons rather than in the reasons themselves is of no moment. Nor is the fact that the AAT did not indicate which documents had been filed in its Sydney registry and which in Melbourne. 36 This ground must fail.

REASONS FOR DECISION 37 MYBV contended that the AAT had failed to comply with the requirements of s 43(2B) of the AAT Act. That subsection provides that, when the AAT provides written reasons for its decisions, "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". It is by no means clear that a failure, on the part of the AAT, to comply with s 43(2B), if established, would necessitate the setting aside the decision to which the reasons relate: cf Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554 at 562-6; [2009] FCAFC 137 at [44]-[67], and, especially, at [55] and [67]; Repatriation Commission v Holden (2014) 142 ALD 267 at 285; [2014] FCA 605 at [84]-[87]. That question need not be decided in the present appeal because, in my view, the AAT did not fail to comply with the requirements of s 43(2B). 38 The argument developed by MYBV concentrated on the manner in which the AAT dealt with the documentary material filed after the hearing. In essence the complaint was that the AAT had failed to explain its reasons for finding that none of this material was relevant to the determination of MYBV's appeal or assisted her in that regard. In her first written submissions, MYBV complained that a reader of the AAT's decision would be "unable to discern from the reasons for decision findings on material questions of fact when there appear to have been no specific findings in relation to specific reports attached to the reasons for decision simply by way of appendix". 39 It is clear that one of the purposes served by the provision of reasons pursuant to ss 43(2) and 43(2B) of the AAT Act is to enable parties to understand why it was that the AAT came to a particular decision. The reasons may also facilitate the making of informed decisions as to whether a proper legal foundation exists for challenging the AAT's decision. The form and length of reasons, necessary to satisfy the requirements of s 43, will necessarily vary depending upon the circumstances of any particular case. In some cases it may be possible to explain a decision very briefly. In others there will be a need for detailed findings and explanations about why some evidence has been accepted and other evidence has not and to forge the link between the findings and the ultimate outcome. The requirements imposed on the AAT by s 43 were summarised by French J (as his Honour then was) in Secretary, Department of Employment and Workplace Relations v Homewood (2006) 91 ALD 103 at 111; [2006] FCA 779 at [40]. His Honour there said: The obligations set out in s 43 are not necessarily discharged by merely setting out findings on material questions of fact, referring to the evidence on which those findings are based and then stating a conclusion. … [T]he 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. This passage was referred to by the Full Court in Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21 at 29; [2014] FCAFC 17 at [43] (Perry J; White and Wigney JJ agreeing). 40 After the AAT hearing, MYBV filed a number of documents, including medical reports. Some of this material had already been presented to the AAT and considered by it. All of this material, as already noted, was considered by the AAT. All of it was identified in the appendix. In the body of its reasons the AAT found that none of the material was relevant to the decision to which it came. That decision, it will be remembered, was a very narrow one. It was that, for a period of a few months in 2014, MYBV had not established an entitlement to receive a DSP because the medical conditions on which she relied had not been, at relevant times, fully diagnosed, fully treated and fully stabilised. The additional documents did not touch on this question. When the AAT's reasons are read as a whole this conclusion is logically supportable. No contravention of s 43 of the AAT Act had been made out. 41 Having been provided with the AAT's reasons (including the appendix) MYBV would have known why it was that the AAT had found the additional material not to have been of assistance: as it said in [73] of its reasons, the additional material was irrelevant to the determination of the issue on which its ultimate finding was based. 42 MYBV had access to all of the material and, had she wished to assert that any part of that material was relevant, she could have identified the particular passages and explained how they would have assisted her case. This she did not do. The AAT was not required to make findings based on evidence which it had found to have no bearing on its decision. 43 This ground must fail.

AN ADDITIONAL GROUND 44 During oral argument, MYBV sought to advance an additional ground for setting aside the AAT's decision. This additional ground was subsequently particularised in her amended notice of appeal, which was filed following the hearing, and which is extracted at [8] above. The additional ground related to the impairment tables that the AAT had purportedly considered in coming to its decision. 45 Specifically, MYBV contended that the AAT had considered Tables 2 and 3 in Part 3 of the Determination, when it should have based its decision on Table 1. Table 1 concerns "functions requiring physical exertion and stamina". Relevantly, a report from a medical specialist confirming a diagnosis of chronic pain is specified as an example of corroborating evidence for the purposes of Table 1. In contrast, Tables 2 and 3 concern "upper limb function" and "lower limb function" respectively. It was submitted that the AAT considered the latter two tables but not the first, and that the first was relevant to MYBV's conditions involving chronic pain. MYBV contended that an error of law could arise if an applicant is denied a DSP because of an assessment based on an incorrect table. 46 The Secretary contended that the AAT did not consider any of the impairment tables and nor was it required to. It was submitted that, as the AAT found that MYBV's conditions were not fully diagnosed, fully treated, and fully stabilised during the qualification period, it was unable to have regard to the impairment tables; the question never arose to be determined. 47 In order to use the impairment tables to assign an impairment rating under s 94(1)(b), s 6(3)(a) of the Determination requires that the condition causing the impairment be "permanent". Under s 6(4) of the Determination, a condition will be "permanent" if: (a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and (b) the condition has been fully treated; and (c) the condition has been fully stabilised; and (d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years. 48 In relation to MYBV's psychiatric conditions, at [69] of its reasons, the AAT found that her post-traumatic stress disorder was not fully diagnosed until after the qualification period, namely in December 2014. The documentary evidence relating to MYBV's prior psychiatric treatment, which was filed after the hearing, was found (at [69]) to relate only to the period between 1998 and 2006, when MYBV was working full time. Having found that there was no diagnosis for the purpose of s 6(4)(a) of the Determination at the time of the qualification period, the AAT was unable, as a matter of law, to consider the impairment tables in relation to MYBV's psychological condition. Nor did it do so. 49 In relation to MYBV's physical conditions, the AAT appeared to accept that MYBV had been diagnosed with joint and tendon conditions (at [66]) along with fibromyalgia (at [68]) and a chronic regional pain syndrome (at [68]). The AAT accepted that the latter conditions magnify the pain arising from MYBV's upper and lower limb joints (at [68]). Nevertheless, having considered the evidence in relation to the diagnosis, treatment and stabilisation of those conditions (at [24]-[53] and [65]-[70]), the AAT concluded (at [71]) that: there is no substantiation of the upper and lower limb conditions having been fully diagnosed, fully treated and stabilised throughout 2013, 2014 and 2015 and therefore these conditions do not attract an impairment rating. Section 94(1)(b) is not satisfied. 50 It is evident that the AAT found that the requirements in s 6(4) of the Determination were not satisfied in respect of MYBV's physical conditions. Having made that finding, those conditions could not be considered "permanent" for the purposes of s 6(3)(a), and the AAT was unable to, and did not, consider the impairment tables for the purposes of s 94(1)(b). 51 After stating its conclusion, the AAT continued at [71] as follows: The Tribunal acknowledges that job capacity assessors have on two occasions recommended an impairment rating of 20 points consisting of 10 points for the upper limb and 10 points for the lower limb conditions. The assessments were based on file reviews at MYBV's request and relied on the information she had provided, which was in fact her summary and interpretation of her medical history and the treating doctor's report ... 52 During the hearing, MYBV contended that what was said at [71] indicated that the AAT had "confined itself to Tables 2 and 3" and "confine[d] itself to those [upper and lower] limbs". Other paragraphs of the AAT's reasons that were cited as evidence of such an approach included [55], [56] and [57], where relevant legislative provisions and s 6 of the Determination are extracted. 53 MYBV claimed that the AAT had "accepted the invitation" of the Secretary to consider Tables 2 and 3 and to confine itself to MYBV's upper and lower limb conditions without considering Table 1 in relation to her chronic pain. MYBV submitted that this invitation was apparent from [64] of the reasons, where the Secretary's submissions were summarised as follows: Mr Shelley submitted [for the Secretary] that in the event that the Tribunal found that MYBV's upper and lower limb conditions each attracted 10 points in terms of impairment rating and therefore satisfied section 94(1)(b) of the Act, MYBV would still be required to satisfy the program of support criteria. 54 Paragraph [64] reflects the Secretary's submissions on a hypothetical outcome that was contingent upon the AAT first determining that MYBV's conditions were "permanent" under s 6(4) of the Determination. 55 I am not persuaded that there exists any basis for the contention that the AAT undertook any impairment rating assessment in reaching its decision. 56 This ground must fail.

CONCLUSION 57 The appeal must be dismissed with costs. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.