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.