Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48 (4 April 2008)

Last Updated: 8 April 2008

FEDERAL COURT OF AUSTRALIA

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48

ADMINISTRATIVE LAW – application for disability support pension – qualification for pension dependent on condition being treated – whether there is a compelling reason for a person not to undertake further treatment for their condition

WORDS AND PHRASES – "compel"

Social Security Act 1991 (Cth) s 94, Schedule 1B

Airedale NHS Trust v Bland [1992] UKHL 5; (1993) 1 All ER 821 cited
Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1645 cited
Dragojlovic v Director-General of Social Security [1984] FCA 6; (1984) 1 FCR 301 considered
In re F (Mental Patient: Sterilisation) [1991] UKHL 1; [1990] 2 AC 1 cited
Koutsakis v Director-General of Social Security (1985) 10 FCR 42 considered
Lorenzo Paduano v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 211; (2005) 143 FCR 204 considered
McNamara v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1096 considered
Schloendorff v The Society of The New York Hospital (1914) 211 NY 125 cited
Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218 cited

The New Shorter Oxford English Dictionary (fourth edition)
Macquarie Dictionary (second revised edition)








SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS v BERNARD ANTHONY JANSEN
VID 885 OF 2007

GYLES, STONE & BUCHANAN JJ
4 APRIL 2008
SYDNEY (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 885 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Appellant
AND:	BERNARD ANTHONY JANSEN Respondent

JUDGES:	GYLES, STONE & BUCHANAN JJ
DATE OF ORDER:	4 APRIL 2008
WHERE MADE:	SYDNEY (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders made by the primary judge be set aside.

3. In lieu thereof the respondent’s application for an extension of time in which to appeal from the Tribunal be dismissed.

4. The cross-appeal be dismissed.








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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 885 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Appellant
AND:	BERNARD ANTHONY JANSEN Respondent

JUDGES:	GYLES, STONE & BUCHANAN JJ
DATE:	4 APRIL 2008
PLACE:	SYDNEY (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

THE COURT:

1 On 27 April 2006 the Administrative Appeals Tribunal rejected Mr Bernard Jansen’s application for a disability support pension basically because he refused to undergo treatment for the conditions responsible for his disability. On 7 September 2007 a judge of this Court ordered that Mr Jansen be granted an extension of time to lodge his appeal, that the appeal be heard instanter and allowed and that the matter be remitted to the Tribunal, differently constituted. This is an appeal from his Honour’s decision [2007] FCA 1358. On 22 February 2008, the respondent filed a notice of contention, however at the hearing the respondent elected not to press the issues raised in the notice. It must therefore be formally dismissed without further comment.

2 Mr Jansen was born on 31 May 1966. He applied for a Disability Support Pension on 11 April 2005. The disabilities claimed were "Anxiety and Depression, Panic attacks, Stomach problems". The treating doctor’s report by Dr G Stephens was attached to the application. It stated that the diagnosis of Mr Jansen’s condition was "anxiety/depression". Under the history of clinical features Dr Stephens listed "chronic anxiety/depression – contributing factors include alcohol excess, marriage break up and death of father". The current symptoms were said to be "depressed mood, anxiety including panic attacks, insomnia". Mr Jansen’s application was refused by a delegate of the appellant and by the Social Security Appeals Tribunal. He then appealed to the Administrative Appeals Tribunal.

THE TRIBUNAL’S DECISION

3 Mr Jansen told the Tribunal that his history of anxiety, depressive disorder and panic attacks began when he was 15 years old. The Tribunal summarised Mr Jansen’s evidence about his condition as follows:

Mr Jansen stated that he sought treatment from a psychiatrist in Healesville some years ago but did not find it to be helpful, so he discontinued the sessions after several months. He said that he has tried various medications, including anti-depressants but found them of little value, and they caused serious side-effects. He now self-medicates with alcohol, which he finds eases his tension, and occasionally takes Murelax, an anti-depressant. However, he is reluctant to take Murelax because he understands that this medication may be addictive.

He told the Tribunal that he has engaged in excessive alcohol consumption since the age of 15. He states that he drinks up to six vodka cans per day, although he said that there were no psychosocial or legal consequences of his drinking, and he has never had any treatment for alcohol problems.

Mr Jansen noted the various treatment options suggested by various medical practitioners, but told the Tribunal that he would not be able to attempt detoxification at present because he was not ready to give up drinking. Similarly he doubted that tests on his liver etc. would be useful, however he said that he would seek advice from his general practitioner. He reiterated his reluctance to take prescribed medication for depression/anxiety without an assurance from his doctor that there would be no serious side-effects. Mr Jansen explained that in the past he has attended counselling arranged by his church, and found it helpful. He said he would consider resuming this in an effort to address the many issues in his life; however he did not see the desirability of undertaking other forms of counselling.

4 Dr Ian Katz, a consultant psychiatrist, interviewed Mr Jansen for the purpose of providing a medico-legal report in connection with his application for the Disability Support Pension. In a letter dated 23 October 2005 to Mr John Longo, a lawyer with the Human Rights and Civil Law Service of Victoria Legal Aid, Dr Katz gave his opinion that Mr Jansen was "not currently eligible" for the pension. He commented on Mr Jansen’s treatment history as follows:

He has had very little in the way of formal treatment and particularly medication. He previously saw a psychiatrist and a psychologist for a short period of time, although he was rather disinclined to give me information on this. He has mainly received church based counselling.

5 Dr Katz said that he did not see Mr Jansen’s condition as necessarily irreversible and was optimistic about his prospects if he received appropriate treatment. Dr Katz said that he had communicated his views to Mr Jansen and had offered to provide ongoing care and assistance. He outlined in detail the treatment he would propose for Mr Jansen. In his report Dr Katz made the following pertinent observations and recommendations:

• Mr Jansen clearly saw his drinking as a complicating factor although his motivation to address it was at least questionable.

• The presentation and the severity of Mr Jansen’s illness were complicated by alcohol abuse and dependence and, possibly, also by ongoing gambling and cannabis abuse.

• Given the amount of spirits that Mr Jansen was drinking, seemingly on a daily basis, his general practitioner should consider admitting him to a public detoxification facility.

• It was unlikely that Mr Jansen’s psychiatric state could be properly assessed while he was drinking the amount of alcohol that he was admitting to drinking.

• Following detoxification his psychiatric state should be reassessed.

• The first step in his treatment should be alcohol detoxification and treatment for his anxiety and depression.
Dr Katz concluded:

Finally the quintessential aspect to this man’s presentation, is that he has had a paucity of appropriate treatments, and advocacy and assistance to this man should proceed down the track of obtaining him with robust and appropriate psychiatric care and support and in particular monitoring (especially for his suicide risk) rather than pursue a payment which would quite probably be inappropriate after a period of time of successful treatment.

6 Dr Katz also gave oral evidence to the Tribunal in which, according to the Tribunal, he said that "the treatment of Mr Jansen’s excessive alcohol consumption was fundamental to the treatment of the other conditions". Notwithstanding Dr Katz’s optimism Mr Jansen refused the treatment. The Tribunal made the following finding:

Clearly Mr Jansen is not prepared to consider detoxification or other measures to address his alcohol consumption because he does not want to cease drinking, and he is not willing to consider counselling other than that organised by his church.

7 Although the Tribunal found that the range of treatment options posed did not constitute a real risk to Mr Jansen and that "The recommended treatment is reasonable in the circumstances and is in his best interests", it accepted that Mr Jansen’s concern about the possible side effects of medication was genuine. Nevertheless, the Tribunal concluded:

Despite his particular fear of serious side-effects from depression/anxiety medication, Mr Jansen has not demonstrated a genuine reason for refusing other treatment options. ... in all the circumstances, Mr Jansen’s refusal to undertake the range of treatment options is not genuinely based on grounds that compel him, acting honestly, to refuse. Therefore his conditions are not fully documented, diagnosed conditions which have been investigated, treated and stabilised, and could not be assigned an impairment rating under the Impairment Tables, and he does not satisfy the qualification requirements of s94(1)(b) of the Act.

Consequently the Tribunal dismissed Mr Jansen’s pension application.

LEGISLATION

8 Section 94(1)(b) of the Social Security Act 1991 (Cth) provides that a person qualifies for a disability support pension if, among other things, the person’s impairment is rated at 20 points or more under the Impairment Tables. The Impairment Tables are found in Schedule 1B to the Social Security Act. The tables are designed to assess whether persons who apply for a disability support pension meet an "empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work".

9 Using the tables a medical officer can assign a rating, generally between nil and forty points, according to the extent of functional capacity in relation to work. The Introduction to Schedule 1B states that this functional impairment,

is measured by reference to an individual’s efficiency in performing a set of defined functions in comparison with a fully able person.

10 Paragraph 4 of the Introduction stipulates that a rating is to be assigned only where the condition is "a fully documented, diagnosed condition which has been investigated, treated and stabilised." Paragraphs 5 and 6 of the Introduction are of central importance to Mr Jansen’s claim and therefore are set out in full.

5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

• what treatment or rehabilitation has occurred;

• whether treatment is still continuing or is planned in the near future;

• whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

In this context, reasonable treatment is taken to be:

• treatment that is feasible and accessible ie, available locally at a reasonable cost;

• where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:

• evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and

• indicate why this treatment is reasonable; and

• note the reasons why the person has chosen not to have treatment.

JUDICIAL REVIEW

11 The Tribunal’s decision was handed down on 27 April 2006. The last date for lodging an appeal was 25 May 2006. Mr Jansen filed an application for an extension of time to appeal and an affidavit in support on 21 September 2006. He gave details of his persistent attempts over the whole of that period to obtain legal aid for an appeal. The trial judge was satisfied that Mr Jansen was not responsible for the delay and that he had demonstrated a consistent determination to prosecute his appeal. His Honour therefore directed his attention to the proposed appeal’s prospects of success.

12 The trial judge held that the Tribunal had misunderstood the correct test to be applied to Mr Jansen’s application and made the orders referred to above at [1]. In particular his Honour found that the Tribunal had erred in applying an objective test to determine if Mr Jansen’s refusal of treatment was for "a medical or other compelling reason" as indicated in clause 6 of the Introduction at [10] above.

13 The trial judge found support for the proposition that a "compelling reason" should be assessed on a subjective basis in accordance with the views expressed by Smithers J in Dragojlovic v Director-General of Social Security [1984] FCA 6; (1984) 1 FCR 301. Dragojlovic involved an applicant who had refused to undergo a serious spinal operation, a lumbar laminectomy, for the purpose of relieving his incapacity for work. He had been refused a pension because the Tribunal there found, as a fact, that his refusal was unreasonable. Smithers J held that the Tribunal had applied the wrong test and said at 304-305:

Of course, it has been felt to be unsatisfactory that a person who refuses to undergo treatment which would probably cure his incapacity and which it would be reasonable, objectively regarded, for him to undergo, should qualify for a pension. Common sense suggests that it would be unfair that the community should pay a pension to such a person. As a result, it has been thought proper to import, by analogy, the notion that incapacity which is curable by the adoption of measures which it is objectively reasonable to take, is not permanent incapacity.

There is however, in my opinion, no warrant for this. Under the Act qualification for a pension depends upon a state of fact. The Act does not lay down as a condition of the qualification that there be a reasonable cause for its existence.

......

In any case in which treatment is refused the question for the respondent or the Tribunal is not whether the refusal is reasonable or otherwise, but whether, on the probabilities, the refusal is genuinely based on grounds which, in fact, compel the person concerned, acting honestly, so to refuse. Questions involving the reality of alleged reasons for action and involving their bona fides are commonly encountered in the course of the judicial process. When they are encountered, in the context of a refusal to undergo treatment for a disability, the reasonableness of the treatment in contemplation is, of course, a factor of importance. It is a question, when deciding if, in fact, a person is permanently incapacitated for work. The question ought to be resolved on the basis that a person is so permanently incapacitated when this incapacity is such that it can only be relieved by treatment of such a nature that in the opinion of the fact finding Tribunal he cannot undergo it. A person who is genuinely constrained by religion or fear which he cannot overcome is no doubt such a person. But there may well be cases in which on other genuine grounds it would not be reasonable to expect a claimant for a pension or a pensioner to undergo particular treatment of a remedial nature. Dealing with the plain question of fact, with respect to a man who can be cured only by treatment objectively reasonable but actually not available to him because of fear or other genuine reason, a Tribunal would, in my opinion, find that that man was permanently incapacitated for work within the meaning of s.23 of the Act.

14 As the trial judge pointed out, Dragojlovic turned on a specific provision of the Social Security Act 1947 (Cth) which provided in s 135M(1) that the Director-General, "having regard to the age and mental and physical capacity of that person and to the facilities available to that person for suitable treatment for physical rehabilitation and suitable training for a vocation" might refuse a pension unless the person received such treatment or training.

15 Smithers J construed the section in the context of the 1947 Act as a whole. In particular, his Honour had regard to s 23 of the 1947 Act which provided for the grant of a pension to persons who were permanently incapacitated for work. His Honour referred, at 308, to the 1947 Act as having "a social purpose" and held that a person who is incapacitated for work "for want of remedial treatment, which is refused on genuine grounds of fear or religion" would be, for the purposes of s 23, "permanently incapacitated". His Honour, at 309, interpreted a reference in s 135M to treatment for which "facilities are available to that person for suitable treatment" as limited to,

facilities and treatment which that person can make use of in the circumstances in which he is placed. Those circumstances would include constraints upon him of genuine fears for his safety, even if unfounded, or his genuine religious beliefs.

16 The trial judge also referred to the Full Court decision in Koutsakis v Director-General of Social Security (1985) 10 FCR 42 in which the Court observed, at 45:

The cases make it clear that the mere failure of a person to undertake medical or other treatment which is recommended to him does not disentitle him from receiving a pension or an award of compensation ... [T]he mere fact that the appellant’s fears are groundless does not make them unreasonable if they are genuine.

17 The trial judge acknowledged that the provisions of the Social Security Act 1991 (Cth) that apply to Mr Jansen’s application are different from those considered in Dragojlovic and Koutsakis, however he commented that it was "reasonable to assume that if Parliament had intended any change to the social policy underlying the 1947 Act, as found by this Court, any such change would have been clear and explicit. Such is not the case".

18 His Honour held that the emphasis in the Act is on subjective good faith or the lack thereof in refusing treatment. In his view the Tribunal’s emphasis on the lack of grounds and "genuine reason" for Mr Jansen’s refusal were consistent with the Tribunal applying an objective test and looking for some reason or fact external to his refusal that would justify it. His Honour held that this error indicated that the appeal should succeed and therefore made the orders referred to in [1] above.

THIS APPEAL

19 At the hearing of the appeal Mr Hanks QC, who appeared for the appellant, submitted that his Honour had "glossed over" the legislative history and that changes to the Social Security legislation since Dragojlovic and Koutsakis indicate that the underlying policy has undergone a number of changes.

20 The approach to the assessment of disability shown in the impairment tables commenced some months after the commencement of the Social Security Act 1991 (Cth). Prior to that the Social Security Act 1947 (Cth) provided that an invalid pension could only be granted to an applicant who was permanently incapacitated for work. In s 135M it also authorised the Director-General to deny a pension to a person who refused "suitable treatment". When the 1991 Act was first introduced it retained the invalid pension however s 99(1) provided that the pension was not payable to an applicant if:

• the Secretary was of the opinion that the person should undergo treatment and required the person to do so;

• the Secretary was satisfied that it was reasonable for the subsection to apply to that person; and

• the person did not take reasonable steps to comply with the Secretary’s requirements.

21 Later the same year Act No. 141 of 1991, the Social Security (Disability and Sickness Support) Amendment Act 1991 (Cth), replaced the invalid pension with the disability support pension. The qualifications for the grant of the pension were set out in s 94(1) and included the requirement that the person’s impairment be of "20 per cent or more under the Impairment Tables" set out in Schedule 1B. At that time the Introduction to the Schedule had only three clauses, the third of which stated that an impairment rating could only be assigned if the pension applicant’s condition was a "fully documented, diagnosed condition" which had been "investigated, treated and stabilised". It stated that a condition was permanent if "in the light of available evidence it is more likely than not that it will persist for the foreseeable future", being a period lasting more than two years.

22 That was the position until the Social Security Act was amended by the Social Security and Veterans’ Affairs Legislation Amendment (Family and Other Measures) Act 1997 (Cth) and Schedule 1B was revised. The original three clauses in the Introduction to Schedule 1B were replaced by the present thirteen clauses, numbers five and six of which are set out at [10] above.

23 Mr Hanks made the point that from 1991 until the commencement of the amendments referred to in the previous paragraph, a failure to undergo treatment would simply prevent any impairment rating being assigned and hence preclude the grant of a pension. This was the effect of the original clause 3 in the Introduction to Schedule 1B which was introduced by Act No. 141 of 1991. The amendments in 1997 made it clear, however, that an impairment rating could be assigned, even in the absence of treatment, if there was a medical or other compelling reason for the person not undertaking the treatment. In our view, that history leaves no room for the assumption that there has been a continuity of policy from the time of Smithers J’s decision in Dragojlovic to the present. The meaning and application of the current provisions must be determined independently by a careful construction of those provisions.

24 According to clause 5 of the Introduction as it presently stands, a condition cannot be considered to be permanent until it has been "diagnosed, treated and stabilised". In Mr Jansen’s case there is no controversy about the diagnosis and there is no doubt about appropriate treatment being available. Dr Katz outlined the proposed treatment in some detail; see [5] above. Moreover, he expressed a clear view that until Mr Jansen’s excessive alcohol consumption was addressed, there could not be effective treatment of his anxiety and depression. In an addendum to his main report dated 12 January 2006 Dr Katz reiterated his view that Mr Jansen’s condition could be substantially improved with treatment perhaps "to the extent that a disability pension will not be required should he avail himself of treatment".

25 It is, however, necessary for Mr Jansen’s condition to be stabilised if he is to qualify for a disability pension. It is clear that this is not a case where "significant functional improvement" is not expected or where there is a medical reason, compelling or otherwise, for Mr Jansen not undertaking treatment. The only issue is whether Mr Jansen’s refusal is for another "compelling reason" such that, pursuant to clause 6 of the Introduction properly understood, his condition could be considered to be stabilised despite him not undergoing treatment. If so, he could be assigned an impairment rating and, as it would appear from Dr Katz’s estimated rating of 20 for his depression and anxiety and 30 for his alcohol abuse, he would meet the standard for the grant of a disability pension.

26 Various medical practitioners suggested a treatment regime for Mr Jansen. As summarised by the Tribunal, Mr Jansen’s response to these suggestions was:

• in relation to his alcohol problems, he could not attempt detoxification because "he was not ready to give up drinking";

• in relation to liver function tests, he was sceptical about their usefulness but would seek advice from his general practitioner;

• in relation to medication for his anxiety and depression, he was reluctant to take it without an assurance from his doctor that there would be no serious side-effects;

• he would consider resuming counselling arranged by his church but not other forms.

27 The respondent submitted that the Tribunal’s conclusion ignored the common law principle that an individual has a right of self-determination over his or her own body which involves the right to refuse medical treatment. In support of this proposition the respondent cited Schloendorff v The Society of The New York Hospital (1914) 211 NY 125 at 126; In re F (Mental Patient: Sterilisation) [1991] UKHL 1; [1990] 2 AC 1 at 55; Airedale NHS Trust v Bland [1992] UKHL 5; (1993) 1 All ER 821 at 889; and Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218 at 310. With respect, those cases do not touch on the issue here, which involves the right of access to a statutory benefit subject to the person seeking the benefit of undertaking treatment. For similar reasons we reject the respondent’s submissions based on Australia’s obligations under international law which relied, inter alia, on the Convention on the Rights of Persons with Disabilities, which has been signed by Australia but not yet ratified, much less translated into Australian law.

28 The appellant submits that either the Tribunal applied the correct test to determine if Mr Jansen’s reasons for not undertaking further treatment were compelling or, if it applied the wrong test, it was a test that was more favourable to the respondent than the test required under the applicable legislation. In describing the correct test, however, Mr Hanks was reluctant to embrace the subjective/objective dichotomy. The appellant rightly points out that neither an expectation there will be no significant functional improvement from further medical treatment nor a medical reason for not undergoing medical treatment can be determined from the state of mind, views or beliefs of the applicant for a disability pension. Both these circumstances require an opinion formed on medical grounds. In the appellant’s submission, the third circumstance which must be considered, that is whether there is any other compelling reason for not undergoing medical treatment, must also be assessed by the relevant medical officer. In Mr Hank’s submission the Tribunal understood itself to be applying the test articulated by Smithers J in Dragojlovic which, in his view, had both subjective and objective elements.

29 In support of its contention that the test of a compelling reason is subjective, the respondent points to the fact that clause 6 assumes a person will generally wish to pursue reasonable treatment unless the "risks and side-effects" of the treatment are unacceptable to the person. The starting point for the enquiry is that, subjectively, the person concerned finds the treatment unacceptable. It is clear that, except where the reason for not undergoing treatment is a medical reason, which includes the treatment’s prospects of success, it will generally – if not always – be personal to the applicant and therefore subjective. It will be his or her reason (as opposed to the medical officer’s reason) for not undertaking treatment and, assuming that the reason given is the applicant’s genuine reason, there is no more to be said on that issue. However, it does not follow from the fact of the reason being subjective, that the question whether it is a compelling reason is also a subjective decision of the applicant.

30 We accept the respondent’s submission that a "medical or other compelling reason" for a person not undertaking treatment covers more than a reference to the "risks and side-effects" of the treatment. There is also much force in the respondent’s submission that, in context, "other compelling reason" may include physical, legal and moral concerns, however it is not necessary for us to consider that issue here.

31 The New Shorter Oxford English Dictionary describes the transitive verb, "compel" as meaning (1) to "Constrain, force, oblige a person"; (2) to "Force to come or go (in some direction)"; (3) to "Take by force, extort, requisition"; and (4) to "Bring about or evoke by force". It defines the ordinary meaning of the participial adjective, "compelling" as "that compels". A second special meaning of "compelling" is given but is not relevant here. The Macquarie Dictionary (second revised edition) definition of the verb includes (1) "to force or drive"; (2) "to secure or bring about by force"; (3) "to force to submit; subdue"; and (4) "to overpower".

32 In Lorenzo Paduano v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 211; (2005) 143 FCR 204 Crennan J considered whether, in deciding if an applicant for a visa had "compelling reasons" for being absent from Australia, the Migration Review Tribunal had misconstrued "compelling". Her Honour observed, at 211:

A perusal of commonly used dictionaries indicates that the words ‘compel’ and ‘compelling’ are ordinary English words which have not one, but several connotations. What they have in common is a semantic debt to the Latin pello/pellere - ‘to force’, ‘to drive’, ‘to stimulate’, ‘to rouse’, but it is clear beyond dispute that the idea of ‘force’ common to many of the dictionary entries is not confined to physical or legal force but includes moral force and the ‘force’ of mental stimuli such as from a ‘compelling argument’.

33 Crennan J also noted at 212 that in construing words of ordinary meaning a judge must have regard to "his or her understanding of common usage, especially having regard to the purpose, context and language of the relevant delegated legislation."

34 The Migration Regulations 1994 (Cth) considered in Paduano required the Minister to be satisfied that the visa applicant had "not been absent from Australia for a continuous period of 5 years or more since the date of the grant of the applicant’s most recent permanent visa, unless there were compelling reasons for the absence". In applying an objective test to the question whether the reasons for absence were compelling, Crennan J was responding to the context in which the question of compelling reasons arose. Her Honour held that because it was the Minister who had to be satisfied that the applicant’s reasons were compelling, the Minister had to make that judgment by reference to some external standard such as that of the reasonable person in the same circumstances as the appellant.

35 In McNamara v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1096 Whitlam J was concerned with the Minister’s refusal to grant a visa, one criterion for the grant of which was that the visa application should be made within 28 days of the expiry of the applicant’s substantive visa unless "the Minister is satisfied that there are compelling reasons for not applying those criteria". The Tribunal, standing in the shoes of the Minister, had refused to waive the requirement. Before Whitlam J it was submitted that the Tribunal had misconstrued the term "compelling reasons" and that the dictionary definitions to which the Tribunal referred involved "an impermissibly high standard". In response to the submission his Honour observed, at [10]:

This is a silly point. There is no true construction of the expression in question. Reasons for not applying the Sch 3 criteria may appear compelling to one person and not to another. The adjective ‘compelling’ does not introduce an objective standard. The waiver decision will always involve a subjective judgment. In the present case the Tribunal considered whether the reasons advanced by the applicant justified not applying the criteria. That approach reveals no error.

36 A similar approach was adopted by Moore J in Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1645.

37 In Paduano at 213-214, Crennan J distinguished the decisions in McNamara and Babicci:

In both McNamara and Babicci, the judges treated the Minister, rather than the applicant, as the implied predicate, that is as the person the legislature intended to be ‘compelled’ by the ‘compelling reasons’ or ‘compelling circumstances’ respectively, reflecting the syntax of the waiver provisions under consideration.

The subclause here is somewhat different syntactically. The expression ‘compelling reasons for the absence’ must, I think refer to the applicant’s absence. Whilst the drafting style is one which requires the Minister’s satisfaction as to a matter of fact, it seems to me this does not mean the Minister’s decision on this aspect involves only a subjective judgment as in McNamara’s case. If, as I think is correct, the applicant is the one who must have been ‘compelled’ by the reasons for his absence, the requirement that the Minister be satisfied in respect of them means that the Minister is entitled to make a judgment as to whether the reasons for the absence are forceful, and therefore convincing by reference to some standard of reasonableness such as a reasonable person in the same circumstances as the appellant. Even if I am wrong, and the subclause does not introduce any objective standard, any subjective judgment made by the Minister as to whether the reasons were compelling would still have to be reasonable in the administrative law sense.

38 In this case it is quite clear from the context provided by clause 6 of the Introduction (see [10] above) that whether the person’s reason for refusing treatment is compelling is to be determined by the relevant medical officer. When the Introduction refers to functional improvement not being expected or there being "a medical or other compelling reason" for the person not undergoing further treatment, it does not contemplate separate decision makers. It is the medical officer who must assign impairment rating and it is he or she who must decide if the reason for the person not undertaking treatment falls within the circumstances identified in the Introduction.

39 As Mr Hanks put it, the appropriate question for the decision maker to ask is, "Am I satisfied that there is a reason that compels, in this case, Mr Jansen ... not to undertake treatment?" Put this way it is not a choice between mutually exclusive objective and subjective tests but a simple formulation which involves some elements of each. We agree that is the correct approach to the construction of clause 6. It follows that the primary judge erred in focusing on the purely subjective aspect of the test in clause 6.

40 The Tribunal recognised both these elements in reaching its conclusion however, as the appellant pointed out, the Tribunal put Mr Jansen’s fear of the side-effects of depression/anxiety medication to one side and found that despite this fear he had not demonstrated a genuine fear for refusing other treatment options. Treatment for alcohol dependence was fundamental to the treatment of the underlying psychological condition. The fact that Mr Jansen did not want to cease drinking could hardly amount to a compelling reason for refusing that treatment. Thus, even if we were to accept the respondent’s submission as to the construction of clause 6, the Tribunal’s conclusion would, nonetheless, be based on a reason unaffected by this error.

41 It follows from the above reasons that the appeal should be allowed and the orders made by the primary judge should be set aside. In lieu thereof the respondent’s application for an extension of time to appeal from the decision of the Tribunal should be dismissed. As previously noted, the notice of contention should also be dismissed.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gyles, Stone and Buchanan.

Associate:

Dated: 4 April 2008

Counsel for the Appellant:	P Hanks QC with J Macdonnell
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the Respondent:	P Vickery QC with J Geale
Solicitor for the Respondent:	Deacons
Date of Hearing:	26 February 2008
Date of Judgment:	4 April 2008