BESSON v Repatriation Commission
[2014] FCCA 123
•6 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BESSON v REPATRIATION COMMISSION | [2014] FCCA 123 |
| Catchwords: ADMINISTRATIVE LAW – Veterans’ entitlements – appeal from Administrative Appeals Tribunal – Veterans’ Entitlements Act 1986 (Cth) – post-traumatic stress disorder – operational service – whether there was a reasonable hypothesis connecting the disease with the circumstances of the applicant – experience of a life threatening event – subjective/objective test – no error of law by tribunal – application dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s.441 |
| Border v Repatriation Commission (No.2) (2010) 191 FCR 163 Deledio v Repatriation Commission (1997) 47 ALD 261 Guy v Repatriation Commission (2005) FCA 562 Hogno v Repatriation Commission [2010] FCA 1044 Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Repatriation Commission v Bey (1997) 79 FCR 364 Repatriation Commission v Deledio (1998) 83 FCR 82 Repatriation Commission v Gorton (2001) 110 FCR 321 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Stoddart v Repatriation Commission (2003) 197 ALR 283 Tatmar Pastoral Co Pty Ltd v Housing Commission of New South Wales (1984) 58 ALJR 553 White v Repatriation Commission (2004) 39 AAR 67 Woodward v Repatriation Commission (2003) 200 ALR 332 |
| Applicant: | PETER BESSON |
| Respondent: | REPATRIATION COMMISSION |
| File Number: | BRG 101 of 2013 |
| Judgment of: | Judge Burnett |
| Hearing date: | 12 August 2013 |
| Date of Last Submission: | 12 August 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 6 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms A. Frizelle |
| Solicitors for the Applicant: | Martin Solicitors |
| Counsel for the Respondent: | Ms H. Bowskill |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Appeal dismissed.
Subject to application made by either party within seven (7) days of these orders direct the appellant pay the respondent’s costs of and incidental to the appeal to be assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 101 of 2013
| PETER BESSON |
Applicant
And
| REPATRIATION COMMISSION |
Respondent
REASONS FOR JUDGMENT
Introduction
On 15 June 1964 the appellant was in the course of operational service as a member of the crew of HMAS Sydney when he claimed to suffer a “life threatening event.” He subsequently developed post-traumatic stress disorder (“PTSD”) and other conditions. He applied to the Repatriation Commission (“the Commission”) for a service pension. His application was refused on the ground that his condition could not be linked to his operational service.
He sought review of that determination by application to the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal found that his condition could not be linked to his operational service. It too denied his application.
The appellant now appeals that decision.
Material Facts
The relevant findings of the Tribunal address the appellant’s background. In particular, he had joined the Navy at a relatively young age and in the course of training had been exposed to a number of events which confirmed to him the dangers of naval life. These would have fulfilled the description “experiencing a life threatening event.” However, these events did not occur during operational service and, accordingly, are not events directly relevant to his claim for an entitlement to a veterans’ pension. The Tribunal found that the appellant had applied for a discharge because of concern for his personal safety, although that was not the then given reason for the application. Following his application for discharge and after he had been advised of its approval in principle, an event occurred involving the HMAS Sydney (to which he was then posted). The Tribunal accepted that on 15 June 1964, while that ship was on escort duty near Indonesia, the ship’s company was called to action stations and ordered to secure the ship. The Tribunal also accepted his evidence that immediately prior to this event the appellant was about to ascend to the ship’s weather deck to rest for the evening. Before he could reach the deck, the exit hatch was secured and he was confined within the compartment until an ‘all clear’ was sounded about seven to fifteen minutes later.
The Tribunal stated the appellant’s evidence was that he “assumed the crew were all about to die because the ship must have been under attack” and that he was “terrified throughout the incident.”[1]
[1] Decision at [12].
The Tribunal noted the Commission’s concession that the appellant now suffers from PTSD and a range of other conditions, but added that:
“[t]he real dispute is over whether there is a causal link between the applicant’s operational service and the PTSD condition.”
The Tribunal noted that the Commission did not accept that there was a causal link between the appellant’s condition and his operational service. It considered the appellant’s condition to be caused by some other event. In particular, it observed:
“[14] … While I have difficulty with the applicant’s claim, I will accept for the purpose of the analysis that there is material that supports the hypothesis that there is a link – namely, evidence about an incident that might satisfy the relevant statement of principles.
[15] At the hearing, we discussed the possibility that the applicant’s PTSD had already taken hold by the time of the incident on the Sydney in 1964. I accept it is possible his condition might have been caused by some of the events I have already described that occurred during the course of his training. That possibility would certainly account for his fearful behaviour that manifested itself in the unusual sleeping arrangements aboard the ship, for example.”
However, it subsequently proceeded to state:
“But the applicant might still succeed if he were able to establish his existing PTSD condition was aggravated (or ‘clinically worsened,’ to use the language of the statement of principles) by what occurred in 1964. I note the parties conceded the medical evidence does not directly support that conclusion. It follows there is no material pointing to that hypothesis.”
In his reasons the Tribunal member correctly observed that he had to apply the PTSD Statement of Principles (“SoP”). At the outset the Tribunal noted that the appellant’s claim was advanced under an accrued right alleging an entitlement to have his claim considered under an earlier SoP.[2] There was disagreement about this matter before the Tribunal. Notwithstanding that disagreement, the Tribunal observed that irrespective of which SoP was considered the appellant would not satisfy the earlier SoP which referred to “experiencing a severe stressor.” It noted that the more recent SoP refers to “experiencing a life threatening event,” which was materially similar. Irrespective, it considered that in this case the appellant would either satisfy both or neither.[3]
[2] In Repatriation Commission v Gorton (2001) 110 FCR 321 it appears to have been authoritatively determined that the first point of assessment should be the SoP in force at the time of decision. Consideration of accrued rights should only follow if the claim fails under the SoP.
[3] Decision at [13].
The most recent SoP relevantly provides:
“Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6. The factor that must exist before it can be said that, on the balance of probabilities, posttraumatic stress disorder or death from posttraumatic stress disorder is connected with the circumstances of a person’s relevant service is:
(a) experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or
…
Other definitions
9. For the purposes of this Statement of Principles:
“a category 1A stressor” means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
…”
The Tribunal noted, inter alia, that the appellant was required to apply a ‘subject/objective’ test in determining the question:
“… that is, a test which refers to a person (the objective component) in the applicant’s circumstances, which include his age, experience and some other matters.”[4]
[4] Decision at [18].
Critically, the Tribunal concluded:
“[19] The applicant was a young recruit with limited experience – although this was not his first voyage. He had already been exposed to the dangers of naval service (through his own experience, and through the experiences of people he knew, like those who had perished on the [HMAS] Voyager). I accept a person in the applicant’s position would probably experience a degree of apprehension about the dangers that might lurk when a ship goes to action stations. I can even accept a sailor might feel more apprehensive when aboard an ageing vessel like the Sydney. They were cruising through potentially hostile waters, and potentially hostile vessels had been sighted in relatively close proximity earlier the same day. Even so, I am not persuaded a person in the applicant’s position could be expected to react to an alarm as the applicant did. He seems to have leaped to the conclusion that the alarm meant the ship was likely to be sunk. There was no reason for him to form that view, and other sailors of his age or experience would merely have been anxious at what might eventuate rather than terrorised by their imaginings of a particular and dire outcome.”
Principles Concerning Appeals
As I have noted, the Tribunal found against the appellant and he now appeals. The principles governing an appeal from the Tribunal are well settled. They were adequately summarised in the respondent’s submissions by reference to Hogno v Repatriation Commission [2010] FCA 1044. In that case, Flick J set out at [10]-[15] a number of well-established propositions, including:
· The subject matter and scope of an appeal is limited to the question of law and does not extend to a re-hearing on the whole matter (at [12]);
· The requirements imposed by what is now r.33.1(2) of the Federal Court Rules 2011 (Cth) are mandatory requirements in the sense that they must be complied with before the Court can embark on an exercise of jurisdiction conferred by s.441 Administrative Appeals Tribunal Act 1975 (Cth) (at [13]);
· The rule requires the “question of law” to be stated as a pure question of law and not a mixed question of fact and law (at [14]);
· When considering the reasons for decision of the Tribunal, a court should not scrutinise those reasons with a view to discerning error when none truly exists; and
· Reasons should be read in a balanced and fair manner (at [15]).
In his notice of appeal the appellant addresses three questions of law which are outlined below. However, before proceeding to address the issues of law raised by the appellant it is first necessary to set out the relevant statutory regime.
Statutory Regime
Section 13(1) of the Veterans’ Entitlements Act 1986 (Cth) (“VEA”) renders the Commonwealth liable to pay a pension to a veteran where that veteran has become incapacitated from a war related disease. The basis on which a disease is taken to be war related is set out in s.9(1) VEA, which provides that a disease contracted by a veteran shall be taken to be a war caused disease if it “arose out of, or was attributable to, any eligible war service rendered by the veteran.”[5] Eligible war service includes the period during which the person was rendering “operational service.” In this case, the operational service provided for by s.13 of the VEA concerns “Operational service--Australian Mariners.”[6]
[5] Section 9(1)(b) VEA.
[6] Section 6B(1)(a) VEA provides that rendering operational service for Australian mariners includes any employment outside Australia as an Australian mariner on a ship.
A claim for eligibility pursuant to s.13 is determined by reference to ss.120 and 120A VEA. Relevantly, those provisions provide:
“120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from … disease of a veteran … relates to the operational service rendered by the veteran, the Commission shall determine … that the disease was a war-caused disease … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3) In applying subsection (1) … in respect of the incapacity of a person from … disease, … related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
…
(b) that the disease was a war-caused disease or a defence-caused disease; or
…
… if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the … disease … with the circumstances of the particular service rendered by the person.
…
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
…
(3) For the purposes of subsection 120(3), a hypothesis connecting … a disease contracted by a person … with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
…
that upholds the hypothesis.”
The manner in which these provisions work was explained by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261. He observed that these provisions “left intact the twin pillars of (i) the reverse onus of proof beyond reasonable doubt and (ii) the reasonable hypothesis.”[7] The hypothesis becomes a “rule or proposition of universal application which explains or predicts natural phenomena … The SoP operates in the discourse of hypothesis – a “tentative answer to a problem under study.””[8]
[7] At 273.
[8] At 273.
Significantly, his Honour observed:
“… the SoP has no function in relation to the proof or disproof (under s.120(1)) of the particular facts of a veteran’s case. The SoP’s function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can “uphold” the hypothesis.”[9]
[9] At 275.
His Honour continued:
“… The particular claim then has to fit the template laid down in the SoP. The [Byrnes v Repatriation Commission (1993) 177 CLR 564] methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts;
(ii) obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv) one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v) the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact.”
The Full Court, on appeal from the decision of Heerey J,[10] endorsed his Honour’s analysis, although it sought to explain some of his Honour’s observations concerning the manner in which evidence is addressed. At [94] it stated:
[10] Repatriation Commission v Deledio (1998) 83 FCR 82.
“… Consequently decision-makers at each level of merits review of veteran’s entitlements must gather for themselves or have presented to them in proceedings by parties, material relevant to such claims and which is able to assist the decision-makers in their functions under s.120(1).
As was pointed out by the Commission, this is an administrative process which is “inquisitorial” in character and a process to which the concepts of discharging legal onuses or burdens of proof and other evidentiary concepts will not generally apply.
In McDonald v Director-General of Social Security (1984) 1 FCR 354, Woodward J, with the agreement of Northrop and Jenkinson JJ, said (at 356):
“… the onus (or burden) of proof is a common law concept, developed with some difficulty over many years, to provide answers to certain practical problems of litigation between parties in a court of law. One of the chief difficulties of the concept has been the necessity to distinguish between so-called “legal” and “evidential” aspects. The concept is concerned with matters such as the order of presentation of evidence and the decision a court should give when it is left in a state of uncertainty by the evidence on a particular issue.
The use outside courts of law of the legal rules governing this part of the law of evidence should be approached with great caution. This is particularly true of an administrative tribunal which, by its statute “is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate” (Administrative Appeals Tribunal Act 1975 (Cth) s.33(1)(c)).
Such a tribunal will still have to determine practical problems such as the sequence of receiving evidence and what to do if it is unable to reach a clear conclusion on an issue, but it is more likely to find the answer to such questions in the statutes under which it is operating, or in considerations of natural justice or common sense, than in the technical rules relating to onus of proof developed by the courts. However these may be of assistance in some cases where the legislation is silent”
We consider this statement of principle correctly states the proper approach in cases like the present. Here the legislation is not silent on the question of burden or onus. Subs.120(5) and (6) were enacted in 1986.”
The Full Court usefully summarised at 97-98 the course a tribunal ought follow in cases considering claims of incapacity from disease related to service rendered as follows:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s.196B(2) or s.196B(11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by s.196B(2)(d) and s.196B(2)(e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4. The Tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury…”
Against that background, the appellant contends that the Tribunal erred in law on three grounds.
Ground One
The Tribunal erred insofar as it misdirected itself by not applying the requisite test of assessing the reasonableness of the hypothesis advanced by the applicant as required by s.120(3)(c) VEA.
The appellant submitted that there were two hypotheses raised by him in respect of the clinical onset of his medical conditions, identified as for PTSD, alcohol dependence, irritable bowel, hypertension, depressive disorder and cannabis dependence.[11]
[11] It is not in dispute that the appellant has been diagnosed with each of those conditions (expect cannabis dependence, but this did not appear to be in issue). Furthermore, it is accepted by both the appellant and the Commission that his claim in respect of other conditions would rise or fall with his claim in respect of PTSD – see the Tribunal’s decision at [3].
The first concerns his claim of PTSD and the second concerns the other conditions. In any event, each of the claims arise out of the same occurrence and with the events that occurred on 15 June 1964. In particular the appellant contends that the events of 15 June 1964 satisfy the description contained in the SoP as “experiencing a life threatening event.”
A principal complaint of error on the part of the Tribunal was that the Tribunal member did not directly refer to the four step process as set out in Deledio v Repatriation Commission, and accordingly it cannot be said with any certainty that the Tribunal turned its mind to or applied the requisite test of assessing the reasonableness of the hypothesis raised by the appellant. In particular, the appellant argued that step three, which addresses whether the hypothesis is a reasonable one, necessarily directs the decision maker to consider whether the hypothesis is a reasonable one, which it will be if it is consistent with the “template” found in the SoP. That is, the hypothesis must contain at least one of the factors determined to be the minimum which must exist and be related to the person’s service. The appellant particularly relies upon observations made by the Tribunal at [14] and [15] of its decision.
It should first be observed that, given the Full Court’s summary of process detailed in Deledio v Repatriation Commission, step three is the third of four logical and sequential steps. The absence of a reference to steps one and two does not mean that they were not considered. In fact, to achieve step three the Tribunal must have necessarily considered steps one and two and have been earlier satisfied of the matters identified by those steps. Although the Tribunal did not mechanically list and signpost each step, it is apparent from its reasons that they were considered and addressed. At [14] of its decision, the Tribunal noted that there was material that supported the hypothesis, that is, it “raised a hypothesis”: Repatriation Commission v Bey (1997) 79 FCR 364.[12]
[12] At 368 the majority observed without criticism the Tribunal’s approach in addressing the first step by inquiring whether the evidence “raised the hypothesis.”
Consistent with step two, the Tribunal noted that it was required to apply the relevant SoPs which were concurrent in respect of each of the appellant’s conditions. The Tribunal’s decision does not demonstrate error in these matters.
There was also criticism of the Tribunal for failing to have progressed to consider the fourth step. However, the Tribunal having determined at the third step that the hypothesis was not a reasonable one, it was unnecessary for it to progress to consider the fourth step: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269.[13] This complaint does not assist the appellant.
[13] Applying Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-356, affirmed sub nom Tatmar Pastoral Co Pty Ltd v Housing Commission of New South Wales (1984) 58 ALJR 553.
The most substantive complaint made by the appellant concerns the third step of Tribunal’s consideration, that is, whether or not the hypothesis was reasonable.
The appellant contends that the Tribunal erred in a number of respects when addressing this matter. First he argues that the Tribunal “held [that it] would for the purposes of the analysis accept there is material that supports the hypothesis that there is a link – namely, evidence about an incident that might satisfy the relevant Statement of Principle.”[14] That is, the Tribunal unconditionally accepted that there was a proper formulation for the hypothesis. Respectfully, that submission misstates the nature of the Tribunal’s observations. It is plain from the Tribunal’s reasons, at [15], that in addressing the issue of a causal link between the appellant’s operational service and the PTSD condition, it was considering the first step. The Tribunal stated that it had difficulty in the circumstances accepting that matter. That is to say that it was not inclined to accept it. However, for the purpose of testing the appellant’s claim, especially concerning the aggravation hypothesis, the Tribunal did conditionally accept the hypothesis. However it ultimatley concluded that no material supported the SoP, as there was no medical evidence to demonstrate any causal link between the appellant’s PTSD condition (whether as an aggravation condition or as an initial condition) and his operational service. I do not think that any error has been established on this basis. For that reason the Tribunal in fact determined the appellant’s application did not satisfy the first step.
[14] Appellant’s submissions at paragraph 15.
In any event, the appellant’s substantive complaint was directed to the Tribunal’s remarks at [18] concerning its application of the ‘subjective/objective’ test and its finding by adopting that test on this point.
The appellant contended that the term “experiencing a severe stressor” is defined in cl.8 of the SoP for “Alcohol Dependence or Alcohol Abuse,”[15] meaning:
a)“… the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity …”
b)The person’s response to that event involved “intense fear, helplessness or horror.”
[15] The appellant adopted an earlier SoP in its written submissions. Each of the SoPs applicable at the time of decision referred to “experiencing a category 1A stressor” which is defined in terms detailed in these reasons. However, I proceed on the premise that the difference between the definitions of “experiencing a sever stressor” and “experiencing a category 1A stressor” are not material for the purposes of determining the hypothesis.
In explaining the definition of “severe psychological stressor,” the appellant referred to remarks of Spender J in White v Repatriation Commission (2004) 39 AAR 67 who, at 73, explained the term:
“… the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.”
I accept that this is the test the Tribunal sought to apply, noting that it:
“is inelegantly referred to as a “subjective/objective” test – that is, a test which refers to a person (the objective component) in the applicant’s circumstances, which include his age, experience and some other matters.”[16]
[16] Decision at [18].
For present purposes the application of that test was more closely examined by Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283. There his Honour considered the proper understanding of the definition of “experiencing a severe stressor” as employed in the SoP. At the outset he accepted the subjective/objective test[17] and that the subjective test was readily satisfied. There, as here, the issue lay with the objective assessment. He opined:
“… The issue is to identify what character of event or events may amount to a threat of death or serious injury or to physical integrity.”[18]
[17] At [40].
[18] At [42].
In explaining the objective consideration, his Honour continued at [50]:
“[50] … The adjectival clause “that involved actual or threat of death or serious injury…” explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the “threat” there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury. That construction would appear to go beyond the purpose of SoPs … That is, if a threat of serious injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively with the knowledge and in the circumstances of the claimant, it was reasonable to perceive the threat, I do not understand it to be a medical-scientific opinion that no reasonable hypothesis can be raised connecting the condition resulting from those events with them …”
The appellant attacked the Tribunal’s finding that his PTSD condition could not be linked objectively to his operational service, contending that its finding was erroneously based or reached following a mistaken conclusion by the Tribunal because it failed to consider relevant material contained within the “T” documents. In particular, he complained that sufficient allowance was not made for his naval history, including events that sought to heighten his basis for personal concern.
However, as was submitted by the respondent, the Tribunal comprehensively addressed the appellant’s claim, finding that “the facts do not answer the description of a life threatening event in the relevant statement of principles.” In reaching its conclusion, the Tribunal turned its mind to and answered the reasonableness of the hypothesis raised by the appellant. In doing so it was alive to previous judicial interpretation addressing the phrase “experiencing a life threatening event.” It recognised that the formation of the opinion called for by s.120(3) VEA (which is embodied in step three from Deledio) involves an assessment of the factual material before it and requires it to express an opinion on that matter. As the majority in Repatriation Commission v Bey (Northrop, Sunberg, Marshall and Merkel JJ) observed at 373:
“Whether material raises a "reasonable hypothesis" for the purposes of s.120(3) is a question of fact for it involves no more than a determination whether a hypothesis of connection is reasonable …”
There is a significant distinction between the material that points to or raises a hypothesis (step one) and the hypothesis being found to be reasonable (step three). The appellant appears to have overlooked this subtle but pivotal consideration and conflated the two. It does not follow that because some material points to a hypothesis (being raised by an SoP) that the hypothesis is inherently reasonable. Indeed, this is the determinative fact finding task which the Tribunal must undertake, and in this instance it did. It appears to have considered all of the appellant’s relevant history. Although some criticism is made about the discreet findings, there is little basis to criticise the overall assessment. To do so would be to cast an eye too readily attuned to error over the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2.
Ultimately, the finding made by the Tribunal was open to it on the material before it, and to contend that the Court ought allow the appeal and review because of an “erroneous finding” or “mistaken conclusion” invites the Court to effect impermissible merits review.
This ground of appeal fails.
Ground Two
The Tribunal erred in law by restricting the definition of “experiencing a life threatening event” in Statement of Principle for Post Traumatic Stress Disorder Instrument number 5 of 2008.
The appellant’s submission observes that the SoP does not provide a definition of a “life threatening event.” The appellant contended, by reference to authority, that:
a)there was no requirement that there be an actual threat: Stoddart v Repatriation Commission at [50];
b)the occurrence must be one that “evokes feelings of substantial distress in an individual,” which has a subjective element: Woodward v Repatriation Commission (2003) 200 ALR 332 at 352; and
c)the definition did not require there to be an actual threat judged objectively and with full knowledge of the circumstances: Woodward v Repatriation Commission at 357.
The appellant contended that he believed himself to be subject to a threat to his person and consequently suffered a psychological injury (PTSD) together with other associated conditions. However, the fundamental difficulty with this contention was evidenced in the last sentence of paragraph 54 of his submissions. There it was said:
“It is submitted a reasonable person in the position of the Appellant experiencing this incident would conclude the incident is capable of conveying the risk or threat of death or serious harm to person.”
As the appellant noted in his submissions, the Tribunal accepted the subjective element. However, as the Tribunal’s findings illustrate, it concluded that the perception was not a reasonable one. As the respondent observed in its written outline, the term “experiencing a life threatening event” was the subject of detailed consideration by Reeves J in Border v Repatriation Commission (No.2) (2010) 191 FCR 163, where after referring to Stoddart v Repatriation Commission and Woodward v Repatriation Commission, his Honour noted at [67]:
“Based on these authorities, the answer to the question posed (at [53] above) in relation to the event described in subpara (a): “experiencing a life-threatening event” is this. It is the effect of the event and not the threat itself that has to be assessed. Moreover, it is the veteran’s perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of subpara (a). That perception will be a reasonable one if, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it is capable of, and did convey the threat of death … this is a mixed objective and subjective test. Since there will be a very wide range of reactions to any event involving a threat of death, this test is not to be applied in an unduly restrictive manner … the question is whether the event might or was capable of giving rise to the perception of the threat of death, not whether it did. For this reason, the veteran’s conduct after the event is irrelevant to the assessment. So, too, is any information not known to the veteran which showed, objectively, that the event did not pose a threat of death, eg being threatened with a gun that was in fact unloaded.”
As the respondent submitted, and I accept, the Tribunal was alive to and applied the earlier judicial interpretation of the phrase “experiencing a life threatening event.” It was consistent with Reeves J’s analysis of the meaning of the phrase. In particular:
a)It noted “the real issue for present purposes is what the applicant experienced”;
b)It identified the test as “a test which refers to a person (the objective component) in the applicant’s circumstances, which include his age, experience and some other matters”;
c)It had regard to the appellant’s age and experience, including the “dangers of naval service” to which he had been exposed both directly and indirectly prior to these events; and
d)Concluded on the basis of the material before it that it was “not persuaded a person in the applicant’s position could be expected to react to an alarm as the applicant did. He seems to have leaped to the conclusion that the alarm meant the ship was likely to be sunk. There was no reason for him to form that view, and other sailors of his age or experience would merely have been anxious at what might eventuate rather than terrorised by their imaginings of a particular and dire outcome.”
I accept the respondent’s submission that the Tribunal did do what was required. That is, it applied the objective/subjective test in concluding that, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the appellant, the incident relied upon was not capable of conveying the threat of death. There was no error in that approach; it was open for it to find, as it did, that the event was not a “life threatening event” for the purposes of the SoP.
The Tribunal’s decision does not demonstrate any error of law as contended for by the appellant on this ground.
Ground Three
The Tribunal erred in law by not applying the requisite test of assessing the “subjective and objective test” according to White v Repatriation Commission (2004) 39 AAR 67; Stoddart v Repatriation Commission (2003) 197 ALR 283; Woodward v Repatriation Commission (2003) 200 ALR 332; Guy v Repatriation Commission (2005) FCA 562.
The principal complaint advanced in support of this ground is that the Tribunal “made no reference to the cases where this very issue of subject and objective test has been examined.”[19]
[19] Appellant’s submissions at paragraph 64.
The absence of reference to authority does not of itself demonstrate error. The meaning of the subjective/objective test has been the subject of consideration earlier in these reasons. The Tribunal expressly considered the subjective/objective test. There is nothing in the Tribunal’s application of that test to suggest that it did not have a clear understanding of the authorities which had addressed that term. Furthermore, as I have earlier concluded, I am satisfied that the Tribunal appropriately applied that test.
It follows this ground must also fail.
ORDERS
Appeal dismissed.
Subject to application made by either party within seven (7) days of these orders direct the appellant pay the respondent’s costs of and incidental to the appeal to be assessed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Burnett
Date: 6 February 2014
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