BORDER and REPATRIATION COMMISSION

[2011] AATA 356

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 356

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3829

VETERANS’ APPEALS DIVISION		)
Re		ROGER BORDER

Applicant

And REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal Deputy President P E Hack SC  

Date27 May 2011  

PlaceBrisbane  

Decision The decision under review is affirmed.  

..............Signed..................

Deputy President  

CATCHWORDS

DEFENCE & WAR – disability pension – diagnosis of posttraumatic stress disorder – whether events occurred – decision affirmed

Veterans’ Entitlements Act 1986 (Cth) ss 9, 13, 120, 120A

Mines v Repatriation Commission [2004] FCA 1331; (2004) 40 AAR 238

Peacock v Repatriation Commission [2007] FCAFC 156; (2007) 161 FCR 256

Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

27 May 2011	Deputy President P E Hack SC
Introduction

1. Mr Roger Border served in the Australian Regular Army between 1967 and 1987. He undertook “operational service” (as that term is used in the Veterans’ Entitlements Act 1986 (Cth) (the Act)) in Vietnam from 13 April 1971 to 28 October 1971. Mr Border says that he suffers from posttraumatic stress disorder which he attributes to his service in Vietnam.

2. Initially the Repatriation Commission accepted that Mr Border suffered from posttraumatic stress disorder but concluded that it was not attributable to his service in Vietnam. The Commission’s decision of 21 March 2007 was affirmed by the Veterans’ Review Board on 5 June 2008.

3. Mr Border sought a review of the decision in the Tribunal. In October 2009, at a hearing before the Tribunal, differently constituted, the Commission again accepted that Mr Border suffered from posttraumatic stress disorder; it resisted his claim, successfully,[1] on the basis that the events which Mr Border pointed to as the “stressors” lacked the requisite degree of severity to satisfy the statutory test. That decision was set aside by the Federal Court[2] and the matter remitted “to be reconsidered and determined according to law”.

   [1] See Re Border and Repatriation Commission [2009] AATA 924.

   [2] Border v Repatriation Commission (No 2) [2010] FCA 1430.

4. At the outset of the hearing Mr Taylor, counsel for Mr Border, was minded to argue that the rehearing was confined to a consideration only of the factual findings made in the earlier hearing and that evidence could only be called by the Commission in very limited circumstances. When reference was made to Peacock v Repatriation Commission[3] the submission was withdrawn and the hearing proceeded on the basis that the matter was to be heard afresh.

   [3] [2007] FCAFC 156; (2007) 161 FCR 256.

5. Importantly, the Commission made it plain that its earlier concession that Mr Border suffered posttraumatic disorder was no longer made.

   The statutory setting

6. By virtue of s 13(1) of the Act the Commonwealth is liable to pay a pension to a veteran where the veteran has become incapacitated from a war-caused injury or war-caused disease. Section 9(1) of the Act has the effect that…