Border v Repatriation Commission (No 2)

The parties in this case were Mr Border and the Repatriation Commission. Mr Border appealed against the Tribunal's decision to reject his claim for a pension for incapacity on the basis that his post-traumatic stress disorder (PTSD) was not war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (Cth). The appeal was heard in the Federal Court of Australia. The central issue before the court was whether the Administrative Appeals Tribunal (the Tribunal) correctly applied the Deledio test in determining whether Mr Border's PTSD was war-caused. Specifically, the court needed to consider whether the Tribunal appropriately assessed whether the four events Mr Border claimed contributed to his PTSD could be considered "life-threatening events" as required by the relevant Statement of Principles (SOP).

The court found that while the Tribunal correctly identified the principles to apply, it erred in its application. The Tribunal did not properly undertake the objective subjective assessment required by the third step of the Deledio process. The court noted that the Tribunal should have assessed whether Mr Border's perception of the events as life-threatening was reasonable. This involves determining if a reasonable person in Mr Border's position, with his knowledge, would have perceived the threat of death. Instead, the Tribunal focused on whether the events were life-threatening in an objective sense, without adequately considering Mr Border's subjective perception.

The court held that the Tribunal's decision was flawed because it did not correctly apply the Deledio principles to the facts. The court allowed the appeal, set aside the Tribunal's decision, and remitted the matter back to the Tribunal for reconsideration in accordance with the law. This means that the Tribunal must re-evaluate Mr Border's claim, properly considering his subjective perceptions of the events in question to determine if they were life-threatening as he perceived them to be.