Devenish-Meares and Repatriation Commission (Veterans’ entitlements)

[2016] AATA 75

Devenish-Meares and Repatriation Commission (Veterans’ entitlements) [2016] AATA 75 (16 February 2016)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2015/0868
Re	Roderick Devenish-Meares
VETERAN
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Deputy President Dr P McDermott RFD
Date	16 February 2016
Place	Brisbane

The Tribunal affirms the decision under review.

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Deputy President Dr P McDermott RFD

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – whether malignant neoplasm of prostate was car-caused – application of Statement of Principles for malignant neoplasm of prostate – cumulative period of at least 30 days – decision affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 6C, 8, 9, 120, 196A, 196B

CASES

Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Stares (1996) 66 FCR 594
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Forrester v Repatriation Commission [2013] FCA 898
Elliott v Repatriation Commission (2002) 73 ALD 377

Byrnes v Repatriation Commission (1993) 177 CLR 564

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v RepatriationCommission (1993) 177 CLR 564

East v Repatriation Commission (1987) 16 FCR 517

Gilbert v Repatriation Commission (1989) 86 ALR 713

Repatriation Commission v Bey (1997) 79 FCR 364

Kattenburg v Repatriation Commission [2002] FCA 412

SECONDARY MATERIALS

Statement of Principles Instrument No 53 of 2014

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

16 February 2016

INTRODUCTION

1. This is an application for review of a decision of the Repatriation Commission made on 30 October 2013 and affirmed by the Veterans Review Board on 21 November 2014. The application is brought by Mr Roderick Devenish-Meares (“the veteran”).

2. The issue for determination is whether Mr Devenish-Meares’ malignant neoplasm of the prostate is a “war caused disease” for the purposes of the Veterans’ Entitlements Act[1] (“the Act”).

   BACKGROUND

   [1] 1986 (Cth).

   Military Service

3. On 3 April 1970 the veteran enlisted with the Royal Australian Navy. His service continued until 2 April 1992 when he was discharged. The veteran stated in giving evidence that he obtained the ranks of Chief Petty Officer and later Marine Engineer Stoker during his service.

4. The veteran rendered “operational service”, under s 6C(2) of the Act,[2] from 21 October 1970 to 12 November 1970 and again from 15 February 1971 to 4 March 1971. The Veteran’s Review Board considered that this constituted 50 days as assessed on a “port to port” basis. However, I consider that the cumulative total of these two periods is 41 days. During these periods of operational service the veteran was on board the HMAS Sydney.

   [2] Veterans’ Entitlements Act1986 (Cth) s 6C(2).

   First period of operational service

5. The movements of the HMAS Sydney during the veteran’s first period of operational service can be outlined as follows. On 21 October 1970 the vessel departed Australia for Singapore.[3] On 24 October 1970 the vessel passed Christmas Island.[4] The following day the vessel passed Java and proceeded into the South China Sea.[5] On 26 October 1970 the vessel arrived and anchored at Singapore.[6]

   [3] Exhibit H: Report of Proceedings for HMAS Sydney of October 1970 at [19].

   [4] Ibid at [21].

   [5] Ibid at [21].

   [6] Ibid at [22].

6. On 29 October 1970 the vessel departed Singapore for Vung Tau, Vietnam.[7] On 31 October 1970 and again on 1 November 1970 the vessel anchored in Vung Tau harbour.[8] The veteran stated that the vessel only anchored at Vung Tau harbour within daylight hours. At night the vessel would for safety relocate to what the veteran believed was approximately one hundred kilometres offshore.

   [7] Ibid at [24].

   [8] Exhibit H: Report of Proceedings for HMAS Sydney of October 1970 at [26]; Exhibit I: Report of Proceedings for HMAS Sydney of November 1970 at [4].

7. On 2 November 1970 the vessel commenced its return journey.[9] The following day the vessel made passage through the Indonesian Archipelago.[10] On 10 November 1970 the vessel anchored at Cairns Harbour for customs clearance. On 12 November 1970 the vessel anchored at Brisbane.[11]

   [9] Exhibit I: Report of Proceedings for HMAS Sydney of November 1970 at 5].

   [10] Ibid at [7].

   [11] Ibid at [13].

8. The movements of the vessel during the veteran’s second period of operational service can be outlined as follows. On 15 February 1971 the vessel departed Australia for Vung Tau.[12] On 17 February 1971 the vessel passed Bald Island, Western Australia.[13] On 21 February 1971 the vessel passed the east of Christmas Island.[14]

   [12] Exhibit J: Report of Proceedings for HMAS Sydney of February 1971 at [20].

   [13] Ibid at [23].

   [14] Ibid at [24].

   Second period of operational service

9. On 23 February 1971 the vessel travelled to the south of the Anamba Islands.[15] On 25 February 1971 the vessel entered Vung Tau harbour and anchored.[16] Later that day the vessel departed on a return passage to Australia.[17]

   [15] Ibid at [25].

   [16] Ibid at [27].

   [17] Ibid at [31].

10. On 27 February 1971 the vessel made passage through Gaspar Strait and Sunda Strait.[18] The vessel continued to travel towards Fremantle for the remainder of the month.[19] On 4 March 1971 the vessel anchored at Fremantle.

    [18] Ibid 1971 at [32].

    [19] Ibid at [32].

11. I accept that the veteran gave oral evidence to the best of his recollection when he stated that the vessel entered Vung Tau harbour twice on the second period of operational service. This second entry into the harbour was not recorded in the Record of Proceedings.

    Water distillation process

12. The veteran gave evidence about the distillation process. He stated that the vessel had multiple engine rooms, each of which contained two evaporators and that approximately three tonnes of potable water was distilled each hour on the vessel.

13. The veteran stated that tests were conducted to determine the sodium level in the water. Based on the results of the tests, the water was distributed to either the potable tank, the feed tank or was “bumped over the side” of the vessel.

14. The tank was required to be three quarters full when anchored at harbour and as full as possible when at sea. The evaporators were constantly running whilst the vessel was anchored at Vung Tau in order to supply water to the large number of personnel on board.

15. The veteran gave evidence that the water and fuel were pumped between the vessel’s tanks to maintain the ship on an even keel and with no lift. The veteran provided an explanation of this practice in his supplemental submission.[20] 

    [20] Veteran’s supplemental submission lodged 6 October 2015 at [8]-[20].

16. A statement of Commander Burn was in evidence which was drafted for an unrelated application.[21] The statement was of relevance because it concerned the contamination of water on the HMAS Sydney from the evaporative distillation of estuarine Vietnamese waters. The statement of Commander Burn provided that:[22]

    “it would be a number of days after leaving the area before the continued distillation of water would have diluted the water in the ships to either a negative state of contamination or at least lower it to a safe level of contamination”.

    [21] Exhibit D: Statement of Commander P.J. Burn OAM RAN at p.1.

    [22] Exhibit D: Statement of Commander P.J. Burn OAM RAN at p.1.

17. The veteran asserted that the tanks on board a vessel would continue to be contaminated until a major refit was undertaken, at which point the tanks were emptied and cleaned. It was provided in the veteran’s supplemental submission that refits occurred prior to 7 March 1962 and from 20 May 1972.[23] The veteran stated in evidence that he was not aware of any tank cleans taking place on the HMAS Sydney vessel during his service. There is no evidence before the Tribunal to dispute this statement.

    [23] Veteran’s Supplemental Submission dated 6 October 2015 at p.5.

18. While the veteran considered that the evaporation units produced approximately three tonnes of distilled water per hour, the report of Commander Burns states that the evaporation units produced four tonnes of distilled water per hour.[24] This was an ongoing process where the portable water produced replenished the water tank.

    [24] Exhibit G: Statement of Commander P.J. Burn OAM RAN dated 24 August 2004 at p.1.

    Medical Condition

19. I am satisfied that the veteran has malignant neoplasm of the prostate as defined in clause 3(B) of the relevant Statement of Principles which refers to a primary malignant neoplasm arising from the cells of the prostate gland.[25]

    [25] Statement of Principles Instrument No 53 of 2014, cl 3(b).

20. On 7 August 2013 Dr Geoff Broad confirmed that a recent prostate biopsy revealed that the veteran has prostate cancer.[26] On 11 October 2013 the veteran lodged a formal claim that the neoplasm of the prostate was service related.[27]

    [26] Exhibit A: T-Documents at T6.

    [27] Veteran’s Statement of Facts, Issues and Contentions lodged 29 June 2015 at [11].

    ISSUES

21. The primary issue for consideration is whether the template of the relevant Statement of Principles is satisfied in the circumstances of the case. The relevant Statement of Principles for malignant neoplasm of the prostate is instrument number 53 of 2014.[28] Clause 5 provides that at least one of the factors set out in clause 6 must be related to the relevant service in order to be upheld.[29] Clause 6(b) provides that:[30]

    [28] Statement of Principles Instrument No 53 of 2014.

    [29] Ibid cl 5.

    [30] Ibid cl 6(b).

    “The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or death from malignant neoplasm of the prostate with the circumstances of a person’s relevant service is:

    …

    (b) being:

    (i)  on land in Vietnam; or

    (ii)  at sea in Vietnamese waters; or 

    (iii) on board a vessel and consuming potable water supplied on that vessel, when water supply had been produced by evaporative distillation of estuarine Vietnamese waters;

    for a cumulative period of at least 30 days, at least five years before the clinical onset of malignant neoplasm of the prostate…”

    CONTENTIONS

22. The respondent has made a number of concessions which narrowed the contentions between the parties significantly. First, it was conceded that the veteran was on board a vessel and consumed potable water on that vessel that had been supplied by evaporative distillation of estuarine Vietnamese waters. Secondly, it was conceded that the veteran has malignant neoplasm of the prostate and that its onset was at least five years after the veteran was on the vessel.

23. The veteran contended that the “cumulative period” that the veteran was supplied with water that had been produced by evaporative distillation of estuarine Vietnamese waters was 41 days. This cumulative period is the combined entire duration of both of the voyages of the vessel. The basis for this contention was that some portion of the water throughout both voyages had been “contaminated”, meaning, supplied by evaporative distillation of estuarine Vietnamese waters. The movement of contaminated water from one tank to another would spread the contamination. It was contended that some level of contamination would remain within the tanks until they were completely emptied and cleaned. In support of this submission the veteran noted that the relevant Statement of Principles does not make reference to a minimum proportion of contamination. The veteran contended that “one drop” of contaminated water would satisfy the Statement of Principles.

24. The respondent contended that the cumulative period was only 21 days. This cumulative period is the amount of time between when the vessel arrived at Vung Tau and the completion of its return voyages. In other words, it omitted each of the periods from when the vessel departed from Australia and arrived at Vung Tau. It was contended that either none of the water distilled was contaminated prior to arriving at Vung Tau or that the concentration of water contaminated was so low that it was de minimus.   

    LEGISLATIVE FRAMEWORK

25. Section 8 of the Veterans' Entitlements Act 1986 (Cth) (“the Act”) provides for when the disease of a veteran is taken to be war-caused.[31] Relevantly, this provision applies where, under s 8(1)(b), the disease arose out of, or was attributable to, any eligible war service rendered by the veteran.[32]

    [31] Veterans' Entitlements Act 1986 (Cth) s 8.

    [32] Ibid s 8(1)(b).

26. As the veteran has performed operational service, the determination of whether his disease was war-caused is to be made by applying ss 120(1) and (3) of the Act.[33]

    [33] Ibid ss 120(1) and (3).

27. Subsection 120(1) of the Act provides that where a claim for a pension:[34]

    in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

    [34] Ibid s 120(1).

28. Subsection 120(3) of the Act also provides:[35]

    (3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

    (a) that the injury was a war-caused injury or a defence-caused injury;

    (b) that the disease was a war-caused disease or a defence-caused   disease; or

    (c) that the death was war-caused or defence-caused;

    as the case may be, 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 injury, disease or death with the circumstances of the particular service rendered by the person.

    [35] Ibid s 120(3).

    Statement of Principles

29. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (“RMA”).[36] The RMA is an independent medical body that issues Statements of Principles (“SoP”) based on sound medical-scientific evidence. The SoP set out factors relating to service which must exist in order to establish a causal connection between service and particular diseases, injuries or death.

    [36] Ibid s 196A.

30. Section 196B(2) of the Act provides that if the RMA:[37]

    [37] Ibid s 196B(2).

    … is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

    (a) operational service rendered by veterans; or

    the [RMA] must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

    (d) the factors that must as a minimum exist; and

    (e) which of those factors must be related to service rendered by a person;

    before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.

31. A SoP is binding on decision-makers at all levels, including this Tribunal.

32. The reference in s 196B(2) of the Act to a particular kind of injury, disease or death being “related to… service” is expounded in s 196B(14). This sub-section provides, relevantly, that a factor causing, or contributing to, an injury, disease or death is “related to service” rendered by a person if:[38]

    [38] Ibid s 196B(14).

    (a) it resulted from an occurrence that happened while the person was rendering that service; or

    (b) it arose out of, or was attributable to, that service;

    In the case of applications lodged after 1 June 1994, where the RMA has made a SoP in respect of a particular kind of injury, disease or death, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This is followed by the application of s 120A(3) of the Act, which provides:[39]

    For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of 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

    (b) a determination of the Commission under subsection 180A(2);

    that upholds the hypothesis.

    [39] Ibid s 120A(3).

    CONSIDERATION

33. I am required to consider the veteran’s claim in accordance with the four-step process set out in Repatriation Commission v Deledio[40] (“Deledio”).[41] In Deledio, the Full Court of the Federal Court of Australia provided guidance to this Tribunal on the four steps to consider:[42]

    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 (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 ss 196B(2)(d) and (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 s 120(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. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

    [40] (1998) 83 FCR 82, 97-98.

    [41] Repatriation Commission v Bawden (2012) 206 FCR 296, 304-305.

    [42] Repatriation Commission v Deledio (1998) 83 FCR 82, 97-98.

34. In Forrester v Repatriation Commission,[43] Mortimer J observed that in Collins v Administrative Appeals Tribunal,[44] Allsop J (as he then was) pointed out that the second sentence in the second paragraph is not correct and that otherwise these four steps have been consistently endorsed and applied to the operation of ss 120 and 120A of the Act.

    [43] [2013] FCA 898, [26].

    [44] (2007) 163 FCR 35, [31].

    First Step of Deledio

35. I am required to ascertain whether the material points to a hypothesis connecting the disease of the veteran with the circumstances of the particular service rendered by him. It has been said that “a hypothesis is no more than a supposition or conjectural explanation of an ultimate fact”.[45] In Forrester v Repatriation Commission,[46] Mortimer J pointed out that “whether material ‘points to’ or ‘supports’ a hypothesis is, of its nature, a matter which can be determined by inference or assumption”.

    [45] Repatriation Commission v Stares (1996) 66 FCR 594, 601.

    [46] [2013] FCA 898, [30]; Elliott v Repatriation Commission (2002) 73 ALD 377, 378[5].

1. There is no issue that there is a hypothesis connecting the disease of the veteran with the circumstances of the service rendered by him. The respondent in the Statement of Facts, Issues and Contentions has quite properly contended that there was some consumption of estuarine Vietnamese waters.

   Second Step of Deledio

2. I am required to ascertain whether there are in force any SoP issued by the RMA under ss 196B(2) or (11) of the Act. There is a SoP concerning malignant neoplasm of the prostate (Instrument No. 53 of 2014) which is in force.

   Third Step of Deledio

3. In assessing whether a raised hypothesis is “reasonable”, the High Court of Australia in Byrnes v Repatriation Commission,[47] has held that a reasonable hypothesis is raised when “the material points to some fact or facts (“the raised facts”) which support the hypothesis”.[48] Furthermore, the High Court remarked that in relation to this step:[49]

   The position may be summarized as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.

   [47] (1993) 177 CLR 564.

   [48] Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569, citing Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 175 CLR 408, 414.

   [49] Byrnes v RepatriationCommission (1993) 177 CLR 564, 569.

4. Since 1 June 1994, in accordance with s 120A(3) of the Act, a decision-maker must refer to the relevant SoP issued by the RMA to assist in establishing whether an veteran's hypothesis is reasonable, for the purposes of the Act. Therefore, this Tribunal as a decision-maker is required to ascertain if it has material before it which fits the template for the relevant SoP. It has been held that the material must pose a credible proposition, not too remote or improbable; it must be:[50]

   ... more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.

   [50] East v Repatriation Commission (1987) 16 FCR 517, 533.

5. Accordingly, the evidence must “point to” or “support” the hypothesis, and not merely be “left open” as a possibility.[51] The High Court of Australia held in Bushell v Repatriation Commission[52] that the s 120(3) test will reveal a reasonable hypothesis where “there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service”. In Repatriation Commission v McKenna[53] Goldberg J emphasised that “it is fundamental to any enquiry under ss 120 and 120A of the Act to identify what is the relevant hypothesis”. The hypothesis that is put forward is that the veteran’s disease of malignant neoplasm of the prostate is related to his consumption of water which had been produced by evaporative distillation of estuarine Vietnamese waters for at least a cumulative total of 30 days for at least five years before the clinical onset of the disease.

   [51] Gilbert v Repatriation Commission (1989) 86 ALR 713, 721; Repatriation Commission v Bey (1997) 79 FCR 364.

   [52] (1992) 175 CLR 408, 416.

   [53] (1998) 52 ALD 72, 80.

6. I have to consider whether a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate with the circumstances of the veteran’s relevant service. This will be done if the hypothesis is consistent with the template in the relevant Statement of Principles.

7. I have to consider the application of factor 6(b) of the SoP.[54] The veteran was on board a vessel and consuming potable water supplied on that vessel. When the water supply had been produced by evaporative distillation of estuarine Vietnamese waters the veteran was his account in Vung Tau harbour or offshore for a total of four days. On the account of the veteran the water supply to the vessel would have produced from the evaporative distillation of estuarine Vietnamese waters for a cumulative period of four days. I have assumed that when the vessel was proceeding offshore and being moored offshore it would have been in estuarine Vietnamese waters within the definition in clause 9 of the SoP.[55]

   [54] Statement of Principles Instrument No 53 of 2014, cl 6(b).

   [55] Statement of Principles Instrument No 53 of 2014, cl 9.

8. At this stage of my inquiry I am not required to make any findings of facts as to matters of proof. In Knight v Repatriation Commission[56] Katzmann J explained that “the Tribunal is not permitted to make findings regarding the facts necessary to make out the hypothesis”.

   [56] (2010) 52 AAR 547, 555 [35].

9. In determining whether there is a reasonable hypothesis, the High Court of Australia explained that s 120(3) of the Act is:[57]

   not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of sub-s. (3), as demonstrated by its terms and its history, is to ensure that a claim to which s. 120 applies is not met unless there is some material which raises the relevant causal hypothesis.

   [57] Bushell v Repatriation Commission (1992) 175 CLR 408, 413.

10. As at this stage of my review I am not to be concerned by conflicts in the material, I consider the case advanced by the veteran that on the second period of operational service the veteran entered Vung Tau harbour on two occasions.

11. In Kattenburg v Repatriation Commission[58] Emmett J explained:

    An SoP must set out the factors that must, as a minimum, exist, and which of those factors “must be related to service rendered by a person”, before it can be said that a reasonable hypothesis has been raised connecting a disease of that kind with the circumstances of service.

    What is important is the stipulation of the RMA in clause 4 that malignant neoplasm of the prostate can be related to relevant service if “as a minimum” the “water supply” to a vessel referred to in clause 6(b)(iii) has been supplied for a cumulative period of 30 days from “estuarine Vietnamese waters” for at least five years before the clinical onset of the disease.[59]

    [58] [2002] FCA 412, [8].

    [59] Statement of Principles Instrument No 53 of 2014, cl 6(b).

12. The template of the SoP is satisfied by the relevant consumption of potable water that occurred at least five years before the clinical onset of the disease. However, the water supply to the vessel on which the veteran was located had been produced by evaporative distillation of estuarine Vietnamese waters for a cumulative period of four days and not 30 days. In that respect the template of the SoP is not satisfied. The SoP does not provide that the cumulative period includes a period when the “water supply” on a vessel has been produced by the evaporative distillation of waters other than estuarine Vietnamese waters or the evaporative distillation of estuarine Vietnamese waters that have been mixed with other waters. I should also mention that although during the hearing there were references made to the contention of contaminants in the water supply, the level of any contaminants that may be in contaminated water is not part of my inquiry.

13. As “the factors that must as a minimum exist”[60] which are provided for in the SoP have not been satisfied a reasonable hypothesis has not been raised connecting the disease of the veteran with his service. The claim of the veteran therefore cannot succeed.

    [60] Verterans’ Entitlements Act 1986 (Cth) s 196B(2)

14. As a matter of completeness I should mention that the “material” (to use the terminology employed in Deledio)[61] does not raise a hypothesis in respect to other factors in clause 6 of the SoP. Nor does the material satisfy on the balance of probabilities factor 5 of instrument number 54 of 2014 which relates to defence service.

    [61] See [33] of these reasons.

    DECISION

15. The Tribunal affirms the decision under review.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Deputy President McDermott

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Associate

Dated 16 February 2016

Date(s) of hearing	11 August 2015
Date final submissions received	6 October 2015
Advocate for the Veteran	G Blake; Armed Services Assistance Centre Inc
Solicitors for the Respondent	A Crowe; Department of Veterans' Affairs