Forster v Repatriation Commission

Case [2015] FCA 198

FEDERAL COURT OF AUSTRALIA

Forster v Repatriation Commission [2015] FCA 198

Citation: Forster v Repatriation Commission [2015] FCA 198
Appeal from: Kevin Forster and Repatriation Commission [2014] AATA 91
Parties: KEVIN FORSTER v REPATRIATION COMMISSION
File number: NTD 9 of 2014
Judge: MANSFIELD J
Date of judgment: 11 March 2015
Catchwords:

DEFENCE AND WAR – application by veteran for disability benefits – claim for post-traumatic stress disorder, alcohol dependence and hypertension – veterans conditions not in dispute – veteran found to have been the subject of abuse and bullying – delegate of respondent rejected claims – appeal to Administrative Appeals Tribunal (Tribunal) – Tribunal found that veteran’s conditions not defence-caused – where Tribunal erred in law in finding that veteran did not experience events that involved actual or threatened serious injury having regard to the bullying conduct – whether Tribunal erred in so finding by reference only to the physical injury suffered by veteran - whether the Tribunal engaged in an illogical or irrational process or processes of reasoning – whether Tribunal misapplied proper meaning of “being tortured” – whether the consequences of conduct inform the quality of conduct for purposes of determining whether category 1A stressor was experienced
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth)
Veteran’s Entitlements Act 1986 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Crimes (Torture) Act 1988 (Cth)
Criminal Code Act 1995 (Cth)
Cases cited:

Border v Repatriation Commission (No 2) (2010) 191 FCR 163
Lees v Repatriation Commission (2002) 125 FCR 331
Comcare v Fiedler (2001) 115 FCR 328
Repatriation Commission v Warren (2008) 167 FCR 511
Hill v Repatriation Commission (2005) 218 ALR 251
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1
Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 ALR 334
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 621
Date of hearing: 16 September 2014
Date of last submissions: 26 September 2014
Place: DARWIN
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 99
Counsel for the Applicant: D De Marchi
Solicitor for the Applicant: Piper Barrister and Solicitors
Counsel for the Respondent: T Anderson
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

NTD 9 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

KEVIN FORSTER
Appellant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

11 MARCH 2015

WHERE MADE:

DARWIN

THE COURT ORDERS THAT:

1.The application by way of appeal is allowed in part.

2.The decision of the Administrative Appeals Tribunal (the Tribunal) of 25 February 2015 is set aside in so far as it affirmed the decision of the respondent by a delegate that the applicant is not entitled to benefits under the Veterans’ Entitlement Act 1986 (Cth) in respect of the following conditions:

(1)post-traumatic stress disorder; and

(2)alcohol dependence.

3.The said decision in so far as it affirmed the decision of the respondent by a delegate that the applicant is not entitled…

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Forster v Repatriation Commission [2015] FCA 198
Case
[2015] FCA 198
Decision Date

CaseChat Overview and Summary

The case of Forster v Repatriation Commission involves an appeal by a veteran against the rejection of his claims for disability benefits related to post-traumatic stress disorder (PTSD), alcohol dependence, and hypertension. The veteran's claims were initially dismissed by a delegate of the Repatriation Commission, and subsequently by the Administrative Appeals Tribunal (AAT). The veteran appealed to the court, challenging the AAT's decision.

The central legal issues in this case revolved around whether the Tribunal erred in finding that the veteran's conditions were not defence-caused, particularly regarding the veteran's claim of PTSD. The court examined whether the Tribunal had misapplied the legal definitions of "torture" and "assault" as outlined in the relevant Statement of Principles concerning post-traumatic stress disorder. Additionally, the court considered whether the Tribunal failed to consider relevant factors, such as the mental suffering experienced by the veteran, in determining whether the veteran had experienced a category 1A stressor.

In its reasoning, the court found that the Tribunal had indeed erred in law. The Tribunal misconstrued the term "torture" by limiting it to severe bodily pain rather than recognising it as encompassing severe physical and mental pain. The court held that the Tribunal should have considered the mental suffering experienced by the veteran as part of its assessment. The Tribunal's failure to engage with these considerations led to an illogical and irrational process in reaching its conclusion. Consequently, the court allowed the appeal in part, set aside the Tribunal's decision regarding PTSD and alcohol dependence, and remitted the matter back to the Tribunal for rehearing according to law.

The final orders of the court include allowing the appeal in part, setting aside the AAT's decision on the veteran's entitlement to benefits for PTSD and alcohol dependence, affirming the decision on hypertension, and remitting the matter back to the AAT for rehearing. The respondent was ordered to pay the applicant's costs of the application.

Orders

Orders of the court

1. The application by way of appeal is allowed in part.

2. The decision of the Administrative Appeals Tribunal (the Tribunal) of 25 February 2015 is set aside in so far as it affirmed the decision of the respondent by a delegate that the applicant is not entitled to benefits under the Veterans’ Entitlement Act 1986 (Cth) in respect of the following conditions:

(1) post-traumatic stress disorder; and

(2) alcohol dependence.

3. The said decision in so far as it affirmed the decision of the respondent by a delegate that the applicant is not entitled to benefits under the said Act in respect of the condition of hypertension is affirmed.

4. The application of the applicant to the Tribunal for review of a decision of the respondent by a delegate that he is not entitled to benefits under the said Act in respect of post-traumatic stress disorder and alcohol dependence is remitted to the Tribunal for rehearing according to law.

5. The respondent pay to the applicant his costs of this application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The relevant parts of the applicable Statements of Principles are referred to below.THE DECISION UNDER REVIEW The Tribunal had considerable concerns about the reliability of the applicant’s evidence, and gave reasons for that view. Despite that concern, the Tribunal accepted the evidence about the bullying during the applicant’s time of service at Balcombe, including that its level “slowed right down” after several senior apprentices were discharged after assaulting and inflicting a broken nose and other injuries upon a junior apprentice. Other practices, which were accepted by the Tribunal, included senior apprentices coming into the applicant’s room in the evening, upending his bed and assaulting him. These practices were called “bastardising” or “hazing”. The Tribunal said that, more accurately, the conduct was bullying involving physical assaults, both the actual and threatened application of force, and verbal abuse. It is convenient, as a shorthand expression, to describe it as the “bullying conduct” unless the context requires more. The applicant gave evidence that he was “absolutely terrified” during these incidents, which occurred more than twice a week, prior to the discharge of the four senior apprentices. There was other evidence which confirmed objectively the nature and frequency of the bullying conduct. The Tribunal’s findings on the three claimed medical conditions are as follows.Post-traumatic stress disorder As noted, the diagnosis of PTSD was not in dispute. It is accepted that PTSD is dealt with in Statement of Principles concerning post-traumatic stress disorder No. 6 of 2008 (Cth) (SoP No 6). Pursuant to SoP No 6 cl 3(b)(A), PTSD is a psychiatric condition in which, relevantly: (A)The person has been exposed to a traumatic event in which:(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and(ii) the person’s response involved intense fear, helplessness, or horror. Clause 6 of SoP No 6 identifies the factors that must exist before it can be said that, on the balance of probabilities, PTSD is connected with the circumstances of a person’s relevant service. The applicant relies on the factor cl 6(a):(a)experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; Clause 9 of SoP No 6 defines “a category 1A stressor” as meaning:one or more of the following severe traumatic events:(a) experiencing a life threatening event;(b)being subject to a serious physical attack or assault including rape and sexual molestation; or(c)being kidnapped with a weapon, being held captive, being kidnapped, or being tortured; The Tribunal considered two possible connecting factors within the cover of a category 1A stressor, namely whether the applicant was subjected to “serious physical attack or assault” and alternatively that he was “being tortured”. The Tribunal rejected each contention because it did not accept that they applied to the applicant.

Ratio Decidendi

Legal Principle Established

As noted, at the hearing, I gave the applicant leave to insert para (2A) to the questions of law and to amend the grounds of appeal in relation to PTSD in the supplementary notice of appeal to reflect that insertion. The respondent was given leave to respond to the amendments via a supplementary written submission. That submission has been duly considered.CONSIDERATIONPost-traumatic stress disorder The applicant’s challenge to the Tribunal’s conclusions is that the Tribunal misconstrued the words “torture” and “assault” within the meaning of cls 6(a) and 9(c) of SoP No 6, and therefore posed and answered the wrong legal questions, and that the Tribunal failed to make relevant considerations in determining whether a “factor” exists within the mean of cl 6 of SoP No 6, including that the Tribunal failed to take into account mental suffering in answering the legal questions as to whether the applicant experienced “torture” within the meaning of a category 1A stressor in cl 9(c) of SoP No 6.(i) The torture claim In relation to the issue of torture, there may be a preliminary issue as to whether the stressor must be external to the Australian Defence Force rather than internal. It might be said that the genus of cl 9(c) of the definition of a category 1A stressor requires a person or authority external to the Australian Defence Force personnel to engage in the conduct. The terms “being held captive” and “being kidnapped” may suggest that it is designed to cover only external conduct. The applicant submits that approach is too restrictive, and that cl 9(c) of SoP No 6 was designed to capture the very situation that the applicant was in. Otherwise, he says, cl 9(c) would have little scope for operation because the definition of “relevant service” in cl 9 excludes operational service, and includes defence service (other than hazardous service) under the Act. He asks rhetorically how, given that definition, cl 9(c) concerning the definition of a category 1A stressor could have any meaningful content. For the reasons which follow, I do not need to decide that question. There was a further matter raised by the respondent in relation to the claim based on torture. During the hearing before the Tribunal, the applicant through his counsel apparently abandoned his contention that he was tortured. However, the Tribunal proceeded to consider that claim. At [26] of its reasons, the Tribunal found that the word “torture” has no special meaning and ought to be given its ordinary usage “the infliction of severe bodily pain” for the purpose of extracting information from the subject. The applicant’s contention is that the term does have a special legal meaning which is not limited to severe bodily pain, but extends to severe physical and mental pain. The respondent in the circumstances said, first that there could be no material error on a question of law as to the proper consideration of “being tortured” as a category 1A stressor because the claim had been abandoned before the Tribunal.