Moradi and Comcare (Compensation) - [2022] AATA 3168

Moradi and Comcare (Compensation) [2022] AATA 3168 (28 September 2022)
Division:GENERAL DIVISION
File Numbers: 2018/4986, 2019/4964, 2019/5105
Re:Yasmin Moradi
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:R Cameron, Senior Member
Date:28 September 2022
Place:Melbourne

The reviewable decision the subject of each application for review is affirmed.
.....[sgd]...................................................................
R Cameron, Senior Member
Catchwords
COMPENSATION – three applications – issues for determination – whether condition suffered resulted from reasonable administrative action – accepted that claimed condition outside boundaries of normal mental functioning – accepted that claimed condition was contributed to by employment – whether condition suffered is permanent – if permanent, to what degree – deployment to Nauru – working as a translator – deployment terminated on 12 January 2018 – claimed condition found to be adjustment disorder, mixed anxiety and depressive reaction – found to be reasonable administrative action – decision affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988 (Cth)
Cases
Comcare v Martinez (No. 2) [2013] FCA 439
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Drenth v Comcare [2012] FCAFC 86
Lee v Comcare [2012] AATA 867
REASONS FOR DECISION
R Cameron Senior Member
28 September 2022
INTRODUCTION

The applicant seeks a review of three decisions made by the respondent.
In application number 2018/4986 the applicant seeks a review of a decision made on 8 August 2018, which denied liability under section 14 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) for “adjustment disorder, anxiety and depression”.
In application number 2019/4964 the applicant seeks a review of a decision also made on 8 August 2018, denying liability under section 14 of the Act for “psychiatric condition, adjustment disorder, post-traumatic stress disorder (“PTSD”), anxiety and major depressive disorder”.
In application number 2019/5105 the applicant seeks a review of a decision made on 1 August 2019, denying liability for lump sum compensation for impairment and non-economic loss under sections 24 and 27 of the Act.
ISSUES FOR DETERMINATION BY THE TRIBUNAL
The respondent has made several concessions which are relevant to determining the issues that the Tribunal is required to consider.
It has conceded that the applicant’s psychological state was outside the boundaries of normal mental functioning and behaviour.[1]
[1] See paragraph 2.3 of the respondent's closing submissions.
The respondent has also conceded that the applicant’s psychological conditions, as diagnosed by Dr Firestone and Associate Professor Mendelson, were contributed to, to a significant degree, by the applicant’s employment with the Department of Home Affairs (“Department”).[2]
[2] See paragraph 2.5 of the respondent's closing submissions. Paragraph 5.1 of the submissions is also referred to where similar concessions are made.
The first issue remaining for the Tribunal to determine is whether the psychological conditions suffered by the applicant resulted from reasonable administrative action taken in a reasonable manner in respect of her employment and without which the injury, as defined by section 5A(1) of the Act, would not have been suffered.
The second issue is whether an impairment is permanent; and if so, what is the degree of impairment for the purposes of sections 24 and 27 of the Act. Of course, it is not necessary for the Tribunal to consider impairment under sections 24 and 27 of the Act if the Tribunal finds that the applicant’s condition does not meet the definition of an “injury” under section 5A(1) of the Act.
These applications were heard at the same time as applications that were brought by Granaz Moussavi[3] and Nikram Rohani.[4]
[3] Application number 2019/2210 & 2019/8215.
[4] Application number 2018/7169 & 2019/7431.
RELEVANT FACTS
The applicant had been employed as a Level 3, Professional Persian interpreter by the Department in a division known as the Translating Interpreting Services (“TIS”). Such employment was on a contract basis and commenced on 21 August 2012. Since that time the applicant has completed a number of deployments to various immigration detention facilities including Christmas Island, Darwin and Nauru. These deployments would typically run from periods of between four weeks and up to two months. She had been deployed to Nauru on no less than five separate occasions. For each deployment the applicant was employed under a Deed of Standing Offer (“Deed”).[5]
[5] A copy of the Deed of Standing Offer was attachment NM-1 to the statement of Nikki Meyers dated 18 March 2020.
The Deed contained the following clauses:
“The Department may, from time to time, request the Service Provider to provide the Services to a Client. Any request for Services by the Department is subject to the Department’s policies including the Allocation Policy, the Department’s operational needs and any directions issued by the Department and is subject to change at any time.” (Clause 4.1.1)
“Where a Service Provider is undertaking an On-site Interpreting Assignment or On-site IMA Interpreting Assignment which is more than one day in duration, and the Assignment has commenced, the Department may provide the Service Provider notice of cancellation where the Service Providers Assignment is to conclude before the originally scheduled conclusion time. In such cases, the Department may provide notice to the Service Provider at any time advising of the revised time of conclusion.” (Clause 6.3.6)
Prior to the deployment concerned with this application, the applicant completed a resilience testing program which included undergoing a telephone interview with a psychologist. The program also included an online resilience assessment test and a report which included a self-care plan. Once deployment was approved, all interpreters including the applicant were provided with a TIS “Interpreter deployment brief-Nauru” which outlined the nature of the conditions at the place of deployment and in this case on the Island of Nauru.[6] Relevantly, in the Interpreter deployment brief for Nauru, it recorded the following:
“Interpreters are required to be flexible as business needs change frequently. Due to operational requirements and often at very short notice:
your booking dates may be altered; and
your departure date cannot be guaranteed.”
[6] A copy of the Interpreter deployment brief-Nauru is attachment NM-4 to the statement of Meyers dated 18 March 2020. The applicant in her evidence admitted that she had read the contents of the brief prior to commencing her deployment.
These applications concerned a deployment by the applicant that was supposed to be for a period of eight weeks commencing on 17 December 2017 on the Island of Nauru. The applicant left Australia on 17 December 2017 and arrived on the island on the same day. She was given an itinerary, or a timetable, which recorded that she was to return to Australia on or about 8 or 9 February 2018.
Based on the evidence, the conditions on Nauru experienced by the applicant were challenging to say the least; it is a tropical climate, the facilities were not particularly good, including the accommodation for the interpreters who were deployed there. On previous deployments to Nauru the applicant had stayed at a venue known as “RPC-1” which, as she described it, was not particularly comfortable but bearable. RPC-1 had housed the accommodation, dining and recreational areas for all service providers on Nauru including interpreters.
However, for her deployment commencing December 2017, due to a direction from the government of Nauru that RPC-1 be vacated, the interpreters were housed in a venue known as “Wilson’s Village”. The name Wilson’s Village came from Wilson Contractors who, amongst other things, provided security services to the regional processing centre on the island of Nauru. Evidence provided at the hearing revealed that the accommodation provided by Wilson’s Village was spartan; bedding was by way of bunkbeds that were very small, were not particularly rigid and the bedroom was not large enough to cater for two people; it was approximately three metres by six metres and described as very dark and claustrophobic. It had a small shower and toilet for common use by both occupants.
There were problems with mosquitoes. No mosquito netting was provided for the rooms; as a consequence, even when the outside conditions were stifling, it was necessary to shut the door of the room. Frequently, the power would go out, meaning that the air-conditioning could not work for lengthy periods. Another problem that arose because of the lack of power was there was no water being pumped into the living quarters. As a consequence, there was no drinking water at Wilson’s Village and the interpreters had to bring bottled water from RPC-1 to their accommodation when required.
The laundry facilities were most unsatisfactory and there were only three washing machines and two dryers for a large number of interpreters together with Wilson’s employees. Frequently, they were being used by others and the applicant said it was difficult to wash her clothes properly. She also stated that one of the washing machines was usually out of order.
Other problems included the propensity for wild dogs that were quite savage to wander around Wilson’s Village. Witnesses who gave evidence to the Tribunal described drunken men also roaming around day and night creating a feeling of unease, particularly for the female interpreters.
Another problem that emerged from the use and occupancy of Wilson’s Village by the interpreters was that they had to travel from that venue to RPC-1 where they both worked and ate. A practical problem that was frequently encountered occurred when interpreters had to work overtime on interpreting assignments and, if they wished to have their meal, they would miss the bus for the return journey. There was a public bus service which was intrinsically unreliable and to catch it the interpreters had to wait out the front of RPC-1 and, as they put it, deal with the wild dogs and drunken men roaming around. Also, the public bus trip took 30 minutes longer to return to Wilson’s Village compared to the bus provided by the interpreters’ employer. The applicant stated because of problems with transport, she chose not to eat a meal at the mess and would catch the bus instead. There was no food at Wilson’s Village except for what you could store in the refrigerator in each room.
The applicant was placed in a room to share at Wilson’s Village with Rawia Ghafoor. It is fair to say that they did not particularly get along. The applicant described Ghafoor as being immediately aggressive and abrasive towards her. For instance, the applicant said she would switch on the bedroom light at 2.00AM and slam the door. On several occasions in the middle of the night Ghafoor would scream, usually complaining about something such as the stifling temperature of the room they were sharing or the electricity going out. Additionally, the applicant described Ghafoor’s body language and attitude towards her as aggressive. This caused her to feel constantly intimidated and extremely uncomfortable. Ghafoor would often stand in close proximity to the applicant as she spoke to her causing the applicant to feel intimidated.
There was an additional problem involving the fridge where Ghafoor would fill it up with her belongings leaving no room for the applicant to store her foodstuffs. This caused the applicant to often go hungry because, given her anxiety and these events, from time to time she went without eating dinner in the evening. Another problem she experienced was that Ghafoor would wash her dirty laundry in the shower rather than use the communal laundry room. This prevented the applicant from taking a shower. When the applicant asked Ghafoor to remove her dirty laundry from the shower and wash her clothes in the laundry, Ghafoor would apparently come right up to her face and scream at her.
The applicant managed to eventually move rooms and shared with another interpreter with whom it was much easier to get along. Although, as she stated, the living conditions and food were no better.
The applicant described several interactions with Jason Jackson, who was the Interpreter Liaison Officer (“ILO”) on the island of Nauru. He was portrayed by the applicant in evidence as being overbearing and at times dismissive. He gave evidence before the Tribunal and, based on the Tribunal’s observations of him, the applicant’s portrayal did not seem to be the case. Jackson gave his evidence in a direct but fair manner. It was consistent throughout and credible. His evidence was not prone to exaggeration, embellishment or reconstruction. He was searchingly cross examined and left the witness box with his credibility well and truly intact. Where his evidence conflicts with that of any witness called by the applicant, the Tribunal prefers Jackson’s evidence. It should be added by way of observation that the Tribunal considers that Jackson did his best in what were unquestionably very trying circumstances.
The applicant stated that on or about 28 or 29 December 2017, Jackson asked her to visit his office. He probed her about an argument that occurred between two other interpreters and asked whether she was involved. She said she was not involved in any way. The applicant contended that Jackson said words to the effect that if he heard any more, he would send them all home. Jackson denied using these words when giving evidence before the Tribunal. The Tribunal was not satisfied that Jackson used these words or words to this effect and in any event, it was not his decision to send interpreter’s home. His evidence was convincing and persuasive and therefore the Tribunal prefers his version of this conversation.
The applicant described the incident as involving Ghafoor and Rohani who was another interpreter and that it became heated. According to the applicant, she could see that Ghafoor was being provocative toward Rohani who was, as she put it, trying to settle the situation down. She says she spoke to Rohani and told him not to worry about Ghafoor, not to get upset and to be professional in the circumstances. She also said she told Rohani that there was no possible way to give that message to Ghafoor. The applicant stated that in a conversation with Jackson, he praised her for the approach she adopted to the matter.
The applicant gave evidence that a further conversation took place between her and Jackson on approximately 10 January 2018 in which the applicant discussed with Jackson what she described as the volatile living conditions. During this conversation, the applicant asked Jackson for a room change as there was another female interpreter occupying a room on her own. Jackson agreed to this proposal and she subsequently moved rooms. In that conversation, the subject of Ghafoor was also discussed and Jackson apparently said he was aware of her reputation from past deployments.
Following that meeting, the applicant wrote an email to Nicki Meyers, Manager of TIS Illegal Maritime Arrival and Special Services Team, who was Jackson’s immediate superior. That email drew Meyers attention to the fact that, as was seen by the applicant, Ghafoor was creating tension and division amongst the interpreters from different ethnic and language groups. The applicant requested that something be done about it.[7] Meyers responded, advising that the applicant’s comments were taken seriously and would be looked into.[8]
[7] The email is attachment "NM-6" to Meyers’ statement dated 18 March 2020.
[8] Meyers’ response is attachment NM-7 to her statement dated 18 March 2020.
As noted earlier, following that meeting with Jackson, the applicant did move to share a room with another interpreter. On the applicant’s evidence, that interpreter was quite easy to get along with, although the living conditions and food had not improved. The applicant was relieved from the distressing behaviour that she had experienced when she was sharing a room with Ghafoor.
The applicant gave evidence that at approximately 3:30PM on 12 January 2018, she received a telephone call from Jackson requesting that she attend a meeting in half an hour’s time. He did not explain the purpose of the meeting. The meeting took place in a small room situated in RPC-1. Present at the meeting were Lauren Richardson, Head of operations, Chris Lawrence, Liaisons Assistant and Jay Arrold, Detention and Offshore Operations Command. Also present at the meeting were four other Farsi interpreters.
Richardson gave evidence at the hearing of these applications. The Tribunal prefers the evidence of Richardson as to what occurred at that meeting because it was given in a matter-of-fact manner. On the other hand, the applicant in several of her witness statements says that her deployment was “terminated unexpectedly in a brutal manner”. This assertion and others revealed a tendency in the applicant’s evidence to exaggerate or embellish. She did not repeat this assertion in the witness box. Another example of her propensity to embellish or exaggerate was her description of security officers outside the door of the room “as though I was some sort of violent and aggressive person”.[9] Once again, this assertion was not repeated in the witness box. There was just no evidence to suggest that she was being treated as some sort of violent and aggressive person as alleged in those statements. There was no evidence to suggest that the termination of her deployment was done in a brutal manner as alleged.[10] On her evidence, in the meeting she said words to the effect that the deployments of each of the interpreters would be ceasing early due to the requirement to reduce interpreters of certain language groups based on operational needs at that time. Richardson provided itineraries to each of the interpreter’s present, informing them that they would be leaving the island of Nauru on Sunday, 14 January 2018 at 2.05PM. The evidence of Richardson, which the Tribunal accepts, was that she did all the talking during the meeting. The applicant had approximately another month to go on her deployment when she was given this notice of early termination. She stated that she felt shocked and in a state of disbelief.
[9] The contents of paragraphs 38 and 39 of the applicant’s witness statement of 9 October 2020 are referred to.
[10] The highest that it went from the applicant in the witness box came in cross examination, being that the circumstances of being informed about the cancellation of her deployment were extremely confronting. It was something that she wasn't expecting at all (see transcript page 88). The account referred to in her witness statements particularly as noted at paragraphs 38 and 39 of the 9 October 2020 statement was not given in the witness box during her evidence in chief.
Present outside the room where the meeting was conducted were two security guards, as noted earlier. The applicant, as also noted earlier, sought to assert that there was some intimidatory motive behind the placement of these guards outside the door to the small office in RPC-1. Richardson said this was not the case and, in fact, that for the duration of her stay on the island of Nauru, she was provided with security guards who “shadowed” her wherever she went. Once again, the Tribunal accepts and prefers the evidence from Richardson for the reasons outlined earlier.
During the time between the meeting on 12 January 2018 and her return flight to Australia on 14 January 2018, the applicant gave evidence that she was not eating or sleeping, experienced low blood pressure and felt dizzy. She stated she was very anxious and confused. No one from management checked on her during such time and she felt that no one cared for her welfare.

The applicant gave evidence that Farsi interpreters were in high demand when she arrived on the island of Nauru. At that time in December 2017, the applicant stated there was a severe shortage of interpreters and those that were present on the island were, as she described it, really stretched trying to get everything done. She pointed out that the incoming job requests were not dropping off in Farsi. She sought to explain the decision to reduce the number of Farsi interpreters by way of an unjustifiable prejudice against Farsi interpreters displayed by Jackson. This did not emerge from Jackson’s evidence and was not really put to him when he was cross examined. He readily conceded in cross examination that there were some individual interpreters with whom he had concerns, which included Ghafoor.
The applicant returned to Australia on 14 January 2018. She consulted a psychologist, Dr Abbott, on 18 January 2018. He advised her to see a general practitioner (“GP”) and get a mental health plan. She consulted a GP, Dr Malekzadeh on 23 January 2018 for the first time and he referred her to a psychiatrist Dr Camilleri who she consulted on 5 February 2018.
The applicant stated that prior to this deployment in Nauru, she had not suffered from or sought treatment for a mental illness.
On 23 January 2018, the applicant was advised by a letter from Meyers, sent by email on the same day, that a formal investigation was being undertaken into allegations of intimidation, bullying and harassment on the island of Nauru during November 2017 to January 2018.[11] The letter also stated that the applicant was in Nauru during that period and had either lodged a claim or had a claim lodged against her which was being investigated. It advised that KPMG would undertake the investigation and would be in touch with her. The applicant was also advised that as the matter was serious, she would not be deployed again until after the investigation had been completed.[12]
[11] Page 680 of the Joint Tribunal Book.
[12] The letter from Meyers to the applicant dated 23 January 2018 is at page 859 of the Tribunal book.
The applicant submitted a Workers’ Compensation Claim form on 18 February 2018. In response to the question “When did you first notice your symptoms/injury?” She replied “12/01/2018 4.10pm.” In that form the claimed condition was for “Post-traumatic stress disorder, adjustment disorder, anxiety, depression”.[13]
THE MEDICAL EVIDENCE
[13] Commencing at page 695 of the Joint Tribunal book.
Dr Malekzadeh
The applicant upon her return to Australia first consulted her GP Dr Malekzadeh on 23 January 2018. Reports dated 5 April 2018 and 16 April 2019 were in evidence from him.[14] He diagnosed the applicant as suffering with an adjustment disorder, anxiety/depression and PTSD features. He prescribed medication and referred her to both Dr Camilleri and a psychologist clinic, Kaye Frankcom & Associates.
[14] Dr Malekzadeh did not give evidence before the Tribunal.
In response to a question in his assessment as to when the applicant’s condition started, he responded on 12 January 2018 when the applicant had been told to go back home.[15] He stated that her condition started then and got worse afterwards. He recorded that she felt shocked upon being told to go home. Dr Malekzadeh also opined that the unexpected dismissal, whilst she had four more weeks to work, created a psychological shock to her.
[15] Page 521 of the Joint Tribunal Book.
Dr Malekzadeh also observed that the applicant had been suffering from insomnia, loss of appetite, anxiety, nightmares about her dismissal, flashbacks, loss of memory and forgetfulness, tearfulness and crying, very low motivation, difficulty making decisions, feeling hopeless, helpless and worthless.
Dr Camilleri
There were several reports in evidence of Dr Camilleri, a Consultant Psychiatrist.[16] The applicant first consulted him on 5 February 2018. He diagnosed the applicant as suffering from PTSD and major depressive disorder. He concluded the incident that caused the claimed condition was the abrupt and, in the applicant’s mind, unjustified dismissal of her and other employees without adequate explanation. She was quite traumatised by what happened. He opined that the level of contribution for this incident to the claimed condition is 100%. He further stated there are no non-employment incidents or causes for this condition.
[16] They were 6 February 2018, 22 March 2018, 6 August 2018 and 17 April 2019. He did not give evidence at the hearing of the application.
Dr Firestone
There was a report in evidence from Dr Firestone, another Consultant Psychiatrist, dated 13 April 2018.[17] Dr Firestone had examined the applicant on 5 April 2018.[18] He diagnosed an adjustment disorder with mixed anxiety and depressed mood DSM-5 category 309.28.[19] He considered that in the absence of a threat to her life, or of grievous bodily harm, her condition could not be diagnosed as PTSD. Dr Firestone recorded that in his impression, the applicant presented genuinely. In response to a question in his assessment about events that were individually significant in the development or aggravation of the applicant’s claimed condition, he stated that being advised that she would return from Nauru earlier than expected on 12 January 2018 initiated the condition.[20] He further expressed the opinion that nothing suggests that she would have developed this condition had her employment been continued on Nauru. He was not aware of any other factors or issues affecting her condition.
[17] Commencing at page 493 of the Joint Tribunal Book.
[18] Dr Firestone did not give evidence at the hearing of the application.
[19] Page 478 and 497 of the Joint Tribunal Book.
[20] Page 500 of the Joint Tribunal Book.
Dr Saboisky
Dr Saboisky, a Consultant Psychiatrist, gave evidence before the Tribunal. Additionally, two reports from him were in evidence dated 6 December 2018,[21] and 19 March 2019.[22] He concluded that the applicant suffers from major depression and an adjustment disorder with mixed emotional features. He concluded that the termination of her deployment was traumatic for her and her initial symptomology of an adjustment disorder ultimately led to a major depressive disorder. He noted that there is no past history of major depressive disorder or any family history. He opined that there is a clear link between her employment and the development of the adjustment disorder and subsequent major depressive disorder. From the history provided to him, he felt that work was the only cause and therefore a significant contribution to her condition. In the witness box, he stated there was “a chronology of mild symptomology before she was effectively sacked but obviously, she was in far greater stress after she was sacked”.
[21] Commencing at page 426 of the Joint Tribunal Book.
[22] Commencing at page 432 of the Joint Tribunal Book.
Dr Saboisky observed that over time the applicant’s mental state had become worse. She was so depressed that she undertook electroconvulsive therapy (“ECT”). He disagreed with the diagnosis of PTSD because he believed that the applicant did not meet the criteria for such a condition which is “exposure to actual or threatened death, serious injury or sexual violence in one or more of the following ways”. It is appropriate to observe that there was no evidence before the Tribunal that the applicant had been exposed to actual or threatened death, serious injury or sexual violence.
As to the applicant’s level of impairment, Dr Saboisky in his first report opined that the permanent impairment in accordance with Chapter 5 of the Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1) was 10%. He reached this conclusion because he considered that the applicant was capable of performing activities of daily living and has reactions to stressors of daily living with a minor loss of personal or social efficiency and has minor distortions of thinking.
In his report of 19 March 2019, Dr Saboisky changed his opinion on the level of permanent impairment. He stated that given the fact that she has deteriorated and now needs significant assistance with the activities of daily living, he rated her impairment at 25% for the following reasons:
(a)she needs supervision and direction in the activities of daily living;
(b)she reacts to stressors of daily living which causes modification to daily living patterns; and
(c)she has marked disturbance of thinking and definite disturbances of behaviour.
Dr Reddy
Dr Reddy, a Consultant Psychiatrist, gave evidence before the Tribunal. Also in evidence were five reports prepared by him dated 20 March 2019,[23] 10 January 2020,[24] 28 February 2020,[25] and 8 May 2020.[26] Dr Reddy saw the applicant first when she was admitted to Calvary Bruce Private Hospital on 27 February 2019. He was her treating psychiatrist throughout her stay as an inpatient and continued to treat her as an outpatient after discharge on 6 March 2019. It should be observed that the applicant has had two further admissions as an inpatient, one between 6 May 2019 to 13 May 2019 and a further admission on 28 January 2020 until 17 February 2020. Dr Reddy diagnosed the applicant as suffering from major depressive disorder with active suicidal thinking and planning. He also opined that she had symptoms suggestive of PTSD. He stated she remains severely incapacitated by her symptoms in that she can barely function in her personal and social roles. He observed that she is housebound and had been neglecting self-care and dietary intake and requires supervision and support from her family members.
[23] Page 441 of the Joint Tribunal Book.
[24] Commencing at page 442 of the Joint Tribunal Book.
[25] Page 444 of the Joint Tribunal Book.
[26] Page 445 of the Joint Tribunal Book.
The applicant has undergone treatment by medication and also ECT. She has undergone ECT on three occasions, twice as an inpatient in approximately May and June 2019 and on one occasion as an outpatient in May 2019. These ECT treatments were administered and supervised by Dr Reddy.
Dr Reddy was probed in cross examination as to whether he was aware that the applicant had been called to a meeting with four other interpreters and told that her deployment was being terminated. He stated that he was not aware of that. He went further and stated that during his clinical interactions he was not focused on getting details about what happened to the applicant on the island of Nauru or what happened after Nauru. To his credit he said his focus was clearly to look after the applicant at the time when he commenced treating her.
Also, in cross examination Dr Reddy was asked whether he had received any patient history of the applicant being exposed to actual or threatened death or actual or threatened serious injury to which he replied he did not have any confirmed information about those things. He stated that she did have exposure to a psychological injury which was the description she gave of living with a colleague in small accommodation while working on Nauru. He contended that as per the DSM diagnosis, the threat can be to a person’s psychological sense of well-being or sense of self. That was the serious injury that she was exposed to in the relevant sense.
Associate Professor Mendelson
Associate Professor Mendelson, a Consultant Psychiatrist, prepared a report dated 7 August 2020.[27] He also gave evidence at the hearing before the Tribunal. He concluded that the applicant has developed symptoms of what can be most appropriately diagnosed as an adjustment disorder: mixed anxiety and depressive reaction (ICD Code F43.22) using the nomenclature of the ICD – 10 Classification of Mental and Behavioural Disorders, which is the ICD-10 equivalent of the DSM-5 diagnosis used by Dr Firestone.
[27] Commencing at page 523 of the Joint Tribunal Book.
Associate Professor Mendelson opined that the applicant’s condition developed as a consequence of having been informed on 12 January 2018 that her deployment to Nauru would be terminated effective immediately and that she would return to Australia on 14 January 2018. He described her as developing an episode of acute anxiety during the meeting on 12 January 2018. He also observed that since that time on 12 January 2018 she has continued to experience anxiety symptoms and has also developed depressive symptoms.
Associate Professor Mendelson also expressed the opinion that there is no basis whatsoever for the view that the applicant has developed post-traumatic stress disorder. He carefully and with some considerable detail explained why this is so. Reference was made by him to the International Classification of Diseases, and its classification of mental disorders (published in 1992 by the World Health Organisation). He referred to its definition or description of post-traumatic stress disorder. It need not be reproduced in full. However, it states that PTSD arises as a delayed and/or protracted response to a stressful event or situation (either short or long-lasting) of an exceptionally threatening or catastrophic nature, which is likely to cause pervasive distress in almost anyone (e.g. natural or man-made disaster, combat, serious accident, witnessing the violent death of others or being the victim of torture, terrorism, rape, or other crime). The applicant, he considered, has not experienced the type of traumatic stressor that could be considered as capable of causing post-traumatic stress disorder, and she also does not describe the symptoms that must be present to meet the diagnostic criteria for this condition.
Associate Professor Mendelson also expressed the opinion that the applicant presents as having no current work capacity for any type of gainful employment, either full-time or part-time. He also expressed the opinion that it is not possible to predict whether or not she will return to full-time work in the future.
Associate Professor Mendelson further stated that it was his view the applicant’s current impairment due to the adjustment disorder that he had diagnosed is not permanent. He therefore had not undertaken an assessment of her current impairment.
CONCLUSIONS ON THE MEDICAL EVIDENCE
At the outset of this consideration, the Tribunal should observe that the preponderance of the medical evidence supports a finding that the applicant’s condition commenced on 12 January 2018 when she was informed that her deployment was being prematurely determined. This opinion was expressed by Dr Malekzadeh, Dr Camilleri, Dr Firestone, Dr Saboisky and Associate Professor Mendelson.
This preponderance of medical evidence is also consistent with the statement contained in the Workers’ Compensation Claim form signed by the applicant on 18 February 2018 and the applicant’s response to the question “When did you first notice your symptoms/injury?” to which she replied “12/01/2018 4.10PM”. In cross examination, the applicant readily conceded that this was a reference to the discussion that took place on 12 January 2018 at which she and Richardson were present, and she was informed that her deployment was being prematurely terminated.
It should also be observed that none of the medical evidence suggested or opined that the condition suffered by the applicant was most likely aggravated by the letter received on 23 January 2018 advising her of the commencement of the investigation by KPMG. The Tribunal does not find that it did. It finds that the applicant had already sustained her injury by that time.
The Tribunal prefers the opinions expressed by Associate Professor Mendelson as to the condition from which the applicant suffers. It does so for several reasons.
Associate Professor Mendelson was extensively briefed with an array of material including the other medical reports referred to above which were in evidence before the Tribunal. There were also included in the letter of instruction to him copies of the summonsed records of Dr Malekzadeh, Dr Abbott and Dr Camilleri. He was also briefed extensively with material concerning the facts that are relevant to this application.[28] He gave evidence to the Tribunal in a fair and impartial way which was of much assistance. The basis for his opinions expressed in his report and from the witness box was carefully laid out with an appropriate platform of rational reasoning. Reference was made in his report to learned references and the ICD Code F 43.22 as justification for reaching the diagnosis of the applicant’s condition as he did.[29]
[28] The letter of instruction to Associate Professor Mendelson dated 1 July 2020 was in evidence before the Tribunal. It is referred to in its entirety for its full terms and effect. No other letters of instruction to the authors of the other reports were in evidence.
[29] The learned references referred to in Associate Professor Mendelson’s report were as follows:
Adjustment disorders:
“The ICD-10 Classification of Mental and Behavioural Disorders." Geneva, World Health Organisation, 1992, is 149-151.
Finkebine R, Miele V “Globus hystericus: A brief review”. General Hospital Psychiatry 2004; 26:78-82.
Henderson S. “Care-eliciting behaviour in man”. The Journal of Nervous and Mental Disease 1974; 159:172-181.
The Tribunal also prefers his conclusion that the applicant was not suffering from PTSD. This was a conclusion also reached by Dr Firestone and Dr Saboisky. All three doctors agreed that the applicant had not been exposed to the types of stressor that would lead to such a diagnosis. The Tribunal agrees and finds that there are no underlying factors in the evidence before it that justify such a finding. In reaching this conclusion, Associate Professor Mendelson referred to the International Classification of Diseases published by the World Health Organisation and its definition of PTSD. Having considered such definition, he then looked at the particular types of traumatic stressor that the applicant had been exposed to and reached the conclusion that they did not amount to a threat to her life or of grievous bodily harm.
For these reasons also, the Tribunal cannot accept Dr Reddy’s view that the applicant was also suffering from PTSD.
Therefore, the Tribunal based on the preponderance of medical evidence, and in particular Associate Professor Mendelson’s opinion, concludes that the applicant has developed symptoms of what can be most appropriately diagnosed as adjustment disorder: mixed anxiety and depressive reaction (ICD Code F 43.22) using the nomenclature of the ICD-10 Classification of Mental and Behavioural Disorders.
The Tribunal also concludes that the symptoms of the adjustment disorder developed as a result of the early termination of the applicant’s deployment to the island of Nauru on 12 January 2018.
reasonable administrative action
Was the termination of the applicant’s deployment on 12 January 2018 reasonable administrative action within the meaning of the exclusionary provision in section 5A(1) of the Act?
The respondent contends that the termination of the applicant’s deployment at the meeting on 12 January 2018 was reasonable administrative action within the meaning of the exclusionary provision contained in the Act.
The Tribunal considers that the event that triggered the applicant’s condition was her attendance at the meeting with Richardson on 12 January 2018, where she was advised that her deployment would be ceasing early. It was action directed specifically to the applicant’s employment and her role as an interpreter on the island of Nauru.
In Commonwealth Bank of Australia v Reeve[30] Gray J stated:
“[31] The use of the word “administrative” in the exclusion is significant. In accordance with normal principles, it is not to be assumed that a word in a legislative provision has no function to perform. The word “administrative” must have been inserted to distinguish the kind of action to which the exclusion is directed from other kinds of action that might also be taken with respect to the employment of a particular employee. Such action that is not “administrative” could be operational, in the sense that it relates to the activities or business of the institution or enterprise in which the employee is employed. Thus, an instruction to perform work at a particular location, to drive on a particular route, or perform particular duties would not be regarded as “administrative” action, but as operational action with respect to the employee’s employment.
[30] [2012] FCAFC 21 at [31].

Rares and Tracey JJ also stated:
[60] The qualification in this final phase of the exclusion in s 5A(1) is important. It requires that the action be taken “in respect of the employee’s employment”. That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee’s employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists-the person’s employment. That is the action must be something different to the duties and incidence of that employment or, as s 5B(2)(b), provided “the nature of, and particular tasks involved in, the employment”. Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be.
Reference was also made in submissions to the decision of Drenth v Comcare[31]:
[22] A decision that an employer is not prepared to allow an employee to return to work because of a medical opinion that the employee is then not fit and to require the employee to provide further evidence that he or she is fit, is quintessentially an action that is directed specifically to the employee. Such a decision does not affect him or her because it is some feature of his or her workplace or environment or is otherwise connected to the employee’s employment. Rather, it is a decision about the employment relationship itself. Here, the 30 January decision took Ms Drenth’s employment as a factum and it operated in respect of whatever the duties, incidents, nature and tasks of her employment might have been.
[31] [2012] FCAFC 86.
These excerpts from the above authorities are relevant to this case because the specific administrative action taken by Richardson at the meeting on 12 January 2018 was directed to the applicant’s employment as an interpreter as opposed to conduct occurring in the course of, or pursuant to, the employment relationship. It was not directed to, or constituted action forming part of the everyday duties or tasks performed by the applicant in that role of an interpreter. The action was directed specifically to the applicant as an employee. It had the consequence of terminating her employment on the island of Nauru and returning her to Australia. The Tribunal views this as administrative action taken in respect of the applicant’s employment.
The termination of the applicant’s deployment on the island of Nauru prematurely was capable of being undertaken pursuant to the provisions of clause 6.3.6 of the Deed which has been referred to earlier in these reasons.[32] It should be recalled; the clause gives the Department the ability to provide notice to the applicant at any time advising of a revised time of conclusion of such deployment. It was a step that was administrative in nature that the Department undertook at the time. The applicant was bound by the terms of the Deed.
[32] It is also consistent with the requirement for flexibility referred to in the Interpreter deployment brief for Nauru referred to in paragraph 12 above.
The Tribunal finds that the meeting on 12 January 2018 was action done in connection with the applicant’s failure to retain a benefit in connection with her employment for the purposes of section 5A(2)(f) of the Act.
Was there a reasonable basis for the decision in any event?
The question then becomes whether the administrative action was reasonable. This requires an evaluation of whether the action was reasonable in conception and reasonable in execution.
The Tribunal is satisfied there was a reasonable basis for the decision to terminate the applicant’s deployment on 12 January 2018 in any event.
It should not be lost sight of that under the provisions of clause 6.3.6 of the Deed, the Department could provide notice of cancellation where deployment was to conclude before the originally scheduled conclusion time. The applicant was aware of this fact. As noted earlier, she was bound by the terms of the Deed. It was reiterated in the “Interpreter deployment brief-Nauru” which the applicant was aware of. This is in addition to the provisions of clause 4.1.1 of the Deed which made a deployment subject to the Department’s allocation policy and its operational needs which were subject to change at any time. Once again, the applicant was bound by these terms.
It should be observed that the standard of reasonableness is not a standard of perfection.
It is possible that there may be more than one way of doing things reasonably. For instance, the Federal Court said in Comcare v Martinez (No. 2):[33]
…It could not be said that the existence of alternatives is irrelevant to assessing whether or not an administrative action is taken in a reasonable manner: the fact that there is more than one way of taking an administrative action may well cast light on the reasonableness of the manner adopted. This is not to say that there may not be more than one way of doing things reasonably. Nor is it to gainsay the proposition that the question is not whether the administrative action could have been done more reasonably.
[33] [2013] FCA 439 at [81].
Even though it may be apparent that the action concerned “could have been handled differently and, probably, better”, it does not mean the action taken was unreasonable as the requirement is that “administrative actions must be undertaken in a reasonable manner, not in a perfect manner”.[34]
[34] Lee v Comcare [2012] AATA 867.
It was not suggested to either Meyers or Richardson, when they were in the witness box, that the early termination of the applicant’s deployment as occurred in the meeting attended by her on 12 January 2018 was unreasonable and not taken in a reasonable manner.
Jackson, who was present on the island of Narau during the time relevant to this application, whose evidence the Tribunal accepts for the reasons outlined earlier, gave evidence that the Farsi Arabic interpreters had more time on their hands.
Meyers gave evidence that frequent reviews of the requirements for interpreters on the Island of Nauru were undertaken. She also gave evidence that the number of interpreters required fluctuated but ultimately diminished until RPC-1 closed in March 2019. This evidence was not challenged when she was in the witness box. It is accepted by the Tribunal. The Tribunal found Meyers to be a credible witness.
The interpreters who gave evidence before the Tribunal at the hearing of the three applications before it said that they had been extremely busy. The Tribunal considers after observing them in the witness box, that their evidence was to some extent coloured or exaggerated to overemphasise the extent to which they were occupied in undertaking interpreting assignments. It prefers the evidence on the topic that was called by the respondent. The Tribunal has previously referred to the applicant’s propensity to exaggerate or embellish when giving her evidence.
The basis of the decision to prematurely end the interpreters’ deployment was an email from one Victoria McLeod, the “Operations Lead for the Department”, to Alison Thorne and Nauru Interpreters dated 11 January 2018. The email was an attachment to the statement of Meyers.
The email states:
“We have reviewed our resourcing requirements for interpreters and would like to advise you of some upcoming changes.
Based on operational requirements, we are adjusting our interpreter allocation as outlined in the table below. As you can see, there is a reduced operational demand for some language groups and an increase for others.
We have determined the new allocation based on the number of incoming job requests and other operational requirements such as accommodation pressures. We intend to maintain this allocation (30) for the foreseeable future and will request additional resources if and when required.”[35]
[35] This email commences at the bottom of page 210 of the Joint Tribunal Book.
Also in evidence before the Tribunal was an email from McLeod dated 6 November 2018 (who was apparently in Nauru when the review was undertaken) explaining how the decision was reached to prematurely terminate the deployment of five interpreters in Nauru. It is worth reproducing some aspects of the email as follows:
“There were a number of drivers for this change including accommodation constraints following a government of Nauru directive that all stakeholders immediately vacate RPC-1 as well as reduced demands for interpreter services in particular languages.
Before making the decision to reduce numbers by 5, the ABF Operations Team in Nauru undertook a detailed analysis of job requests and found we had more interpreters on island than were needed to service requests. On this basis, we adjusted our resourcing requirements and advised TIS accordingly.
The decisions about which interpreters would cease their deployments early were based on operational requirements (number of job requests) and we considered factors such as length of time in Nauru (i.e. those closest to their departure date would leave first), language ability (i.e multiple languages preferred) and gender balance.
The reduced number (30) was considered more than sufficient to cover job requests and resulted in interpreters having more jobs during the day. Since this reduction, we have maintained 30 interpreters on island and this is reviewed regularly.”[36]
[36] Page 1251 of the Joint Tribunal Book.
The table contained in the email showed a reduction of Farsi interpreters from six to two. The applicant contends there was no evidence before the Tribunal to show that this reduction in the number of Farsi interpreters was justified. The respondent on the other hand points out that the table demonstrates that some language groups had increased allocations whilst other language groups had decreased allocations. The respondent considers that realistic operational requirements, or perhaps more accurately, demand for interpreters on the island at the time permitted a reduction of the number of interpreters decided upon.
There is no evidence to suggest, and the Tribunal does not find, that Thorne or the Australian Border Force Operations Team in Nauru acted unreasonably in reaching the decision that they did in deciding that the deployments of five interpreters should prematurely terminate. Richardson did not, in the view of the Tribunal, act unreasonably in her conduct of the meeting with the applicant and others on 12 January 2018 when she advised the applicant that her deployment on the island of Nauru was to be prematurely terminated. It should be recalled, as noted earlier, that the standard of reasonableness is not a standard of perfection. The operational requirements driving the decision to prematurely terminate the interpreters’ deployments were explained both in the documentary and oral evidence adduced by the respondent before the Tribunal. Such evidence is accepted by the Tribunal.
The Tribunal does not consider the failure to call Thorne fatal to the respondent’s contention, as contended for by the applicant. The basis upon which the decision to end the deployments of the five interpreters concerned is, in the view of the Tribunal, adequately explained by reference to the documentary evidence that is before it. Also, in any event the witnesses directly involved in the administrative action taken on 12 January 2018, which the Tribunal has found caused the applicant’s condition, did give evidence before the Tribunal, namely Meyers and Richardson, and it is concluded that they did not act unreasonably in doing so.
The applicant contended there was evidence before the Tribunal that enables a reasonably accurate assessment to be made of the number of Farsi speakers present on the island of Nauru at the relevant time. That information was provided by the Department to a question on notice made by a Senator in the course of the business of the Legal and Constitutional Affairs Committee. It stated that as at 21 May 2018 there were 821 refugees, 94 transferees and 24 failed asylum seekers on Nauru. 692 people were living in the community and 247 in the regional processing centre, a total of 939 people.
The applicant contends that the Farsi speaking population on the island can be inferred from the Iranian population on the island of some 329, approximately more than one third of the total population of those present. Farsi would clearly be the largest language population by a significant margin. As the applicant contends, to reduce the Farsi speaking interpreter numbers by two thirds (six to two according to McLeod’s email), bears no relationship to the numbers on the island. It is indeed difficult to follow when for instance the “Malay-Burmese” allocation was increased from two to three when there were only two persons from Malaysia and 18 from Burma on the island. The applicant contends that these numbers would mean one translator to approximately six “Malay-Burmese” people, compared to one Farsi translator to approximately 165 Farsi speakers.
The Tribunal considers that the evidence adduced by the applicant that is derived from information provided by the Department to a question on notice made by a Senator in the course of the business of the Legal and Constitutional Affairs Committee breaches section 16(3)(c) of the Parliamentary Privileges Act 1987 (Cth). That section provides as follows:
“(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:
(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.”
(Emphasis added)
The point was not taken during the course of the hearing by either party. However, upon consideration, the Tribunal considers that section 16(3)(c) of the Parliamentary Privileges Act 1987 does apply to this evidence and by reason of this cannot be taken into account.
In any event, Jason Lynn, an Assistant Director with the Nauru Program Section, Regional Processing and Resettlement Task Force of the National Resilience and Cyber Security Group, gave evidence in response to these contentions. He stated that the number of transferees in the regional processing centre on Nauru did not directly correlate with the number of interpreters required. He further stated that the data for Nauru does not show how long transferees on Nauru had been there or their stage in the refugee status determination process. He stated, and the Tribunal accepts his evidence, that the length of time that a transferee has been accommodated on Nauru is relevant because at each stage of processing the demand for resourcing changes. He observed that generally, the initial period of processing (soon after their arrival) is resource intensive, as this is when most transferees require a number of legal and medical appointments. Therefore, there is usually a higher demand for interpreters for people at the initial processing stage. Once a person is awaiting an outcome, they usually require fewer appointments, and therefore the demand for interpreters is also reduced.
Another factor that was observed by Lynn was that the reports provided to the Senate committee do not take into consideration the fact that some transferees were residing in the local Nauru community. A transferee living in the community is self-sufficient and has minimal requirements for an accredited interpreter on a day-to-day basis. He also observed that English lessons are provided to the transferees and that English is a common language in Nauru; the ability for transferees to speak and understand English improves with time. He noted that by 2017/18, the vast majority of transferees had been on Nauru for in excess of four years. These factors also show that the simple total number of people in a regional processing centre does not correlate to the number of interpreters required. Lynn exhibited rosters from 8 January 2018 to 10 January 2018 showing interpreting jobs booked for all language groups on Nauru during that period. He explained the working of the rosters in some detail. He observed, as is apparent from an examination of these rosters, that there were very few confirmed bookings for Farsi interpreters. Most of the bookings for that period for Farsi interpreters were tentative or what was known as “standby” appointments in which interpreters were requested to be available in the case of an ad hoc medical appointment.
Lynn stated a review of the rosters and historical job requests indicated that there were not enough interpreter bookings to retain all the Farsi interpreters and justified the Department’s reason to send some of those interpreters back to Australia. The Tribunal accepts this evidence from Lynn.
The applicant placed some emphasis on the fact that Lynn was not present on the island of Nauru when these events took place. The Tribunal acknowledges this fact. However, it does not consider that by reason of this his evidence does not have probative value. He is familiar with the arrangements for interpreters on the island of Nauru. He produced the rosters being records with which he is familiar and explained the processes and procedures adopted by TIS on the island. He explained how the rosters were compiled. The Tribunal accepts his evidence.
When one considers this evidence and the provisions of clauses 4.1.1 and 6.3.6 of the Deed, it was not unreasonable for the Department to terminate the applicant’s deployment as it did. These clauses expressly reserve the right of TIS to prematurely terminate an interpreter’s deployment for any reason it sees fit and most importantly at any time. It was what each interpreter signed up to and clearly knew that it was a possibility when they undertook each deployment. They were bound by these terms of the Deed.
It was also undertaken in a reasonable manner when Richardson had a meeting with the applicant and the other interpreters whose deployments were to be terminated.
It was contended by the applicant that the manner in which she was informed of the decision to prematurely terminate her deployment was not reasonable. It is submitted that the applicant was summoned without warning and sent to a room that was guarded, dark and airless and heightened her sense of being attacked and punished as opposed to being merely informed of an operational decision. The Tribunal does not accept this contention. There was limited evidence to suggest that the room was dark and airless; according to Richardson, it was well lit which the Tribunal accepts. As for the guards at the doors, the Tribunal, as noted earlier, accepts the evidence of Richardson that the guards shadowed her wherever she was on the island. The applicants were asked to the meeting where they were informed in person which seems to be a logical, rational and reasonable way to inform the persons concerned. The Tribunal reiterates, as noted earlier, that the standard of reasonableness is not a standard of perfection. The decision to terminate the applicant’s deployment was informed to her in a reasonable manner and, it seems to the Tribunal, was done so in a professional, courteous and sympathetic manner by Richardson.
Was there a prejudicial targeting of the Arabic and the Farsi group?
The applicant contended in submissions that there was a prejudicial targeting of Arabic and Farsi group interpreters for premature termination of their deployments. She went so far as to contend that the evidence supported the inference that the selection of the particular persons for removal from the island of Nauru was part of an irrational reaction from the Interpreter Liaison staff on the island that there was an Arabic and Farsi group that was responsible for perceived problems. The applicant relies upon several pieces of evidence to advance this contention.

There was an email from Parris Lai, Nauru Operations Lead, dated 8 December 2017 which sought the early removal of Moussavi, in which there are allegations that she had been repeatedly harassing other staff members. In response to this email, the Interpreter Liaison Office staff were advised by Thorne that it was not possible to terminate the services of interpreters or remove them without a proper basis.
The applicant also pointed to an email from Jackson to Meyers on 9 January 2018 which referred to a majority of problems stemming from some members of the Arabic and Farsi groups.[37] Amongst the names identified were the three complainants to the applications that were before the Tribunal in this matter. The Tribunal considers, after hearing the evidence from Jackson, that this email was written by him to a superior which accurately reflected the concerns he had from the behaviour of the people concerned that he had observed whilst he was the Interpreter Liaison Officer on the island of Nauru. It was written fairly to alert his superior to specific difficulties that were being encountered on the island. It did not have the hallmarks of something that could be described as a “crusade”.
[37] Page 1742 of the Joint Tribunal Book.
It was then contended that Jackson pursued Moussavi (another applicant before the Tribunal) as “something of a crusade” by reason of comments he made in an email on 16 January 2018 after she had left the island.[38] Once again, when one reads the contents of the email, it cannot be said that it amounts to a “crusade”. The email concerned contains Jackson’s observations concerning Moussavi and her conduct during her most recent deployment. Complaints had clearly been made to Jackson about her behaviour which he obviously felt compelled to pass on to his superiors. It seems to the Tribunal that this was for good reason.
[38] Page 1075 of the Joint Tribunal Book.
Meyers gave evidence that she and Thorne had discussed the proposed changes which included the early termination of those interpreters’ deployments and believed that the change would not cause any issues. There was no suggestion in her evidence that there was some kind of targeting or, for that matter prejudicial targeting, of the interpreters concerned. The Tribunal repeats that it found Meyers to be an impressive, fair and credible witness and accepts her evidence in full.
It is then pointed out by the applicant, that in an email on 12 January 2018, it was requested that one Nasir, a Dari interpreter, be removed from the list of those interpreters whose deployments were to be prematurely terminated and replaced with Rohani (another applicant before the Tribunal).[39] It is contended that there was no justification for this action. It is therefore contended that it can be inferred that the targeting of these persons was for an improper purpose and negates an argument for reasonable administrative action.
[39] Page 407 of the Joint Tribunal Book.
Whilst it is apparent that there was a substitution of Rohani for Nasir, there is just simply no evidence before the Tribunal which establishes that this step was undertaken for an improper purpose or improper motive. It was not put to the respondent’s witnesses that this was in fact the case when they were in the witness box. The fact that there was a substitution on its own does not enable the Tribunal to reach a conclusion that it demonstrated that there was a prejudicial targeting of the Arabic and Farsi group as is contended by the applicant.
The Tribunal should reiterate that it found Jackson to be a credible witness and accepts his denials in so far as they were made that there was any improper targeting of Arabic and Farsi interpreters as contended. He had received several bona fide complaints concerning interpreters from this group. He acted on those complaints as best he could, and in a way that would have been obvious, by raising these concerns with his superiors. It is hardly unreasonable action, nor does it constitute some kind of targeting of that group.
The Tribunal does not consider that this evidence goes so far as to enable such a finding to be made. The reason for the substitution of the applicant for Nasir was not really explored in the course of the evidence. It was not put to Jackson in particular or, for that matter, Richardson and Meyers that there had been an improper targeting of Arabic and Farsi interpreters in the way alleged in the submissions that have now been filed. They are serious allegations to be made and the Tribunal did not find any of the witnesses called by the respondent to be that Machiavellian. They presented as dedicated public servants who did their best in what were unquestionably trying circumstances on the island of Nauru.
Having found that the termination of the applicant’s deployment by the Department on 12 January 2018 was reasonable administrative action, it is not necessary for the Tribunal to consider the question of impairment.
CONCLUSION AND DECISION
The termination of the applicant’s deployment on 12 January 2018, which caused her condition was reasonable administrative action taken in a reasonable manner in respect of her employment. Therefore, the decision does not give rise to eligibility for compensation because the exclusionary provisions in section 5A of the Act are met.
By reason of the foregoing matters, the Tribunal decides:
(a)in application number 2018/4986, the reviewable decision made on 8 August 2018 is affirmed;
(b)in application number 2019/4964, the reviewable decision also made on 8 August 2018 is affirmed; and
(c)in application number 2019/5105, the reviewable decision made on 1 August 2019 is affirmed.

113.

114. I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

...[sgd]...............................................
Associate
Dated: 28 September 2022

Dates of hearing:
15 – 18, 29 – 30 June, 1 – 2 July 2021 & 21 – 25, 28 February 2022

Advocate for the Applicant:

Solicitor for the Applicant:

Advocate for the Respondent:

Mark Carey

Angela Sdrinis Legal

John Wallace

Solicitor for the Respondent: Sparke Helmore Lawyers