Nguyen and Repatriation Commission - [2000] AATA 981

DECISION AND REASONS FOR DECISION [2000] AATA 981

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1063

VETERANS' APPEALS DIVISION       )
           Re      VAN THANG NGUYEN
  Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M D Allen Dr P D Lynch, Member

Date10 November 2000
PlaceSydney

Decision The decision under review is affirmed.

(Sgd)                  M D ALLEN
  ..............................................
  Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Service Pension granted on grounds of permanent incapacity for work. Evidence that at time pension was granted Applicant was in permanent part-time employment. The Tribunal satisfied not at that time permanently incapacitated for work. Pension cancelled.

Veterans' Entitlements Act 1986 – subs5C(1), s37, ssub56E(1), ssubs56H(1) and (6)

Re Panke and Director-General of Social Services 4 ALD 179
McDonald v Director-General of Social Security 1 FCR 354

REASONS FOR DECISION

10 November 2000 Senior Member M D Allen Dr P D Lynch, Member

By application made 5 August 1998 the Applicant sought review of a decision by a delegate of the Respondent made 11 May 1998 which affirmed a prior determination of the Respondent cancelling the Service Pension being paid to the Applicant but varying that decision by cancelling the said Service Pension as and from the date of grant of the said pension, namely 25 May 1995.
The Service Pension was paid to the Applicant as he was an allied veteran who was permanently incapacitated for work. At all relevant times the applicable provisions of the Veterans' Entitlements Act 1986 (the VEA) (as amended) were subsection 5C(1) which defined "allied veteran" as:
"… a person:
(a)who has been appointed or enlisted as a member of the defence force established by an allied country; and
(b)who has rendered continuous full-time service as such a member during a period of hostilities."

and section 37 of the VEA which reads inter alia:

"(1)    Subject to subsection (6), a person is eligible for an invalidity service pension if the person:
(a)     is a veteran; and
(b)     has rendered qualifying service; and
(c)is, in the opinion of the Commission, permanently incapacitated for work

Note: for 'qualifying service' see section 7A.

(2) For the purposes of this section, a person is taken to be permanently incapacitated for work if:
(a)the degree of the permanent incapacity for work is 85% or more; or
(b)…"

Subsection 37(2) of the VEA was repealed pursuant to the Veterans' Affairs Legislation Amendment Act (No 1) 1999, however, pursuant to regulation 6 of the Veterans' Affairs Legislation (Permanent Incapacity -Transitional) Regulations 1999 (Statutory Rule No 358 of 1999), the Applicant's claim is to be decided as if the repealed subsection was still in force.
It was conceded by the Respondent that the Applicant is an allied veteran in the terms of subsection 5C(1) and that he has, by virtue of his service in the Army of the Republic of South Vietnam, qualifying service.
The Applicant was born on 13 April 1950 in Nam Dinh Province in the Republic of South Vietnam and, after leaving school at year 10 equivalent, joined (or was conscripted into) the Army of the Republic of South Vietnam and served in an Army Medical Unit.
As a medical orderly he was serving in a field hospital in the town of An Loc which came under siege from communist forces. During this time he was exposed to shelling and witnessed the death and injury of many people both military and civilian. Subsequent to these events he was sent to a convalescent unit and then was employed as a clerk, and on guard duties in the ARVN, but did not return to duties as a medical orderly.
Upon the victory of communist forces in 1975, the Applicant was sent to a "re-education" camp where he was beaten. After release from "re-education", he carried out farming activities. He then managed, with assistance from his father, and after previous attempts, to escape from South Vietnam, with two of his children, to the Philippines. He arrived in Australia in December 1989 and is now a naturalised Australian citizen. Whilst in the Philippines he learned that his wife, who had left him prior to his escaping from South Vietnam, had been killed in a motor vehicle accident. Dr Lee, Psychiatrist, acknowledged that the Applicant told him that he was "in mourning" for her for four years before marrying his present wife.
On 22 May 1995 the Applicant made a claim for Service Pension on the grounds that he was permanently incapacitated for work. A medical report accompanying that claim by the Applicant's general practitioner, Dr Nguyen, stated that the Applicant had not worked since his arrival in Australia and that he was suffering from depression, chronic back strain and chronic depression.
Service Pension was granted with effect from 25 May 1995 and continued to be paid until cancelled by the decision of 10 February 1998. The basis of the decision to cancel was that the Applicant was not permanently incapacitated for work to the extent of 85% or more as evidenced by his employment from 1 September 1994 up to and including 12 December 1997 as a typist and art work designer by a Vietnamese newspaper.
Currently the Applicant is receiving Newstart Allowance pursuant to the Social Security Act 1991 (as amended) but is excused from the job search requirements as his general practitioner has issued certificates stating that he is medically unfit for employment.
In addition, Centrelink has referred the Applicant for counselling. Exhibit A5 is a report by Mr Tiep Nguyen, a qualified social worker and counsellor with the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS). The report of Mr Tiep Nguyen states that the Applicant was referred to STARTTS by a Mr Titmus, the occupational psychologist at Campbelltown Centrelink.
In his report Mr Tiep Nguyen states inter alia:
"A study of Mr Nguyen's history, especially trauma and migration history, enables me to understand his own clinical condition, which he described in these terms: 'In the daytime and waking life, I am preoccupied with family and children; in the nighttime and sleeping life, with war and torture experiences.'
In addition to providing Mr Nguyen with on-going supportive counselling and future physiotherapy, I have encouraged Mr Nguyen, in terms of diversionary therapy, to continue to get involved with the local parish groups and to consider other options such as the English/computer course offered at TAFE next year.
Given the chronic nature of Mr Nguyen's symptoms, their severity and the severity of the trauma to which he was exposed, I would think any improvement from this point on would be very gradual and would take place over a prolonged period of perhaps several years."

The Applicant has also been referred by his general practitioner to Dr Law, Psychiatrist. Apparently Dr Law's receptionist is Vietnamese. Dr Law has issued several reports regarding the Applicant, the most recent of which is dated 4 October 2000, directed to the Applicant's general practitioner, and became Exhibit A4 in these proceedings. That report reads inter alia:
"He had been attending weekly counselling sessions at the Services for the Treatment of Victims of Torture and Trauma, at Carramar.
When he last saw me on 3-10-2000, he said he suffered from fluctuating intensities of his various symptoms (of insomnia, impaired concentration, forgetfulness, irritability, headache, depressed mood, and nightmares). He also complained of back pain.
Mental examination on 3-10-2000 revealed he was still quite dejected and anxious, and preoccupied with his various symptoms.
Conclusion - Mr. Nguyen is still suffering from moderately severe symptoms of his PTSD. I have counselled him, and I prescribed Deptran 50 mg. nocte. He is clearly unable to be gainfully employed, owing to the persistence of his PTSD symptoms."

On 30 August 1999 at the conclusion of the first day's hearing in this matter, the Tribunal issued a Direction in the following terms, namely:
"The Respondent is requested to arrange for the examination of the Applicant by a Psychiatrist who either speaks Vietnamese or is familiar with Vietnamese society in order that that person may produce a report upon the extent of the Applicant's Post Traumatic Stress Disorder and its effect upon the Applicant's ability to engage in employment."

In May 2000 the Respondent referred the Applicant to Dr Leonard Lee, Psychiatrist. As the Applicant required an interpreter during his consultation with Dr Lee, we draw the inference that Dr Lee does not speak Vietnamese and during his evidence it was apparent that Dr Lee is not familiar with Vietnamese society.
Exhibit R3 is Dr Lee's report of 17 May 2000. In that report Dr Lee, after stating:
"Although Mr Nguyen describes features which are, on the face of it, consistent with Post Traumatic Stress Disorder as a result of his war experiences, …"

went on to say:

"I find it extremely difficult to reject the proposition that he is feigning illness for benefits."

In examination in chief Dr Lee conceded cultural differences may have resulted in the Applicant not looking at him directly and thus his opinion may have to be modified in this regard. He also stated that he felt that the Applicant could have been depressed, although he did not perform any clinical tests to ascertain whether or not the Applicant was in fact depressed. He also conceded that assuming the correctness of the Applicant's history that he had been exposed to shelling and witnessing violent death during the siege of An Loc, this would meet the criteria in the DSM-IV for events causing or leading to a post traumatic stress disorder.
Mr Tiep Nguyen, in Exhibit A5, states:
"He has done a Hopkins Symptom Checklist, which yielded fairly high scores on anxiety (2.3) and depression (3), the symptomatic cut-off point being 1.75. He has also answered the Harvard Trauma Questionnaire, which produced a score of 2.6 for his post-traumatic stress disorder (PTSD), with symptomatic cut-off at 2.5."

On the whole, given the concessions made by Dr Lee, we do not regard his report as contradicting the reports of Dr Law. In addition Dr Law has had the advantage of seeing the Applicant on an ongoing basis and treating him, rather than a consultation purely for medico legal purposes.
We are therefore affirmatively satisfied that the Applicant does suffer from a post traumatic stress disorder as a result of his war time experiences, his time in the "re-education" camp and his subsequent escape to the Philippines. Indeed, it would be remarkable if these events had not left their mark upon the Applicant.
The report of Mr Tiep Nguyen and the results of the test carried out by him confirm the opinions of Dr Law.
At the request of the Respondent, the Applicant was also examined by Dr Mark Burns, an occupational physician. We do not accept that Dr Burns' qualifications permit him to comment upon the Applicant's psychiatric state, and where he has done so we prefer the opinions of the Applicant's treating psychiatrist, Dr Law.
After commenting that (Exhibit R1):
"Mr Nguyen also has several non-medical factors which would make employment more difficult. The first of these is the fact that he is 49 years of age and relatively few skills. The second is that he does not speak English. He has attend (sic) English classes in the past but has been unable to obtain any proficiency. He continues to speak Vietnamese at home. He reports that his children speak English but they are not allowed to speak it around him as he does not understand the language."

Dr Burns opined:

"In conclusion, I believe that Mr Nguyen has a number of medical and non-medical factors which would restrict his employability. When the medical and non-medical factors are combined, though, I do not believe that he is 85% permanently incapacitated. Certainly he should be able to obtain work within the Vietnamese community where he would not need to have English skills. Additionally, he should be able to do light factory work which would require him to have no English skills. His medical problems would appear to be less of an impediment to his obtaining work than his non-medical ones. I believe that his medical problems are really not all that severe. Mr Nguyen's major problem appears to be his lack of motivation to go out and be retrained or to speak English. He should be encouraged to try and be retrained and to try and re-enter the workforce. He currently has not looked for work for the last 18 months and has no intention of doing so. I do not believe, though, that he fits the classification as being 85% permanently incapacitated for work."

A factor Dr Burns has not taken into account, in formulating the above opinion, is to what degree the Applicant's post traumatic stress disorder is responsible for his apparent lack of motivation.
On the other hand we accept Dr Burns' opinion that the Applicant's orthopaedic injuries are such that he could still do light work.
Given the opinion of Dr Burns regarding the Applicant's physical restrictions, it is apparent that the Applicant was, and would be, physically capable of undertaking work similar to the work he was undertaking, namely doing art work and typography using computers at a Vietnamese newspaper.
In evidence the Applicant stated that he had ceased work at the Vietnamese newspaper because of pain in his back. He stated that the work at the newspaper was only part-time (10 hours per week) and that the work was simple.
Document T17 in the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 is a letter from the office manager of the Báo Dai Viêt newspaper (the "Great Vietnam Herald"). That letter directed to the Respondent and dated 16 January 1998 reads inter alia:
"1.   Mr VAN THANG NGUYEN of 11 Heyson Way, Claymore NSW 2559, was employed by this newspaper since 1st September 1994 as Typist and Art work Designer on a permanent part-time basis.
2.    His employment was terminated on the 12th December 1997 as the newspaper ceased operating from that date.
3.    …
4.    Mr VAN THANG NGUYEN's main duty was responsible for typing the articles in Vietnamese language by using a software specially designed with accents and Vietnamese alphabets. He was also in charge of the art work section by applying many different softwares designed for the presentation of the advertisements displayed in the newspaper to the customers' requirements.
His valuable skills in typing and art work designing for the newspaper will be no doubt highly required by any publishers and printers of newspapers and/or magazines.
…
Yours Faithfully
Office Manager
Tanya NGUYEN"

Unfortunately no further information was able to be obtained from the newspaper or its publishers. A letter from the Respondent to the Administrative Appeals Tribunal dated 26 August 1999 states inter alia:
"Further the Applicant has asserted that the evidence contained in the Section 37 Tribunal Documents at p.61 is incorrect. However we have been unable to locate the author of this document Ms Tanya Nguyen and therefore we are unable to provide Ms Nguyen for examination. In this circumstance we must rely on representation at p.61 as being evidence of Mr Nguyen's work history."

Appendex A to Document T17 is a statement of the Applicant's earnings at the newspaper. In his evidence the Applicant stated that after a visit by a member of the then Department of Social Security to the newspaper, he requested that his earnings which were $80 per week be paid to him by way of cheque rather than in cash so that he would have a record of his earnings. He was then aware that he could earn up to $80 per week without affecting the rate of pension paid to him. The Statement of Earnings shows that the Applicant as from 17 July 1997 was paid per week $80 by cheque and $130 by cash, however, in the absence of anyone from the newspaper as a witness, we are not prepared to accept the Statement of Earnings in preference to the Applicant's sworn evidence. There could be many reasons for the newspaper inflating the amounts it paid to the Applicant.
Prior to 17 July 1997 the Applicant had on occasions worked more than three days per week according to the Statement of Earnings.
The Applicant disputed the material in Document T17. In particular he disputed the statement that he ceased work because the newspaper ceased operating. His evidence was that he ceased work because of his ill health and that the newspaper produced editions after he left although its editions were containing less pages.
In the absence of Ms Tanya Nguyen or the proprietors of the newspaper, it is difficult to reject the Applicant's sworn evidence as to his reason for leaving his part-time employment. However, there is much force in the submission by the Respondent's counsel as to there being no evidence of any ill will between the proprietors of the newspaper and the Applicant, so why would the proprietors of the newspaper, through their office manager, set out to deceive a Government Department? Also Mr Ba Dang, who was called by the Applicant and is a friend of his, stated that the Applicant had told him that the newspaper did not have any work for him.
We are therefore satisfied that the Applicant's employment ceased as a result of the Báo Dai Viêt newspaper ceasing production.
There are other discrepancies in the Applicant's evidence. In May 1994 Dr Nguyen reported (see Document T6 p48) that the Applicant had not been employed since he had arrived in Australia. Likewise the Applicant, on 18 May 1995, in his application for the Service Pension, stated that he was not presently employed (T6 p12). The evidence is that he was employed, albeit part-time, by the Great Vietnam Herald newspaper as from 1 September 1994.
Dr Burns records that the Applicant drank alcohol in Vietnam but had been a non drinker since coming to Australia. Dr Lee took a history of the Applicant drinking about 12 cans of beer a day. Dr Law makes no comment regarding excessive alcohol intake by the Applicant. We would have expected that if the Applicant consistently drank 12 cans of beer a day, this would have been commented upon by a treating psychiatrist.
The Applicant required the use of an interpreter for these proceedings and that is understandable. Yet he revealed that he can read English and, during the course of proceedings, referred to documents in the English language. There are also documents prepared by the Applicant in the section 37 documents which are in English, even if the grammar and tense are at times incorrect. In cross-examination he said that he speaks to his psychiatrist, Dr Law, in the English language.
Subsection 37(2) of the VEA was in similar terms to what was section 23 of the Social Services Act 1947. That section was considered by the Administrative Appeals Tribunal in Re Panke and Director-General of Social Services 4 ALD 179. At pp180-181 Davies J said:
"It follows that the term 'incapacity for work' in the Social Services Act denotes incapacity to engage in remunerative employment, that is to say, a lack of capacity for earning.
It is thus necessary to note that an ability to engage in remunerative employment involves an ability to attract an employer who is prepared to engage and to remunerate the disabled person. …"

And at p195, in a passage that was expressly approved by the Full Court of the Federal Court in Annas v Director-General of Social Security 63 ALR 444 at 447, Senior Member Hall (as he then was) and Member Dr Glick said:

"The assessment of the degree of incapacity for work in fact involves two quite distinct steps – firstly an evaluation in purely medical terms of the person's physical or mental impairment and secondly, the ascertainment of the extent to which that physical or mental impairment affects the person's ability to engage in paid work …"

They continued (pp 195-196):

"In our view, it is not enough for the purposes of s 23 of the Act, to have regard in any abstract sense, simply to 'jobs that exist as jobs' in the community. The provisions of the Act with respect to unemployment benefits … indicate that when the Act refers to capacity for work, it is concerned with the capacity to undertake paid work that is suitable to be undertaken by a person. It is only after a fair assessment of the extent of the person's physical or mental impairment and the impact which that impairment is likely to have upon his capacity to undertake suitable paid work that, in our view, a proper assessment of the degree of incapacity can be made.
The assessment of what work is suitable to be undertaken by a person would appear to require consideration of matters such as the nature and extent of his disabilities, his capacity to sustain his work effort throughout a normal working day or week, his age, his previous work experience and the types of paid work available in the community which a person with those characteristics may reasonably be expected to be able to perform."

In this matter, although we have grave reservations regarding the credit of the Applicant, there is other evidence that he does suffer from a post traumatic stress disorder and is receiving treatment for that condition. He may physically be able to undertake certain employments which do not involve lifting and he does have skills in typing and in art work. We accept he has no fluency in English, although we suspect his ability to understand and speak English is greater than he makes out.
In McDonald v Director-General of Social Security 1 FCR 354 at p360 the Full Court of the Federal Court said of the term "permanent" in the phrase "permanent incapacity for work":
"… the true test of a permanent, as distinct from temporary, incapacity is whether in the light of the available evidence, it is more likely than not that the incapacity will persist in the foreseeable future."

On the material before us we are satisfied that on purely physical grounds, the Applicant is capable of some employment. On the other hand we accept the evidence of Dr Law that the Applicant has a post traumatic stress disorder and, as the treating psychiatrist, Dr Law is of the opinion that it renders the Applicant incapable of undertaking employment, notwithstanding that he has been employed by a firm publishing a Vietnamese newspaper in the past. This, combined with the Applicant's lack of English, creates a situation where in our opinion he would only be able to obtain a special employment of an unusual kind, namely a non physically demanding job in a low stress environment where Vietnamese was the language of communication and production.
In fact, this is what happened. When the Applicant applied for the Service Pension, on the grounds of his being permanently incapacitated for work in May 1995, he was in employment and it could not be said that his incapacity for work was 85% or more.
Different considerations apply post 12 December 1997 when the Báo Dai Viêt newspaper ceased publication. We are satisfied that as and from that date he would have been entitled to the Service Pension on the grounds of permanent incapacity for work had he so applied.
The delegate, in his decision of 11 May 1998, does not state the section pursuant to which the grant of Service Pension was cancelled. Nor did the original delegate in the decision of 8 February 1998 refer to any specific head of power.
As at 11 May 1998 subsection 56E(1) of the VEA read inter alia:
"(1) If the Commission is satisfied that a service pension or income support supplement is being, or has been, paid to a person to whom it is not, or was not, payable under this Act, the Commission may determine that the pension is to be cancelled or suspended."

Subsection 56H(1) reads:

"The day on which a determination under section 56D, 56E, 56EA or 56EB (in this section called the 'adverse determination') takes effect is worked out in accordance with this section."

and subsection 56H(6), which is applicable to this Applicant's case, reads:

"If:
(a) a person has made a false statement or misrepresentation; and
(b)because of the false statement or misrepresentation, the rate at which a service pension or income support supplement was paid to a person was more than it should have been;

the day specified under paragraph (2)(b) may be earlier than the day on which the determination is made."

As the Applicant was not entitled to the Service Pension at the time it was granted, we do not regard this as an appropriate case in which to vary the decision under review by suspending payments of Service Pension from the date of grant up to 12 December 1997.. The overriding fact is that the Applicant made a false statement, namely that he was not in employment and, as a result of that false statement, was granted a Service Pension, to which he was not then entitled, on the grounds of permanent incapacity for work. In all the circumstances we are satisfied that the decision to cancel the Service Pension is the correct one and therefore the decision under review will be affirmed.
We have found that immediately after ceasing work, the Applicant would have qualified for the Service Pension had he applied then. Although the criteria for the grant of a Service Pension on the grounds of inability to work have now changed, we would urge the Applicant to reapply for the Service Pension on the grounds that he is unable to work, and we refer to our findings in paragraph 41 above.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen
Dr P D Lynch, Member

Signed:         Kwai-Ling Wong           .....................................................................................
  Associate
Dates of Hearing  30 August 2000 and 31 October 2000
Date of Decision  10 November 2000
Solicitor for the Applicant             Applicant was self-represented
Counsel for the Respondent        Miss R M Henderson
Solicitor for the Respondent        Ms S Kirby, Department of Veterans' Affairs

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Nguyen and Repatriation Commission [2000] AATA 981

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