Quinn and Repatriation Commission (Veterans' entitlements)

Quinn and Repatriation Commission (Veterans' entitlements) [2017] AATA 2714 (20 December 2017)
Division: VETERANS' APPEALS DIVISION
File Number(s): 2016/4217
Re:Michael Joseph Quinn
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:20 December 2017
Place:Melbourne

The decision under review is affirmed.
[sgd]........................................................................
Senior Member
VETERANS’ ENTITLEMENTS – Application for disability pension – claim for dental caries – prisoner of war contention for service in Cambodia – whether collateral reason for review - decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975, ss. 37, 42B
Geneva Conventions Act 1949
Statement of Principles concerning Dental Caries (Reasonable Hypothesis)(No. 122 of 2015), Determination by the Repatriation Medical Authority – 16 October 2015
Veterans’ Entitlement Act 1986, ss 5A-11B, Part VIB, s 115M, s119, s120, s 120A, , Sch 2.
Cases
Repatriation Commission v Deledio [1998] 29 ALD 193
East v Repatriation Commission [1987] 16 FCR 517
Forrester v Repatriation Commission [2013] FCA 898
Secondary Materials
Agreement on a Comprehensive Political Settlement of the Cambodia Conflict (signed at Paris on 23 October 1991)
Department of Veterans’ Affairs Fees Schedule of Dental Services for Dentists and Dental Specialists (Effective 1 June 2014)
The Official History of Australian Peacekeeping, Humanitarian and Post-Cold War Operations: Volume III: The Good International Citizen-Australian Peacekeeping in Asia, Africa and Europe 1991-1993; David Horner and John Connor; Cambridge University Press (2014)
Veterans’ Entitlements and Military Compensation Law (3^rd Ed.); Robin Creyke and Peter Sutherland; Federation Press (2016)
REASONS FOR DECISION
Senior Member D. J. Morris
20 December 2017

Mr Michael Quinn seeks review of a decision of the Repatriation Commission (‘the Commission’) dated 19 April 2016 as affirmed by the Veterans’ Review Board (‘the VRB’) on 26 July 2016. The Commission refused a claim for disability pension dated 20 December 2015 in respect of dental caries, made under the Veterans’ Entitlement Act 1986 (‘the VEA’).
Mr Quinn claims to have suffered dental caries connected with his operational service in Cambodia from 10 November 1991 to 17 May 1992.
Veterans’ entitlements
Robin Creyke and Peter Sutherland neatly encapsulated the VEA regime in Veterans’ Entitlements and Military Compensation Law (3^rd edition) thus:
The system of veterans’ entitlements in Australia has been set up to provide pensions, benefits and other allowances to members of the armed forces and Australian mariners who have served in wars and other hazardous or peacekeeping service, and to their dependants.
There are two major pensions for veterans: the disability pension which is compensation for service-related injury, disease or death; and the service pension which is a pension for veterans broadly equivalent to the social security age pension.
The VEA is intended to be applied both fairly and beneficially to veterans who have served Australia and, as a consequence of that service, have suffered physical or emotional harm. This philosophy is reflected in section 119(1)(f) and (g) of the VEA which provides that the Commission is not bound by technicalities in considering, hearing, determining and deciding claims. As stated by Mortimer J in Forrester v Repatriation Commission [2013] FCA 898, at [19]:
In its current form, the Act requires the decision-maker to undertake a process which Parliament intends to be beneficial to applicants: see Deledio v Repatriation Commission (1997) 47 ALD 261 at 262-263 per Heerey J; East 16 FCR 517, at 518. It is not a process intended to put insuperable hurdles in the way of the veteran, while still ensuring that the requisite causal connection between the veteran’s war service and the disease, injury or death is established. The scheme imposes particular processes and standards of proof to establish the requisite connection, but the use of the double negative in s 120(3), combined with the imposition of the highest standard of satisfaction known to law, makes plain that the process of establishing that causal connection is intended to operate beneficially towards applicants’ claims.
The hearing was held on 28 August 2017. The Applicant was represented by Mr Paul Copeland, OAM, his advocate, assisted by Mr Rod Thompson. The Commission was represented by Ms Cathy Dowsett, of counsel. Mr Quinn gave evidence and was cross-examined. Dr Andrew Barnes, a dentist in private practice who is the Chief Dental Adviser to the Department of Veterans’ Affairs, also gave evidence.
The Tribunal had before it documents submitted by the Commission under section 37 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) (‘T’ documents), which were taken into evidence.
TASK OF THE TRIBUNAL
The Deledio steps
In Repatriation Commission v Deledio (1998) 49 ALD 193, the Full Court of the Federal Court set out four steps for determining claims relating to the application of Statements of Principles under section 120A and subsections (1) and (3) of section 120 of the VEA. I shall describe them in the reasons as the Deledio steps. Their Honours held, at [93] to [98]:
1.The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4.The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
The Tribunal therefore approaches this review, adopting the reasoning of the Court in terms of the application of the Deledio steps.
BACKGROUND
Mr Quinn served in the Australian Army from 1981 to 2002. He had operational service in Cambodia from 17 November 1991 to 17 May 1992. Item 12 of Schedule 2 to the VEA prescribes Cambodia as an operational area in the period 20 October 1991 to 7 October 1993.
Mr Quinn’s operational service in Cambodia was as part of Australia’s support for United Nations (UN) missions to Cambodia which resulted from the Agreement on a Comprehensive Political Settlement of the Cambodia Conflict’ signed at Paris on 23 October 1991 (commonly called the Paris Peace Accords). Mr Quinn was initially posted to the United Nations Advance Mission in Cambodia (‘UNAMIC’). The Respondent submitted that the task of UNAMIC was to help create a neutral environment in which Cambodia’s warring factions could disarm and demobilise.
In April 1992, Mr Quinn was transferred to the United Nations Transitional Authority in Cambodia (‘UNTAC’). UNTAC had been established in February 1992 by the UN Security Council and the Respondent submitted that UNTAC’s task was to supervise the ceasefire and subsequent general election in Cambodia.
At the time of his operational service in Cambodia, Mr Quinn held the rank of Corporal. By the time of his discharge from the Army in 2002 he had progressed to the rank of Warrant Officer 1. Since 10 December 2011, Mr Quinn has been in receipt of a Special Rate Disability Pension for war-caused conditions, unrelated to dental caries.
The Respondent’s Statement of Issues, Facts and Contentions, at paragraph [8] stated:
The applicant was granted a gold health card on 14 February 2008. This entitles him to full dental treatment paid for by the Commonwealth.
The ‘gold health card’ referred to is a Department of Veterans’ Affairs card issued in two forms, for ‘All Conditions within Australia’ or ‘Totally and Permanently Incapacitated’ and, according to the Department’s literature, gives the holder access to a wide range of public and private health care services for the treatment, at the Department’s expense, of the holder’s health care conditions whether war- or service-related or not.
The Respondent submits that no reasonable hypothesis is raised connecting Mr Quinn’s operation service with his instances of dental caries by the available material, because that material did not point to any factual connection between the Applicant’s operational service and any of the incidents of dental caries he experienced occurred after his return from operational services. In the alternative, the Respondent submitted that if a hypothesis of connection is raised, it is not upheld as reasonable by the relevant Statement of Principles (‘SOP’) which is SOP No. 122 of 2015, determined by the Repatriation Medical Authority on 16 October 2015.
The Respondent submits that the Tribunal should dismiss the application under section 42B of the AAT Act. That provision provides for the dismissal of an application if the Tribunal is satisfied that it is frivolous, vexatious, misconceived, lacking in substance, has no reasonable prospect of success or is otherwise an abuse of the process of the Tribunal. The Respondent submitted that, even if the liability for dental caries were accepted, in the Respondent’s view there can be no additional benefit to Mr Quinn because the claimed condition was treated in 1995 and was not productive of any loss. The claim relates to an incident of dental caries of which the Applicant experienced signs and symptoms in 1993-1994 and he was treated for dental caries in 1995 at Army expense and there is no evidence of incapacity resulting from that dental caries episode.
The Respondent further submitted that if the Tribunal interpreted Mr Quinn’s claim as relating to later incidents of dental caries, the few incidents of dental caries experienced by the Applicant were not incapacitating and “he is already receiving a pension at the Special Rate and would not be eligible to receive any higher rate of pension as the result of acceptance of one or more incidents of dental caries as war caused; any dental treatment required during his Army service has already been provided by the Army and any future dental treatment is covered by the Applicant’s Gold Card.”
The Tribunal declined to grant the Respondent’s application during the hearing that the matter should be dismissed under section 42B of the AAT Act. Dr Barnes, in his evidence, made clear that there are, in fact, financial limitations to dental treatment under the Gold Card and given his expertise and special position in the Department of Veterans’ Affairs, the Tribunal accepts his evidence on this point.
Mr Quinn’s dental history
The Tribunal had before it, the Army Dental Clinic records relating to the Applicant. The records were reviewed by the Department’s dental adviser in relation to Mr Quinn’s claim and Dr Barnes provided a report dated 10 March 2016.
Dr Barnes’ report relevantly states:
The Army dental records relating to Mr Quinn are supplied for review. Annual dental exam 5 June 1991 records one filling required. That filling was supplied 14 October 1991. No further fillings were supplied until 23 June 1995. Tooth 26 amalgam restoration. Tooth 36 was restored 27 Jan 1999. Tooth 44 was restored 31 August 1991. No further restorations supplied while serving with the ADF.
Opinion:
There is no evidence to suggest that dental caries has been caused by ADF service.
Dental caries is a bacterial mediated disease with varying presentations as function of the individual’s personal oral hygiene and host response.
The evidence is contrary to the contention that the condition of dental caries was identified in 1993/94.
The client has experience [sic] a very low dental caries rate compared to what would reasonably be expected by a male of similar age and circumstance.
…
Recommendation:
That the claim for dental caries as being caused by service with the ADF be rejected as a compensable condition. There is no evidence to support the claim.
(Emphasis in the original.)
Mr Quinn’s contentions
In a letter to the Respondent dated 12 August 2016, Mr Quinn contended that he developed dental caries as a result of being a prisoner of war. He stated:
My period of time as a prisoner was in Palin [sic] at the hands of the Khmer Rouge, which started on 25 Dec 1991, which lasted for a period of 3 months. The Khmer Rouge had broken away from the peace agreement (and therefore were a belligerent force) and my place of house arrest was manned over this period by armed guards, which restricted movement with in [sic] the building or under armed escorts.
Mr Copeland, in his opening submissions, submitted that Mr Quinn’s dental caries should be accepted as war caused. Mr Copeland said that Mr Quinn was a prisoner of war of the Khmer Rouge. He said that the Applicant was deployed in late 1991 to Pailin, a town in Cambodia near the Thai border.
Mr Copeland said that the Applicant was in a group that was confined by the Khmer Rouge for approximately three months. He said that the group was “threatened with execution”, that supplies were cut off and that the group was “blocked access to the UN”.
Mr Copeland contended that the Khmer Rouge had become a belligerent force and therefore that the SOP should apply. Relevantly, paragraph 9 of the SOP lists the factors that must exist before it can be said that a reasonable hypothesis has been raised connecting dental caries or death from dental caries with the circumstances of a person’s relevant service. The Applicant focused on SOP paragraph 9(1) which states:
Being a prisoner of war before the clinical onset of dental caries
Was Mr Quinn a prisoner of war?
The term “prisoner of war” is not defined in sections 5A to 11B of the VEA which set out the general definitions of terms used in the Act. The only mention of the term prisoner of war in that Act is in Part VIB which relates to the prisoner of war recognition supplement (POWRS).
The POWRS was enacted by the Parliament to make a special payment to eligible veterans or civilians in specific circumstances. The three categories are World War 2 internments – European states; World War 2 internments – Japan; and North Korean internments.
Relevantly, section 115M of the VEA states that a veteran is eligible for a POWRS if the veteran was interned by the military forces of an enemy State at any time during the period between 3 September 1939 and 11 May 1945; if the veteran was interned by the military forces of Japan at any time during the period from 7 December 1941 to 29 October 1945; and if the veteran was interned by the military forces of North Korea at any time during the period between 27 June 1950 and 19 April 1956.
There is no other provision relating to prisoners of war in the VEA. It is clear that Mr Quinn’s operational service does not fall into any of these temporal categories provided for in section 115M.
Mr Quinn gave evidence that he was selected for deployment to Cambodia in 1991. He stated he was selected to be part of the Australian contribution to UNAMIC by the officer commanding his unit, a Major Glenn. At the time he said he was undertaking a promotion course for Sergeant but decided to leave this course to take up the operational deployment. He said he was given between two and three weeks’ notice of the deployment.
Mr Quinn told the Tribunal that he was given training in detection of mines and improvised antipersonnel devices and some training in the Khmer language. He said that he had a medical and dental examination prior to deployment because selection was conditional on personnel being found to be medically and dentally fit. Mr Quinn stated that he had a posting order to UNAMIC and that it was his understanding that around 65 personnel went in total.
He told the Tribunal that he and his colleagues were flown to Bangkok and then driven to three departure points along the Thai-Cambodia border. He said they were escorted by Thai guards to the border and then handed over to Khmer Rouge soldiers. He said they were then taken under armed escort to Pailin where they were to establish the authorised UN presence.
On arrival at Pailin, they were shown to a building, and unloaded their vehicles and set up their equipment and personal kit, because the building was to be not only their workplace but also their living quarters. He said they were told through a Military Liaison Officer that they were not to leave the building. Mr Quinn said there was an area of pavement in front of the building of about 20 metres and they were told not to proceed beyond this area.
The Applicant said that they had two high frequency radio packs, a ‘briefcase’ system with a cone and dish, which he described was a form of satellite phone with fax and telex capability, but that could only be used in an emergency. Mr Quinn said that it was used on occasion, but it was difficult to find workable frequencies in the area and situation reports were sent via satellite.
When asked what term was used by senior officers to describe their placement, Mr Quinn said the term used was “house arrest”. Mr Quinn said that, in the building where he was located, there were eight men, including an Indian Lieutenant-Colonel, a Dutch Major, a Major from the United Kingdom, a Major from the Republic of Ireland, three Australian servicemen, and one other.
He told the Tribunal about the medical supplies they had and the method of re-supply. Mr Quinn said they initially used their ration packs but that the food began to get of higher quality and bottled water was provided. He said that there was tank water available but it was adulterated and caused people who drank it to vomit. After about two or three weeks, Mr Quinn said restrictions on their movements were lifted and they heard that the Khmer Rouge was beginning to co-operate in terms of the UN sponsored peace talks.
After the restrictions were relaxed, the Applicant said they were allowed to go for runs, accompanied by two armed guards on bicycles. Mr Quinn said that, next to where they were housed was another building, containing around eight Khmer Rouge guards who were armed, and who guarded the building housing the UNAMIC personnel.
The Applicant told the Tribunal that he had a toothbrush and toothpaste but after about nine days he ran out of toothpaste and new supplies of toothpaste were not provided until two more supply trips had taken place, a period he estimated of “around three weeks.” Mr Quinn said that there were some instances of food poisoning and that many of the group resorted to an all rice diet because “it seemed to be the safest to eat”.

At the time Mr Quinn was married with children and he said he spoke to his wife on two occasions on a high frequency link he and his fellow signallers had set up. He did not recall any Red Cross packages while he was in Pailin. He said there was no mail initially, but later air mail was allowed.
Mr Quinn said that the house arrest was “intense” for the first three months of the approximately five months he was there, except that they were permitted to go for a run along the local roads, a distance of up to eight kilometres, accompanied by guards.
Mr Quinn, under cross-examination, said that the claim he lodged with the Commission was “about my teeth, not as a prisoner of war.” He said he was aware of the POWRS set out in the VEA and that it is not available under the Act for any operational service subsequent to the Korean War.
Mr Quinn said that the Khmer Rouge were “an enemy to me; I was at war. I’d have killed them if I could.” The Tribunal notes that UNAMIC was not a Chapter 7 UN mission (peace-making) which would have allowed force, but a peace-keeping force.
Ms Dowsett put to Mr Quinn that Australia was not fighting the Khmer Rouge and that they were not an enemy of Australia. Mr Quinn responded that the Khmer Rouge had become a belligerent force and that he had been deployed in a UN detachment, not an Australian one.
Mr Quinn agreed that he had gone to Cambodia with the understanding that the UNAMIC element, of which he had been selected to be a part, was always intended to be placed with the Khmer Rouge.
Although the Applicant stated in his evidence at the hearing that his claim was about his teeth and not an assertion that he was a prisoner of war, this statement was somewhat disingenuous, because it is contradicted not only by his written submissions but by Mr Copeland’s oral submissions on Mr Quinn’s behalf. Mr Copeland urged the Tribunal to accept the argument that the Applicant was ‘a prisoner of war’ and submitted that the POWSR provisions in the VEA were restrictive.
In terms of the definition of ‘prisoner of war’, both parties drew the Tribunal’s attention to the Geneva Conventions. The Third Geneva Convention of 12 August 1949 was adopted into Australia’s domestic law by the enactment of the Geneva Conventions Act 1957. Schedule 3 to section 16 of that Act contains the text of that Convention.
Article 4 of the Third Geneva Convention relative to the Treatment of Prisoners of War states:
A.Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
1.    Members of the armed forces of a Party to the conflict as well as members of militias of volunteer corps forming part of such armed forces.
2.    Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a)That of being commanded by a person responsible for his subordinates;
(b)That of having a fixed distinctive sign recognizable at a distance;
(c)That of carrying arms openly;
(d)           That of conducting their operations in accordance with the laws and the customs of war.
The Respondent submitted that the Applicant did not satisfy Article 4 Part A of the Third Geneva Convention because he did not fall into the power of the enemy. On his own evidence, Mr Quinn’s service at this time was to be in Pailin, a fact he knew before his departure from Australia. The Tribunal notes that UNAMIC was established by UN Security Council Resolution 717 on 16 October 1991 and the Khmer Rouge was not an ‘enemy’ of either the UN or of Australia.
Mr Copeland submitted that the provisions in the VEA were restrictive and asked the Tribunal to consider whether Mr Quinn was a prisoner of war.
The Applicant’s representative referred the Tribunal to the Official History of Australian Peacekeeping, Humanitarian and Post-Cold War Operations The Good International Citizen – Australian Peacekeeping in Asia, Africa and Europe 1991-1993 by David Horner and John Connor. The Tribunal obtained a copy of the book and notes that at page 127 there is discussion of the Australian signallers posted to UNAMIC and says:
The most difficult and most frustrating posting was at Team Echo at Pailin, which had been captured by the Khmer Rouge on 22 October 1989. Many of the town’s buildings were still battle-scarred. With its rich gemfields and its proximity to Thailand, Pailin had an exotic, almost legendary, reputation among Cambodians. Team Echo was provided with a newly repaired two-storey building adjacent to what the Khmer Rouge claimed was their military headquarters. However, the peacekeepers quickly realised that this was a sham and that the officers there were ‘clearly their second eleven’. (The real Khmer Rouge military headquarters was probably in the Thai border camp known as Site K.) The Khmer Rouge’s policy of non-cooperation with UNAMIC included limiting the team’s movements to a 500-metre radius of their accommodation and not allowing their resupply by helicopter to Phnom Penh, which necessitated sending food, fuel and other items via Thailand….
Team Echo retained their spirit in the face of these limitations. The Australian signallers stretched the limits of the Khmer Rouge restrictions by establishing a running route that went beyond the 500-metre limit to the local Buddhist temple on a hill overlooking the town as part of their fitness regime. When the team leader, Commandant O’Meara of the Irish Army, was told he was to be transferred to UNAMIC Headquarters he told Loridon [the French general who was deputy head of UNAMIC] of the ‘very strong bond’ that had been formed by the Australians and other members of his team and requested permission to remain with the detachment in Pailin.
Consideration
There is no doubt to me from the evidence both given by Mr Quinn and corroborated in the official history, as set out above, that the Applicant and his colleagues were restricted in their movements when in Pailin. It is also clear that the movements of the Applicant and other UN personnel in this location were restricted and that they had to be accompanied by Khmer Rouge personnel whenever leaving the precincts of their building. However, it is objectively untenable to support the proposition that Mr Quinn and his UN colleagues at this time were prisoners of war.
They had not fallen into the power of the enemy, a mandatory requirement to satisfy the relevant Article of the Third Geneva Convention, for two reasons: the Applicant had volunteered for this attachment and had travelled from Australia to Thailand and Cambodia knowing that this was the nature of the deployment. He gave evidence that this had been extensively explained to him in and his fellow Australian UNAMIC colleagues in briefings before they left Australia.
Secondly, the Khmer Rouge was not “the enemy” in the sense required under Article 4 of the Third Geneva Convention. Australia was not in a state of war with Cambodia at that time and the Khmer Rouge cannot be described as constituting the armed forces of Cambodia or any other nation state.
The situation essentially was that Mr Quinn was an Australian soldier on duty as a voluntary member of UNAMIC performing duties as a signaller under the auspices of a UN Security Council Resolution assisting the future stability of Cambodia. His own evidence was that, while the restrictions were unpleasant and may have even been perceived as threatening, the group had regular supply visits, access to radio communications, access to mail and, at the end of the deployment, no restrictions on leaving Pailin and thence returning to Australia.
Mr Copeland’s assertion that the group was “threatened with execution” was not supported by Mr Quinn’s own evidence. Mr Quinn said the Khmer guards did not train their weapons on the building he and the other UNAMIC personnel were occupying. He told of one occasion when he had taken some waste to a fire pit and a gun was fired off randomly near him, but not at him. Mr Copeland also submitted that the UN personnel were ‘blocked from being supplied’ from the UN. In contrast, Mr Quinn said that some supplies were delayed because they were off-loaded in favour of other equipment, causing shortages in some provisions, but these were remedied on the next supply visit.
Even if I was to take the view, on Mr Copeland’s submission, that the VEA is unnecessarily restrictive in its characterisation of ‘prisoner of war’ as set out in section 115M, I made clear at the hearing that such a suggestion would be a matter for representation to the Government of the day in terms of statutory amendment, not for this Tribunal. But even if, hypothetically, the VEA did not have the specific campaign restrictions set out in section 115M, on the objective evidence, Mr Quinn cannot satisfy, in terms of his operational service, the essential requirements.
Accordingly, the Tribunal finds that the answer to the question posed above is: No, the Applicant was not a prisoner of war while serving in Cambodia.
The other SOP No. 122 Factors that must exist
Apart from being a prisoner of war before the clinical onset of dental caries, which as I have found above, Mr Quinn does not satisfy, there are other factors that must exist set out in paragraph 9 of the SOP.
9 Factors that must exist
At least one of the following factors must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting dental caries or death from dental caries with the circumstances of a person’s relevant service:
(1)          being a prisoner of war before the clinical onset of dental caries;
(2)          being exposed to fermentable dietary carbohydrates as specified for a continuous period of at least three months, within the two years before the clinical onset of dental caries;
Note: being exposed to fermentable dietary carbohydrates as specified is defined in the Schedule 1 - Dictionary.
(3)          smoking at least three pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of dental caries, and where smoking has ceased, the clinical onset of dental caries has occurred within ten years of cessation;
Note: pack-years of cigarettes, or the equivalent thereof in other tobacco products is defined in the Schedule 1 - Dictionary.
(4)          inability to obtain exposure to fluoride on more days than not for a continuous period of at least one year, within the five years before the clinical onset of dental caries;
Note: exposure to fluoride is defined in the Schedule 1 - Dictionary.
(5)          inability to perform effective personal dental hygiene for a continuous period of at least three months, within the two years before the clinical onset of dental caries;
(6)          inability to access preventive professional dental care, including regular cleaning and application of fluoride, at least every 15 months, within the five years before the clinical onset of dental caries;
(7)          having hyposalivation as a result of a course of therapeutic radiation to the head or neck, for at least the four weeks before the clinical onset of dental caries;
Note: hyposalivation is defined in the Schedule 1 - Dictionary.
(8)          having xerostomia for a continuous period of at least three months, within the two years before the clinical onset of dental caries;
Note: xerostomia is defined in the Schedule 1 - Dictionary.
(9)          having an acquired enamel defect of the affected tooth for at least the four weeks before the clinical onset of dental caries;
Note: acquired enamel defect is defined in the Schedule 1 - Dictionary.
(10)      for root surface caries only, having gingival recession of the affected tooth for at least the four weeks before the clinical onset of dental caries;
Note: gingival recession is defined in the Schedule 1 - Dictionary.
(11)      inability to obtain appropriate clinical management for dental caries.
None of these was advanced by the Applicant as relevant to his application and, on the basis of his evidence about his time in Pailin and the expert evidence of Dr Barnes, for completeness, I find that none of them is applicable to this claim, because none of them is factually satisfied. The Applicant was not deprived of fluoride nor prevented from performing personal or preventative dental hygiene at the time. On Mr Quinn’s own evidence he did not have toothpaste for a short period in Pailin, but did have a toothbrush and available water.
Dr Barnes told the Tribunal that dental caries is a bacterial mediated disease which comes about through a susceptible host environment which is commonly labelled as poor dental hygiene. He said that dental caries affect the structural part of a tooth. In simple terms, when dental caries are detected, the hole is cleaned and the tooth is filled, then the dental caries condition is resolved. The condition does not ‘continue’.
Dr Barnes agreed that if a person was not able to brush his teeth and was eating food of limited nutritional value, if bacteria had developed over time, then the person could develop dental caries. The Applicant stated that he did have a toothbrush, access to water, and toothpaste except for a short period between when his paste ran out and new supplies arrived. Dr Barnes emphasised that dental caries is an “independent episode each time it occurs”. If a tooth that has been filled subsequently needs to be re-filled, that is described as secondary caries.
Dr Barnes was asked whether a person not having access to toothpaste would be likely to create, or contribute to, dental caries. His evidence was that toothpaste is, in essence, a ‘friction agent’ to facilitate teeth-cleaning and is, of itself, not essential to dental hygiene, citing examples of cultures where other teeth-cleaning agents such as bark are routinely used. Dr Barnes said the most important thing for dental care is to have access to a toothbrush.
In relation to the Applicant’s dental records, Dr Barnes said that Mr Quinn’s previous instances of dental caries are episodes around individual teeth and that, for an Australian male of his age, the Applicant “has very good teeth”, noting only four episodes of dental caries since 1995 in the dental records Dr Barnes had assessed.
Consideration
It is clear from the medical evidence that dental caries is not an enduring medical condition. It is, to use Dr Barnes’ description, ‘episodic’. The Applicant had had three episodes of dental caries, each affecting one tooth only, between his return from Cambodia in 1992 and his discharge from the Army in 2002. Mr Quinn had dental caries of a tooth identified in May 1995 and treated in June 1995. He had dental caries of a tooth identified and treated in January 1999 and dental caries of a tooth identified and treated in August 2001.
After he left the Army, the records show that Mr Quinn had one filling for dental caries in July 2006.
CONCLUSION
The Tribunal finds that Mr Quinn’s application fails at the first Deledio step. A hypothesis must be pointed to by facts that are raised after consideration of the whole of the material before me. As found in East v Repatriation Commission [1987] 16 FCR 517, a hypothesis must be more than a possibility, and must be consistent with the ‘known’ facts.
The instances of dental caries that Mr Quinn has experienced have been infrequent and episodic: they were individual dental events which, when treated by filling, were resolved. The pathology of dental caries means that they cannot be characterised as an enduring disease or condition. His first episode of dental caries is recorded as 1995, some three years after his return from operational service in Cambodia. Even with an eye to the beneficial intent of the VEA, there is no hypothesis or causal connexion pointed to between Mr Quinn’s service and the claimed condition.
Even if the Tribunal is wrong, and it could be found that this application satisfies the Deledio first step, it would fail at the Deledio second step, because SOP No. 122 requires that the Applicant was a prisoner of war or met the other required factors set out in paragraph 9 of that instrument. The Applicant does not meet any of those required factors.
Mr Quinn argued at the end of his evidence that he may want to live abroad and that there were certain financial cap restrictions on his dental care available under his Gold Card which were not restrictions for prisoners of war. The Respondent provided comprehensive details of the dental treatment available to Gold Card holders under Department of Veterans’ Affairs Fees Schedule of Dental Services for Dentists and Dental Specialists (Effective 1 June 2014), which includes treatment for dental caries (Category 500 Restorative Services).
If there is some other gap that the Applicant has identified in the cover that is available to him, as opposed to future hypothetical dental or health needs, that is not a matter for this review of his claim for dental caries as a consequence of his service.
DECISION
The decision under review is affirmed.

69. I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the written reasons for the decision of Senior Member D. J. Morris.

[sgd]…..…...................................................
Associate
Dated 20 December 2017

Date of hearing 28 August 2017

Applicant

Advocate for the Applicant

In person

Mr Paul Copeland OAM

Counsel for the Respondent

Solicitors for the Respondent

Ms Cathy Dowsett

Australian Government Solicitor

[2017] AATA 2714

20 December 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Standing