Rana and Repatriation Commission - [2009] AATA 671

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 671
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200500033

VETERANS' APPEALS DIVISION )

Re RANJIT RANA

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date4 September 2009
PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............Signed................
Deputy President

CATCHWORDS
VETERANS’ ENTITLEMENTS – whether the applicant was a “member of the Forces” as defined in the Act - veteran’s service terminated “not in the interests of Australia or the Army” before three years service - whether discharge was by reason of invalidity or physical or mental incapacity to perform duties – open to Tribunal to look behind administratively noted ground of discharge to satisfy itself of actual ground of discharge - found that veteran was suffering from a personality disorder at time of discharge and prior to enlistment – accept lay, expert and contemporaneous documentary evidence that did not suggest condition resulted in mental incapacity to perform all or part of military duties - decision under review affirmed.
Australian Military Regulation Reg, 176(1)
Veterans’ Entitlements Act 1986 (Cth) ss 68, 69(1), 70
House v Department of Defence (1996) 65 FCR 94
Re Graham and Repatriation Commission (1996) 41 ALD 448
Re Medcalf and Department of Veterans’ Affairs (1991) 23 ALD 502
The Commonwealth v Verwayen (1990) 170 CLR 394
Whiteman v Secretary, Department of Veterans’ Affairs (1996) 69 FCR 510
REASONS FOR DECISION

4 September 2009 Deputy President P E Hack SC

Introduction

By virtue of s 69(1)(d) of the Veterans’ Entitlements Act 1986 (Cth), a former member of the Australian Defence Forces may be entitled to a disability pension if the person has served as a member of the Defence Forces under an engagement to serve for a period of continuous full-time service of not less than three years and the service was terminated before the completion of the three years’ service “by reason of…the person’s discharge on the ground of invalidity or physical or mental incapacity to perform duties.”
The applicant, Mr Ranjit Rana, says that he answers that description. That question is the subject matter of this part of the proceedings.
Background
Whilst there is much controversy between the parties, and, as I later observe, much unnecessary controversy, some basal facts are not in issue and it is as well to start with a recitation of those facts. They are, by and large, taken from contemporaneous documents.
Mr Rana was born in Nepal in April 1955. He emigrated to Australia in April 1978 having married an Australian citizen. In October 1980 Mr Rana enlisted in the Australian Regular Army. He undertook recruit training at Kapooka. He completed basic training in early January 1981 and was posted to the RAAOC Training Centre in Bandiana in Victoria until March or April 1981 when he was posted to the 16^th Air Defence Regiment (16 AD REGT) based in Woodside, South Australia. He was deployed to the Regimental Workshop (16 AD REGT WKSP).…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rana and Repatriation Commission

Details

AGLC: Rana and Repatriation Commission [2009] AATA 671
Case: [2009] AATA 671
Decision Date: 4 September 2009

CaseChat Overview and Summary

The case of Rana v Repatriation Commission revolves around Mr Ranjit Rana's eligibility for veterans' entitlements under the Veterans’ Entitlements Act. Mr Rana, who enlisted in the Australian Regular Army in October 1980, had his service terminated before completing three years. The central dispute is whether Mr Rana was a "member of the Forces" within the meaning of the Act, considering the circumstances of his discharge. The Federal Court of Australia was tasked with determining this pivotal question.

The primary legal issue before the court was whether Mr Rana qualified as a "member of the Forces" under the Act, which requires examining the actual grounds of his discharge. The court had to decide if Mr Rana's discharge was due to invalidity or physical or mental incapacity to perform military duties. This required the court to consider lay, expert, and documentary evidence, including medical records and psychiatric evaluations, to ascertain the true reasons behind Mr Rana's discharge.

The court examined evidence that Mr Rana was suffering from a personality disorder at the time of his discharge and prior to his enlistment. Despite the noted ground of discharge being administrative, the court found it permissible to look behind this to determine the actual reason. The evidence indicated that Mr Rana's condition did not result in a mental incapacity to perform his military duties. Consequently, the court affirmed the decision under review, concluding that Mr Rana did not meet the criteria for being considered a "member of the Forces" as defined by the Act.

The Federal Court of Australia affirmed the decision under review, upholding the finding that Mr Rana did not qualify as a "member of the Forces" under the Veterans’ Entitlements Act. This decision was based on the evidence that his discharge was not due to invalidity or mental incapacity to perform military duties, despite the administratively noted ground of discharge.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

The applicant, Mr Ranjit Rana, says that he answers that description. That question is the subject matter of this part of the proceedings.Background Whilst there is much controversy between the parties, and, as I later observe, much unnecessary controversy, some basal facts are not in issue and it is as well to start with a recitation of those facts. They are, by and large, taken from contemporaneous documents. Mr Rana was born in Nepal in April 1955. He emigrated to Australia in April 1978 having married an Australian citizen. In October 1980 Mr Rana enlisted in the Australian Regular Army. He undertook recruit training at Kapooka. He completed basic training in early January 1981 and was posted to the RAAOC Training Centre in Bandiana in Victoria until March or April 1981 when he was posted to the 16th Air Defence Regiment (16 AD REGT) based in Woodside, South Australia. He was deployed to the Regimental Workshop (16 AD REGT WKSP). In June 1981 Mr Rana went to Nepal for a short period of time. Shortly after his return, in about August 1981, his wife left him, taking the child of the marriage. Mr Rana was admitted to the Royal Adelaide Hospital on 3 August 1981. The nursing notes of that hospital[1] give a diagnosis of “reactive depression”. On 5 August 1981 Mr Rana was transferred to the Repatriation General Hospital at Daw Park where he remained until his discharge on 10 August 1981[2]. The clinical notes from both of these admissions suggest that it was the departure of his wife (with the couple’s 6 month old daughter) that precipitated the admissions.[1] Exhibit 1, p 190.[2] Exhibit 1, p 192. In early August 1981 following discharge from hospital Mr Rana was seen by Dr Lothar Hoff, a consultant psychiatrist, who additionally held a commission as a Lieutenant Colonel in what was then the Citizens Military Forces. Dr Hoff saw Mr Rana on a number of occasions between August 1981 and March 1982. I will return below to his observations from that period. In early 1982 Mr Rana was charged summarily for “failing to appear at a place of parade appointed by his commanding officer” on 5 January 1982[3]. He was fined $10 and confined to barracks for three days. The following month Mr Rana was given a formal warning that he was “regarded as unsatisfactory in the performance of [his] duties and as an administrative liability”[4]. He was warned that unless his performance of duties improved and the time spent by unit officers on his personal problems was reduced his Commanding Officer, LTCOL G.D. Carter, would recommend his discharge. The warning, signed by LTCOL Carter and counter-signed by Mr Rana, continued:“2.You are regarded as unsatisfactory in the performance of your duties because of the following:a.your continued absences from your place of duty have adversely affected your work performance, and the performance of your section, andb.whilst at your place of work you have performed inefficiently, duties which are within the scope of your rank and ECN.3.You are regarded as an administrative liability because of your continuing inability to manage your personal affairs, particularly your family circumstances, which necessitates considerable time and effort to be expended by your OC, immediate superiors and the unit RMO.”[3] Exhibit 3.[4] Exhibit 5

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is nothing in the other submissions advanced by Mr Rana. I am unable to discern in them any other arguments that are, or are arguably, relevant to the present proceedings. Conclusion It follows that I am not satisfied that Mr Rana was a “member of the Forces” as that expression is used in s 70 of the Veterans’ Entitlements Act. That being so there is no need to consider the merits of the claims made and questions of causation. I would affirm the decision under review.I certify that the 100 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SCSigned: .......................Signed............................................. AssociateDate of Hearing 29 &30 June, 1, 2, 3, 6, 7, 8 and 31 July 2009 Date of Decision 4 September 2009Applicant In personCounsel for the respondent Mr J WallaceSolicitor for the respondent Australian Government Solicitor

Ratio Decidendi

Legal Principle Established

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