Rohani and Comcare (Compensation)

Rohani and Comcare (Compensation) [2022] AATA 2859 (1 September 2022)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2018/7169 & 2019/7431

General Division )
Re: Nikram Rohani
Applicant

And: Comcare
Respondent
DIRECTION
TRIBUNAL:  R Cameron, Senior Member
DATE OF CORRIGENDUM:            1 September 2022
PLACE:           Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in these applications as follows:

The decision be changed to read “The Tribunal affirms the reviewable decisions in application numbers 2018/7169 and 2019/7431”;

Reference to matter number 2018/7431 in paragraph 3 should read “2019/7431”; and

Paragraph 117(b) be changed to read “(b) In application number 2019/7431, the reviewable decision of 12 November 2019 is affirmed”.

..................................................................
Senior Member
Division:GENERAL DIVISION
File Numbers: 2018/7169 & 2019/7431
Re:Nikram Rohani
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:R Cameron, Senior Member
Date: 1 September 2022
Place:Melbourne

The Tribunal affirms the reviewable decisions in application numbers 2018/7169 and 2018/7431.
........................................................................
R Cameron, Senior Member
Catchwords
COMPENSATION - two applications – issues for determination – whether condition outside the boundaries of normal mental functioning and behaviour – whether condition contributed to by employment – whether condition resulted from reasonable administrative action - whether condition suffered is permanent – if permanent, to what degree – deployment to Nauru – working as a translator – deployment on 12 January 2018 – found to be reasonable action - decision affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988 (Cth)
Cases
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Drenth v Comcare [2012] FCAFC 86
Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1
REASONS FOR DECISION
R Cameron, Senior Member
1 September 2022
INTRODUCTION

The applicant seeks a review of two decisions made by the respondent.
The first decision, the subject of application 2018/7169, was made on 22 October 2018 under the Safety Rehabilitation and Compensation Act 1988 (“the Act”). It denied liability to pay compensation under section 14 of the Act for an injury described as “aggravation of adjustment reaction with anxious mood and aggravation of panic disorder”.[1]
[1] T1, page 6 of the T documents.
The second decision, the subject of application 2018/7431, was made on 12 November 2019. It denied liability to pay lump sum compensation for permanent impairment and non-economic loss pursuant to sections 24 and 27 of the Act.
THE EVIDENCE
These applications were heard concurrently with several other applications arising from the same or similar subject matter.[2]
[2] They were Nos 2219/2210 and 2019/8215 in which Granaz Mousavi was the applicant and Comcare the respondent together with nos 2018/4986, 2019/4964 and's 2019/5015 in which Yasmin Moradi was the applicant and Comcare the respondent.
Several witnesses gave evidence over the course of the hearing, which occupied approximately 15 sitting days. Details of those witnesses have helpfully been recorded in Appendix 2 “Course of Proceedings” to the applicant’s closing submissions. Those details need not be repeated here.
There was a joint Tribunal book occupying two folders, and comprising almost 2000 pages, that was tendered in evidence. Additional documentary evidence was tendered in the running of the application, details of which are also helpfully recorded in Appendix 2 to the applicant’s closing submissions.
ISSUES FOR DETERMINATION BY THE TRIBUNAL
The respondent has accepted that the applicant suffered a major depressive disorder with associated panic disorder.[3] It is also accepted that the condition was contributed to, to a significant degree, by the applicant’s employment with the Department of Immigration and Border Protection.[4]
[3] See paragraph 4.1 of the respondent’s statement of facts, issues and contentions, dated 18 August 2020.
[4] Paragraph 4.2 of the respondent’s statement of facts, issues and contentions, dated 18 August 2020.
By reason of these concessions, and for the reasons that will be outlined later, the Tribunal accepts two issues arise. They are:
(a)whether the condition suffered by the applicant resulted from reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment, and without which the condition as defined by section 5A(1) of the Act would not have been suffered; and
(b)whether any impairment suffered by the applicant is permanent; and if so, what is the degree of impairment for the purposes of sections 24 and 27 of the Act.
SOME RELEVANT FACTS
The applicant, at all times relevant to this application, was employed by what was known as the Translation Interpretation Service (“TIS”) which is a division of the Department of Home Affairs, as a Farsi interpreter, Level 3 accreditation, at the regional processing centre on the island of Narau. He had been so employed by TIS on various deployments on approximately 27 occasions since September 2011. For each deployment the applicant was employed under a Deed of Standing Offer (“the Deed”).
The Deed contained the following clause:
“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.”[5]
[5] Clause 6.3.6 of the Deed of Standing Offer which can be found at T18, page 74 of the T documents.
The deployment to the island of Narau, relevant to this application, commenced on 3 December 2017 and was initially intended to be for eight weeks, with a scheduled return date of 24 January 2018. Prior to the deployment, the applicant commenced and completed a resilience testing program which included undergoing a telephone interview with a psychologist. The program also includes an online resilience assessment test and a report which includes a self-care plan. Once a deployment is approved, all interpreters including the applicant were provided with a TIS Interpreter deployment brief. The brief outlines the nature of the conditions at the place of deployment, which in this case was the island of Nauru. Relevantly, in the Interpreter deployment brief for Nauru, the document 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]
[6] Interpreter deployment brief can be found at ST7, page 328 of the Supplementary T documents.
The applicant left Australia on 3 December 2017 for deployment to Nauru. The applicant was told that the deployment would be for approximately eight weeks.
It is apparent that conditions on the island of Nauru were not easy for interpreters. The conditions were tropical; there is an irregular power supply; and the accommodation was particularly spartan. On previous deployments to the island of Nauru, the applicant had been housed with other immigration staff in a location known as “RPC-1”. For this deployment he was required to be accommodated at a location known as “Wilson’s Village”, which was of much poorer quality and standard.
Evidence provided at the hearing revealed that accommodation at Wilson’s Village included bunk beds, in very small rooms, with one small shower and toilet, and a small fridge for both occupants. Frequently, when the power went out, the accommodation was stifling. There was one small bunk bed each for two interpreters. There was no personal privacy in those rooms or the ability to move around. Additionally, there was no accessible drinking water within that accommodation, which required the occupants to bring bottled water from the RPC-1.
Transport between Wilson’s Village and RPC-1 was by an infrequent bus service or, alternatively, a government of Nauru bus which is intrinsically unreliable. Breakfast was only served at RPC-1. Often the bus service that would take the interpreters from Wilson’s Village to RPC-1 in the mornings would arrive after breakfast was over.
The Tribunal has formed the impression that relations between the interpreters became strained because of these difficult living conditions. It was in this context that the first incident, that occupied some consideration in the evidence before the Tribunal in this application, occurred.
The incident in the interpreters’ room on 5 January 2018
Each day the interpreters would assemble or congregate in what was known colloquially as the “interpreters’ room” at RPC-1. In that room, the daily roster was displayed on a board for the interpreters. Usually, the roster was pinned on the board before 8 o’clock each morning. Additional to rostered assignments, the interpreters regularly undertook what may be described as “ad hoc assignments”, which would occur when an interpreter’s services were required at places such as the Republic of Nauru Hospital.
On 5 January 2018, the applicant was present in the interpreters’ room when a confrontation occurred between two female interpreters. He says he was minding his own business when a loud argument broke out between two interpreters One of the interpreters was playing music on the speaker of her mobile phone, to which another interpreter objected. They were arguing loudly. The applicant intervened by raising his voice and saying, “excuse me everyone”. Another interpreter named Joziana then asked why the applicant was raising his voice over women. The applicant apologised and then asked the two women to “calm down and be mindful of each other”. At this stage, another interpreter named Rawia interrupted the applicant and repeatedly asked him why he had raised his voice over women. The applicant stated he had apologised but continued speaking. However, Rawia would not stop. The applicant became upset by this intervention on the part of Rawia. He saw these actions as provocative and typical of Rawia’s behaviour that he had observed in the past.
The applicant gave evidence that he was very upset with Rawia. He told her that she should stop, or he would report her to management. He said he also told her that if management considered her past record, they would not deploy her anymore. Whether these were his actual words, or words to this effect were used, was discussed for some time in the evidence before the Tribunal. More will be said about this later.
After this exchange with Rawia, an Arabic interpreter asked him to go outside for a cigarette. They did so. Upon his return to the interpreters’ room, he approached Rawia and told her that he was unhappy about the way she had interrupted him as he felt it disrespected him in front of other interpreters. He said he apologised and told her that he did not want to drag the issue out and that he wanted to be on good terms with her. She apparently replied with words to the effect of “stay away from me; I don’t like it when men come close to me”.
It should be noted that the applicant was the only person present in the interpreters’ room on 5 January 2018, who gave evidence before this Tribunal during the hearing of this application.
Under cross-examination, the applicant said that after this encounter on 5 January 2018 he did not think he had any symptoms. In response to a question as to his capacity to carry out his normal duties, he said that he was “okay”.
The meeting with Jason Jackson on 8 January 2018
Jason Jackson occupied the position of an Interpreter Liaison Officer on the island of Nauru during the applicant’s deployment in December 2017 and January 2018. The Tribunal found Jackson to be a credible witness and accepts his evidence unless stated to the contrary.
Jackson gave evidence that after the incident in the interpreters’ room on 5 January 2018, he was approached by Rawia. The version of events that she gave Jackson was recorded in an email that Jackson sent to Nicki Myers, a manager at TIS, on 8 January 2018.[7] Rawia told him that she had been involved in a discussion with the applicant regarding loud music and it escalated from there. She told Jackson that the applicant approached her during the incident and said words to the effect of “don’t talk, stop talking and I am not talking to you.” She stated that the applicant came into her personal space, waving his hands around and yelling. She told Jackson that she was made to feel embarrassed and humiliated in front of the group of interpreters. She also told Jackson that the applicant said to her that he would stop her deployment, in front of the interpreters.
[7] The email forms part of exhibit JJ-1 to the statement of Jackson made on 18 March 2020, which can be found commencing at page 350 of the Supplementary T documents.
Jackson called the applicant to his private office approximately 200 metres away from the interpreters’ room on 8 January 2018. There is a disagreement between the parties as to precisely what happened during this meeting. The Tribunal prefers the version of events given by Jackson, as Jackson sent an email shortly after the meeting to Myers recording some of the key things that occurred during the meeting. The applicant’s more extensive version of the events that apparently occurred at the meeting only emerged in a supplementary statement in response to the statement lodged by Jackson.
Jackson says that at the meeting with the applicant about the incident in the interpreters’ room on 5 January 2018, the applicant did confirm that he said to Rawia that he would stop her deployment.
Jackson also said that during the meeting, the applicant said to him “this girl she has problems, she is stupid, and she means nothing to me. TIS knows all about her and they know how bad she is”.[8]
[8] This statement is found in JJ-1 commencing at page 350 of the Supplementary T documents.
Jackson did ask the applicant to provide a statement of what occurred, and the applicant refused, saying it was a waste of time.
The applicant was asked whether, following this meeting, he had developed any symptoms. He said he had a bit of anxiety and was “down” and sad. However, he readily conceded that his roster was not altered, and he was receiving allocated work which he was able to undertake. He also conceded that if he was ill and unable to do his work, he could report in as sick. He did not do so, and he continued to work. The Tribunal concludes from his response that the applicant did not suffer any recognisable symptoms as a result of this meeting.
The telephone call between the applicant and Myers on 9 January 2019
The Tribunal found Myers to be a credible and fair witness. It prefers her evidence as to the content of the telephone call between them on that day. It also prefers her evidence because she kept a file note of the telephone conversation that was made at the same time or shortly after the telephone call concluded.[9]
[9] The file note is exhibit NM-5 to the statement of Myers made on 18 March 2020, which can be found at page 161 of the Supplementary T documents.
The Tribunal rejects the applicant’s evidence that Myers’ demeanour during the conversation was rude, attacking, or that she yelled and showed him no respect. It was not put to her in cross-examination that she conducted herself during the conversation in that way. It accepts that the conversation was conducted in a respectful, courteous and fair manner.
Myers received an email on 8 January 2018 from Jackson, as noted earlier, expressing concerns with respect to the applicant’s interaction with Rawia on 5 January 2018. A further email was received by Myers on 9 January 2018 regarding the incident on 5 January 2018.[10] It further stated that the applicant was experiencing difficulties with the other interpreters, and that he believed it was not safe to leave his milk in the refrigerator as he believed that Rawia may do something with it.
[10] This email this email forms part of exhibit “NM-4” to the statement of Myers made on 18 March 2020.
Myers telephoned the applicant on 9 January 2018 because of the concerns raised by Jackson in his emails to her. Myers, in her evidence, stated that what she was attempting to do was to de-escalate the matter in the telephone conversation with the applicant. Myers said that when she spoke with the applicant, she advised him it was inappropriate that he make comments to the effect of ending another interpreter’s deployment and that such type of behaviour is intimidation. She pointed out the seriousness of his behaviour and referred to the contents of the Deed. She also advised the applicant that making statements such as being worried another interpreter would contaminate his milk or other interpreters’ food was a serious allegation. She asked the applicant what basis he had for making such statements. His response was that he was concerned to leave his bag unattended and milk in the refrigerator. No further details or the basis for making such statements were provided to Myers by the applicant. The Tribunal accepts that when Myers put it to him that the applicant said to Rawia that he could end another interpreter’s deployment, he did not deny it.
In addition, the applicant gave evidence in the witness box denying that Myers advised him, during their telephone conversation, of the seriousness of some of the allegations he made; including that another interpreter would contaminate his milk or other interpreter’s food. The Tribunal does not accept the applicant’s denial of this conversation and prefers the details of the contemporaneous file note recorded by Myers describing the conversation that took place.
The end of the applicant’s deployment on 12 January 2018
On 12 January 2018 at approximately 4.00pm, the applicant was called to a meeting with four other interpreters and two officers of the Australian Border Force, presided over by Lauren Richardson, who gave evidence before the Tribunal. The Tribunal found Richardson to be a fair and credible witness and accepts her evidence as to what occurred at this meeting. Richardson gave evidence that during the meeting, she advised the interpreters that their deployments would be ceasing early due to the requirement to reduce interpreters of certain language groups based on operational needs at the time. The applicant was provided with a travel itinerary for departure from Nauru on Sunday, 14 January 2018 in the afternoon.
The applicant made some issue of the fact that security guards were outside the door of the office where this meeting was conducted. Richardson gave evidence that when she was deployed to the island of Nauru, security guards generally followed her around everywhere she went. In fact, in her evidence, she used the term “shadowed” by such guards. The Tribunal does not find that there was any untoward intention by the presence of the guards outside the door of the office where the meeting was conducted.
The applicant said that at the time he was advised that his deployment was terminating early, he was the victim of an unfair dismissal claim and had in fact been singled out by Jackson as a troublemaker. It is quite apparent to the Tribunal from the evidence given by the applicant that he harbours a grave sense of injustice in the way he had been treated. In his statement, he even went so far as to say that the presence of security guards on the door was treating them as if they were criminals.[11]
[11] This can be found at paragraph 21 of the applicant’s supplementary statement dated 12 October 2020.

The Tribunal does not consider that the applicant had been singled out by Jackson as alleged. It considers that Jackson conducted his role in difficult circumstances as well as could be expected. In any event it was not his decision to terminate the applicant’s deployment in the way that it occurred.
The events of 14 January 2018 and thereafter
The applicant arrived at the Nauru airport on 14 January 2018 for his departure to Australia. After his arrival at the airport, he was overcome by panic from what he described as the stress and anxiety over his treatment.[12] He recalls collapsing at the airport. The panic attack or episode was so severe that a doctor was called, Dr Michael, who administered treatment.
[12] See applicant’s statement at paragraph 22, dated 9 October 2020.
Shortly after his return to Australia, the applicant commenced seeking medical treatment from a doctor in Castle Hill. In February 2018, he was taken to the Monash Medical Centre by ambulance. He had suffered a seizure. The applicant did not regain consciousness for five or six hours. He was in hospital for two or three days. Because of that, his driver’s licence was suspended. Since then, he says, he has lost his short-term memory. He says that he has since had a continuing experience of nightmares (he said he did not have these experiences prior to his return from Nauru), and problems of panic and anxiety, as well as depression and loss of motivation. He said he could not even go outside. Also, on his return to Australia, the applicant started taking a variety of medication including various antidepressants. Currently, he takes four different types of medication.
The applicant said that his symptoms have improved since 2019. He states that at night he cannot go outside and take the rubbish out. He cannot sleep by himself in his room and requires someone to be next to him. Otherwise, he cannot sleep.
The applicant returned to work in approximately April 2020 at the encouragement of his doctor. He has continued working as an interpreter doing some work for TIS. He also works for other agencies. These include a Victorian interpreter translation service called LanguageLoop and ONCALL. Much of this work involves telephone interpreting. The work he has done for TIS has not involved being deployed to any detention centres. Initially, he started working part-time; but now largely works “nine to five” in various jobs.
THE MEDICAL EVIDENCE
Dr Turnbull
Dr Turnbull, who gave evidence at the hearing of the application, diagnosed the applicant with a major depressive disorder with panic. He considered the panic disorder was pre-existing. He stated that the panic episodes seem to have been a pre-existing propensity that were associated with seizures, which should be confirmed with his then treating medical practitioners.
Dr Turnbull recorded in his report[13] that in Nauru there had been an interaction with colleagues which was emotional for the applicant. The applicant’s employment then ended, and he had taken this as a personal criticism and felt unfairly treated. Dr Turnbull observed it had led to physical collapse, anxiety, low mood, and, over time, the development of a psychiatric condition.
[13] See medical report of Dr Turnbull dated 12 July 2019.
Dr Turnbull was asked whether he believed, on the balance of probabilities, that the applicant’s injury at work had significantly contributed to his condition. His response was that the applicant’s experience in the workplace in Nauru and being dismissed, seemed to have been the significant contribution to his condition.
Dr Turnbull also said that the meeting on 8 January 2018 likely contributed to causing the applicant to suffer an aggravation of anxiety. This was because the applicant was taken aback by the meeting and was surprised his efforts to resolve things with Rawia had not been successful. He felt unsupported and, without a witness, was uncomfortable communicating.
Dr Turnbull was asked whether the manner and method in which the applicant was told he would be leaving Nauru, and returning to Australia on 12 January 2018, contributed to causing the applicant to suffer an aggravation of his anxiety. Dr Turnbull stated that after the meeting, the applicant felt targeted and unfairly treated, and was not convinced that the explanation for his leaving was honest. He observed that the security presence shook the applicant. Dr Turnbull concluded that this seems to have been a direct link to his thinking while standing in the queue at the airport, experiencing panic, and then collapsing. He concluded that it serves as an ongoing contribution to his current mental state.
Dr Turnbull in his report rated the applicant’s degree of mental impairment at 15%. He did so because the applicant was afraid to leave his house after dark, goes places with his wife during the day, and seeks reassurances for his safety from her. These are based on a pathological thinking state. He concluded that such circumstances amount to a supervision and direction in activities of daily living defined in the Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1) Chapter 5.
When he was in the witness box, Dr Turnbull’s view of the level of impairment moderated somewhat. This was because of the evidence given by the applicant that, at the present time, he is quite capable of getting out of the house and engaging in some work and activities without his wife. He is capable of driving a car and can do things like that. Dr Turnbull said that he had reflected on the applicant’s degree of mental impairment and reached the conclusion that 10% was a much more sensible degree of impairment. He also stated that since he had prepared his report, he has had several hearings and he applies a stricter rating these days. He also did so with the benefit of hindsight and believed he should have said 10% in his report.[14]
[14] Dr Turnbull's evidence on this topic is found at page 491 of the transcript from lines 14 to 27.
In cross-examination, Dr Turnbull said that the level of impairment was at a maximum of 10% and he felt the 15% was not viable.[15] He was also asked in cross-examination about why it was not 5%. Dr Turnbull said he did not have a strong opinion on whether it should be 5% or 10% and that he did not know now. He stated that two years later it was very difficult for him to tell the Tribunal whether it was 5% or 10%.[16]
[15] Page 507 of the transcript at line 37.
[16] Page 507 of the transcript lines 39 to 45.
Dr Vadasseri
Dr Vadasseri did not give evidence. However, a report from him dated 2 July 2019 was in evidence before the Tribunal.[17]
[17] Page 485 of the joint tribunal book.
Dr Vadasseri had taken a patient history from the applicant. It commenced with what he described as an altercation between two women. He tried to pacify one of them who was also an interpreter. Another interpreter allegedly complained about the applicant; which prompted an investigation. The applicant was described as having been interrogated and suspended even though he had already apologised to the other interpreter. He reported to Dr Vadasseri that the interrogation was traumatic and humiliating for him as there were guards standing at the door and he felt he was treated like a criminal.
The history given to Dr Vadasseri appears to conflate the meetings that the applicant had with Jackson on 8 January 2018, and the meeting he had with Richardson on 12 January 2018, when he was informed that his deployment was prematurely ending. The Tribunal concludes that there was no interrogation at the meeting with Jackson on 8 January 2018. To this extent, the patient history given to Dr Vadasseri is not correct.
Dr Vadasseri noted that on 14 January 2018, when the applicant was at Nauru airport and felt overwhelmed and collapsed.
Dr Vadasseri diagnosed major depression, post-traumatic stress disorder and panic disorder with agoraphobia. He considers that depression, anxiety, as well as agoraphobia remain an issue for the applicant.
At the date of his report, he considered that the applicant did not have current work capacity.
Dr De Alwis
There was one short report dated 25 April 2018 in evidence from Dr De Alwis, a Consultant Psychiatrist.[18] He did not give evidence at the hearing of the application.
[18] Page 472 of the joint tribunal book.
Dr De Alwis diagnosed agoraphobia. He also noted that the applicant has an ongoing seizure disorder. He recommended a continuation of psychological therapies.
Mr Plewa
There were two reports in evidence from Mr Plewa dated 23 April 2018[19] and 12 March 2019.[20] In the first report, he stated that the applicant presented with severe anxiety including reported panic attacks and depression. His motivation for activity was poor, sleep broken, including nightmares that were reducing in intensity with time. He reported significant memory loss and difficulty functioning in normal activities at home due to his symptoms.
[19] Page 470 of the joint tribunal book.
[20] Page 473 of the joint Tribunal book. Mr Plewa did not give evidence at the hearing.
In Mr Plewa’s second report, a more detailed patient history was forthcoming. He stated that during their counselling, from the beginning the applicant was of the opinion that he had not received natural justice.
Once again, Mr Plewa reported that the applicant presented with severe anxiety including reported panic attacks, depression, motivation for activity was poor, sleep was broken, including nightmares of the incident that were reducing in intensity with time. The applicant reported significant rumination and difficulty making sense of what had happened.
Mr Plewa opined that the events that were part of his employment significantly contributed to his injuries. Even though the applicant had suffered panic attacks and seizures previously, the intensity of the symptoms and the wider range of symptoms were suggestive of a linkage with his employment.
Dr Ng
There were three reports in evidence from the applicant’s treating Neurologist, Dr Ng.[21] They are dated 6 May 2016, 2 February 2018 and 23 April 2018.
[21] Dr Ng did not give evidence at the hearing.
In the 2016 report (which followed a referral for an assessment of the applicant’s epilepsy), Dr Ng records, which the applicant admitted, that he had had three seizures so far, with the first episode taking place in February 2011. Dr Ng recorded that he had an intense panic attack followed by generalised convulsion. All three seizures were similar. The applicant experienced a panicky feeling and palpitations as a warning sign. He often felt intensely hopeless. The seizures lasted for 30 seconds or so.
The second report of 2 February 2018 recorded that for the last few months, the applicant had been suffering depression and anxiety. It concluded that the applicant probably had a generalised anxiety disorder. It recommended that he attend a psychiatric clinic urgently.
The third report of 23 April 2018 recorded that the applicant had seen Dr De Alwis. It recorded that on 13 February 2018 the applicant had a focal onset generalised seizure. He was taken to Monash Medical Centre and managed by a team of neurologists there. Dr Ng also noted that the applicant had written to Vic Roads informing it about his recent seizure and asking it to suspend his driver’s licence.
Associate Professor Mendelson
Associate Professor Mendelson prepared a lengthy report dated 3 February 2020. He also gave evidence before the Tribunal. Also in evidence was the letter of instruction to him. It is important to note that the letter of instruction was accompanied by an array of documents including the report reports of Dr Turnbull, Dr De Alwis and Dr Sheehan, together with Mr Plewa’s report of 12 March 2019.
Several things emerged from the report of Associate Professor Mendelson which should be repeated in these reasons.
In Professor Mendelson’s opinion, the psychiatric assessments undertaken within a short time of the applicant having returned from Nauru to Australia indicate that, while he did describe symptoms of anxiety consistent with his past history of panic disorder, which is also a subtype of anxiety disorders, there was no indication that the incident on 5 January 2018, the interview with Jackson on 8 January 2018, the subsequent telephone conversation with Myers on 12 January 2018, and the early conclusion of his deployment to Nauru had led the applicant to develop any clinically significant depressive symptoms or other diagnosable psychiatric disorder. Therefore, Professor Mendelson expressed the opinion that the applicant’s initial reaction to the events in January 2018 did not trigger any diagnosable mental disorder, albeit he did describe what in his view had been understandable manifestations of anxiousness.
Professor Mendelson also observed that other than the comment that he “could not sleep that night”, referring to 5 January 2018, there was no mention of any emotional symptoms prior to the applicant being informed on 12 January 2018 that he and four other interpreters would need to leave the island of Nauru.
However, it did appear that with the passage of time, the applicant did develop depressive symptoms, and in Associate Professor Mendelson’s view, these have resulted from lack of gainful employment, continued rumination about what had occurred on Nauru, and the applicant’s sense of not having been treated fairly by his colleagues and employers. Based upon the applicant’s presentation at the examination with him, and the information in the documentation received, it was Associate Professor Mendelson’s opinion, however, that his depressive symptoms do not warrant the diagnosis of major depressive disorder. In his opinion, the applicant has experienced a recurrence of panic disorder, and in about mid- 2018, developed symptoms of a moderate depressive episode without somatic symptoms (ICD Code F32.10) using the nomenclature of the ICD-10 Classification of Mental and Behavioural Disorders (a copy of which was attached to his report).
Associate Professor Mendelson expressed the opinion that these conditions are not attributable to the events that occurred during January 2018 whilst the applicant was on Nauru, but due to his deployment having been terminated earlier than had been due (i.e., on 14 January 2018 rather than the full term). In his opinion, the recurrence of the panic disorder and the moderate depressive episode developed in response to, what the applicant described to him as, having been dismissed for an incident at work; and not as a direct consequence of any incident or event that occurred while he was working on Nauru during January 2018.
In response to a question under the heading “Work capacity”, Associate Professor Mendelson was asked, if the applicant continues to suffer incapacity due to employment- related psychiatric conditions, a number of questions concerning his capacity for work. He opined that the applicant’s current emotional symptoms would not prevent him from working as a translator or an interpreter with another employer, if he were motivated to do so. Observing that the applicant had not worked for the previous two years (bearing in mind the report is dated 3 February 2020), in his view, the applicant would initially need to work, either as a document translator or interpreter, under supervision, until he regained self-confidence. Initially he recommended the applicant resume work part-time in a position free of significant responsibility and time pressure.
With respect to the question of permanent impairment, Professor Mendelson also opined that the applicant does not have a permanent psychiatric impairment.
Dr Sheehan
There were two reports in evidence from Dr Sheehan.[22] One report is dated 6 July 2018 and the other report is dated 19 July 2018.
[22] Dr Sheehan did not give evidence at the hearing of the applications.
In the first report, Dr Sheehan advised that, based on the available information, the applicant was presenting with symptoms of a moderately severe major depressive disorder with associated panic attacks. Dr Sheehan expressed the opinion that it appears likely this condition arose in the context of several employment factors, particularly the interview of 8 January 2018 and on 12 January 2018, and being told that his position was no longer required with security guards outside the room.
Dr Sheehan was asked when, in his opinion, the applicant first suffered from clinically identifiable symptoms of a psychological condition. He replied that as no reports had been provided from the treating general practitioner, it was difficult to be precise. He noted that the applicant in the interview indicated that he became acutely distressed following the interview of 8 January 2018 with Jackson; and that this increased following him being told on 12 January 2018 that his deployment was being terminated. He reiterated that these factors appeared to be most significant in the onset of the applicant’s condition, and as at the date of his report, such factors still contributed to the applicant’s condition as there had been no substantial improvement.
In the supplementary report of 19 July 2018, Dr Sheehan was asked, if possible, to comment on whether the applicant would have developed or aggravated an employment-related psychological condition irrespective of the events. He stated he was unable to comment whether this would have been the case, and that further information is required from the treating general practitioner in that regard.
Conclusions on the medical evidence
The Tribunal prefers the evidence given by Associate Professor Mendelson. It does so for several reasons. Firstly, it had the opportunity to observe him in the witness box. He presented as a fair and reasonable expert who saw his role was to assist the Tribunal. Secondly, his report was comprehensive. The bases for his opinions expressed were carefully laid out with an appropriate platform of rational reasoning. It was produced after a detailed letter of instruction and accompanied by an array of documentary evidence; unlike the authors of the other experts’ reports, and when compared with Dr Turnbull’s evidence. He also took a comprehensive history from the applicant. Finally, in reaching his conclusions, he referred to the ICD-10 Classification of Mental and Behavioural Disorders together with two learned articles. This is not to criticise the other experts, but to simply explain why the Tribunal prefers the evidence of Associate Professor Mendelson.
By reason of the foregoing, the Tribunal therefore accepts that the applicant has experienced a recurrence of panic disorder; and in about mid-2018, developed symptoms of a moderate depressive episode without somatic symptoms.
The Tribunal accepts Associate Professor Mendelson’s conclusion that these conditions were due to the premature termination of his deployment on Nauru on 12 January 2018, and they were not attributable to the other events described by the applicant which occurred during January 2018, whilst he was on the island of Nauru. It also accepts the applicant’s contention that the effect of Associate Professor Mendelson’s evidence leads to essential findings necessary for acceptance of liability. Therefore, the Tribunal concludes that the date of the injury for the purposes of section 14 of the Act was 12 January 2018.
This is also consistent with the observations made by Associate Professor Mendelson that there was no mention of any emotional symptoms prior to the applicant having been informed on 12 January 2018 that he and four other interpreters would need to leave the island of Nauru.
In response to a question in the letter of instruction to him concerning permanent impairment, Associate Professor Mendelson stated that, in his opinion, the applicant does not have a permanent psychiatric impairment. He did not therefore address in detail the various categories of impairment in the compensation claim that the applicant had completed.
Was the termination of the applicant’s deployment reasonable administrative action within the meaning of the exclusionary proviso in section 5A(1) of the Act?

The respondent contends that the termination of the applicant’s deployment was administrative action within the meaning of the exclusionary provision contained in the Act. Specifically, it contends that the meeting held on 12 January 2018 constituted an action done in connection with the applicant’s failure to retain a benefit in connection with his employment, for the purposes of section 5A(2)(f) of the Act, namely the continuation of his current deployment as a TIS interpreter on the island of Nauru.
The Tribunal considers that the event that triggered the applicant’s condition was his attendance at the meeting with Richardson on 12 January 2018, where he was advised that his deployment would be ceasing early. It was action directed specifically to the applicant’s employment and his role as an interpreter on the island of Nauru. It was not related to or directed to an ordinary feature of his work or employment.
In Commonwealth Bank of Australia v Reeve[23] Gray J stated:
“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, that as operational action with respect to the employee’s employment.”[24]
[23] [2012] FCAFC 21.
[24] Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 at 31.
Rares and Tracey JJ also stated:
“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 exclusive reaction 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.”[25]
[25] Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 at 60.
Reference was also made on submissions to the decision of Drenth v Comcare[26]:
“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.”[27]
[26] [2012] FCAFC 86.
[27] Drenth v Comcare [2012] FCAFC 86 at 22.
These excerpts 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. The decision was invoking the powers conferred upon the Department, by the provisions of clause 6.3.6 of the Deed, details of which were referred to earlier in these reasons. It was not directed to or constituted action forming part of the everyday duties or tasks performed by the applicant in that role as an interpreter. The action was directed specifically to the applicant as an employee. It had the consequence of terminating his employment on the island of Nauru and returning him to Australia. It was administrative action taken in respect of the applicant’s employment.
The consequence for the applicant as a result of the meeting on 12 January 2018 was the failure to retain a benefit, or benefits that otherwise would have continued to accrue to him had the deployment on the island of Nauru continued.
Was there a reasonable basis for the decision in any event?
The Tribunal is satisfied there was a reasonable basis for the decision 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 well aware of this fact. It was reiterated in the document called “Interpreter deployment brief-Nauru”.
Those who participated in the actions taken on 12 January 2018 gave evidence before the Tribunal; namely Myers and Richardson. It was not put to them when they were in the witness box giving their evidence that the actions they undertook on that day were unreasonable and not taken in a reasonable manner.
Myers 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. It is accepted by the Tribunal. The Tribunal repeats that it found Myers to be a credible witness.
The basis of the decision to prematurely end the interpreters’ deployment was an email from one Victoria McLeod (who was described as the “Operations Lead for the Department”, and apparently on the Island of Narau when the email was sent) to Alison Thorne and Nauru Interpreters dated 11 January 2018. The email was an attachment to the statement of Myers.
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.”
Also in evidence before the Tribunal was an email from McLeod 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 IPC-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 and 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 a 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 and island and this is reviewed regularly.”
The table contained in the email showed a reduction of Farsi interpreters from six to two. The applicant contends 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. It 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 ABF Operations Team in Nauru acted unreasonably in reaching the decision that they did in deciding that the deployments of five interpreters should prematurely terminate. The Tribunal does not consider the failure to call Thorne as a witness fatal to the respondent’s contention.
This is consistent with the evidence of Jackson that, at that time, he knew the workload started to get quieter and that the interpreters were not as busy. He contended in his evidence that, as the Interpreter Liaison Officer, he would know who was busy and who was not. He said the interpreter workload was not high at the time. In so far as Jackson’s evidence conflicts with that of the interpreters who gave evidence before the Tribunal, the Tribunal prefers the evidence of Jackson.
The applicant placed some emphasis on evidence given by him and the other two applicants at the hearing before the Tribunal, which indicated that they were particularly busy at the time that the decision of 12 January 2018 was made. The Tribunal finds that this evidence was somewhat embellished or exaggerated for the purposes of the application and does not accept it. It prefers the evidence called by the respondent on this topic.
The applicant contended there was evidence before the Tribunal that enables a reasonably accurate assessment to be made on 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 of 21 May 2018, there were 821 refugees, 94 transferees and 24 failed asylum seekers on Nauru. There were 692 people living in the community and 247 in the regional processing centre, a total of 939 people.[28]
[28] The document is at page 1477 of the Joint Tribunal Book.
The applicant contends that the Farsi speaking population on the island can be inferred from the Iranian population on the island of some 329 detainees, which is approximately 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 (6 to 2 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 2 to 3 when there were only 2 persons from Malaysia and 18 from Burma on the island. The applicant contends that these numbers would mean:
(a)one translator to approximately 6 “Malay-Burmese” people compared to; and
(b)one Farsi translator to approximately 165 Farsi speakers.
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 to the number of interpreters required. He further stated that the data for Nauru does not show how long transferees in 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 in 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 several 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 of transferees to speak and understand English improves with time. He noted that by 2017 and 2018, the vast majority of transferees had been in Nauru for more than 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. Mr Lynn exhibited rosters from 8 January to 10 of January 2018, showing interpreting jobs booked for all language groups in Nauru during that period. 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.
When one considers this evidence, and the provisions of clause 6.3.6 of the Deed, it was not unreasonable for the Department to terminate the applicant’s deployment as it did.
It was also undertaken in a reasonable manner when Richardson had the meeting on 12 January 2018 with the applicant and the other interpreters whose deployments were to be terminated.
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. He relies upon several pieces of evidence to advance this contention.
The respondent on the other hand considers that such allegations are scandalous.
There was an email from Paris Lai to Myers dated 8 December 2017,[29] which sought the early removal of Moussavi, in which it said there were allegations that she had been repeatedly harassing other staff members in attempts to drive them off the island and obtain positions and preferences for herself and her colleagues. He also stated the behaviour exhibited by Moussavi was destabilising the current interpreter group; and it threatened to make an already challenging environment unsupportable to the point where it constituted a risk to the psychological well-being of other interpreters. He requested that Myers make arrangements to have Moussavi stood down from her interpreting duties and returned to her nominal location until an investigation had been completed. 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
[29] The email is attachment NM-20 to the statement of Nikki Myers of 18 March 2020 in the matter of Moussavi and Comcare No 2019/2210 at page 358 of the joint Tribunal book.
Paris Lai also pointed to an email from Jackson to Myers on 9 January 2018[30], which referred to a majority of problems stemming from some members of the Arabic and Farsi groups. Amongst the names identified were the three complainants to the applications that were before the Tribunal in this matter, including of course the applicant. The email also stated that given the situation with those interpreters, he may need to look at the allocation of work to them and their workload, as he believed that some interpreters may have increased free time between assignments. He also stated that he noticed that the allocation was more focused on the Farsi and Arabic groups, so he may need to look at what was operationally required.
[30] The email formed part of attachment JJ-2 to the statement of Jackson made on 18 March 2020 in the matter of Moradi and Comcare no 2018/4986. It is at page 69 of the joint tribunal book.
The applicant then contended that Jackson pursued Moussavi as “something of a crusade” by reason of comments he made in an email on 16 January 2018 after she had left the island. This was not put to Jackson in cross-examination, and the Tribunal does not find that he went on a crusade.
The applicant then pointed out that in an email on 12 January 2018, it was requested that Nasir, a Dari interpreter, be removed from the list of those interpreters whose deployments were to be prematurely terminated and replaced with the applicant.[31] It is contended that there was no justification for this action. He 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. Jackson was asked in cross-examination whether he knew why the applicant was substituted for Nasir. He stated he did not know. There was no evidence before the Tribunal to explain why this decision was undertaken. The Tribunal does not conclude that the decision was made for an improper purpose.
[31] The email was attachment NM-6 to the statement of Nikki Myers made on 18 March 2020. It is at page 407 of the joint tribunal book. The email was written by one Warner who was Interpreted Liaison Support- Naru RPC at the time. He did not give evidence before the Tribunal at the hearing of this application.
The Tribunal does not consider that this evidence goes so far as to enable such a finding, as contended by the applicant, to be made. In cross-examination, it was put to Jackson that he wanted this particular group of Farsi interpreters off the island. He steadfastly denied such suggestion. In any event, it was not his decision to make. The Tribunal accepts his evidence. It was not put to Richardson and Myers that there had been an improper targeting of Arabic and Farsi interpreters in the way alleged in the submissions that have now been lodged. There was nothing in their evidence to suggest that this was in fact the case. Those 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.
DECISIOn
By reason of the foregoing matters the Tribunal will make the following decision:
(a)In application number 2018/7169, the reviewable decision of 22 October 2018 is affirmed.
(b)In application number 2019/743, the reviewable decision of 12 November 2019 is affirmed.

I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

.....[sgd].............................................
Associate
Dated: 1 September 2022

Dates of hearing:

15, 16, 17, 18, 29, 30 June, 1, 2 July 2021 & 21, 22, 23, 24, 25, 28 February 2022

Counsel for the Applicant:

Solicitor for the Applicant:

Counsel for the Respondent:

Mark Carey

Angela Sdrinis Legal

John Wallace

Solicitor for the Respondent: Sparke Helmore

[2022] AATA 2859

1 September 2022

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Appeal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2018/7169 & 2019/7431
General Division	)