Rohani and Comcare (Compensation) - [2022] AATA 2859

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…

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 Rohani and Comcare (Compensation)

Details

AGLC: Rohani and Comcare (Compensation) [2022] AATA 2859
Case: [2022] AATA 2859
Decision Date: 1 September 2022

CaseChat Overview and Summary

This matter concerned two applications before the Administrative Appeals Tribunal, brought by Mr Rohani against Comcare. The dispute centred on Mr Rohani's claim for compensation for a major depressive disorder with associated panic disorder, which he alleged was contributed to by his employment as a Farsi interpreter on Nauru. Comcare had accepted that Mr Rohani suffered from the condition and that it was contributed to by his employment, but disputed that the condition resulted from reasonable administrative action taken in a reasonable manner, and also disputed the permanency of any impairment.

The Tribunal was required to determine two primary issues. First, whether Mr Rohani's condition resulted from reasonable administrative action taken in a reasonable manner in respect of his employment, and without which the condition would not have been suffered. Second, whether any impairment suffered by Mr Rohani was permanent, and if so, to what degree, for the purposes of sections 24 and 27 of the relevant Act.

The Tribunal found that Mr Rohani's deployment to Nauru, and the subsequent decision to prematurely end his deployment on 12 January 2018, constituted reasonable administrative action taken in a reasonable manner. This conclusion was based on evidence that the Department of Home Affairs frequently reviewed interpreter resourcing requirements on Nauru due to fluctuating operational demands and accommodation pressures. The decision to reduce interpreter numbers was supported by an analysis of job requests and was made considering factors such as length of deployment, language ability, and gender balance, consistent with the terms of Mr Rohani's Deed of Standing Offer and the Interpreter Deployment Brief. The Tribunal was satisfied that there was a reasonable basis for the decision to alter the deployment schedule, and that the applicant was aware of the possibility of such changes.

The Tribunal affirmed the decision of Comcare.

Orders

Orders of the court

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Background

Background to the litigation

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; andyour 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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.”

Ratio Decidendi

Legal Principle Established

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