STEWART v Repatriation Commission - [2004] FMCA 321

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STEWART v REPATRIATION COMMISSION

[2004] FMCA 321

ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – application for pension adjustment – Veterans Entitlements Act 1975 – carotid artery disease – whether war caused – SoP 347 of 1995 – smoking and carotid disease.

Administrative Appeals Tribunal Act 1975, ss.43(2B), 44(1)
Veterans Entitlements Act 1986, ss.6, 6A, 7(1)(c), 9, 9(1)(a), 9(1)(b), 9(2)(b), 120(b), 120(4), 196B

Statement of Principle Instrument No. 347 of 1995

Minister for Immigration and Ethnic Affairs v Wu Shan Liang, Huang Cheng Jiang, Liu Jun Ling (1986) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Repatriation Commission v Tuite (1993) 39 FCR 540
Grundman v Repatriation Commission (2001) FCA 892

Applicant:

THOMAS STEWART

Respondent:

REPATRIATION COMMISSION

File No:

MZ 458 of 2003

Delivered on:

21 May 2004

Delivered at:

Melbourne

Hearing Date:

20 April 2004

Judgment of:

McInnis FM

REPRESENTATION

Solicitor for the Applicant:

Mr D De Marchi

Solicitors for the Applicant:

De Marchi & Associates

Counsel for the Respondent:

Ms J Macdonnell

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Application be dismissed.
The Applicant shall pay the Respondent’s costs pursuant to Schedule
1 of the Federal Magistrates Court Rules to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 458 of 2003

THOMAS STEWART

Applicant

and

REPATRIATION COMMISSION

Respondent

REASONS FOR JUDGMENT

In this application the applicant appeals from a decision of the Administrative Appeals Tribunal (the AAT), delivered on 6 March 2003. The appeal is pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
The Court has before it the appeal book, together with what has been referred to as exhibits R2 and R5 which were before the AAT and which contain various reports, some of which have been the subject of reference by the AAT in its reasons for decision.
By way of background, it is sufficient to note the details set out in the AAT decision. The applicant had lodged a claim on 18 December 2000 to have his carotid arterial disease accepted as war-caused. On 24 January 2001 a delegate of the respondent refused the claim and continued the disability pension at 100% of the general rate. On 26 February 2001 the applicant appealed to the Veterans Review Board (the VRB) which on 10 September 2001 affirmed the decision under review. The applicant then appealed to the AAT on 3 December 2001.
The applicant was born on 15 June 1923 and served in the Australian Army from 19 December 1941 to 24 June 1946. It is not in dispute that the applicant's war service was within Australia, predominantly in Western Australia, and thus his service constitutes eligible service for the purposes of the Veterans Entitlement Act 1986 (the VE Act) and in particular ss.7(1)(c), 6 and 6A of that legislation.
It is also not in dispute that the applicant has multiple accepted service-related disabilities. As a matter of principle, it is noted that as the applicant does not have operational service the relevant standard of proof is that of reasonable satisfaction pursuant to s.120(4) of the VE Act, or in equivalent terms, on the balance of probabilities. There is no dispute that the AAT has properly referred to the relevant standard of proof. The AAT had also referred to the fact that as the application was lodged post-1994 the Statement of Principles (SoP) referred to in s.120B of the VE Act is required to be filled. The agreed relevant SoP was Instrument No. 347 of 1995 relating to carotid arterial disease.
It is sufficient to note for the present purposes that the relevant SoP set out at page 16 of the appeal book provides the following under clause 1(d) in relation to factors which must exist before it can be said on the balance of probabilities that carotid arterial disease or death from carotid arterial disease is connected with the circumstances of service as follows -
“(d) smoking at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least five years before the clinical onset of carotid arterial disease and where smoking has ceased, the clinical onset has occurred within 15 years of cessation;”
The substantial conclusion of the AAT after considering the evidence before it and relevant legislation is found in paragraph 22 of the AAT decision as follows:
“22.The evidence before the Tribunal is conflicting to such a degree that on the balance of probabilities, the Tribunal cannot conclude that the applicant's carotid artery disease is war-caused. The Tribunal notes that s.119 of the Act directs that the interpretation of the evidence should be beneficial to the veteran. However, the applicant's evidence before the Tribunal appears to be in direct conflict with previous statements by the applicant's treating doctors over many years, to such an extent that the Tribunal cannot accept the applicant's evidence as reliable. In addition, the Tribunal does not find that the applicant's commencement of smoking was, in any way, related to his service. The applicant had undertaken not to smoke until he was 21 years of age and commenced on the day he turned 21. There is no identifiable incident causing a level of anxiety which may have led him to smoke. It would appear that he had made a pledge to his parents to delay the onset of smoking until his 21st birthday. The decision of the Federal Court of Australia in Repatriation Commission v Keenan (1989) 19 ALD 509 is followed.”
The notice of appeal before the Court sets out a number of grounds relied upon in support of this application. Those grounds are as follows:
“4.1The Tribunal was wrong in law in its interpretation of s.124(4) of the Veterans’ Entitlement Act. It was wrong for the Tribunal to consider part of its task the ascertainment as to whether the Applicant's claimed condition was not war caused in terms of s.9 of the Act. S.120(6) placed no such onus on the Applicant or the Tribunal. The Tribunal had to decide to its reasonable satisfaction whether the injury or disease claimed by the Applicant resulted from an occurrence that happened while the Applicant was rendering operational service, arose out of or was attributed to eligible war service or that the disease would not have been contracted but for his having rendered eligible war service or but for changes in the Applicant's environment consequent upon his having rendered eligible war service.
4.2The Tribunal was wrong in law in failing to consider all relevant material when it determined that the Applicant's commencement of smoking was not related to his service.
4.3The Tribunal was wrong in law in placing under consideration irrelevant matters; namely the undertaking given to his parents that the Applicant would not commence smoking until he turned 21 years of age.
4.4The Tribunal was wrong in law in requiring an identifying stressful incident causing a level of anxiety which might have led the Applicant to commence smoking.
4.5The Tribunal was wrong in law in its interpretation of the Federal Court's decision of Repatriation Commission & Keenan (1989) 19 ALD 509.
4.6The Tribunal was wrong in law in failing to provide adequate and sufficient reasons for its determination contrary to the requirement of s.43B(2) (sic) of the Administrative Appeals Tribunal Act 1975.
4.7The Tribunal was wrong in law in its application of s.119 of the Act and failed to take into account the beneficial nature of the legislation.”
It should be noted that appeal ground 4.6 presumably was meant to refer to s.43(2B) of the Administrative Appeals Tribunal Act.
Both parties were represented before this Court and have relied upon written submissions in addition to making further oral submissions.
In support of the application the applicant relied upon the written submissions which set out a number of arguments in support of each and every ground of appeal. Before considering each of the grounds in detail, it is appropriate to set out general principles which apply in relation to appeals of this kind. The Court's attention has been drawn to the decision of the High Court in the matter of Minister for Immigration and Ethnic Affairs v Wu Shan Liang, Huang Cheng Jiang, Liu Jun Ling (1986) 185 CLR 259 (Liang) per Brennan CJ, Toohey, McHugh and Gummow JJ at 271,272:
“When the Full Court referred to ‘beneficial construction’, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (35). In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be ‘concerned with looseness in the language … nor with unhappy phrasing’ of the reasons of an administrative decision-maker (36). The Court continued (37): ‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error’.
These proposition are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (38). In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin (39):
‘The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be extinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’”
The Court was further referred to the authorities cited by the Tribunal of the case of Repatriation Commission v Keenan (1989) 19 ALD 509 and in particular the passage from the judgment of Pincus J at paragraph 16 as follows:
“16.Mr Keenan's case was such that he could not succeed unless it was shown that he began to smoke cigarettes during the war, but it was equally plain that he would not necessarily succeed even then. The effect of his evidence was that he had never smoked in his life before a visit to a military hospital in 1943, that he then smoked little and later gave up smoking for four or five months, after leaving the Army. He was asked why he recommenced smoking and said, among other things, that he got "pretty bored". Counsel for Mr Keenan suggested in this Court that once it was shown that Mr Keenan started smoking in hospital during the war, the requirement of a causal connection with his circulatory diseases was satisfied. Smoking tobacco, he said, is notoriously addictive; there can be no difficulty about taking judicial knowledge of that, but nor can one fail to notice that most men of Mr Keenan's generation surely smoked at some stage of their lives, that some people take up smoking for a while and stop completely and that others (including, according to his evidence, Mr Keenan) start, stop for a substantial time and then restart. It is plainly not the law that an "eligible service" veteran suffering from the circulatory diseases which smoking causes must obtain a pension for them if he can show that he first smoked during the war.”
It is also useful to note the High Court decision in the matter of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 where the court in considering the issue of relevant and irrelevant considerations states per McHugh, Gummow and Hayne JJ at 347-348 the following:
“... the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.”

The Grounds

Ground 4.1 - The Tribunal was wrong in law in its interpretation of s.124(4) of the Veterans’ Entitlement Act. It was wrong for the Tribunal to consider part of its task the ascertainment as to whether the Applicant's claimed condition was not war caused in terms of s.9 of the Act. S.120(6) placed no such onus on the Applicant or the Tribunal. The Tribunal had to decide to its reasonable satisfaction whether the injury or disease claimed by the Applicant resulted from an occurrence that happened while the Applicant was rendering operational service, arose out of or was attributed to eligible war service or that the disease would not have been contracted but for his having rendered eligible war service or but for changes in the Applicant's environment consequent upon his having rendered eligible war service.

It was submitted on behalf of the applicant that the AAT had appeared to ask itself whether it was satisfied on the balance of probabilities that the applicant's carotid artery disease was not war-caused. Reference was made to paragraph 21 of the AAT's decision where it states:
“21.Section 120(4) requires that the Tribunal be satisfied on the basis of probabilities that the applicant's claimed condition was or was not war-caused in terms of s.9 of the Act.”
It was submitted that this was not the task required by the AAT and it was in fact required to ascertain on the balance of probabilities whether the carotid artery disease arose out of or was attributed to his war service (see s.9(1)(a) of the VE Act).
It was further submitted the AAT did not consider whether there was any attributability to the applicant's war service. Indeed the Tribunal required that there be an identifiable incident causing a level of anxiety that may have led the applicant to smoke. Reference was made to paragraph 22 referred to earlier in this judgment. It was submitted that the connection could be made without such an identifiable incident.
To the extent that reference was made upon an identifiable incident, it was submitted that this had imposed an onus on the applicant that was neither warranted by s.120(b) given the applicant has no onus, and nor could it be considered as a requirement by the provision of s.9 of the VE Act. It was submitted that the Tribunal was "simply wrong in law in making it a requirement".
The respondent submitted that a proper reading of the AAT's decision and application of the decision to which the Court has referred to of the High Court in Liang would lead the Court to conclude that the AAT's decision was correct and that it was further correct in finding in paragraph 21 that the balance of probabilities was the standard of proof by virtue of s.120(4) that it had to apply to its task of deciding whether the applicant's carotid arterial disease was war-caused. The respondent submitted that there is no basis for the assertion that the AAT did not consider whether the applicant's carotid arterial disease arose out of or was attributable to his war service. It was submitted that the AAT considered the whole of the evidence before it and due to conflicts in that evidence was not satisfied on the balance of probabilities that the applicant's carotid arterial disease was war‑caused.
The reason why the AAT was not so satisfied was that it found the applicant's commencement of smoking (smoking being the factor said by the applicant to connect his carotid arterial disease with his service) was not in any way related to his war service. There was evidence it was submitted before the AAT that the applicant abstained from smoking apparently as a result of his father's wishes until his 21st birthday on 15 June 1944.
According to the respondent the AAT had evidence from a psychiatrist, Dr Parkin, who had expressed the opinion that the applicant had a generalised anxiety disorder and further stated:
“There was no evidence to suggest that an anxiety disorder followed as a result of any identifiable illness or injury and that the anxiety disorder did not develop during eligible service.”
Reference was further made to the evidence of the applicant in relation to what had occurred in 1944. It is appropriate to set out some extracts of the evidence referred to by both parties during the course of submissions. The following evidence is relevant:
“Okay. Tell us about your smoking habit a little bit. When - first of all, was your father a smoker?---Yes, my father was a smoker and he was gassed in World War I.
...
Yes?---And I never started smoking until I was 21 years of age.
...
…
So you were 18 when you joined up. Is that right?---Yes. I never started smoking till I was 21.
All right. Now you were 18 when you joined and you hadn't smoked before. Is that what you are saying to the Tribunal?---That is right, yes.
Okay. Never tried a cigarette at all?---No.
And did you - why is that?---Well, I waited until I was a certain age and I started smoking.
…
…
Yes. All right. And when you were – do you remember what year you were 21? ---1944.
And what happened on that year?---Nothing much, it was just -

I started smoking, that was all.
Okay. And where were the cigarettes – where were cigarettes available?---They used to come up by - arrive by plane.
Okay. And did you have to pay for them or were they free?---We paid - yes, paid for them.
Okay. And how many cigarettes did you smoke?---About six was my limit.”
Further evidence was referred to relating to what is described as the service of the applicant between 1941 and 1946 and the following evidence appears:
“Okay. What were the conditions like up there?---They were very hot.
Yes. Okay. And what else, apart from being hot?---Everything was - it was boring and everything up there.
You were training for what?---I was in the heavy out-gang.
Okay. So you were expecting what?---Japanese raids and that sort of stuff.
…
…
What were you expecting?---I was expecting raids and, you know the things that come along.”
Reference was made to the applicant's work identifying aircraft and when he refers to the service at the time he identified a period of service where he was posted to Exmouth Gulf and subjected to a "couple of raids" by Japanese planes. When asked how did he feel when the Japanese planes came over, the applicant in his evidence answered “I was scared. I was frightened.”
There seems little doubt on a proper reading of the material that the date of commencement of smoking coincided with the day the applicant turned 21 years of age.
The evidence referred to earlier in context clearly indicates a correlation between the date upon which the applicant turned 21 and the commencement of smoking.
It was submitted on behalf of the respondent that in the circumstances ground 4.1 cannot be made out and should fail as the AAT had simply applied the correct standard of proof to the evidence before it.
A matter of some concern to the Court was the manner in which the AAT in paragraph 22 had raised the issue of there being "no identifiable incident causing a level of anxiety which may have led him to smoke".
On one view there was at least some material initially referred to in a statement by the applicant who referred to commencing to smoke "due to boredom and peer group pressure" and at least in the evidence a further view that the activities engaged in by the applicant were at times "boring". During the course of the oral submissions it was argued on behalf of the applicant in addition to the matters raised earlier that there was no need for the AAT to look for any identifiable incident and it could be satisfied in relation to other matters including boredom and peer group pressure.

It seems to me, however, that on a proper reading of the totality of the Tribunal's reasons for decision that its conclusions in paragraph 22 to which reference has been made earlier do no more than summarise conclusions reasonably open to it on the evidence which had been adduced. It is clear that on a proper reading of the material that there is at least a reference in the evidence to peer group pressure, but under cross‑examination the applicant indicated that he did not understand what that term meant. Specifically he was asked questions in relation to the concept of peer group pressure and when asked the question, "Have you any idea what that means?" he answered, "Not really."
Some allowance was made for the difficulties the applicant may have with his memory in relation to what might have happened over the past years and in particular analysis was undertaken by the AAT of what are described as ultimately matters of conflict between the applicant's evidence and material placed before the AAT and previous statements made by him to treating doctors over a number of years. It is clear to me on a proper reading of the material before this Court that such a conflict existed, and to the extent that it existed it was a relevant matter for the AAT to take into account.
In dealing with ground 4.1 it is clear that when the AAT refers to an identifiable incident it is doing no more than considering the relevant material which includes an analysis and possibility of an identifiable incident emerging as a result of his diagnosed condition of anxiety. That is not to say that the AAT has relied solely on that finding of fact to reach its decision that in the present circumstances there was an onus upon the applicant, nor did it apply the wrong standard of proof, but rather it simply considered one of a number of factors which may otherwise have led to a different outcome.
To put it another way, had there been an identifiable incident leading to a level of anxiety which may have led the applicant to smoke, then the outcome of this application may have been different. To that extent, it is relevant and indeed appropriate for the AAT to consider that factor but to do so after making findings of fact, which it is entitled to do on the significant issue, namely, whether or not the AAT was satisfied that the claimed condition was war-caused or not.
A crucial finding in this matter, in my view, was the finding by the AAT that the applicant's commencement of smoking was not in any way related to his service. It made that finding properly having regard to the apparent direct conflict with statements made to doctors and the evidence of the applicant. It otherwise made due allowance, to the extent that it was able, for the applicant's difficulty with his memory. Although it should be noted that during the course of the evidence the applicant when asked questions concerning information that he gave to the doctors provided the following evidence:
“So are you saying that throughout the years you've consistently told people, that is, doctors and the Department of Veterans Affairs, that you commenced smoking when you were 21 years of age?---Yes, well, I'm sure of that.
Yes, and that you only ever smoked six cigarettes a day?---Yes, that was my limitation.”
Reference was then made to the applicant's lapse of memory now and again, but otherwise he appeared to assert that he was able to remember those matters to which reference is made. In those circumstances the Tribunal is doing nothing more, in my view, than analysing in a proper manner the evidence before it and reaching conclusions which it was entitled to reach.
Accordingly, ground 4.1 should fail.

Ground 4.2 — The Tribunal was wrong in law in failing to consider all relevant material when it determined that the Applicant's commencement of smoking was not related to his service

In support of this ground it was submitted that the AAT was required to carry out an inquisitorial administrative task (see Bushell v Repatriation Commission). It was submitted it had to weigh up all the material and assess it by reference to s.9 of the VE Act and consider pursuant to s.196B circumstances which may have linked smoking with service. It was submitted that the AAT did not consider the peer pressure of other smokers, the availability of cigarettes in camp life and duties of the applicant in general which may have, without the requirement of an anxious incident, led to the applicant smoking. This ground also relied upon reference to Repatriation Commission v Tuite (1993) 39 FCR 540.
The respondent submitted that in the present case the Court and the AAT can rely upon the reference to Keenan's case and in particular the passage referred to by Pincus J set out above. It was noted that the applicant had said in his written statement that he took up smoking "due to boredom and peer group pressure", although in his oral evidence did not know what peer group pressure meant. Otherwise reference was made to the uncontradicted evidence that the applicant had delayed smoking until his 21st birthday in 1944 being two and a half years after the applicant enlisted.
It was submitted that effectively this ground requires the Court to revisit the facts and to speculate upon matters which were not fully canvassed before the AAT and to do so on an appeal of this kind is inappropriate.
It is clear from a reference to the passages which are relevant in this issue and to which reference has been made earlier in this judgment that the material before the AAT was sufficient to allow it to at least consider the matters raised by the applicant and to make an assessment of those matters upon the required standard of proof. In my view, that is all that has occurred in this instance and there is no discernible error of law which would enable this Court to intervene. It is not a matter for this Court to revisit the facts and make a finding of facts which are based upon material not properly before it and indeed material which was not sufficient to persuade the AAT to decide the matter in a different manner to that decided in its decision. Ground 4.2 therefore fails.

Ground 4.3 — The Tribunal was wrong in law in placing under consideration irrelevant matters; namely the undertaking given to his parents that the Applicant would not commence smoking until he turned 21 years of age

The irrelevant factor taken into consideration is said to be that the applicant made a pledge to his parents that he would not smoke prior to 21. It was submitted both in writing and before the Court that that factor is not inconsistent with the applicant succumbing to peer group pressure. By way of response the respondent submitted that the Court should have regard to the passage to which I have referred from the decision of the High Court in Yusuf and that the AAT in its fact‑finding mission was entitled to draw conclusions based upon the applicant's evidence that he commenced smoking after he attained the age of 21 years as a result of a promise given to his father. The reference to peer group pressure was clearly tested and rejected by the AAT.
In my view, this ground should also fail. It is clear on the material that there were facts upon which the AAT could consider making the finding it did in relation to the reason for the commencement of smoking by the applicant. I do not regard it as an irrelevant factor. Having taken that into account and made a finding of fact about that matter that the AAT's task would not end at that point when there are other factors which may have been raised and considered. In its reasoning the AAT does in fact consider one of the more significant other factors, namely, peer group pressure, and as a result of the evidence before it made a finding of fact reasonably open to it in reaching its ultimate conclusion set out in paragraph 22 of the decision to which I have referred. Accordingly, this ground should fail.

Ground 4.4 — The Tribunal was wrong in law in requiring an identifying stressful incident causing a level of anxiety which might have led the Applicant to commence smoking

It was submitted in relation to this ground that there was no requirement by law or legislation for the applicant to have to identify a stressful incident in order to associate his smoking as having arisen out of or being attributable to his war service. To some extent this matter has been dealt with in consideration of the earlier grounds. The identifiable incident was simply part of the material, in this case psychiatric material, which the AAT properly considered and in making a finding of fact has therefore excluded what may otherwise be an identifiable incident which would assist the applicant. By doing so it has not raised any new tests, but rather has simply drawn a conclusion based upon the facts.
On a proper and fair reading of its reasons the AAT was considering whether or not the applicant commenced smoking because he had turned 21 or whether there are other factors, including perhaps an identifiable incident causing a level of anxiety which may have led him to smoke. Any reference in the material to raids by Japanese planes or other matters did not have any or any sufficient correlation to the onset of smoking, and nor is this a case, unlike those involving operational service, where it could properly be said that there is an argument that the amount of cigarettes consumed had increased as a result of any particular activity at any particular time. Hence, ground 4.4 should fail.

Ground 4.5 — The Tribunal was wrong in law in its interpretation of the Federal Court's decision of Repatriation Commission & Keenan (1989) 19 ALD 509

It was submitted that the Tribunal should have not relied upon the decision in Keenan's case, but rather considered what the Court had said in the Tuite case and should have taken into account circumstances of camp life. In my view, the respondent's submissions that Keenan's case is directly on point and properly applied by the AAT is manifestly correct. The issue in Keenan's case of whether there was a temporal connection between a person's eligible war service and smoking resulting in circulatory disease would be sufficient for the purposes of s.9(1)(b) and 9(2)(b) of the VE Act is clearly relevant and applicable to the present case.
There was simply little or insufficient evidence upon which the tribunal could rely in the present case of a kind similar to the evidence in Tuite's case which would lead to a different outcome. Whilst Tuite's case may be relevant in some applications, it is difficult to see on a proper analysis of the issues that were relevant in the present application or that that decision should be preferred over the decision of the Court in Keenan's case as both decisions may well be considered relevant to all applications. In the present case no error has been identified in the AAT's reasoning when it applied and followed, as it was entitled to do, the Court's reasoning in Keenan's case. Ground 4.5 fails.

Ground 4.6 — The Tribunal was wrong in law in failing to provide adequate and sufficient reasons for its determination contrary to the requirement of s.43B(2) (sic) of the Administrative Appeals Tribunal Act 1975

It was submitted that the requirement of s.43(2B) of the AAT Act has not been complied with. That section provides as follows:–
43(2B)Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.”
Criticism was made of the findings by the AAT and in particular it was submitted that the inconsistencies in the evidence of the applicant and the manner in which the reasons were given did not enable the applicant to ascertain whether the AAT carried out its task properly before coming to the conclusion that the applicant did not qualify to have his condition accepted as war-caused.
It seemed that in support of this ground the applicant sought to explain inconsistencies in the evidence and further sought to argue that those inconsistencies were not referred to in detail by the AAT in its decision, and to that extent, it had failed to discharge the duty required of it pursuant to section 43(2B) of the AAT Act as the applicant was entitled to receive clarification of those matters said to be inconsistent or matters where it was claimed the applicant's evidence was not reliable. It was further argued that the AAT should have explained how Keenan's case was relevant in the present case.
The respondent submitted that essentially this again seeks to raise a challenge of the finding of fact rather than the noncompliance with the requirements of s.43(2B) of the AAT Act. It was submitted that the AAT's reasons clearly identify why it affirmed the Commission's decision that the applicant's condition was not war-caused. It was further submitted that having regard to the whole of the evidence before it the AAT was not satisfied on the balance of probabilities that the carotid arterial disease was war-caused and it was not so satisfied because it found as a matter of fact that the applicant's commencement of smoking was not in any way related to his service. That finding of fact is clear, according to the respondent's submissions.
In my view, the respondent's submissions are correct. In addition to not finding that the applicant's commencement of smoking was related to his service, there was ample evidence before the AAT to make a positive finding based upon the applicant's own evidence that in fact he commenced smoking in 1944 when he turned 21 years of age and that nothing else happened in that year to cause him to commence smoking. Accordingly, on a proper reading of the reasons of the AAT, I am satisfied that it has made a finding of a kind which would satisfactorily discharge the duty is has arising out of s.43(2B) of the AAT Act.

Ground 4.7 — The Tribunal was wrong in law in its application of s.119 of the Act and failed to take into account the beneficial nature of the legislation

In my view, it is unnecessary to consider this ground in detail. The matter has been raised on a number of occasions in the past and I do no more than rely upon and apply the authority of Gray J in Grundman v Repatriation Commission (2001) FCA 892 where his Honour said at paragraph 33 the following:
“33 This leaves the argument based on s 119(1)(g). Counsel for the applicant suggested that the requirement to act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities, in some way required the AAT to take a more benevolent view of the applicant's case than it would otherwise have done. This argument has been put many times. It has been rejected just as many times. Examples are gathered in the judgment of Wilcox J in Kumar v Immigration Review Tribunal (1992) 36 FCR 544 at 554 - 556. To them might be added Repatriation Commission v Flentjar (1997) 47 ALD 67, at 72 - 73 in which Spender J cited Thanh Phat Ma v Billings (1997) 142 ALR 158 at 164, before pointing out that s 119 does not permit the tribunal to disregard the statutory criteria for the grant of a pension at the special rate. It cannot be suggested that s 119(1)(g) is intended to provide an easy route to a favourable decision for a veteran, any more than it could be suggested that the provision was intended to provide such an easy route for the Repatriation Commission. The argument should be put to rest entirely.”

Conclusion

For those reasons it follows that the application should be dismissed with costs.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 21 May 2004