Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 133
ADMINISTRATIVE APPEALS TRIBUNAL
No Q2006/366
VETERANS' APPEALS DIVISION Re BARRY TANZER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal
Mr RG Kenny, Member
Date 20 February 2008
Place Brisbane
Decision
The Tribunal affirms the decision under review
.
...................[Sgd]........................
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – operational service with Royal Australian Air Force in Ubon Thailand –appropriate diagnosis of psychiatric conditions –– recurrent major depressive disorder and alcohol abuse diagnosed – application of Statements of Principles – effects of altercation with Thai police - disciplinary proceedings in Ubon - experiencing a category 1A or 1B stressor – no clinical onset of depressive disorder within five years – no clinical onset of alcohol abuse within two years - reasonable hypothesis of relevant relationship to service not raised – conditions not war-caused – decision affirmed
Veterans’ Entitlements Act 1986 ss 6C, 7, 9, 14 120, 120A
Fogarty v Repatriation Commission (2003) 37 AAR 363; [2003] FCAFC 136
Repatriation Commission v Smith (1987) 15 FLR 327; (1987) 74 ALR 537; (1987) 12 ALD 798; (1987) 7 AAR 17
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Keeley v Repatriation Commission (2000) 60 ALD 401; 98 FCR 108
Bushell v Repatriation Commission (1992) 175 CLR 408; 29 ALD 1
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission and Cornelius [2002] FCA 750
Lees v Repatriation Commission (2002) 125 FCR 331; [2002] FCAFC 398; (2002) 74 ALD 68; (2002) 36 AAR 484
Youngnickel v Repatriation Commission [2004] FCA 1691
Woodward v Repatriation Commission (2003) 75 ALD 420; 131 FCR 473
Repatriation Commission v Stoddart (2003) 38 AAR 176 ; [2003] 134 FCR 392; 77 ALD 67
Hardman v Repatriation Commission [2004] FCA 1174; (2004) 82 ALD 423; (2004) 40 AAR 486REASONS FOR DECISION
February 2008
Mr RG Kenny, Member
Background
1. Barry Tanzer (the applicant) served in the Royal Australian Air Force (RAAF) between 1961 and 1967. On 31 May 2004, he lodged with the Repatriation Commission (the respondent), in accordance with s14 of the Veterans’ Entitlements Act 1986 (the Act), a claim for a disability pension for “depressive disorder” and “alcohol abuse” which he contended were related to his RAAF service. On 24 August 2004, the respondent determined that any such conditions were not related to his service. On 28 February 2006, the Veterans’ Review Board affirmed the decision and Mr Tanzer now seeks further review by the Administrative Appeals Tribunal (the Tribunal).
Service and Standard of Proof
2. Mr Tanzer’s RAAF service included a period from 15 July 1965 until 14 January 1966 in Ubon, Thailand. This constitutes eligible war service in the form of operational service, as provided for in s7 and s6C, respectively, of the Act.
3. The standard of proof for determining diagnostic matters under the Act is provided for in subsection 120(4) thereof…
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CaseChat Overview and Summary
The central legal issue was whether the applicant's recurrent major depressive disorder and alcohol abuse were related to their service and thus qualified as war-caused conditions. The court examined the Statements of Principles regarding psychiatric conditions and whether the applicant's conditions met the criteria for being related to their service. Notably, the court considered whether the applicant experienced a category 1A or 1B stressor and whether there was a reasonable hypothesis of a relevant relationship between the service and the conditions. The applicant argued that the effects of an altercation with Thai police and subsequent disciplinary proceedings constituted a category 1A stressor. However, the court found that there was no clinical onset of depressive disorder within five years or alcohol abuse within two years of the alleged stressor, and the applicant did not raise a reasonable hypothesis of a relevant relationship to their service.
Upon reviewing the evidence, the court determined that the applicant's conditions were not war-caused. The Tribunal affirmed the Commission's decision, finding that the applicant had not provided sufficient evidence to establish that the conditions arose out of or in the course of their service. The reasoning hinged on the statutory requirements and the absence of a reasonable hypothesis linking the service to the psychiatric conditions. Consequently, the applicant's appeal was dismissed.
The court's final orders affirmed the decision of the Repatriation Commission, denying the applicant's claim for a disability pension on the basis of the psychiatric conditions. This decision underscores the stringent criteria required to establish a war-caused psychiatric condition under the relevant legislation.
Orders
Orders of the court
The Tribunal affirms the decision under review
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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