conclusion
73 In our opinion, none of the grounds contained in the notice of appeal has been made out.
74 Grounds three and eleven may be considered together. Contrary to Mr De Marchi's contentions, the AAT did not fail to apply, or to apply correctly, the relevant provisions of the VE Act. Nor did the primary judge fail to acknowledge "the beneficial nature" of the legislation, or the fact that the appellant did not bear any onus of proof.
75 It is true that s 119(1)(g) requires the Commission to act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities. This provision is similar in many respects to s 420 of the Migration Act 1958 (Cth). For a time, it was thought that that section gave rise to substantive rights, beyond those conferred by other provisions of that Act, or the requirements of procedural fairness. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, the High Court rejected that interpretation, holding that s 420 did not prescribe a procedure to be observed by the Refugee Review Tribunal in the making of a decision so as to found a right of review not otherwise available. The fact that the AAT rejected the appellant's evidence, on grounds that were overwhelmingly justified, can hardly mean that it failed to act according to substantial justice and the substantial merits of the case.
76 Grounds four, eight and twelve are equally without merit. Mr De Marchi submitted that once it became apparent that the AAT had failed to follow the Deledio steps, the primary judge had no choice other than to set aside its decision.
77 There is no basis for this contention. Section 44(1) of the AAT Act provides:
"A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding."
78 Under s 44(4), the Court:
"… shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision."
79 Section 44(5), without limiting s 44(4), empowers the Court to make an order:
"…that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court."
80 In general, it is a salutary practice for the AAT to follow the Deledio steps because by doing so it is less likely to overlook an hypothesis that is fairly raised by the material and must therefore be considered. On occasion, a failure to follow those steps may give rise to an error of law. Indeed, the primary judge held that the AAT's failure to follow those steps had been an error of law in the present case. However, in our view, a failure to follow the Deledio steps will not of itself give rise to an error of law, and certainly will not do so in all cases. Of course, and in any event, even if an error of law is demonstrated it does not necessarily follow that the decision must be set aside.
81 If an error of law can be seen to have affected the decision reached, or arguably even possibly have done so, ordinarily the decision will be set aside: BTR plc v Westinghouse Brake & Signal Co (Aust) Ltd (1992) 34 FCR 246 ("BTR plc") at 254. As a general proposition, it will be of no consequence that the decision is capable of being supported on a different basis. Nor will it be of any consequence that the decision can be justified on the available evidence.
82 Another way of approaching the matter is to say that a decision will be set aside once error of law has been demonstrated unless it is manifestly clear that the error in no way contributed to the decision: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 384 per Toohey and Gaudron JJ.
83 It is well established that, in the context of appeals from the AAT, the Court may decline to set aside a decision even where an error of law has been demonstrated provided that it considers that the AAT arrived at a decision that was clearly correct on the material before it: McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 618; Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560; and Harris v Repatriation Commission (2000) 62 ALD 161 at 163.
84 It goes without saying that it is only a "decision" that can be appealed. The task of the Court on an appeal under s 44(1) was said, in BTR plc, to be essentially to undertake judicial review of the AAT's decision.
85 The AAT's finding that it was "satisfied beyond reasonable doubt" that the appellant had not seen the Sea Venom incident makes it clear that, in that context, the AAT was addressing s 120(1) of the VE Act, which equates with the fourth stage of Deledio. There is ample authority, as cited by the primary judge, for the proposition that the AAT is not obliged to proceed step by step, in a mechanical manner. In addition, as his Honour noted, in Repatriation Commission v Crane, a Full Court made the point that the Deledio steps were not meant to operate in substitution for the requirements of the VE Act.
86 Subject to one qualification to which we shall return, Miss Ford submitted, correctly, that given the AAT's finding that the appellant had not seen the Sea Venom incident, any failure on its part to follow the four stage procedure laid down in Deledio was immaterial. Even if the AAT had specifically applied the third step, and found that the hypothesis relied upon by the appellant did satisfy the relevant SoP, its finding in respect of the fourth stage would have resulted in the same outcome, namely the AAT affirming the respondent's decision.
87 The short answer to grounds five and six is that the only hypothesis advanced on behalf of the appellant was that correctly identified by the primary judge. It involved, as its central feature, his having witnessed a crewmember struggling vainly to escape from the cockpit of the Sea Venom seconds before that crewmember drowned. At no stage did the appellant ever claim that the event that triggered his PTSD and alcohol abuse was seeing debris from the aircraft as it floated past the ship. Accordingly, there was no "broader hypothesis" raised.
88 The next error of law for which Mr De Marchi contended, as set out in grounds seven and nine, was that both the AAT and the primary judge failed to appreciate that the SoP regarding PTSD introduced in 1999, which was in force at the time of the second AAT hearing, was more favourable to the appellant than the 1994 SoP for PTSD that was actually applied. Accordingly, so it was submitted, the primary judge erred in determining that the failure to apply the correct SoP could not have made any difference to the outcome. The short answer to this submission is that the appellant's claim failed because he could not satisfy the first limb of the definition that was common to both SoPs. Therefore, any error by the AAT in applying the wrong SoP was immaterial.
89 In addition, the AAT's error in focussing upon the wrong SoP did not bring about any injustice to the appellant in the present case. That was because its reference to the requirement (in the 1994 SoP for PTSD) that the person's response to the event involved intense fear, helplessness or horror was at most an additional reason for rejecting the appellant's case. The primary reason, to which the appellant can provide no answer, was its conclusion that he did not experience a stressor or stressful event.
90 Ground ten must be rejected irrespective of whether, as Mr De Marchi contended, the issue of "clinical worsening" was technically still a live issue as part of the appeal to the primary judge. Miss Ford submitted that this issue had effectively been abandoned, but it is not necessary to resolve that question. It is fair to say that Mr De Marchi barely touched upon the point in either his written or oral submissions. In any event, the finding that there had been no stressor or stressful event puts an end to the "clinical worsening" argument, as well as the causation argument.
91 Finally, ground thirteen, as we understand it, complains about the primary judge's finding at [53] of his reasons for judgment that it was open to the AAT, upon the whole of the material, to have been persuaded beyond reasonable doubt that the appellant did not see the Sea Venom incident. His Honour rejected counsel's submission that this finding was "perverse". He remarked that it was for the AAT to give any particular evidence before it such weight as it thought fit. Mr De Marchi submitted that this reflected an erroneous approach to the ground of appeal, since the argument that a finding was perverse raised a question of law, and was not to be dismissed by characterising the finding as one of fact.
92 It must not be forgotten that s 44 of the AAT Act does not confer a general right of appeal from a decision of the AAT to this Court. The appeal must raise a question of law. An appellant who attacks a decision of the AAT upon the basis that there was an absence of evidence to support its decision must, in order to succeed, show that there was no material before the AAT upon which its conclusion could properly be based. To assert that the AAT attached undue weight to a particular matter, or gave some other matter excessive weight, does not, of itself, give rise to an error of law: Tabag v Minister for Immigration and Ethnic Affairs (1982) 45 ALR 705; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Federal Commissioner of Taxation v Swift (1989) 18 ALD 679.
93 A court should not disturb a finding of fact by a tribunal based upon its assessment of the credit or credibility of a witness unless it is satisfied that the tribunal did not take advantage of its opportunity to see and hear the witness, or that the conclusions that it reached were inconsistent with an overwhelming body of evidence, or were glaringly improbable: Nguyen Do Vinh v Minister for Immigration and Ethnic Affairs (1997) 46 ALD 528 at 532. In any event, given that "appeals" from AAT decisions are confined to errors of law, there will rarely be any scope for this Court to embark upon a consideration of issues of this kind.
94 Mr De Marchi's argument in support of ground thirteen fails at a threshold level. Not only was the AAT's finding that the appellant had not seen the Sea Venom incident open on the material before it, no other finding could sensibly have been made.
95 Had the matter rested there, the appeal would simply have been dismissed. However, as we have previously indicated, Mr De Marchi sought to rely upon the new point during the course of his oral submissions. He submitted that, had the AAT moved sequentially through the four steps set out in Deledio, instead of leaping directly to the fourth step, it would have realised that there was an alternative hypothesis raised by the material before it that it was obliged to consider. Had it considered that alternative hypothesis, it might have arrived at a different decision regarding the appellant's claim.
96 The Full Court in Deledio no doubt chose its language carefully when it formulated the four-stage process that the AAT should normally follow. An obligation, expressed in the terms of the first stage, implies a duty to consider not merely the particular hypothesis put forward, but also any other hypothesis fairly raised by the evidence.
97 However, the AAT is not required to trawl through voluminous documentation, with a view to seeing whether somewhere within that body of material there might be the semblance of an hypothesis connecting the applicant's condition with the circumstances of his or her service. There is a substantial difference between an hypothesis fairly raised by the material, and one which can only be postulated on the basis of speculation and conjecture.
98 That difference is reflected in the use of the terms "points to" and "raise" in the first and second Deledio steps. An hypothesis is neither pointed to, nor raised, unless it emerges both obviously and directly from the evidence in question. If it is necessary to couple a fertile imagination with a selective rendition of the evidence in order to create the hypothesis, it is not an hypothesis of the kind which the Full Court in Deledio had in mind.
99 The present case provides a good illustration of this point. The appellant's claim was based entirely upon his account of having been present at, and witnessed, what would have been an horrific scene, namely a person struggling frantically to escape from the cockpit of an aircraft sinking in the ocean. Once that account was rejected, and the AAT found that he had not seen the Sea Venom incident at all, can it be contended that it was nonetheless bound to consider the possibility that he had seen something completely different and thereby experienced a stressor of a different kind?
100 In our view, the material before the AAT did not "point to" any hypothesis of the kind for which Mr De Marchi now contends. If one strains, one can conjure up a range of possibilities that might provide a connection between what occurred on the day of the Sea Venom incident, and the appellant's present conditions. He might, for example, have been told, in graphic detail, of what someone else had seen, or thought they had seen, of that incident. However, there is nothing in the evidence to support that suggestion. In our view, the AAT was under no obligation to consider it.
101 The same may be said of Mr De Marchi's somewhat belated attempt, in oral argument, to argue for an entirely different hypothesis. Of course it is conceivable that the appellant may have seen something quite different from what he claimed at the hearing before the AAT to have seen. He might, for example, have seen something quite traumatic had he raced out onto the deck of the ship after hearing the noise of the aircraft seeking to take off again after its aborted landing. Given his evidence about where he was stationed when he first heard that noise, that would be an unlikely, though not impossible, scenario. He would have had only a few seconds at most to move from one part of the ship to another, a considerable distance. It is also theoretically possible that when he reached the side of the ship, assuming that he did so, he saw something in the water, perhaps a small amount of debris, that triggered in him a strong emotional response. However, his case bore no resemblance to either of those scenarios. Perhaps more to the point, there was not a scintilla of evidence to suggest that he had witnessed these events in anything like the manner postulated above.
102 The AAT was under no duty to make further enquiries, or to obtain further material in relation to the appellant's claim. It would be unduly onerous, and unfair, to impose such a task upon it. There is nothing in the VE Act, or in any of the authorities to which our attention was drawn, which supports the existence of any such duty: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Abebe v Commonwealth (1999) 197 CLR 510 at 576 per Gummow and Hayne JJ; and Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 1277 at [29] per French J.
103 It is one thing to say that a tribunal must consider any inferences that are reasonably open on the material before it. It is altogether another to say that a tribunal must consider every conceivable permutation of the facts, and engage in speculation and conjecture as to possible hypotheses. The former is a course that Deledio not only permits but requires. The latter has no place under the VE Act.
104 The question that must be considered at this stage is whether the AAT was required to consider an hypothesis that was said to be available on the material before it even though it had not been expressly raised, and actually required findings which ran counter to the applicant's case.
105 There is a recent authority directly in point. In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 ("NABE"), a Full Court (Black CJ, French and Selway JJ) gave careful consideration to the circumstances in which a failure to deal with a claim could amount to jurisdictional error. Citing Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, their Honours observed that a failure to make a finding on "…a substantial, clearly articulated argument relying upon established facts" could amount to a constructive failure to exercise jurisdiction. The Full Court went on to say at [59]-[60]:
"There is some authority which might be taken to suggest that the Tribunal is never required to consider a claim not expressly raised before it. In SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 301, membership of a 'particular social group' was put to the Tribunal as a Convention ground for apprehended persecution. The Tribunal was held 'not obliged to consider whether some other social group might be constructed ...' at [19]. That decision however turned upon particular circumstances. Its correctness is not in contention here. It does not establish a general rule that the Tribunal, in undertaking a review, can disregard a claim which arises clearly from the materials before it.
In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at 368 [17], Selway J referred to the observation by Kirby J in Dranichnikov, at 405, that '[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances'. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 that '[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made' (at [16]). Selway J however went on to observe in SGBB (at [17]):
'But this does not mean the application is to be treated as an exercise in 19th Century pleading.'
His Honour noted that the Full Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 1801 at [49] had said:
'The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention "label" to describe his or her plight, but the Tribunal can only deal with the claims actually made.'
His Honour, in our view, correctly stated the position when he said (at [18]):
'The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.'
This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it." (emphasis added)
See also NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695.
106 Of course, NABE and the other cases cited by the Full Court may have to be qualified when considering their application to the AAT and, in particular, the VE Act. The AAT, when dealing with a claim under that Act, is required to consider whether a particular hypothesis exists, before finding facts, and then find facts in circumstances where the onus rests upon the respondent to negate their existence beyond reasonable doubt. No onus of proof, as such, exists in migration cases, or many other forms of administrative decision-making. The VE Act is different in that regard.
107 Nonetheless, an unarticulated claim that does not "clearly arise" from the material before the AAT does not, in our view, fall within the Deledio steps.
108 Further support for this conclusion can be derived from the analysis generally applied to "defences" in criminal cases. The criminal jurisprudence is relevant because of its application of the concept of "reasonable doubt" which has been incorporated in s 120 of the VE Act. Ever since Woolmington v Director of Public Prosecutions [1935] AC 462, matters which exempt or exonerate an accused from criminal responsibility, apart from the defence of insanity and certain statutory defences, must be "fairly raised", on the evidence, before a jury can be required to consider them.
109 In Jayasena v The Queen [1970] AC 618, Lord Devlin, delivering the advice of the Privy Council, observed at 623:
"This does not mean, as the House made clear in subsequent cases, that a jury must always be told that before it can convict, it must consider and reject provocation and self-defence and all other matters that might be raised as an answer to a charge of murder. Some evidence in support of such an answer must be adduced before the jury is directed to consider it; but the only burden laid upon the accused in this respect is to collect from the evidence enough material to make it possible for a reasonable jury to acquit."
110 In other words, an accused must adduce (whether through leading evidence or cross-examining prosecution witnesses) or be able to point to "that small modicum of evidence that might be taken by a reasonable jury to raise a reasonable doubt as to his guilt". See generally Glanville Williams, "Evidential Burdens on the Defence" (1977) 127 New LJ 182 at 192. The evidential burden of such common law "defences" is on the defendant, but once this burden has been discharged, the legal burden lies on the prosecution.
111 Some commentators have gone further, and distinguished between those cases in which an accused has an evidential burden, and those cases where the burden is merely "tactical". See, for example, J D Heydon, Cross on Evidence, 6th Australian ed., 2000 at [7210]. That refinement is of no relevance to the present case. On no view is a jury obliged to consider any purely speculative hypothesis that is not advanced on behalf of the accused, and for which there is not a scintilla of evidence.
112 That is not to say that a trial judge is relieved of the duty to put to the jury for its consideration any defence that is fairly raised by the evidence even where the accused makes it plain that no reliance is placed upon that defence. In Pemble v The Queen (1971) 124 CLR 107, it was made clear that the course taken by the defence in the conduct of its case does not relieve a judge from the duty to put to the jury any matters upon which they might find for the accused. Thus, an accused who relies upon an alibi in answer to a charge of murder is still entitled to have self-defence and provocation left to the jury if the evidence fairly raises those defences. This ensures that a defence that may be entirely inconsistent with the accused's version of events, but is sufficiently raised by the evidence, will nonetheless be left to the jury.
113 Once again, the analogy is somewhat imprecise. However, the principle underlying the allocation of evidential burdens in relation to defences in criminal cases is similar, in certain respects, to the principle that lies behind the first of the Deledio steps. It is not the task of the AAT to search for hypotheses that might establish the relevant connection. If the material points to such an hypothesis, it must be considered. If it is not advanced, and exists only as a speculative possibility, it can be ignored. The AAT's failure to consider as a possibility that the appellant may have experienced a stressor by witnessing something quite different to what he claimed to have seen cannot, in our view, give rise to appealable error on its part.
114 The material before the AAT strongly suggests, as it found, that what the appellant claimed to have seen, on the day of the Sea Venom incident, was an example of what is sometimes described as the "displacement effect". In substance, the appellant appears to have conflated the Sea Venom incident with the earlier Gannet incident. The psychiatric evidence supports that conclusion. In these circumstances, it would be grossly unfair to criticise the AAT for not having considered, as a possible hypothesis, the claim now made for the first time by Mr De Marchi.
115 The steps set out in Deledio are those logically demanded by the provisions of the Act. Of course it may be that there is an immediate answer to the fourth step that would render the other steps irrelevant. An hypothesis can be summarily rejected if, for example, there is evidence that establishes incontrovertibly that the applicant could not have experienced a stressor of a relevant kind because that applicant was in another country at the time. As we have already indicated, however, it is normally a salutary practice for the AAT to follow the Deledio steps. By doing so, it is less likely to overlook an hypothesis that is fairly raised by the material and must therefore be considered.
116 There is one final factor to be considered. The Court may refuse to permit an argument not raised before the AAT to be advanced for the first time on appeal. Of course, if the point goes to jurisdiction, the Court must deal with it irrespective of whether it was raised below. Likewise, if the argument involves an important question of law, the resolution of which could not have been affected by any evidence that might have been led had it previously been raised, the Court will often permit the point to be taken. Much may depend upon whether adequate notice of the new point has been given to the other party before the hearing of the appeal: Tefonu Pty Ltd v Insurance and Superannuation Commissioner (1993) 44 FCR 361 at 366-7; and Maretech CMDL Pty Ltd v Commissioner of Taxation (1996) 43 ALD 775.
117 In the present case, Mr De Marchi gave no notice whatever of the new point to the respondent prior to the hearing of this appeal. Indeed, it emerged only in the course of his oral submissions. That is hardly satisfactory. Had the hypothesis now urged by him been raised below, the respondent may well have chosen to lead further evidence in order to rebut it. Clearly, it would be unfair in those circumstances to allow the new argument to be advanced.
118 However, as we have previously indicated, the more fundamental difficulty with the new point is that it lacks any evidential foundation. Moreover, as was noted by Gummow J in Federal Commissioner of Taxation v Raptis (1989) 19 ALD 726, there must be some difficulty in finding an "error of law" in the failure of the tribunal to make a finding first urged in this Court.
119 The appeal must be dismissed. The appellant must pay the respondent's costs.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, French and Weinberg.