McKerlie v Repatriation Commission

Federal Court of Australia|2010-10-19|Before: Besanko J

Counsel for the Respondent: Ms S Maharaj QC with Mr A Schatz

Solicitor for the Respondent: Australian Government Solicitor

Each party have leave to make submissions as to the proper orders in light of these reasons.

REASONS FOR JUDGMENT 1 This is an appeal from a decision made by the Administrative Appeals Tribunal (Trevor Desmond McKerlie and Repatriation Commission [2009] AATA 718). The appeal from the decision is limited to an appeal on a question of law: s 44 Administrative Appeals Tribunal Act 1975 (Cth). 2 On 6 October 2005, the applicant lodged a claim for a disability pension under the Veterans' Entitlements Act 1986 (Cth) ("VE Act"). He sought acceptance of his claim on the basis that he suffered from a "post-traumatic stress disorder-alcohol dependency", ischaemic heart disease and hypertension, and that these conditions were war-caused. 3 On 3 July 2006, the Repatriation Commission responded to the claim by determining that any post-traumatic stress disorder ("PTSD"), ischaemic heart disease and hypertension were not relevantly related to service. It was conceded by the applicant before the Tribunal that PTSD is the appropriate diagnosis for "post-traumatic stress disorder-alcohol dependency". It was also conceded by the applicant that at least during the assessment period he had not suffered from alcohol dependence. The Tribunal recorded the fact that if it was accepted that the PTSD was war-caused, then through the agency of a previously existing alcohol dependence, the applicant's ischaemic heart disease and hypertension should be accepted. If the PTSD was not found to be war-caused, then the conditions of ischaemic heart disease and hypertension would also fail to be accepted as war-caused. 4 On 27 March 2007, the Veterans' Review Board ("VRB") affirmed the Commission's decision. 5 The applicant claims that, in affirming the decision under review, the Tribunal erred in three respects. Each of these three matters was said to raise a question of law. The applicant accepts that his contention with respect to the first alleged error must fail. He accepts that there is authority of the Full Court of this Court binding on me which means that his submission as to the first alleged error must fail. He seeks to reserve his position should there be a further appeal to the Full Court. The second alleged error relates to an alternative basis upon which the Tribunal said that it would have affirmed the decision under review. The respondent does not seek to uphold the decision on the alternative basis. The third alleged error was the focus of the applicant's submissions. In short, the applicant contends that the Tribunal failed to consider a substantive issue raised by the material and evidence advanced before it that it was bound to consider.

The Tribunal's reasons 6 The applicant served in the Royal Australian Navy from 27 July 1959 to 26 July 1979. The applicant's eligible war service, which was also operational service, was from 4 October 1971 to 14 October 1971 and from 6 December 1971 to 11 December 1971 in South Vietnamese waters. 7 The appeal to the Tribunal proceeded by way of the determination of a discrete issue, namely, whether the HMAS Swan ("Swan") anchored in Vung Tau Harbour on 8 December 1971. The Tribunal said that a finding on that issue proved determinative of the issues before it because the applicant contended that he experienced a severe stressor on that day and the asserted stressor necessarily involved the Swan anchoring. The VRB had decided that the Swan did not anchor on 8 December 1971 and as a result rejected the applicant's claim. 8 The Tribunal (at [6]) summarised the applicant's contention in the following way: The Swan, escorting HMAS Sydney (the Sydney) in Vung Tau Harbour on 8 December 1971, had dropped anchor and that Mr McKerlie had been alerted to bubbles emanating from around the anchor line and had, in company with others in the ship's tender vessel, investigated the bubbles and that while doing so, the tender vessel had been secured by an occupant of that vessel to the anchor chain. Mr McKerlie had been the first diver to enter the water alongside the anchor chain to investigate the source of the bubbles. It was asserted that when Mr McKerlie was approximately three feet under water, he felt a force which he momentarily considered may have been an attack from an enemy diver. He then concluded that the force had come from above and was the force of another of the Swan's divers falling on top of him. Mr McKerlie asserts that this incident satisfies the diagnostic criteria for, and the relevant Statement of Principles definition of, a severe stressor which led to him developing PTSD, a period of alcohol abuse, and through that agency, hypertension and ischaemic heart disease. 9 The respondent accepted that the applicant suffered ischaemic heart disease and hypertension during the assessment period. However, it did not accept that he suffered from a PTSD. In the alternative, it contended that if the applicant did suffer from a PTSD, it was not relevantly related to his war service. 10 The Tribunal summarised the evidence given by various witnesses on the issue of whether the Swan anchored in Vung Tau Harbour on 8 December 1971. Having regard to the grounds of appeal, it is not necessary for me to summarise the evidence. The witnesses who gave evidence and their respective positions or roles in the relevant events were as follows: 1. Mr Trevor McKerlie, who is the applicant and the claimant. 2. Mr Kenneth Hudson, who was on the Swan and was a friend of the applicant. 3. Mr Lionel Amos, who served on the Swan with the applicant, although he left the ship's company in 1970. 4. Mr Geffrey Lowe, who served on the Swan as a petty officer from 1969 until New Year's Day 1972. 5. Mr Barry Brown, who was serving on the Swan as a petty officer on 8 December 1971. 6. Mr Alan Ryan who was technician in charge of the electronic maintenance of missiles and said that he had been on board the Swan in Vung Tau Harbour in both October and December 1971. 7. Commodore (formerly Captain) James, who was in command of the Swan at the relevant time. 8. Captain (formerly Lieutenant Commander) Nobes, who was the Executive Officer of the Swan at the relevant time. 11 The Tribunal accepted that the critical question was whether the Swan anchored in Vung Tau Harbour on its visit on 8 December 1971 because the anchoring was "intricately involved" in the asserted stressor which founds the claim for acceptance of a PTSD. 12 The Tribunal referred to the relevant sections of the VE Act: ss 9(1)(a) and (b), 13(1), 120(1) and (3) and 120A, and it then referred to the decision of the Full Court of this Court in Repatriation Commission v Deledio (1998) 83 FCR 82 ("Deledio"). The Tribunal set out the well-known passage in that case (Deledio at 97-98): 1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved. 13 The Tribunal said that it was not satisfied that the applicant suffered from a PTSD. Its reasoning was as follows: 1. In order to establish a PTSD the diagnostic criteria recorded in DSM IV clearly required the experience of a severe stressor; 2. The only stressor asserted by the applicant was that which occurred on 8 December 1971. "No other stressors were asserted" (at 103). 3. The Tribunal was not satisfied that the applicant experienced a severe stressor on 8 December 1971. In the circumstances, the Tribunal was not reasonably satisfied that the applicant suffered from a PTSD at any time during the assessment period. 4. In the circumstances, the applicant's claim must fail. 14 The Tribunal explained the reasons it accepted the evidence that the Swan did not anchor in Vung Tau Harbour on 8 December 1971 and rejected the evidence to the contrary. The Tribunal summarised its conclusions as follows: 110. As mentioned, an anchoring of the Swan on 8 December 1971 is an integral part of the applicant's account of the asserted severe stressor. Having found that this did not occur, I am not reasonably satisfied that Mr McKerlie suffers from PTSD. His claim must fail. The Tribunal went on to say: 111. If I had found that Mr McKerlie did suffer from PTSD during the assessment period, and noting the concessions made by the Commission, I would have been satisfied that steps one, two and three of Deledio would be established. However, when considering the fourth step as enunciated by Deledio, I would be satisfied, beyond reasonable doubt, that Mr McKerlie did not experience a severe stressor as asserted and consequently his claim would then fail at this point.

Ground 1 15 The first ground of appeal is as follows: The decision of the Tribunal should be set aside as the Tribunal erred in determining an issue, namely whether the HMAS Swan dropped its anchor in Vung Tau Harbour on 8 December 1971, to its reasonable satisfaction in circumstances where the issue was one of the issues comprising whether the disease was a war-caused disease and, therefore, had to be determined in accordance with subs 120(1) of the Veterans' Entitlements Act 1986 (Cth). 16 Subsections 120(1), (3) and (4) of the VE Act are in the following terms: (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Note: This subsection is affected by section 120A. … (3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease; or (c) that the death was war-caused or defence-caused; as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. Note: This subsection is affected by section 120A. (4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction. Note: This subsection is affected by section 120B. 17 For completeness I should also set out subsections 120A(3) and (4): (3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B(2) or (11); or (b) a determination of the Commission under subsection 180A(2); that upholds the hypothesis. Note: See subsection (4) about the application of this subsection. (4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of: (a) the kind of injury suffered by the person; or (b) the kind of disease contracted by the person; or (c) the kind of death met by the person; as the case may be. 18 The applicant's contention is, as I understand it, that the Tribunal should have determined that the Swan dropped its anchor in Vung Tau Harbour on 8 December 1971 unless it was satisfied, beyond reasonable doubt, that that did not occur. 19 The applicant's submission involves the following steps. First, in the circumstances of this case, the issue whether the Swan dropped its anchor in Vung Tau Harbour on 8 December 1971 was, as the Tribunal put it, "intricately involved" in the issue of whether the applicant experienced a severe stressor for the purpose of his claim for PTSD. Secondly, under the relevant Statement of Principles (s 120A(3)) - Statement of Principles concerning Post Traumatic Stress Disorder (Instrument No 3 of 1999) - the minimum that must exist before there is a reasonable hypothesis of a connection between PTSD and the applicant's relevant service is the experiencing of a severe stressor prior to the clinical onset of post traumatic stress disorder (clause 5(a)). Thirdly, the issue of connection or causation must ultimately be determined in accordance with the standard of proof in s 120(1). That issue includes the existence of the severe stressor and, in the circumstances of this case, the issue of fact of whether the Swan anchored in Vung Tau Harbour on 8 December 1971. Fourthly, it cannot be the case that the same issue of fact is to be determined by reference to two different standards of proof and the standard in s 120(1) prevails over the standard in s 120(4) because the latter subsection provides "[E]xcept in making a determination to which subsection (1) or (2) applies …". Therefore, the issue of whether the Swan anchored in Vung Tau Harbour on 8 December 1971 was to be determined in accordance with the standard of proof in s 120(1) of the VE Act. 20 The applicant accepts that in relation to his claim that he suffers from a PTSD it must be established that both the symptoms of the disease and a severe stressor were present. That was the approach taken in the psychiatric reports advanced in support of his case. He accepts that existing authority of the Full Court of this Court is to the effect that the standard of proof to be applied to the determination of those issues is that set out in s 120(4) of the VE Act, namely, to the reasonable satisfaction of the decision-maker. That is the standard the Tribunal applied in this case to the determination of the issue of whether there had been a severe stressor. The Full Court authority is Repatriation Commission v Cooke (1998) 90 FCR 307 at 312; Repatriation Commission v Budworth (2001) 116 FCR 200 at 207-208 [17] and [20]; Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622 ("Benjamin"). In Benjamin, the Full Court said (634-635 [54]-[55]): [54] Section 120(1) of the Act assumes the existence of a relevant injury or disease and provides a standard of proof for the determination of whether that injury or disease was war-caused. When the commission, or the tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120(4) of the Act: see Repatriation Commission v Budworth (2001) 116 FCR 200 at 204, [15] ; 66 ALD 285 at 289. [55] The first question for the tribunal will be how to characterise the psychiatric problems exhibited by the veteran. If the tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s 120(1). The standard of proof laid down by s 120(1) has no application to the former question. 21 The applicant accepts that I am bound by these authorities, but wishes to reserve his position should there be an appeal to the Full Court. 22 The first ground of appeal must be rejected.

Ground 2 23 The second ground of appeal is as follows: In the alternative, the decision of the Tribunal should be set aside as, in addition to and together with the error of law set out in paragraph 4.1 above, [Ground 1] the Tribunal also erred in failing to give an adequate explanation of why it would have been satisfied, beyond reasonable doubt, that the applicant did not experience a severe stressor, in compliance with subs 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth). This ground of appeal relates to the alternative basis of the Tribunal's decision set out in paragraph 111 of the Tribunal's reasons (see [14] above). It is put forward defensively by the applicant in the sense that it only arises if the respondent relies on the alternative basis to uphold the decision. 24 On the face of it there is considerable force in this ground of appeal. If the Tribunal is saying that it would have rejected the applicant's claim at the stage of the fourth step in the inquiry laid down by Deledio because it would have been satisfied beyond reasonable doubt that the Swan had not anchored in Vung Tau Harbour on 8 December 1971, that would seem to be inconsistent with the assumed premise of the reasoning. If that is not the basis for the conclusion, then there is a real question whether the Tribunal has given adequate reasons for its conclusion. 25 I need not examine these questions any further for two reasons. First, the respondent does not rely on the alternative basis articulated in paragraph 111 of the Tribunal's reasons to uphold the decision. Secondly, if there is substance in the third ground of appeal then the alternative basis does not provide an answer to that ground. If there is no substance in the third ground of appeal, the appeal must be dismissed in any event.

Ground 3 26 The third ground of appeal is as follows: In the further alternative, the decision of the Tribunal should be set aside as the Tribunal having found that the applicant was not suffering from post-traumatic stress disorder, erred in failing to consider and decide:

(a) whether he was suffering from a collection of symptoms amounting to a disease; and (b) if so, whether the material pointed to a hypothesis connecting that collection of symptoms with the circumstances of his particular service. 27 I make the point at this stage in relation to paragraphs (a) and (b) of this ground of appeal that in any particular case there might be one or other of the following: no more than an allegation of symptoms; a finding that an applicant suffers from the symptoms; or a finding that an applicant suffers from the symptoms and that they constitute a disease. In this case, there was no more than an allegation of symptoms, that is, symptoms for which there was material or evidence in support, but no express finding by the Tribunal that the applicant suffered from those symptoms. 28 It is convenient to summarise the rival contentions of the parties with respect to the third ground of appeal. 29 The applicant's contentions were as follows. First, the Tribunal found that the applicant suffered from a number of symptoms which may constitute a disease. In the alternative, it did not reject his case that he suffered from such symptoms. Two medical reports of Dr M Ewer were put before the Tribunal. Dr Ewer is a psychiatrist and his reports are dated 24 May 2001 and 1 March 2002 respectively. Dr Ewer's diagnosis of the applicant's condition was that he was suffering from a post-traumatic stress disorder. In his reports, Dr Ewer identified, and appears to have accepted, a number of symptoms described by the applicant as symptoms from which he suffered. In submissions, the applicant's counsel identified the following:

Anxiety, irritability, poor memory, poor concentration, avoidance of other people, intrusive recollections and conflict with his wife;
Persistent psychiatric symptoms causing him considerable distress … intrusive recollections, hypervigilance and nightmares;
Difficulty coping with the pressures and challenges of everyday life; a lack of interest and motivation to participate in a range of household duties. 30 The applicant's claim for a pension also identifies a number of symptoms of a similar nature. 31 Secondly, (and assuming the first ground of appeal is rejected), although the Tribunal did not err as a matter of law in deciding that the Swan did not anchor in Vung Tau Harbour on 8 December 1971 and therefore the applicant did not suffer a severe stressor and therefore he did not suffer from PTSD, it was nevertheless incumbent on the Tribunal to consider whether the symptoms from which the applicant suffered constituted a disease and, if so, whether the disease was war-caused. It was incumbent on the Tribunal to do that because the Tribunal was obliged to consider and deal with a case raised, or at least fairly raised, on the material before it. The applicant's counsel referred to Benjamin in support of its argument that the Tribunal must consider and determine "the substantive issues raised by the material and evidence advanced before it" (at 633 [47]). The applicant's counsel also referred to cases which have held that the Tribunal is not bound by concessions made by the parties before it. In fact, it must perform its function of reaching the correct and preferable decision. 32 Thirdly, the Tribunal, in discharging its obligation, could itself have made a decision as to the appropriate diagnosis (other than PTSD) or it could have invited the parties to call medical evidence on the issue. For example, the Tribunal could have suggested that Dr Ewer be called to give evidence. Having decided on a diagnosis, the Tribunal should then have determined the question of connection or causation by reference to the requirements of s 120 and s 120A of the VE Act. 33 Fourthly, the Tribunal's failure to perform its obligation was an error of law and the appeal should be allowed, and the matter remitted to the Tribunal. 34 The respondent did not concede that the Tribunal found that the applicant suffered from the symptoms referred to in the material or evidence before it. It did not dispute that there was an obligation on the Tribunal not to limit its determination to the "case" articulated by the applicant and that a failure to perform its obligation to determine the substantive issues raised by the evidence and material advanced before it constituted an error of law. The respondent's counsel referred me to a number of cases where the nature and extent of the obligation has been described. The respondent's principal submission was that having regard to the material and evidence before the Tribunal, it was not obliged to consider the case now articulated by the applicant. In considering that submission the respondent asked me to bear in mind that it was open to the applicant to make another application to the respondent. 35 Before considering these contentions, it is convenient for me to identify the way in which the matter proceeded before the Tribunal. 36 The applicant's claim form referred to a diagnosis by a medical practitioner of the following conditions: post-traumatic stress disorder, over-use of alcohol, coronary artery disease and hypertension. As I have said, Dr Ewer, in his two reports, diagnosed the applicant as suffering from PTSD. In his report dated 24 May 2001, Dr Ewer referred to other diving incidents in Vung Tau Harbour in addition to the alleged incident on 8 December 1971, but by the time of his report dated 1 March 2002, Dr Ewer based his diagnosis of PTSD on the premise that the alleged diving incident on 8 December 1971 was the severe stressor. 37 At the hearing before the Tribunal and after the applicant's counsel had opened and before any evidence was called, the Department's advocate said: What I've said so far is, effectively, that if the Swan did anchor in December in Vung Tau Harbour then the stressor will be conceded. That, from my point of view, satisfies the diagnostic protocols for PTSD and the causation of PTSD and PTSD then should be accepted, and if PTSD is accepted then the respondent will not oppose the acceptance of the other conditions. First of all, alcohol dependence as a result of PTSD and then ischaemic heart disease and hypertension - well, in fact, hypertension, I think, is a result of alcohol dependence and then ischaemic heart disease as a result of that.

I will argue not only that the causal requirements aren't met for PTSD but the diagnostic requirements are not met. That may raise the question --- 38 After making those statements, the Department's advocate said that the applicant might wish to take up the question of whether there was another condition. The following exchange between the Department's advocate and the Tribunal then took place: MR CROWE: --- that the applicant may wish to take up that there is another condition. The issue there, of course, is that if PTSD is to be argued on the diagnostic question it's a balance of probabilities question. If it's to be argued on the causal question it's a beyond reasonable doubt test. It may be that the applicant would wish to contend that another condition existed and which may not require a particular event to have caused it and we would then be left with a beyond reasonable doubt test. MR SHORT: Well, we haven't got such a submission at the moment, have we, that there's another condition? MR CROWE: No, the applicant has made - the respondent, sorry - has made no secret of its statement that PTSD doesn't exist. 39 During closing submissions the following exchange took place between the Department's advocate and the Tribunal: MR CROWE: Thank you. Carrying on from that - and this does represent part of my submission - I think it is agreed between the parties and certainly the respondent accepts on its part that the anchoring is the single critical question. If the Swan anchored in Vung Tau Harbour on its visit there in December 1971 the respondent would not contest the remainder of the claim with the presumed result that the tribunal would set aside the decision and substitute it with a decision in favour of Mr McKerlie. MR SHORT: And that is a decision I will be making at step 4, yes. MR CROWE: Yes. If the Swan did not anchor then I submit - and I understand my friend to have conceded - that this case cannot succeed. MR SHORT: Well, I think that seems pretty obvious. 40 The Tribunal's characteristics as a tribunal performing administrative functions and being under an obligation to reach the correct or preferable decision on the material before it are of course well established and were clearly stated by the Full Court of this Court in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. It follows from these characteristics that despite sometimes giving the appearance of being adversarial, in substance, a review by the Tribunal is inquisitorial. This in turn means that the Tribunal must not confine itself to a case expressly articulated by the applicant. It must consider all substantive issues arising on the material and advanced before it. 41 In Benjamin, the Full Court described the obligation on the Tribunal in the following terms (at 633 at [47]): Proceedings before the tribunal sometimes give the appearance of being adversarial but, in substance, a review by the tribunal is inquisitorial. Each of the commission, the board and the tribunal is an administrative decision-maker. Each is under a duty to arrive at the correct or preferable decision in the case before it, according to the material before it. An inquisitorial review conducted by the tribunal is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it. In doing so, it is obliged not to limit its determination to the "case" articulated by an applicant if the evidence and material that it accepts, or does not reject, raises a case on a basis not articulated by the applicant: Grant v Repatriation Commission (1999) 57 ALD 1 at 6, [17]-[18], and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287; 58 ALD 30. 42 In the context of applications for review by the Refugee Review Tribunal under the Migration Act 1958 (Cth), the Full Court of this Court said in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (at 18-19 [58]): The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the "case" articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised "squarely" on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb "squarely" does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal. 43 The inquisitorial nature of the Tribunal's functions means that concessions by the parties before the Tribunal do not have the same effect that they might have before a Court. The law as to the effect of concessions is somewhat detailed and as there is no suggestion of an express concession in this case I do no more than refer to Repatriation Commission v Warren (2008) 167 FCR 511 at 529 [78] per Lindgren and Bennett JJ (see also Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334; Peacock v Repatriation Commission (2007) 161 FCR 256). 44 In this case, the applicant was represented before the Tribunal by a legal practitioner and no doubt for reasons of expedition and convenience the parties focused on the issue which they considered would be decisive of the case. Furthermore, Dr Ewer's diagnosis and acceptance of the symptoms was firmly based on the presence of a severe stressor. If the matter was to be judged solely by reference to the general statements of the Tribunal's obligation I might have had some doubts as to whether it had failed to perform its obligation. However, I think the issue in this case is in effect determined by the Full Court's decision in Benjamin. The Full Court held that the Tribunal had failed to consider a substantial issue raised by the material and evidence advanced before it and the only difference between Benjamin and this case is that in Benjamin the Tribunal had decided that the applicant suffered from some psychiatric symptoms. In this case, the Tribunal did not expressly reject the applicant's symptoms; it did not reach a conclusion one way or the other. However, I do not think that this difference is a material one when the question is whether a substantive issue was raised on the material or evidence before the Tribunal. 45 In my opinion, in addition to determining the case expressly articulated by the applicant, the Tribunal was bound to consider and determine if the applicant suffered from the symptoms of which he complained and whether those symptoms constituted a disease within the VE Act. If they did, the Tribunal was bound to undertake the process identified in Deledio. The Tribunal's failure to do these things, although it may be explained by the approach adopted by the parties, was an error of law.

Conclusion 46 The Tribunal has committed an error of law and the appeal must be allowed. I will hear the parties as to the precise terms of the appropriate order.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

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