Rana v Military Rehabilitation and Compensation Commission

BACKGROUND 4 To understand both the burden of the Tribunal's decision and the difficulties that confronted it, it is necessary to provide a rather lengthy narrative both of the factual surrounding to Mr Rana's three applications and of the procedural history of those applications, but particularly of that which has given rise to this appeal.

THE FACTUAL SURROUNDING 5 The following is drawn from the Tribunal's reasons which in turn draw heavily upon both a 1988 decision of the Tribunal which related to Mr Rana's 1984 application and to a document he provided to the present Tribunal entitled "Life and Times of Ranjit Rana". I am unable to be satisfied as to the accuracy of much of what is contained in the following. The 1988 Tribunal doubted the accuracy of many of its findings but gave Mr Rana the benefit of the doubt in relation to them. 6 As a matter of convenience, I will divide Mr Rana's personal history into three sections. These are (a) pre-Army, (b) Army and (c) post-Army.

(a) Pre-Army 7 Mr Rana was born in Nepal on 24 April 1955 and has connections with the Nepalese Royal Family. He had a troubled childhood. When he was ten, he was molested over 12 months by a priest while studying at a Jesuit boarding school in Nepal. He left the school soon afterwards and completed his schooling at a government school. He also claims he was neglected and physically abused by his father, a Ghurkha in the Nepalese Army who rose to the rank of Brigadier-General and Director of Nepal's Military Intelligence. He completed two years of a Bachelor of Science degree at the Nepalese National University before working for the American Drug Enforcement Agency in Nepal. He met his Australian wife, a school teacher, whilst she was holidaying in India in December 1976. After marrying in Nepal in January 1978, he migrated to Australia in April. Following the marriage, Mr Rana's father "disinherited him". 8 Between 1978 and the end of 1979 he worked as a tomato farmer, waiter, barman and yoga teacher. He trained for some time as a commercial airline pilot but stopped this when his wife fell pregnant and could no longer pay for the lessons thus increasing the pressure on him to maintain his family, and because of disagreements with his instructor.

(b) Army 9 Mr Rana joined the Australian Army on 14 October 1980. He completed basic training at Kapooka in New South Wales and trained as a storeman at Bandiana in Victoria before transferring to Woodside in the Adelaide Hills in March 1981 where he worked as a storeman until being discharged on 13 July 1982. 10 While in the Army he claimed he was subjected to extensive verbal, racial and physical abuse. He has since alleged he was also seriously sexually abused. At Kapooka, he alleged he was called derogatory names and given demeaning tasks and was physically abused after he complained. He also claims he was subject to a "bastardisation ritual" where he was sexually abused. He says this "event made [him] angry and brought back [his] childhood memories". He started suffering stress symptoms in December 1980 such as headaches and nightmares and often saw the doctor with stomach complaints. The racial and physical harassment continued on a daily basis at Bandania. While working as a storeman, Mr Rana alleges he was harassed and physically abused. The 1988 Tribunal accepted that the applicant "was called racist and Christian names and was punched, hit and knocked on various occasions by fellow soldiers and that this was probably associated with his race, colour or creed". 11 Mr Rana now complains additionally of four specific occasions on which he was assaulted. The details of these assaults did not come to light until 2003 when the applicant made a statement to the South Australia Police. I will return to this matter below. 12 After a series of further stressful events, Mr Rana's health, work performance, and marital relations began to deteriorate. These events, it is said, included the sickness and eventual death of his father, poor assimilation into Australian society, rejection by his wife's family, pressure from his own family to return to Nepal, the contraction of the venereal herpes virus and the breakdown of his marriage. 13 This culminated in his hospitalisation and the start of what would become extensive psychiatric treatment. In March 1982, Dr Hoff diagnosed the appellant with personality disorder with a reactive depression. He was admitted to hospital on 20 March 1982 for a period of three days. This was where, for the first time, he disclosed details of problems relating to the Army. 14 After being absent without leave to go to Nepal, he received notice from the Department of Defence that he was discharged effective 13 July 1982.

(c) Post-Army 15 Since his discharge from the Army, Mr Rana has worked as a labourer, tractor driver, waiter, cook and travel agent. Due mainly to differences he has had with his various employers, the work was usually short-term. He has had two car accidents; spent long periods unemployed; was imprisoned for two months on charges of false pretences and stealing certain sums of money and cheques; completed four university courses; and was (and still is) involved in numerous disputes and court actions both in the federal and family courts.

PROCEDURAL HISTORY 16 It is helpful - and the Tribunal considered it necessary - to consider the 2001 application in the light of the two that preceded it.

(a) The 1984 application 17 It is sufficient to refer briefly to the 1988 Tribunal's decision on this application. Mr Rana's major claim was that he suffered from a psychiatric condition (personality disorder and/or an adjustment disorder or reactive depression) as a result of his employment in the Army. He alleged that during his employment he was subjected to physical, emotional and sexual harassment because of his race, creed and colour and that as a result he was incapacitated for work. He sought compensation for this. 18 As noted earlier, the 1988 Tribunal accepted that Mr Rana was called racist names; was punched, hit and knocked on various occasions by fellow soldiers; and this was probably associated with his race, colour or creed. 19 This Tribunal found that the Army service did not cause Mr Rana's personality disorder or adjustment disorder or reactive depression. Nonetheless, it found that the latter of these was aggravated by the conditions of his employment. It went on to conclude, though, that any continuance of the symptoms of these beyond April 1985 was "probably the result of other life stress factors then operating" and were not related to his army service. He was, in consequence, entitled to compensation only until April 1985.

(b) The 1998 application 20 This claim of Mr Rana was for "repressed memory of sexual abuse and assault, sleep problems, anxiety and depression". A delegate of Comcare determined that the Department of Defence was not liable to pay compensation in respect of the claim. Mr Rana sought reconsideration of the claim. The reconsideration affirmed the original determination, the delegate noting "I still have no evidence that you were sexually abused or assaulted while you were serving in the Australian Army".

(c) The 2001 application 21 The original claim, determined by a delegate of Comcare but which has since been designated the Military Rehabilitation and Compensation Commission in 2001, was rejected on the ground that it dealt with "the same issues" as had been dealt with by the 1988 Tribunal and that no new evidence had been provided by Mr Rana that would require a departure from the 1988 findings. 22 As I noted at the outset when application was made to the Tribunal to review the delegate's decision the claim was confined to two matters - paranoid psychosis and PTSD. It was considered that the 1988 Tribunal decision did not determine Mr Rana's entitlement to compensation for those conditions. 23 The hearing before the Tribunal, which was constituted by a Deputy President and a Member, took 11 days spread over the following dates: 1-4 September 2003, 24-26 November, 14 January 2004, 30 January 2004, 13 February 2004 and 27 February 2004. The transcript of the first two of these is in evidence. As will be seen the spacing of these dates was of some importance in the Tribunal's decision. 24 Importantly for the conduct of the hearing of Mr Rana's application to the Tribunal, two "significant events" occurred - one prior to, the other during the hearing - which bore upon the subject matter of the hearing itself. It is necessary to describe each in turn. 25 The first involved Mr Rana. On 29 July 2003 he made a statement to the Sexual Assault Unit of the South Australia Police Department. A copy of it was provided to Comcare and the Tribunal on 11 August. As the Tribunal described it: "The statement contains very specific details of the sexual assaults alleged by the applicant, and includes the names of the alleged perpetrators of those assaults and of witnesses to the assaults." 26 At the conclusion of the first four days of the hearing, the Tribunal requested Comcare to endeavour to call as witnesses the persons identified in the statement. Some were able to be located. Others were not. Of Comcare's inability to locate both all of the persons and of alleged records of communications relevant to Mr Rana's claims of abuse, the Tribunal said the following: "Whilst the applicant remained critical of the respondent's efforts in this regard, the Tribunal can understand the difficulties of locating witnesses and records of events which occurred so many years ago." It drew no adverse inference against Comcare for its failures in this regard. 27 The second event occurred four days prior to the second hearing period of 24-26 November. On that day a copy of a military police investigation report ("the Report") which had been finalised in April 1986 was provided to the Tribunal and to Mr Rana. The Report referred in considerable detail to complaints Mr Rana made in 1985 in a letter to the Department of Defence of mistreatment while he was in the Army. While the complaints referred to regular physical and verbal attacks "in terms of colour, race and religion", they do not refer to the four assaults described in the Sexual Assault Unit statement. The Report and its accompanying statements contain no reference to those assaults. 28 The Tribunal referred on a number of occasions (including in its reasons) to its concern with late production of this Report notwithstanding "its relevance and the applicant's repeated requests for it to be produced". On 24 November 2003, the Tribunal indicated that he might wish to give more evidence now that he had the Report. On that day Mr Rana alleged there were still further papers, not included with the Report, which related to matters of sexual abuse. 29 When Mr Rana's treating psychiatrist, Dr De Pasquale, gave further evidence on 25 November 2003, it is clear from questions of him by Mr Rana, that he had a copy of the Report. He was questioned briefly on it. 30 Mr Rana subsequently sought to recall Dr De Pasquale in circumstances described by the Tribunal as follows: "On the last occasion when the matter was before the Tribunal, 27 February 2004, the applicant applied to recall Dr De Pasquale on the basis that if the Tribunal found that the sexual assaults did not occur, he wanted to ask Dr De Pasquale what his opinion was having regard to the information in the military police report. This application was opposed by the respondent on the grounds that the applicant had had every opportunity to make that application on 14 January 2004 and had not done so and, in addition, any supplementary evidence from Dr De Pasquale at that late stage would potentially further protract the conclusion of the hearing, as it might necessitate further evidence in rebuttal from the respondent. We refused the applicant's application, for the reasons referred to by counsel for the respondent, and also because Dr De Pasquale had previously provided his opinion as to the relationship between the applicant's employment and the two psychiatric conditions now asserted by him on the assumption that the sexual assaults did not take place." 31 In refusing the recall application as also two other applications relating to the tracing and/or calling of new witnesses, the Tribunal stated additionally: "… we were also mindful that the hearing of this matter was very protracted; that the applicant is not unexperienced in conducting litigation; that he had placed before us a voluminous quantity of documents and submissions (much of which is, on examination, of marginal relevance); that, in any event, the issue of whether the applicant had been sexually assaulted was not in itself and on our final analysis of all of the evidence before us determinative of our views on the relationship between the applicant's army service and the development of the two conditions in issue; and it is in the public interest that there should be finality in litigation. Whilst this Tribunal is not governed by the rules of evidence, we consider that this public interest is relevant, and is a matter which this Tribunal can and should properly take into account in conducting a review of an administrative decision." 32 The Tribunal's determination was that Mr Rana was not entitled to compensation pursuant to the SRC Act in respect of conditions of paranoid psychosis or PTSD. 33 One of Mr Rana's repeated complaints in this proceeding relates to the refusal to allow him to recall Dr De Pasquale.

THE TRIBUNAL'S DECISION 34 The Tribunal's reasons are of 65 pages. They deal carefully, in particular, with matter brought before the Tribunal in an untoward way because of the late receipt of the Sexual Assault Unit statement and the military police Report. 35 The Tribunal dealt at some length with the question of which of the compensation Acts - the SRC Act of 1988 or its 1971 predecessor - applied in the circumstances and with whether there had been compliance with statutory procedural requirements. No issue arises in this proceeding concerning its conclusions. 36 It then set out at length Mr Rana's personal history, the essence of which is reflected in the factual narrative given earlier in these reasons. Then followed the Tribunal's recitation of Mr Rana's evidence of abuse in the Army. It characterised what I might describe as the non-sexual complaints as being to the same general effect as had been previously made by him. It went on to note that - "… the documentary evidence before us indicates that in 1998, the applicant for the first time alleged in connection with his claim for compensation that he had been subjected to a serious sexual assault whilst in the Army." 37 The Tribunal then tabulated seven "assertions" upon which he relied in an affidavit, these in the main, relating to the omissions of the Army and Comcare to provide him with a safe workplace; omissions by various police forces to investigate his claims of sexual assault; and assertions as to his own psychiatric conditions. 38 The accounts of the four assaults described in the Sexual Assault Unit statement were set out in detail and the names given of the alleged perpetrators and witnesses. 39 The Tribunal then described seriatim and at length, the evidence of four witnesses called by Comcare to refute Mr Rana's claims of abuse in the Army. These witnesses either denied allegations concerning events in which they were said to have participated or witnessed, or else gave a different complexion to the character or significance of those events. 40 The next matter dealt with over six pages was the evidence of two psychiatrists, Dr De Pasquale and Dr Davis (who was called by Comcare). After referring to the various reports Dr De Pasquale had prepared and to the periods of his contact with Mr Rana over 20 years, the Tribunal described his evidence to it in the following terms: "Dr De Pasquale made it clear that in arriving at his diagnosis he accepted the applicant's account of the abuse which he had suffered in the Army. As regards paranoid psychosis, Dr De Pasquale said that this could appear in a sensitised person even with minor traumas, and sometimes without any traumas at all, such as with persons who abuse alcohol or drugs. However, he went on to say that if the applicant was lying about the sexual assaults in the Army, he would find it very difficult to say that the Army had caused this condition. In that event, he considered that his Army experiences would constitute no more than a possible cause of his paranoid psychosis, and this could be caused by 'lots and lots and lots of other things' … Dr De Pasquale further considered that if the applicant was lying about the sexual assaults but not about the racial taunts or verbal abuse to which the applicant says he was subjected whilst in the Army, then that form of abuse would be a 'minor contributing factor' and 'an insignificant factor' by 1998 … Similarly, Dr De Pasquale agreed that his opinion that the applicant's condition of PTSD was caused by his service in the Army depended on the applicant having suffered the trauma of the sexual assault which the applicant described to Dr De Pasquale in 1998, that is (according to the account given by the applicant to Dr De Pasquale) that another soldier raped the applicant or attempted to rape him by pushing a bottle into his anus. Dr De Pasquale said that the applicant had not told him about the other sexual assaults referred to in exhibit A6 (the statement to the Sexual Assault Unit). He considered that if the other sexual assaults described in exhibit A6 had occurred, then these also would have constituted traumas which would explain the development of post traumatic stress disorder. Dr De Pasquale further considered that if the sexual assaults did not take place in the Army, then there would have to be some other explanation for his post traumatic stress disorder." 41 Dr Davis' assessment of Mr Rana was based on a two hour examination of him over two days in February 2003 and on his reading of extensive documentation provided to him by Comcare's solicitors. That assessment was that Mr Rana "has a paranoia personality disorder and that features of this disorder have been evident since his early adult life". He also had developed a paranoid psychosis. "It is difficult to date the emergence of the psychotic disorder, although the reports prepared in the early to mid 1990's do not highlight psychotic features". He concluded that, to use the Tribunal's words: "… the applicant's ongoing psychiatric disability was not materially related to his employment in the Army, but rather to a fundamental personality disorder, exposure to ongoing stressors and maladaptive coping strategies that continued to bring him into conflict with other people in all parts of his life." 42 Dr Davis did not consider that Mr Rana suffered from PTSD. He also prepared a supplementary report after receiving a copy of the Sexual Assault Unit statement. He indicated his opinion concerning Mr Rana's then psychiatric condition was not altered after reading the statement. His opinion of lack of a causal link between Mr Rana's psychiatric condition and the alleged sexual abuse had not been altered after reading the statement. 43 The Tribunal summarised the medical evidence as follows: "In summary, both Dr De Pasquale and Dr Davis (with some hesitation) consider that the applicant is suffering from paranoid psychosis. In addition, Dr De Pasquale appears to acknowledge that the applicant has a personality disorder … and paranoid personality traits and personality problems … Dr Davis made a further diagnosis that the applicant is suffering from paranoid personality disorder. Dr De Pasquale considers that the condition of paranoid psychosis arose from the applicant's service with the Army, but Dr Davis thinks that his army service did not materially contribute to his paranoid psychosis, notwithstanding the applicant's assertions that he had been subjected to sexual, physical and verbal abuse in the Army. Dr De Pasquale considers that the applicant is suffering from PTSD, but Dr Davis considers that he is not suffering from this condition." 44 The Tribunal then undertook its own review of the evidence to determine whether either the conditions of paranoid psychosis or PTSD was an ailment or an aggravation that was contributed to "in a material degree" by Mr Rana's employment in the Army. It considered that medical documentation contemporaneous with his Army service did not support a diagnosis of either of the psychiatric conditions at that time and that Army referrals and reports contain no reference to any sexual or physical abuse from other soldiers. The Tribunal went on to find that "a number of other significant events occurred which appear to have been stressful". These included his marriage breakdown, employment difficulties, etc which are referred to earlier in these reasons. 45 In relation to the condition of paranoid psychosis, the Tribunal concluded: "We agree with the significance which Dr Davis attached to the lack of this diagnosis in the applicant's history. In view of this, and having regard to the many other events which had affected the applicant, we find it most unlikely that his army service contributed to the development of paranoid psychosis. We are accordingly not reasonably satisfied that this was so." 46 The Tribunal also preferred Dr Davis' evidence to that of Dr De Pasquale on the issue of PTSD. In consequence it found that Mr Rana's employment in the Army did not contribute to this condition. Reasons were given for this preference. These included that Mr Rana had made a study of psychological phenomena and was well aware of the indicia of various psychiatric illnesses. Of this the Tribunal commented: "Of course, the fact that the applicant has apparently researched PTSD would not of itself lead us to discount his evidence. However, for reasons referred to below, we do not accept that the applicant's evidence as to other matters was truthful, and the fact that he is well aware from his research of the symptoms which would lead to a diagnosis of PTSD means that we have serious doubts about the truthfulness of his evidence as to the symptoms he described in support of this claim based on this condition." 47 The Tribunal also found that Mr Rana was not suffering from either of the psychiatric conditions prior to joining the Army. His employment in the Army could not thus be said to have contributed to an aggravation of those conditions. 48 Separate and explicit consideration was made of the evidence concerning sexual assaults: see Reasons [151]-[162]. It noted the lack of reference to, or complaints concerning, sexual assaults in contemporaneous documentation or in the later military police Report. It noted the instances in which Mr Rana said he did refer to such assaults and it considered his explanation for his failure to complain about the assaults. Of these matters the Tribunal commented that it "found the applicant's evidence in relation to the asserted sexual assaults to be unreliable and to contain many unsatisfactory or unexplained inconsistencies". The Tribunal accepted the evidence of the witnesses of Comcare who had been called to rebut the assault claims. It did not accept Mr Rana's evidence and it found "no such assaults took place". 49 The Tribunal then turned to consider a number of discrete issues. First it accepted that Mr Rana experienced the assaults and abuse found by the 1988 Tribunal but concluded, preferring Dr Davis to Dr De Pasquale, that these events did not have the effect that his Army employment contributed to the two psychiatric conditions asserted by him. 50 Secondly the Tribunal dealt with Comcare's failure to produce documents concerning him. It noted the volume of material Comcare was able to produce and it reiterated that no adverse inference was drawn because of any failure to produce other documents. 51 Thirdly, the Tribunal dealt with a discrete issue arising out of its refusal to accede to a summons Mr Rana had issued to the Australian Federal Police on the grounds that it was oppressive but it did accede to a more particularised summons which was answered. 52 Fourthly, the Tribunal as already noted, explained its reasons for not permitting Mr Rana to recall Dr De Pasquale as also its refusal on the last day of hearing (i) to request Comcare to trace and call a particular witness and (ii) to permit Mr Rana to call another doctor to give evidence. Mr Rana gave no explanation as to why he had not previously sought, variously, to call or to locate these witnesses.

CONSIDERATION 53 Mr Rana's Notice of Appeal to this Court specifies two grounds of appeal, the second of which is enlarged upon in an accompanying handwritten document of 24 pages which in 29 paragraphs appears to particularise 28 distinct errors of the Tribunal. The two grounds stated in the Notice are "Denial of Natural Justice" and "Improper Use of Discretion Using Wrong Principle of Law Based on Erroneous Facts". 54 The 28 distinct errors exemplifying the second of these fall into three general categories. The first, which accounts for at least 15 of the errors relate simply to disputing factual matters. These are cast in terms such as "erred in fact", "erred in law" or "erred in fact, law and discretion" in making a particular finding, expressing a particular view (e.g. on his credibility) or in giving or not "giving proper weight" to particular evidence. 55 The second group which accounts for almost all of the remaining alleged errors purport to raise issues of procedural fairness, admissibility of evidence, abuses of discretion and non-compliance with other Commonwealth legislation (e.g. the Evidence Act 1995 (Cth), the Racial Discrimination Act 1975 (Cth), the Human Rights and Equal Opportunity Commission Act 1986 (Cth)). The central ground of the procedural fairness claims relate to the Tribunal's refusal to allow Mr Rana to recall Dr De Pasquale. The Evidence Act 1995 (Cth) is relied on in a number of ways to attack Dr Davis' evidence on admissibility grounds. 56 The final group consists of unparticularised pejorative attacks on the Tribunal's decision. The following is illustrative: "The tribunal has erred in law, fact and in its discretion per it reasons and determination. It is illogical and in bad faith that no other tribunal can reached and is appealed wholly." 57 Underpinning the above is a 49 page "Outline of Submission". This document proceeded in the main to controvert both the findings made in, and views expressed in, many of the paragraphs of the Tribunal's reasons. In considerable degree, the attack made is on factual findings (especially in relation to the Tribunal's preference of Dr Davis over Dr De Pasquale) and on the view the Tribunal took of Mr Rana's own evidence and credibility. 58 What this latter document betrayed was a complete misunderstanding by Mr Rana of the nature of the "appeal" under s 44 of the AAT Act. That misconception was partially dispelled by the time Mr Rana filed a "Substantive Appeal Argument" shortly prior to the hearing. Nonetheless, at the hearing he relied primarily upon the 49 page document to which I have referred. The consequence of this has been that, far from being concerned with questions of law, Mr Rana still has sought primarily to have this Court engage in extensive merits review, and to controvert fact findings. 59 It is well accepted that the Tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or, subject to the proviso noted below, because it adopts unsound or questionable reasoning: Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 257; Willcocks v Comcare (2001) 66 ALD 119 at [6]. If there is evidence rationally and legally capable of supporting a finding of fact, then the finding of fact does not involve an error of law: Comcare v Moon (2003) 75 ALD 160 at [33]. The proviso I foreshadowed relates to the circumstances in which illogicality might found a basis for an appeal for jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. However, as the Full Court observed in Applicants S276 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 at [7]: "… for such a ground to be capable of being made out it must, at the least, be shown that the process of reasoning leading to the decision sought to be impugned was illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds: see S20 at 71 [52], 89-90 [138] and 98 [173]." 60 The reason for my rather lengthy account of the Tribunal's reasons has been to exemplify the body of evidence it had before it, the Tribunal's approach to its task and its process of reasoning. Whether or not a differently constituted Tribunal would necessarily have arrived at the same conclusions as this Tribunal, on the issues and evidence before it - and I refer in particular to its favouring of Dr Davis - the Tribunal cannot be said to have betrayed illogicality having the character described by the Full Court in Applicants S276 of 2002. There was evidence before it to which it referred which was rationally and logically capable of supporting its fact findings about Mr Rana's two psychiatric conditions. There is simply no basis in my view in which to distil an error of law out of the Tribunal's fact finding process. 61 Mr Rana understandably would have wished the Tribunal to take different views of the evidence of the two psychiatrists - and a view more favourable to Dr De Pasquale. It did not, and it explained why not sufficiently at least for the purposes of this appeal. 62 Of the second group of claims, those which focus on non-compliance with, or the misapplication of, provisions of the Evidence Act 1995 (Cth) illustrate Mr Rana's obvious misunderstanding of the procedures to be followed by the Tribunal. Section 33(1)(c) of the AAT Act provides expressly that "the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate". As Hill J observed in Casey v Repatriation Commission (1995) 60 FCR 510 at 514: "… s 33 of the AAT Act means what it says. The fact that material may be inadmissible in accordance with the law of evidence does not mean that it can not be admitted into evidence by the Tribunal or taken into account by it. The criterion for admissibility of material in the Tribunal is not to be found within the interstices of the rules of evidence but within the limits of relevance." This said, it clearly is the case that the Tribunal must extend procedural fairness to an applicant. 63 The central plank in Mr Rana's procedural fairness claims (though this was cast in a variety of ways) is that he was denied practical fairness by the Tribunal's refusal to permit him to recall Dr De Pasquale. It needs to be recalled that on the first day of the second of the six periods in which the Tribunal sat (i.e. on 24 November 2003), the military police Report was produced. Both the Tribunal and Mr Rana were aware of its significance as I earlier indicated in outlining the "Procedural History" of the 2001 application. Mr Rana questioned Dr De Pasquale shortly on the Report on 25 November 2003 and did not further intimate on any of the intervening sitting dates (i.e. 14 January 2004, 30 January 2004 and 13 February 2004) until the final hearing date on 27 February 2004 that he wished to have Dr De Pasquale recalled. The Tribunal as I have also noted, gave both particular reasons (relating to Mr Rana's delay in seeking the recall and also to his intended purpose: see par [30] above) and general reasons (relating to the actual conduct of the hearings and to considerations of public interest: see par [31] above) for its refusal. 64 In my view, the Tribunal provided adequate and appropriate reasons for taking the course it did. Mr Rana was aware of the apparent significance of the Report. He took no reasonable and timely steps to have Dr De Pasquale recalled. The Tribunal was generous in the time and the consideration it gave to his application and in the opportunity it gave him to call witnesses in support including Dr De Pasquale. It was in the circumstances open to it to insist on finality, the moreso as it reasonably considered that Dr De Pasquale had already provided his opinion on the very matter for which Mr Rana sought his recall. I do not consider that there was practical unfairness to Mr Rana in the course taken despite his sense of grievance about it. He was given a reasonable opportunity to present his case: see s 39 of the AAT Act. 65 A distinct procedural unfairness allegation, at least as I understand it, is said to lie in the refusal of Deputy President Forgie (who was not a member of the Tribunal that heard his application) to issue summonses to produce documents, to the Queensland and South Australia Police and to the Housing Trust of South Australia. These refusals, understandably, are not dealt with in the Tribunal's reasons although, as I have noted, the Tribunal does refer to its refusal to issue a summons to the Australian Federal Police ("the AFP") which it considered to be oppressive. Mr Rana's 49 page submission does not illuminate this matter although it in turn takes issue with the Tribunal's refusal to issue subpoenae to three University student health centres. 66 While I am satisfied there is no demonstrated basis on the material before me for challenging the refusal to issue the subpoena issued to the AFP (which Mr Rana does not challenge), no actual basis has been advanced for challenging Deputy President Forgie's refusals. The materials before me do not suggest such a basis. It is unnecessary for me to enter upon the question whether Deputy President Forgie's decision, presumably made under s 40(1A) of the AAT Act, could in any event be challenged in the present s 44 appeal: cf Pearce, Administrative Appeals Tribunal, par 7.54 (2003). 67 Again, as best I can understand them, the alleged errors/abuses of discretion attributed to the Tribunal (as elaborated in the 49 page submission) are founded on misconceptions about how the Tribunal ought conduct itself as an inquisitor, or on Mr Rana's disagreement with the conclusions reached by the Tribunal. Illustrative of the former is the allegation that the Tribunal did not assist him in the manner in which it asked questions of him and that it failed to assist him to get a comprehensive report that included his symptom history. Illustrative of the latter are the Tribunal's alleged misunderstanding of Mr Rana, of his condition and of his cultural concerns and its credibility finding which he does not accept. The Tribunal's reasoning and findings in consequence are characterised in the submission as being "unreasonable", as not taking into account "relevant considerations" etc. This device is a scarce disguised challenge to the merits. 68 Mr Rana seems not to appreciate that it was for him to advance the evidence or argument he wished to bring forward to support his claim. The Tribunal had to provide him with reasonable opportunity to present his case but the hearing had to be fair to all parties. While the Tribunal could of its own motion have issued a summons under s 40(1A) to obtain evidence, oral or documentary, it was not obliged to do so nor was it obliged to seek out and make a case for him. This in part is what Mr Rana seeks of it in the complaints he now makes. Mr Rana frankly conceded that his complaint was that the Tribunal did not allow him to conduct the case as he saw fit according to law. He thus claimed more for himself than the Tribunal was required to provide, given the provisions of s 33 and s 39 of the AAT Act. 69 Equally while the Tribunal was obliged to accord him procedural fairness, it was not obliged to reveal to him at the hearing its reasoning based on its view of his credibility, provided its conclusion was not arrived at in reliance upon any undisclosed fact or matter of which Mr Rana was unaware: see e.g. Lidono Pty Ltd v Commissioner of Taxation (2002) 67 ALD 656. I would note that on the first day of the Tribunal hearing it was made patently clear that the central issue was whether or not the sexual assaults took place and, if they did, what were their affects on Mr Rana. The "essence of the case was whether the Tribunal believed [Mr Rana]": Lidono at 662. Its adverse finding was not based, in my view, on any fresh undisclosed material. 70 There is one general matter which should be emphasised about Mr Rana's complaints concerning the conduct of the hearing. As the Tribunal itself was at pains to emphasise, the events forming the basis of Mr Rana's complaints occurred more than 20 years ago. This produced understandable - and quite predictable - difficulties in locating both contemporary documentation and persons said to be participants in, or witnesses of, those events. To the extent that searches, etc for documents or persons have proved unavailing, Mr Rana has been critical of Comcare. Nonetheless, the Tribunal which oversaw and in some degree required such searches to be made, refused to draw adverse inferences against Comcare on account of its failures. That view was in the circumstances far from unreasonable. 71 I am conscious that I have dealt with Mr Rana's grounds of appeal in general terms and by way of illustration. The volume of material he has put before me and its unyielding character has necessitated I take this course. The general reasons for his complaints are discernible enough. But the complaints themselves to the extent that I can understand them do not, on the material before me translate readily or, for the most part, at all into questions of law for the purposes of s 44 of the AAT Act. 72 There is a number of further matters to which I should refer briefly which have been raised by Mr Rana. As noted earlier, Mr Rana filed what he called a "Substantive Appeal Argument" in response to a direction I gave. While he did not rely directly upon it in his oral submissions, I should note at least those aspects of it that have not been subsumed by what I have already said. 73 First, he complains of a denial of rights contrary to the Universal Declaration of Human Rights, 1948. The burden of this is, seemingly, to ground complaint about his employment with the Australian Army. I need only say that it raises no question that can be agitated properly in this proceeding. 74 Secondly, an attack is made on the inadequacy of the Tribunal's s 43(2B) statement of reasons. It is alleged that the Tribunal did not make any finding on, nor include in its reasons, two material questions of fact. The first related to the Tribunal's failure to give reasons for Comcare's alleged non-compliance with a Tribunal direction to inquire about a particular regimental police report at Woodside Army Camp; the second, to find facts concerning the link between the military police Report and Mr Rana's two psychiatric conditions. 75 As to the first of these matters, on 24 September 2003 the Tribunal made the following request of Comcare when receiving the military police Report: "… the applicant is now alleging that there are some further papers which, because apparently they related to matters of sexual abuse, were stored separately and were not included in the papers which have now been produced. I ask that you undertake to make further inquiries to see whether there are any such further papers and that you provide to the Tribunal evidence in writing of the response to those inquiries so the Tribunal will know what further inquiries have been made and what the response - what the outcome of those inquiries is. Mr Milazzo: We will do that, sir." 76 The Tribunal adverted to this matter early in its reasons under the heading, "Further Evidence and Material provided to Tribunal after Parties' Addresses". It noted as follows: "The Tribunal also requested the respondent to follow up its inquiries to locate any file relating to complaints made by the applicant to regimental police whilst he was at the Kapooka and Woodside army camps." It then indicated that, on 26 November 2003: "The parties then proceeded with their final addresses on the material already before the Tribunal on the basis that if the further inquiries revealed anything further then the Tribunal would give both parties an opportunity to make further submissions based on that new material. Both parties expressed a preference to adopt this course, rather than the alternative of adjourning the hearing until the outcome of further inquiries was known, and then proceeding with final addresses after that. Further resumed hearings took place on 14 and 30 January and 13 and 27 February 2004 to address issues arising from the specific matters which remained outstanding on 26 November 2003." On 8 January 2004 the Australian Government Solicitor ("the AGS") wrote to the Tribunal adverting to this request. From a later letter of 29 January from the AGS it appears that this matter was discussed at the hearing on 14 January 2004 and further information was provided to the Tribunal. These letters form part of Exhibit R23 to R30. Of these exhibits the Tribunal said (at par 13 of its reasons):

"Having regard to the information in exhibits R19 and R23 to R30 … we draw no adverse inference against the respondent for failing to produce the … records in question." 77 To the extent that the Tribunal considered the request to Comcare to make further inquiries, it clearly regarded the responses made by Comcare via the AGS and at the 14 January 2004 hearing sufficient for its purposes and it gave its reasons for this. Mr Rana's s 43(2B) complaint is without foundation. 78 The second matter, concerning the alleged connection between the military police Report and Mr Rana's psychiatric condition, needs to be considered in the light both of the Tribunal's refusal to recall Dr De Pasquale to be questioned on this matter and its reasons for so doing, and of the Tribunal's explicit reliance on Dr Davis' opinion in which "he took into account the applicant's history that he had been subjected to the sexual assaults as well as non-sexual physical abuse and verbal abuse". 79 The Tribunal clearly considered it had before it sufficient and appropriate evidence on the alleged nexus between the non-sexual assaults and abuses suffered by Mr Rana and his psychiatric conditions. It was entitled to inform itself "on any matter in such manner as it thinks appropriate". This it did and it is properly reflected in its s 43(2B) statement of reasons. 80 The Tribunal's reasons are clearly expressed. They adequately reveal its processes of reasoning. And they leave no doubt as to why the Tribunal considered Mr Rana's claims should be rejected. They well satisfy the requirements for reasons: Comcare v Lees (1997) 151 ALR 647 at 656. 81 As I earlier indicated, there is much in Mr Rana's complaint that reflects no more than that "they did not allow me to conduct the case as I saw fit". The Tribunal did not have to. 82 A final complaint made in the "Substantive Appeal Argument" document which I reject as gratuitous and unsubstantiated, is that the Tribunal was guilty of actual bias. The ascribed bases for this were the Tribunal's rejection of his evidence and the preference given to Dr Davis' evidence over that of Dr De Pasquale. This is an allegation that should never have been made by Mr Rana. 83 There is a deal of material to which I have not made reference in these reasons either because it is wholly pejorative in character, or because it is manifestly irrelevant to the issues the Tribunal was required to address under the SRC Act. 84 The final matter to which I should refer results from the coming into force on 1 July 2004 of an amendment to the SRC Act which had the effect of making the Military Rehabilitation and Compensation Commission, rather than Comcare, the proper respondent in this proceeding. 85 I will order that the application be dismissed and that the applicant pay the respondent's costs of the appeal. I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Solicitor for the Respondent: Australian Government Solicitor