A life-threatening event?
25 The first two grounds related to the patrol incident. Mr Simos had contended that this incident constituted a category 1A stressor within the meaning of clause 9(a) of the GAD SoP.
26 In dealing with step 3 in the Deledio process the Tribunal had concluded that "[t]he material does not point to there being any life-threatening event during Mr Simos' service": at [105] - see above at [17].
27 Mr Simos complained that the Tribunal had failed to make a finding as to whether his perception had been reasonably capable of evoking the necessary response. The Tribunal had confined itself to an objective assessment of the nature of the threat and had thereby committed jurisdictional error in concluding that Mr Simos had not experienced any life-threatening event during his service. A fair reading of the Tribunal's reasons suggests that the reverse is true and that Mr Simos' real complaint is that the Tribunal confined itself to a consideration of his subjective response to the patrol incident and failed to make a reasoned determination as to whether or not the patrol incident was a life-threatening event. This is a significant matter to which I will return.
28 Mr Simos further submitted that the Tribunal had misdirected itself as to what constitutes an objectively reasonable perception that an incident is life-threatening. He acknowledged that the SoP did not contain a definition of what constituted a "life-threatening event." He did, however, rely on the meaning placed on the expression by Reeves J in Border v Repatriation Commission (No 2) [2010] FCA 1430. His Honour there said (at [67]) that it is:
"the effect of the event and not the threat itself that has to be assessed. Moreover, it is the veteran's perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of sub para (a). That perception will be a reasonable one if, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death…this is a mixed objective and subjective test. Since there will be a very wide range of reactions to any event involving a threat of death, this test is not to be applied in an unduly restrictive manner … the question is whether the event might or was capable of giving rise to the perception of the threat of death, not whether it did. For this reason, the veteran's conduct after the event is irrelevant to the assessment. So, too, is any information not known to the veteran which showed, objectively, that the event did not pose a threat of death, eg being threatened with a gun that was in fact unloaded."
29 Mr Simos submitted that the Tribunal had failed to make what he described as the "mixed objective and subjective assessment" which he said was required when the Tribunal was deciding whether a veteran's perception that an event posed a threat of death had been reasonable. He directed particular attention to the Tribunal's statement at [113] - see above at [20] - that "there was no actual life threatening event." He also contended that the Tribunal had erred by taking into account an irrelevant consideration when deciding what constituted an objectively reasonable perception that an incident was life threatening. This error, he said, was apparent from paragraph [114] of the Tribunal's reasons where it had said that Mr Simos had described his reaction to the patrol incident as "feeling numb", feeling "traumatised" and "fear" but went on to note that "[d]espite this response he said that he and his colleagues laughed about the incident and he did not think about the event until well after his return to Australia": at [114] -see above at [20].
30 When dealing with the issue of whether or not Mr Simos had experienced a life-threatening event, at the Deledio step 3 stage, the Tribunal was not engaged in a fact finding exercise. It was concerned to determine whether the hypothesis that Mr Simos suffered a war caused generalised anxiety disorder fitted within the "template" constructed by the SoP. That required the identification of one or more of the factors prescribed by the SoP which had to exist and be related to war service. Relevantly, Mr Simos claimed to have experienced a category 1A stressor: see clause 6(ii). He said that he had done so because he had experienced a life threatening event: see clause 9(a). That life threatening event was a collection of experiences which together constituted the patrol incident.
31 The Tribunal concluded that the material did not point to Mr Simos having experienced any life threatening event during his service. It did not say why it had come to this conclusion and, in particular, why the patrol incident did not constitute a life threatening event. The Tribunal's conclusion depended on it being correct, as a matter of law, that, on no view, could the patrol incident, as described by Mr Simos, have constituted a "life threatening event" within the meaning of clause 9(a) of the SoP. The Tribunal did not, however, expressly so hold. This may have been because it had understood counsel for Mr Simos to have conceded in argument that the patrol incident could not, objectively, be viewed as a life threatening event within the meaning of the SoP. A reading of the transcript discloses no express concession to this effect. The Tribunal may, however, have concluded that the concession had been made implicitly when counsel for Mr Simos, having referred to some passages in the Full Court's judgment in Woodward, then said:
"So - and they go on to say that the question involves both an objective test, in the sense of looking at the person and looking at the event and saying, right is that capable of causing trauma? And also very much a subjective test, and in this case, the relevance of Mr Simos being, we would say, very under-trained and open to being shocked or traumatised is relevant to the subjective part of that equation."
32 Counsel's emphasis on Mr Simos' subjective reaction to a perceived threat to his life from an unseen enemy and his relative silence in relation to an objective assessment of the incident may have led the Tribunal to the view that no attempt was being made to persuade it that an objective basis existed for the patrol incident to be treated as a life threatening event.
33 When the Tribunal returned to the issue at stage 4 of the Deledio process, it directed itself, consistently with Woodward and Stoddart, that there were both objective and subjective elements in the assessment of whether or not an applicant had experienced a severe stressor. It did not accept that the patrol incident could be regarded as being "objectively reasonable". It did not, however, say why this was so.
34 There is no doubt that an event, or series of events, may be so trivial or innocuous as not to amount, objectively, to a life-threatening event: cf White v Repatriation Commission [2004] FCA 633 at [32] (per Spender J). In that case the Tribunal had held that the events relied on by the applicant did not meet the objective requirements of an identifiable occurrence within the meaning of the relevant definition. It had given its reasons for so concluding. In these circumstances Spender J rejected the submission of the applicant that he was entitled to succeed on the basis of his sujective response to the events which he found to be stressful.
35 It may be that there was evidence, in the present matter, which the Tribunal could have accepted and which persuaded it that no objective foundation existed for the claim that the patrol incident constituted a life-threatening event. One of the specialist doctors who had been called by Mr Simos gave evidence that the patrol incident, as it had been described to him by Mr Simos, did not involve any objective threat to life. Evidence was also called from a researcher who had examined records relating to Mr Simos' service. On one view of it, that evidence cast doubt on there ever having been an incident of the kind described by Mr Simos. The Tribunal did not, however, do more than record that such evidence had been given. Although he did not expressly concede that the patrol incident could not be regarded, objectively, as a life-threatening event, counsel for Mr Simos in the Tribunal did not develop any detailed arguments supporting the making of a finding to this effect.
36 In the end, I have concluded that the Tribunal dealt with Mr Simos' claim to have experienced a category 1A stressor on the mistaken basis that Mr Simos did not assert that the patrol incident could, objectively, be regarded as a life-threatening event. This mistake was critical in the determination that was a central question on Mr Simos' appeal. In the absence of an objective basis for this claim it was bound to fail. The Tribunal recorded (at [109] - see above at [20]) that Mr Simos had agreed that "there was no objective event meeting the definition of a 1A stressor sub-paragraph (a) of experiencing a life-threatening event." The Tribunal's failure to give any detailed consideration to this aspect of Mr Simos' claim strongly suggests that it accepted and acted on what it considered to be a concession that no objective basis for the claim existed. No such concession was made.
37 Although the parties did not invite me to do so, I gave consideration to the exercise of the Court's powers under s 44(7) of the AAT Act to attempt to undertake the additional fact finding necessary to determine whether a foundation existed for the Tribunal's conclusion that the patrol incident was not "objectively reasonable". Having considered the matter I determined not to exercise this power. Relevant evidence was, to some extent, conflicting and the Tribunal was best placed to assess the weight which should be given to it.
38 The appropriate remedy is to allow the appeal on this ground and remit his application to the Tribunal constituted by the member who made the original decision to be decided again without the hearing of further evidence.