Vock v Repatriation Commission

reasoning 9 At the beginning of its Reasons for Decision, the AAT posed the correct question for itself when it said that it must decide whether it is reasonably satisfied as to the matters alleged by the appellant. The AAT then referred to the written evidence and reports and oral evidence as given by Mr Vock, Dr Wainwright and Dr Danesi. The AAT then briefly set out the history of the matter. The AAT made no adverse comment in the decision as to the credibility of Mr Vock, Dr Wainwright or Dr Danesi. 10 It is apparent from the penultimate paragraph of the Reasons for Decision that the AAT preferred Dr Wainwright's evidence over that of Dr Danesi. The two diagnoses were in direct conflict. However, the decision discloses no reasons for reaching the conclusion that Dr Wainwright's diagnosis should be preferred. There is a statement that the decision-maker observed the appellant in the witness box and considered all the circumstances but these observations are not connected by any reasoning with the AAT's preference for Dr Wainwright's evidence. 11 The AAT is, of course, not bound by the rules of evidence. However, under s 43(2B) of the AAT Act, where the AAT gives written reasons for its decision, those reasons must include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. This provision is based on the premise that it is necessary for a decision-maker to set out its reasons for the decision when giving a decision in writing. A substantial failure by the AAT to disclose its reasons may constitute an error of law: see Staunton-Smith v The Secretary of the Department of Social Security (1991) 32 FCR 164 at 165 per O'Loughlin J. The adequacy of reasons can be a matter of substance. As Burchett J said in Dodds v Comcare Australia (1993) 31 ALD 690 at 691: "The obligation to furnish reasons, and to furnish reasons which are adequate, is a very important obligation. It is a pillar of the system of administrative decision-making by the Tribunal, and it is essential that the court should insist on its fulfilment. But it is the substance of the obligation that matters. … Section 43 is not to be construed in a pedantic spirit, but sensibly. If the tribunal's reasons expose the logic of its decision, and contain findings on those matters of fact which are essential to that logic, it will not be easy to demonstrate a failure of compliance with the requirement to include 'findings on material questions of fact.'" 12 In the present case, there is no reasoning nexus between the AAT's observation of the appellant and the remarks which the AAT appears to have made in passing and the ultimate conclusion that the diagnosis of Dr Wainwright is to be preferred over that of Dr Danesi. 13 In Copperart Pty Ltd v Commissioner of Taxation (1993) 30 ALD 377 at 377, Hill J said: "… the obligation under s43(2B) is not satisfied by a statement of the tribunal's conclusion of fact. The parties are entitled to know what evidence the tribunal accepted and what evidence it took into account. Likewise, the parties are entitled to know what evidence the tribunal rejected. Without this knowledge the parties will have but an incomplete idea of the tribunal's process of reasoning and a lessened respect for the tribunal's decision-making process." 14 These observations were cited with approval by the Full Federal Court in De Domenico v Marshall (1999) 94 FCR 97 at 117. 15 The decision does refer to Dr Danesi's evidence but does not say what material it took into account in finding that the evidence of Dr Wainwright was to be preferred. 16 In Myralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84 at 95, Sackville J (with whom Davies and Beazley JJ agreed) considered the consequences of a failure to give reasons: "What is required is that the Tribunal set out in 'short and measured, but specific terms its findings in connection with matters relevant to its decision … it is not necessary that the reasons deal with all matters raised in the proceedings; it is enough that the findings and reasons deal with the substantial issues on which the case turns. The standard required is not one of perfection and regard must be had to the composition of the tribunal, which does not necessarily include trained lawyers." (Emphasis added) In that case, their Honours set aside the orders of the Refugee Review Tribunal on the basis that there had been a failure to provide reasons which dealt with the substantial issue. 17 The rationale for the requirement that a decision-maker spell out the reasons for its conclusions on substantial issues is the need to inform the public and the parties with an immediate interest in the outcome of the proceedings of the manner in which the decision was arrived at. This, in turn, enables a determination to be made as to whether an error of law has been committed by the decision-maker. In Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 at 88, Sheppard J points out: "The provision of reasons engenders confidence in the community that the tribunal has gone about its tasks appropriately and fairly. The statement of bare conclusions without the statement of reasons will always expose the tribunal to the suggestion that it has not given the matter close enough attention or that it has allowed extraneous matters to cloud its consideration. There is yet a further purpose to be served in the giving of reasons. An obligation to give reasons imposes upon the decision-maker an intellectual discipline. The tribunal is required to state publicly what its reasoning process is." 18 The decision under appeal does not satisfy these principles. 19 In this case, the question is not whether the reasons that were given by the AAT were unsound but rather whether it is possible to ascertain from the Reasons for Decision the reasons or the evidence that led to the AAT's finding that the evidence of Dr Wainwright was to be preferred. The decision notes certain matters and makes certain suggestions but does not identify them as reasons for this finding. 20 By way of example, par 25 of the Reasons for Decision relates to the possibility of Mr Vock suffering from sleep apnoea and the decision makes the tentative suggestion that this condition may explain certain symptoms of Mr Vock. This is not referred to as a reason for preferring the evidence of Dr Wainwright. The 1996 report of Dr Boulnois is also referred to by the AAT, however, no indication is given of its relevance to the finding that Dr Wainwright's evidence is to be preferred to that of Dr Danesi. The report of Dr Boulnois was written more than seven years prior to the date of the hearing and Dr Boulnois was not called at the hearing to give evidence. In the AAT's Reasons for Decision. there is simply a general note that Dr Boulnois had queried whether Mr Vock was affected by epilepsy medication. 21 Finally, there are some ambiguous and inconclusive remarks in the penultimate and critical paragraph of the Reasons for Decision about the decision-maker having seen the appellant in the witness box and considered all the circumstances. These remarks beg the question what it was about the appellant that was significant to the AAT and what circumstances the AAT referred to? There are further questions, uncertainties and ambiguities arising as to how it was that the appearance of Mr Vock was used by the AAT. In addition, one does not know what is meant by the AAT's reference to Mr Vock as "an anxious man" but "appearing to" function more or less normally. It is not disclosed whether this reference is based on the written material, the oral evidence or the personal observations and lay opinion of the decision-maker. One may well ask to whom this appearance of Mr Vock being anxious but functioning normally manifested itself? It is not clear whether the decision-maker was acting on his own observations or some expertise of his own to make a decision as to which expert should be preferred. There is no identification of the evidence on which the finding that the diagnosis of Dr Wainwright is to be preferred is based. 22 Accordingly, in my view, there has been a substantial error of law in the present case because the requirements of s 43(2B) of the AAT Act have not been complied with. 23 It should be noted that counsel for the appellant also raised the issue that the finding of the AAT was that there was no "compensable psychiatric disorder". Counsel submitted that the use of the expression "compensable" made it unclear whether the decision-maker had travelled beyond the question posed in s 120(4) concerning diagnosis and into the areas covered by the other subsections of s 120. This created confusion or left an uncertainty as to whether the decision-maker had properly exercised the function of deciding, to his reasonable satisfaction, whether the appellant was suffering from social anxiety disorder. 24 It should be noted that the AAT, in the second paragraph of its Reasons for Decision, referred to the question that it must decide, namely, whether it is reasonably satisfied as to the matters alleged by the appellant. The first issue was seen to be whether the appellant suffered from social anxiety disorder. On a fair reading of the Reasons for Decision of the AAT, I am not persuaded that any error of law is disclosed by the reference to the expression "compensable psychiatric disorder". Such a conclusion would require an inference that the decision-maker had ignored what had been said earlier in its Reasons for Decision as to the exercise on which it was embarking. The expression "compensable psychiatric disorder" is consistent with a finding that there was no psychiatric disorder and, accordingly, that no compensation was payable. It does not, in my view, necessarily imply that the decision-maker had incorrectly proceeded to consider the other questions requiring determination under s 120 of the Act. 25 For the aforementioned reasons, I am of the view that the appeal in the present case should be allowed. The orders of the AAT made on 18 December 2003 should be set aside and the matter remitted to the AAT for consideration in accordance with law. The respondent should pay the costs of the appellant of this appeal. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Solicitor for the Appellant: Streeting Haney Lawyers

Solicitor for the Respondent: Australian Government Solicitor