Vock v Repatriation Commission

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Administrative Appeals Tribunal (Veterans Affairs Division) ("the AAT"), given on 18 December 2003, affirming a decision of the respondent, the Repatriation Commission ("the Commission"), dated 14 March 2001, that the appellant, Mr Vock, did not suffer from social anxiety disorder. 2 It is common ground between the parties there is no applicable Statement of Principles which must be considered in this case. The AAT therefore stated that the question before it was whether it was reasonably satisfied as to the matters alleged by the appellant. Section 120(4) of the Veterans' Entitlements Act 1986, (Cth) states: "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 under Part II or Part IV, decide the matter to its reasonable satisfaction." (Emphasis added) 3 Counsel for the appellant has identified a number of passages in the AAT decision that are said to reflect the errors of law which are the subject of the appeal. These passages read as follows: "The Diagnosis 19. Dr Danesi concluded in his report of 13 March 2002 that the applicant suffered from social anxiety disorder. He enlarged on his reasons in his report of 21 January 2003 to explain why he preferred a diagnosis of social anxiety disorder over avoidant personality disorder (in short: because the applicant demonstrated prominent symptoms of anxiety that were more consistent with a diagnosis of social anxiety disorder). The expression 'social phobia' is an alternative label for social anxiety disorder. Dr Danesi explained in his report of 21 January 2003 that social phobia: 'revolves around a marked and persistent fear of one or more social or performance situations in which the person is exposed to unfamiliar people or possibly scrutiny by others. The individual feels that he or she will act in way or show anxiety symptoms that would be humiliating or embarrassing.' … 23 Dr Wainwright also concluded the applicant did not have post traumatic stress disorder or social phobia. Dr Wainwright accepted the applicant suffered from stress in some situations, but the stress was not excessive and did not interfere with his normal relationships or functioning. His successful maintenance of long-standing relationships and his occupation and charity work (in which he is exposed to the public) are not consistent with a diagnosis of social phobia, Dr Wainwright concluded. 24. I note that Dr Boulnois reached a similar conclusion in his report dated 4 April 1996. Dr Boulnois queried whether the applicant was affected by his epilepsy medication. 25. Dr Danesi also reported the applicant said he would snore heavily and stop breathing while he slept. Dr Wainwright reported the applicant complained he never felt refreshed in the morning. Dr Wainwright noted the applicant did shift work. In Dr Wainwright's opinion, the applicant suffered from sleep apnoea - a condition which explained many if not all of his symptoms. 26. After seeing the applicant in the witness box and considering all the circumstances, I prefer Dr Wainwright's diagnosis. Mr Vock is an anxious man, but he appears to function more or less normally. I cannot be satisfied he suffers from a compensable psychiatric disorder. I have already concluded he does not suffer from alcohol abuse or dependency." 4 Counsel for the appellant submits that there are two substantial errors of law disclosed in the AAT's Reasons for Decision. The first ground of appeal is that there is no discernible reference in the Reasons for Decision to the AAT having considered the evidence pursuant to s 120 upon which a conclusion favourable to the Commission can be reached. In particular, it is said that it is not possible to discern from the Reasons for Decision what considerations were taken into account by the AAT and why Dr Wainwright's diagnosis was preferred over that of Dr Danesi. 5 Counsel for the appellant submits that a decision-maker is required to set out its findings of fact and to refer to the evidence which it considers material to the decision, and that this has not been done in the present case. 6 The second ground of appeal is that the appellant has not been sufficiently informed of the AAT's reasons for its decision. Counsel for the appellant refers to Tate v Repatriation Commission [2003] FCA 1169 at 38, where Cooper J, after referring to ss 43(2) and 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), said: "The sections only oblige the decision-maker to set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision. … The Court may infer that any matter not mentioned in the reasons was not considered to be material by the decision-maker. …. The drawing of that inference may or may not reveal the existence of reviewable error of law on the part of the decision-maker." His Honour also referred to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [67] -[69]. 7 Cooper J then referred to the principle that the reasons of the AAT are not to be construed minutely and finely with an eye attuned to the perception of error, remembering that reasons are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to ascertain whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. 8 In the present case, the essential gravamen of the complaint is that the appellant has not been given the reasons for the findings of the AAT in the final paragraphs of the Reasons for Judgment. There has simply been a preference of one medical diagnosis over another without any reference to the evidence upon which this finding was based.