Warren v Repatriation Commission [2015] FCAFC 159 | Case summary

Jessup J 2 This is an appeal from a judgment delivered on 2 March 2015 by a single Judge of the court, in which his Honour dismissed an appeal brought by the appellant, Jennifer Warren (then Jennifer McKinley), against a decision of the Administrative Appeals Tribunal ("the Tribunal") made on 12 September 2014. In that decision, the Tribunal had affirmed an earlier decision of the Veterans' Review Board affirming a decision of a delegate of the respondent, the Repatriation Commission, that the conditions which afflicted the appellant, generalised anxiety disorder and alcohol dependence, were not war-caused within the meaning of the relevant provisions of the Veterans' Entitlements Act 1986 (Cth) ("the VE Act"). 3 The appellant served in the Australian Army from 12 February 1986 to 12 October 2005. She rendered operational service as a sergeant in East Timor from 10 October 1999 to 1 February 2000. It was that period of operational service to which her claims under the VE Act, with which the Tribunal was concerned, related. 4 The grounds upon which the appellant relied in her Amended Notice of Appeal covered a wide range of matters. Most of those grounds were introduced by the omnibus complaint that the primary Judge had "erred in upholding the Tribunal's findings that: …." Putting it this way betrayed a misunderstanding, on the part of the drafter of the grounds, of the primary Judge's function. It had not been his Honour's function either to uphold or to reject findings made by the Tribunal. Rather, in an appeal brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), it was his Honour's function to determine whether the decision of the Tribunal was infected by error of law. Regrettably, that misunderstanding carried through into the submissions made on behalf of the appellant which were, I would have to say, insufficiently focussed on the respects in which it was said, if it was said, that the primary Judge erred in the performance of that function. 5 For that reason, rather than following the conventional course of dealing with the appellant's grounds of appeal seriatim, I propose to commence by considering what were, on any view, her main challenges to so much of the primary Judge's reasons as dealt with areas that presented at least some potential for the discernment of error of law on the part of the Tribunal. 6 The first main area of controversy concerned the appellant's contention that the Tribunal had taken an irrelevant consideration into account. A question before the Tribunal had been whether the appellant had been "confronted" (to use the appellant's terminology) by two Indonesian soldiers upon her arrival at Dili airport. She said that these soldiers had their rifles pointed at two girls who accompanied her, and for whom she was responsible. The appellant said that she understood Indonesian, and overheard the soldiers saying that they could take the girls "around the back, have their way with them and no one would know" (again, the appellant's words). The appellant said that this incident frightened her enormously. 7 Included in the factual material before the Tribunal was a report prepared by Writeway Research Service Pty Ltd dated 11 August 2006 ("the Writeway report"). It contained the following passage: In the period 20 to 29 September 1999, the numbers of Indonesian Armed Forces (TNI) had reduced from 15,000 troops to a garrison of 1300 in Dili. Indonesian air force and marines had withdrawn from Comoro airfield and the port of Dili. INTERFET (International Forces East Timor) troops were in control of the airport from 28 September 1999. It is unlikely that any East Timorese civilians would have had weapons at the airport on 11 October 1999 when the applicant arrived. 8 A task for the Tribunal was whether to accept the appellant's evidence that she had seen Indonesian soldiers at the Dili airport on 11 October 1999 in preference to the conclusion expressed in the Writeway report. In this respect, the Tribunal said: I accept that there were many occasions when the applicant was anxious and subjectively felt concerned for her safety. However, her recollection and description of events is inconsistent with a significant body of documented historical material, much of which was contemporaneously produced. Neither the applicant nor her representative challenged any of that material in this review, nor was the Writeway author called to give evidence. His report was based on his research of the historical material. I have had many occasions in reviews of veterans' applications to read the reports of consultants engaged by the Writeway organisation. I was impressed by the quantity of documents and historical sources that were accessed in conducting the research. I also regard the report as balanced. 9 Before the primary Judge, it was submitted on behalf of the appellant that it was apparent from this passage that the Tribunal's decision was, at least in a material respect, based on its reading of other "reports of consultants engaged by the Writeway organisation". The appellant's complaint at that stage was encapsulated in the following question of law which she propounded before his Honour: Did the Tribunal take into account an irrelevant consideration in assessing the reliability of the Writeway report, namely its impression of previously prepared Writeway reports? 10 The primary Judge dealt with the appellant's submission based on that question in the following terms: In considering this submission it may be useful to pay particular attention to the way in which the question of law, and the grounds relied upon, were expressed on behalf of Ms McKinley. The irrelevant consideration identified in the question of law was described as the Tribunal's "impression of previously prepared Writeway reports". In the grounds relied upon in support of the question of law, the irrelevant consideration was identified as being "the fact that the Senior Member had read Writeway reports before and regarded them as impressive". In each case there is reference in the submissions to the impression said to have been created in the mind of the Tribunal member by reports that were not in evidence in the proceeding involving Ms McKinley. The word "impressed" does appear in the second last sentence in paragraph [76], but the impression referred to in that sentence was the impression created by the Writeway report about Ms McKinley and not the impression created by other reports. The impression the Tribunal referred to in that sentence related to "the research" referred to two sentences previously, namely, the historical research upon which the author had based the report about Ms McKinley and which the Tribunal took into account. That the Tribunal was referring to that report (and not to other reports in other matters) is also confirmed by the last sentence in the paragraph, which expressly refers to "the report" (emphasis added) rather than to any other unspecified report. The third last sentence in the paragraph conveyed no more than the fact that the Tribunal member was familiar with reports of consultants engaged by the Writeway organisation. It did not convey the view that the Tribunal was impressed by those reports in reaching the operative decision against Ms McKinley. The operative decision was based upon the relevant Writeway report which had impressed the Tribunal in part "by the quantity of documents and historical sources that were accessed in conducting the research" and which the Tribunal regarded also as being balanced. 11 On appeal, it was submitted that the primary Judge had misread the relevant paragraph of the Tribunal's reasons, and that, properly understood, that paragraph disclosed that the Tribunal had decided the appellant's case by reference to material disclosed in Writeway reports that related to other people and other circumstances. I would not accept that submission. I agree with his Honour's treatment of the paragraph. The Tribunal's words are, in my view, to be understood as a comment about the quantity of documents and historical sources that were accessed in conducting the research that related specifically to the appellant's claim, a comment that the member was well-placed to make because he had read other reports prepared by Writeway consultants. 12 Counsel for the appellant sought to extend his client's complaint about this aspect of the primary Judge's reasons into the realm of a denial of natural justice. But, although there were natural justice dimensions of the appellant's case at first instance about the Tribunal's use of the Writeway report, they did not, so far as appears, relate to the Tribunal's reference to other reports prepared by the same organisation. However that may be, the response which the primary Judge gave to this question of law propounded by the appellant, and what I have written about it above, would likewise answer any associated complaint that the appellant had been denied natural justice in corresponding respects. It was not a denial of natural justice for the Tribunal to have brought its acquaintance with previous work by the Writeway organisation to bear on its assessment of the work of that organisation which actually related to the appellant. 13 Another submission made on behalf of the appellant about the Writeway report was that the Tribunal made an error of law by not calling the author of the report to give evidence before it. A like submission had been made before the primary Judge, and his Honour disposed of it as follows: The Tribunal has a review function which has been described as "inquisitorial" that may sometimes require it to make its own inquiries. In Bushell v Repatriation Commission (1992) 175 CLR 408, Brennan J said of that function at 424-5: Proceedings before the A.A.T may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the A.A.T. is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the A.A.T may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings. The Tribunal may be restricted from making its own inquiries where, for example, the applicant has the onus of proof: see, for example, Commissioner of Taxation v Glennan (1999) 90 FCR 538, 558 [82]-[83]. In the context of repatriation claims, however, the applicant does not have the onus of proof and the Tribunal's duty "to arrive at the correct or preferable decision in the case before it according to the material before it" does not confine the Tribunal to the material which the parties have submitted if it considers the material inadequate. That being said, the Tribunal's inquisitorial function to "obtain such information as it considers relevant" does not "impose upon it a general duty to undertake its own inquiries in addition to the information provided to it by the applicant and otherwise under the Act": Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429, 430 [1]. In SZIAI, the majority joint judgment also said at 436 [25]: … The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. [Footnote omitted.] The Full Court considered these observations in Kowalski v Repatriation Commission [2011] FCAFC 43 at [33]-[34], concluding that they also applied to the review function under the Veterans' Entitlements Act 1986 (Cth). It may be, therefore, that the Tribunal would fail in its duty if there were some obvious reason to make an inquiry about a critical fact, or if it was put on notice in some way about a matter that needed to be explored, but that was not the case here. There was no reason for the Tribunal to call or suggest that the author of the Writeway report be called to give evidence beyond the fact, obvious to all in the proceeding, that the Writeway report was being relied upon by the Repatriation Commission. The Tribunal observed at [76], as was the fact, that the author was not called to give evidence, but it was clear at the hearing of the proceeding that the Repatriation Commission was relying upon the Writeway report and that counsel for Ms McKinley did not seek to have the contents of the report tested by cross-examination of the author. There was nothing suggested to the Tribunal, or to this Court on appeal, that would have caused the Tribunal to consider it necessary to call the author of the Writeway report in circumstances where Ms McKinley's legal representative was not seeking to do so. Counsel for Ms McKinley, rather, urged acceptance of his client's evidence in preference to the contents of the Writeway report, but did not otherwise seek to challenge the contents of the report. The facts upon which the Tribunal was asked to make its decision were before it, and no other fact or circumstance was identified in the appeal to this Court to require an independent inquiry by the Tribunal. 14 I have set out this lengthy passage from the reasons of the primary Judge because it does, with respect, so completely answer this submission made by the appellant as to make it difficult to see any scope for the discernment of error of the kind that should be corrected on appeal. In his written outline, counsel for the appellant contented himself with asserting that the primary Judge was in error not to have held that the calling of the author of the report was an obvious step to take. Not so obvious a step, however, that it occurred to counsel when he appeared for the appellant before the Tribunal. In the light of his Honour's observations - not the subject of any critical submission on appeal - that counsel "did not seek to have the contents of the report tested by cross-examination of the author", and that counsel was "not seeking" to call the author, I regard the contention that it was an error of law for the Tribunal not to have done so of its own initiative as conspicuously lacking in merit. 15 It was also a ground of appeal that, to the extent that the Tribunal's findings related to the Writeway report, they were made on the basis of "an assumed factual premise for which there was in fact no evidence, namely that the contents of the report went uncontested" by the appellant. This ground was not relied on before the primary Judge, and is sought to be introduced for the first time on appeal. 16 The "premise" referred to in this ground was extracted from the third sentence in the paragraph of the Tribunal's reasons set out in para 8 above (that commencing, "Neither the applicant …"). It is now said that that was inconsistent with something said by the Tribunal in the preceding paragraph, namely, "when it was put to the applicant that her description of a number of events were inconsistent with the report of the Writeway author, her response was (or words to the effect) was he there?". It is as clear as may be that this ground, if taken before the primary Judge, would have been rightly rejected as not raising a question of law. Leave to raise it now should not be given. 17 The primary Judge's reading of the relevant passage in the Tribunal's reasons, which, as noted above, I would endorse, disposes of the other administrative law bases upon which that passage was challenged in the present appeal. It was said that the passage was "irrational and illogical", and, because the other Writeway reports were not in evidence, that the "finding" (as it was called) about the reliability of them was made without evidence. The viability of these grounds of objection, however, disappears once the passage is read as understood by the primary Judge. 18 The second main area of controversy related to an amendment which the appellant sought to make to her appeal under s 44 of the AAT Act but which was rejected by the primary Judge. Some attention should be given to the circumstances in which this application was made and rejected, but it is necessary to refer first to the aspects of the Tribunal's reasons to which the proposed amendment would have related. 19 In its reasons, the Tribunal had said that the appellant had given evidence before it to the effect that "she was highly medicated on her arrival at Dili". The Tribunal made use of the fact that the appellant had been so medicated in the following deliberative paragraph of its reasons: The applicant recorded in her first statement that armed military personnel were present on arrival at Dili airport (incident (i)). In her second statement, she said she was confronted by Indonesian soldiers who had their rifles pointed at her and to other persons. In evidence, she said she was sure that it was Indonesian soldiers who were present at the airport. She also said she was affected by medication when she arrived at Dili. Being confronted by a person with a rifle, irrespective of whether it was an Indonesian soldier or another person probably constitutes experiencing a life-threatening event and/or being threatened with a weapon. However, I am not satisfied that such an event occurred. The historical records reveal that Indonesian air force personnel and marines had left the Dili airfield and the port of Dili before the applicant arrived. INTERFET, that is, allied forces, were in control of the airport from 28 September 1999. The applicant may have observed a member of the allied forces holding a rifle, whilst acting as a guard or otherwise. It is unlikely that a member of the Indonesian forces would have been armed and present at the airport 12 days after Indonesia withdrew and if that did occur it most certainly would have been reported, no less than it being on the occasion of the arrival of Australian forces. 20 It appears that the Tribunal's reference to the appellant as having been medicated on her arrival at Dili was based upon its misunderstanding of the evidence which she gave in the hearing before it. As mentioned above, she had made an earlier claim under the VE Act which went to the Tribunal. In that claim, the appellant made no mention of hostile acts by Indonesian soldiers at the Dili airport. Rather, the nature of her then case appears from the reasons of the Tribunal on that occasion, Re McKinley and Repatriation Commission [2007] AATA 1298 at [19]: Ms McKinley gave evidence of the incidents that occurred during her operational service in East Timor and caused her to be concerned for her safety. The "first incident" was when Ms McKinley arrived at Dili Airport. She saw armed soldiers whom she thought may have been Indonesian and who may have been hostile although she could not recall any hostile acts. She did not remember seeing them smiling. In the recent case in the Tribunal (that from which the proceeding before the primary Judge arose), the appellant was asked why she had not mentioned the hostile acts by the Indonesian soldiers in her evidence in the earlier case. Her answer was, "I was very highly medicated back in 2005", a reference which she amended to "2005 and now 2007". That is to say, her evidence in 2014 that she was medicated related to the period when she prosecuted her earlier claim, 2005-2007, not to 1999, the time of her arrival in Dili. 21 In the appellant's grounds as they stood in the weeks before the proceeding below went to trial, no challenge was made to the Tribunal's finding that she had been medicated on her arrival at Dili. However, in a written outline filed on her behalf, it was proposed that three new questions of law be introduced into the proceeding. The respondent did not consent to the appellant approaching the matter in this way, and invited her to apply for leave to rely on fresh grounds under r 33.15 of the Federal Court Rules 2011 (Cth). In the result, by Interlocutory Application filed on 3 February 2015, the appellant sought leave to raise additional questions of law, which included the following: 1. Was the Tribunal obliged to make findings of fact based on the material before it? 2. Was the Tribunal obliged to give proper, genuine consideration to the material before it? At the same time, the appellant sought leave to rely on new grounds which corresponded closely with those proposed new questions of law. 22 The primary Judge refused that Interlocutory Application. From what we were told on the hearing of the appeal, his Honour's reasons for doing so were given ex tempore and were not published separately in a written form. We were not exposed to those reasons. In the outline of submissions filed on behalf of the appellant in the appeal, it is said that her Interlocutory Application was refused "on the ground that the questions, as framed in the Interlocutory Application, were not drafted so as to disclose questions of law". The outline continued: The [a]ppellant contends that the grounds were fairly disclosed in the supporting [a]ffidavit and [s]ubmissions concerning those matters, and that [h]is Honour erred in as much as he confined himself to the formally annexed questions rather than allowing adopting consideration of the grounds before him rather than having regard to all the material before the [c]ourt, particularly when there was no prejudice to the [r]espondent. 23 In his affidavit read before the primary Judge in support of the appellant's Interlocutory Application, her solicitor deposed that the Tribunal had misapprehended the evidence given by her. He continued: That misapprehension would clearly justify the remittal of this matter to the Tribunal as it formed a key aspect of its reasoning process in finding that Ms McKinley did not witness a threat from Indonesian troops in East Timor which led to the rejection of her claim for PTSD. Specifically, the Tribunal recorded that Ms McKinley gave evidence that she was medicated while in East Timor whereas in fact she was medicated when she last gave evidence to the Tribunal. And that was the clear consistent evidence she gave, as recorded in the transcript and extracted and discussed in the [a]pplicant's [o]utline of [s]ubmissions, filed and served, at paragraphs [22] to [28]. 24 On appeal, no - or at least no convincing - attempt was made by counsel for the appellant to demonstrate that the primary Judge was in error in disposing of her Interlocutory Application by reference to the questions of law which she specifically sought to introduce into her s 44 appeal. Particularly having regard to the restraint which a court of appellate jurisdiction should exercise before interfering with the exercise of a discretion on a matter of practice and procedure - see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177 - it was not satisfactory, in my view, for the appellant to criticise his Honour for having "confined himself to the formally annexed questions". We could not find error on his Honour's part otherwise than by reference to the relief which the appellant sought in the Interlocutory Application which she prosecuted. 25 Were we to take what I would consider to be the unconventional, and unwarranted, step of dealing with the appellant's corresponding ground of appeal without dealing first with the question of error on the part of the primary Judge in his disposition of the appellant's Interlocutory Application, I would still reject the ground. I would not accept the appellant's articulation of the questions of law that were (before the primary Judge) and are (before the Full Court) said to arise from the way the Tribunal dealt with this matter of her having been medicated. Those questions are no more than very high-level, tendentious, assertions about how a case should be decided. They do not, in my view, sufficiently engage with the principles of administrative law, whatever they are, that may be invoked by the Tribunal's misunderstanding of the appellant's evidence. 26 In the Amended Notice of Appeal, the appellant propounds the error of law which the Tribunal is supposed to have made as a finding that there were no Indonesian soldiers present on her arrival at the Dili airport "on the basis of an assumed factual premise for which there was in fact no evidence, namely that [the appellant] was medicated in Dili …." It may be that this was an intended invocation of the principle referred to in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-356, namely, that to make a finding of fact in the absence of evidence amounts to an error of law. If so, I would not accept that the Tribunal's comment about the appellant being medicated on her arrival at Dili was a finding on a relevant question of fact, either as such or as a contributor to a conclusion by way of inference. That is to say, being, or not being, medicated at that time was irrelevant to the question whether the appellant's generalised anxiety disorder and alcohol dependence were, or either of them was, war-caused. Rather, the Tribunal's comment may, at most, have reflected its thinking with respect to the reliability of the appellant's evidence. Whatever might be the situation in a conventional appeal, the comment did not, in my view, either amount to or give rise to an error of law sufficient to sustain an appeal under s 44 of the AAT Act. 27 The third main area of controversy related to what counsel for the appellant described as "the observation of critically injured people at the Dili hospital". His client's relevant ground of appeal was expressed as follows: The learned trial judge erred in upholding the Tribunal's findings that: …. The Applicant [sic] did not suffer from war-caused PTSD, or war-caused GAD or war-caused Alcohol Dependence or Abuse because she did not witness critically injured casualties at the hospital in Dili, because the Tribunal: 3.1 Failed to recognise that, on the facts found by the Tribunal, the veteran met the diagnostic criteria for an injury or disease being PTSD or a stressor giving rise to PTSD or a stressor connected to the Applicant's [sic] GAD or Alcohol Dependence or Abuse; and/or 3.2 Failed to give adequate and proper reasons for this material finding of fact. In submissions made on appeal in support of this ground, it was said that 3.1 related to the meaning of the expression "critically injured casualty" in the definition of the term "a category 1B stressor" in the Statement of Principles concerning anxiety disorder No 101 of 2007 ("the SoP"), while 3.2, as its wording suggests, related to the adequacy of the Tribunal's reasons in relevant respects. 28 In dealing with ground 3.1, it will be convenient to work by reference to the SoP. The Tribunal said that the corresponding provisions of the statement of principles which related to alcohol use disorder were relevantly indistinguishable from those of the SoP as I have defined that term in these reasons. 29 Before dealing with the substance of the appellant's ground 3, and of her related grounds of appeal to which I shall turn, I should refer to the legislative setting against which the Tribunal's relevant decision had to be made. 30 The provisions of the VE Act with which this aspect of the appellant's case engages are to be found in ss 9, 120, 120A and 196B. So far as relevant, s 120(1) provides as follows: Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran … relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war caused injury … [or] that the disease was a war caused disease … as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Relevantly to the present appeal, what would constitute a "ground" in this sense requires reference to s 9 of the VE Act, which provides: [A]n injury suffered by a veteran shall be taken to be a war caused injury, or a disease contracted by a veteran shall be taken to be a war caused disease, if: (a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; …. That is to say, the appellant was entitled to succeed in the Tribunal unless it was satisfied beyond reasonable doubt that neither of her diseases (generalised anxiety disorder and alcohol dependence) resulted from an occurrence that happened while she was rendering operational service. 31 Section 120(3) of the VE Act provides as follows: In applying subsection (1) … in respect of the incapacity of a person from injury or disease … 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; [or] (b) that the disease was a war caused disease or a defence caused disease; … 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. 32 Section 120A(3) provides as follows: For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person [or] a disease contracted by 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) …; … that upholds the hypothesis. 33 Section 196B(2) provides as follows: If the Authority is of the view that there is sound medical scientific evidence that indicates that a particular kind of injury, disease or death can be related to: (a) operational service rendered by veterans; … the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out: (d) the factors that must as a minimum exist; and (e) which of those factors must be related to service rendered by a person; before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service. 34 The "Authority" referred to in this provision is the Repatriation Medical Authority ("the Authority"). It determined the SoP. In the SoP, the Authority expressed the view that there was sound medical-scientific evidence that indicated that generalised anxiety disorder could be related to operational service rendered by veterans, and set out therein the factors that had to exist as a minimum before it could be said that a reasonable hypothesis had been raised connecting that disorder with the circumstances of a person's service and the factors that had to relate to that service. One of the factors was "experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder". Included in the list of category 1B stressors was "viewing corpses or critically injured casualties as an eyewitness". The term "an eyewitness" was defined as "a person who observes an incident first hand and can give direct evidence of it", with the rider, "[t]his excludes a person exposed only to media coverage of the incident." 35 It was the appellant's factual case that she had viewed critically injured casualties as an eyewitness during the period of her operational service. The author of the Writeway report had distilled ten incidents from the applicant's statement and individually reported on them. The author's comment on the appellant's claim to have seen critically injured casualties at a hospital in Dili was reproduced by the Tribunal as follows: [T]here were a number of hospital facilities in or around Dili. They were the 1st Field Hospital, also known as the INTERFET hospital, initially located at Dili airport but moved later to a building which was a former museum and a medical support unit established within the 1CSST compound. The INTERFET hospital and the medical unit at 1CSST treated INTERFET and East Timorese civilian casualties. The United Nations Military Hospital was established after the applicant left East Timor on 23 February 2000. There is a record of the [appellant] attending an appointment at the INTERFET hospital on 27 December 1999 …. Aside from the appellant's own evidence, therefore, there was material before the Tribunal which suggested that she had been at the INTERFET hospital on one occasion, and that that there were, at that hospital, INTERFET and East Timorese civilian casualties. 36 Of the appellant's own statement made on 11 December 2013 and received into evidence by the Tribunal, and of her oral evidence, the Tribunal said: At paragraph 16 she recorded that she saw many casualties. She made a similar recording in her previous statement. In this review, she said she attended the hospital on a number of occasions and saw many casualties - both civilians and army personnel - with missing limbs and bloodied bandages. She later said most of the persons were East Timorese civilians. In cross-examination, she said she attended the hospital for administrative purposes, to collect documents and on those occasions, she saw patients who were on stretchers or sitting in hallways. She said the limbs appeared to be missing. She recorded in her first statement that those experiences contributed to her emotional state. In her most recent statement, she said it added to my state of anxiety. [the Tribunal's emphasis] This evidence added to the material, referred to in the previous paragraph, which was before the Tribunal. 37 In its reasons of 12 September 2014, the Tribunal said: I am not satisfied that the applicant experienced any event which falls within a category lB stressor because: … b) there was no evidence that the applicant viewed corpses or critically injured casualties as an eyewitness (as defined). She did attend a hospital in Dili (incident (x)). In her first statement, she referred to observing casualties. In her second statement, she referred to observing many casualties. In this review, she said that she attended the hospital on a number of occasions, observed civilian and army casualties with missing limbs and bloodied bandages. When challenged, she said that the limbs appeared to be missing. The applicant's evidence does not point to the persons she observed as being critically injured casualties. The location on those persons' bodies of the bloodied bandages is not known. A more comprehensive description of the persons might permit an assumption to be reasonably drawn about whether those persons were in fact casualties and whether they were critically injured. It is unclear whether the incident, observed first hand by a person who asserts to being an eyewitness is the incident that caused the critical injuries or the incident of observing the person/s, later, with injuries of that description. The applicant did not observe injuries being sustained and for reasons given above, I am not satisfied that she was an eyewitness to critically injured casualties. [Emphasis in original] 38 In her catalogue of questions of law in the proceeding before the primary Judge, the appellant included the following that might be considered relevant to the issue about her having viewed critically injured casualties: 4. Did the Tribunal make a finding that was irrational or illogical and/or manifestly unreasonable in determining that the applicant did not suffer from a category 1A or 1B stressor linking her [generalised anxiety disorder] to her service for the purposes of the applicable Statement of Principle as a result of preferring a Writeway report to the applicant's evidence. 5. …. 6. In considering the applicant's evidence of observing injured persons at the hospital in Dili (at [93]), did the Tribunal err in any of the following respects: (a) By failing to find that the material, particularly Ms McKinley's evidence, disclosed and pointed to a reasonable hypothesis that the applicant had indeed witnessed critically injured casualties? (b) By failing to provide adequate or sufficient reasons for its finding that the applicant did not witness critically injured patients or patients who had lost limbs, and in doing so breaching s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth)? 7. Did the Tribunal give adequate and sufficient reasons as it was obliged to under s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) for its determination that the applicant: (a) Did not suffer from an injury or disease being [post-traumatic stress disorder]? (b) Did not suffer from war-caused [Generalised] Anxiety Disorder or alcohol abuse or dependence? As his Honour pointed out in his reasons, the appellant's grounds of appeal under s 44 corresponded closely to these (and her other) questions of law. 39 The primary Judge dealt carefully and, I would say with respect, systematically with these questions, and the corresponding grounds. In his submission on behalf of the appellant in the present appeal, her counsel did not engage with his Honour's reasons at all. Indeed, his ground of appeal numbered 3.1 related to a point which appeared not to have been agitated before his Honour at all: the relevant connotation of the term "critically injured casualties" in the definition of "category 1B stressor" in the SoP. In his argument under that ground, counsel handed up a dictionary definition of "critical". That argument was wholly focussed upon the Tribunal's reasons. The appellant's task was (or at least ought to have been), however, to identify error on the part of the primary Judge. During the hearing of the appeal, the court pressed counsel to identify where the primary Judge had dealt erroneously with the point arising under the definition. He was not able to do so. 40 I would reject the appellant's ground 3.1 on the simple basis that it does not represent any respect in which she has established that the primary Judge was in error. 41 With respect to the appellant's ground 3.2, it became clear during the hearing of the appeal that her complaint related to the passage in the Tribunal's reasons set out at para 37 above. The complaint was comprehended by question 6(b), and the corresponding ground, in the appellant's case as advanced before the primary Judge. 42 In his reasons of 2 March 2015, the primary Judge set out s 43(2B) of the AAT Act, upon which the appellant relied: Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. His Honour continued: In this case, the Tribunal did provide written reasons and those reasons did include its findings on material questions of fact including a reference to the evidence or other material on which those findings were based. Those reasons explained its findings and what it considered to be the material questions of fact in the sense of being the substantial issues on which the case turned: see Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402, 414. Those reasons were sufficient to enable the parties, and an appeal court, to understand the findings which the Tribunal had made and upon which its decision depended: see Minister for Immigration v Yusuf (2001) 206 CLR 323, 346 [69]. 43 So far as it went, the passage from the Tribunal's reasons set out above amply complied with s 43(2B) of the AAT Act. The primary Judge was correct to hold that it did so comply. As expressed, therefore, the appellant's ground 3.2 must be rejected. 44 It remains only to note the terms in which this ground was developed (or purportedly so) by counsel for the appellant in his submissions on the appeal. Rather than attempting to paraphrase what was then said, I shall set out three passages which, together, convey the nature of the challenge sought to be made to the primary Judge's reasons: • … there's no recognition there that the tribunal at stage 4 of Deledio could only reject the claim if it was satisfied beyond reasonable doubt that there was no possibility that [the appellant] had seen critically injured patients at the Dili hospital …. • His Honour said that the Tribunal was permitted to make the findings that it made and it rejected [the appellant] because it wasn't satisfied that she had … been an eyewitness to [a] critically injured casualty. That … conclusion had to be rejected by the Tribunal beyond reasonable doubt. There's no mention of the standard of proof there that was required to be applied by the Tribunal, and his Honour doesn't sanction the Tribunal for not applying the correct standard of proof as required in Deledio. It is on the basis of that … that we say the decision was wrong. • [The Tribunal] had to be satisfied beyond reasonable grounds [sic] that there were no factors allowing that finding, not that it was simply not satisfied, and we say that's where the Tribunal has got it wrong, your Honour, and his Honour has also not rectified the Tribunal in relation to that particular point. 45 Counsel's reference to "Deledio" was, of course, to the judgment of the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82. His submission does not, in my view, address ground 3.2 at all. Given that the "material finding of fact" referred to in the ground was that the appellant was not an eyewitness to critically injured casualties, the Tribunal's reasons for that finding were clear and intelligible. 46 That is not, of course, to exclude the possibility that those reasons might have disclosed an error of law along the path to the making of the finding concerned. That does appear to have been the thrust of the passages from the submission of counsel for the appellant set out above. To the extent that that submission was open to the appellant, it fell not under ground 3.2 but, possibly, under ground 4.1, which proposed that the primary Judge was in error to have upheld so much of the Tribunal's reasons as found, on the balance of probabilities rather than on the "reverse beyond reasonable doubt standard", that the material did not establish the clinical worsening of war-caused generalised anxiety disorder or alcohol dependence and alcohol abuse. 47 Recognising, with some justification in my view, that ground 4.1 might still be insufficient for the purposes of a submission along the lines set out above, during the hearing of the appeal counsel for the appellant sought to rely upon a fresh ground, which was provisionally identified by the court as ground 4A, as follows: The Tribunal erred in law in the standard of proof it adopted at stage 4 of Deledio. His Honour misdirected himself by thinking that the Tribunal was dealing with stage 1 and failed to correct the error. No resistance to the reception of this new ground of appeal was offered by counsel for the respondent, the point being dealt with on its merits in the submissions which she made. 48 This ground requires me to return to Deledio. In that case, the Full Court said (83 FCR at 97-98): … [W]e would restate the course which the Tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 Amendments) 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 that person as follows: 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 s 196B(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 ss196B(2)(d) and 196B(2)(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 s120(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. 49 In the deliberative part of its reasons in the present case, the Tribunal first found that the appellant was afflicted by generalised anxiety disorder and was alcohol dependent, but did not suffer from post-traumatic stress disorder. It then set out the four stages of Deledio. With respect to the first stage, the Tribunal held that "the material does point to hypotheses connecting the applicant's [generalised anxiety disorder] and alcohol abuse and the circumstances of the applicant's service." With respect to the second stage, the Tribunal found that there was an SoP in force under s 196B(2), namely, the SoP (and the corresponding standard in relation to alcohol dependence and alcohol abuse). With respect to the third stage, the Tribunal held that the hypothesis was reasonable "because it fits and is consistent with the template of applicable factors within each SoP and which exist as a minimum." 50 The Tribunal then said: At the fourth and final Deledio stage, I must determine whether I am satisfied beyond reasonable doubt that the injury/disease did not arise from a war-caused injury. Only at this stage will findings of fact be made. After some general remarks as to the reliability of some aspects of the appellant's evidence, and of the Writeway report (including those aspects dealt with earlier in these reasons), the Tribunal said: The focus in the remainder of this decision will be on whether the applicant experienced one or more of the severe traumatic events recorded under the description of a category 1A and 1B stressor. 51 The gravamen of the appellant's complaint is that, in its findings of fact at this level, the Tribunal proceeded not by reference to the reverse beyond reasonable doubt standard for which s 120(1) of the VE Act provided, but by reference to a balance of probabilities standard which was direct in the sense that it was the appellant herself who suffered where the evidence was absent or insufficient to justify the finding which she sought. The complaint related solely to the factual issue whether the appellant had, as an eyewitness, viewed critically injured casualties, it being contended by her that she had done so when she observed patients with missing limbs in the Dili hospital. 52 The totality of the Tribunal's reasoning on this point was the passage set out in para 37 above, together with the following: 96. Irrespective of whether an application is pursued on the basis of clinical onset or clinical worsening, there must be a finding on the probabilities that events or circumstances occurred in service which - for the purposes of this review - constitute 1A or 1B stressors. 97. For reasons given above, I am not satisfied that the applicant did experience a category 1A or 1B stressor. That finding is fatal to the application, no less also to the submission of clinical worsening. Accordingly, I am satisfied beyond reasonable doubt that the conditions of Alcohol Use Disorder or GAD were not war-caused. 53 It seems tolerably clear from the above that, on the matter of the existence of the relevant stressor referred to in the SoP, the Tribunal did not apply the reverse reasonable doubt standard. Did it err, in point of law, to have proceeded in this way? 54 The primary Judge held not. Referring to para 97 of the Tribunal's reasons, his Honour said: The standard of proof referred to in the paragraph, however, was not directed to the determination to be made for the purposes of s 120(3) but, rather, to the existence of the relevant "events or circumstances [said to have] occurred in service". The reference to "on the probabilities" was, therefore, directed to the standard of proof of the evidence relied upon, rather than to the standard of proof for the statutory conclusion required by the section. It was the Tribunal's failure to be satisfied "on the probabilities" of the happening of the events or circumstances upon which Ms McKinley relied that led the Tribunal in the next paragraph to conclude, in accordance with the statutory requirement, that it was "satisfied beyond reasonable doubt that the conditions of Alcohol Use Disorder or [general anxiety disorder] were not war-caused". The clear language used by the Tribunal demonstrates that it did apply, and was conscious of, the correct standard of proof required in reaching its ultimate conclusion. Its reference to any lesser standard in relation to the events or circumstances which might lead to that ultimate conclusion was not erroneous and not surprising because there is no obligation for the evidence relied upon to be established beyond reasonable doubt. The higher burden of proof applies to the conclusion upon the established evidence. 55 Counsel for the respondent defended this approach. In submissions which dealt with the point as though covered by the appellant's ground 4, she said: Ground 4 expressly refers to paragraph 96 of the tribunal's reasons for decision, and there the tribunal says - is talking about whether a case is pursued on the basis of clinical onset or clinical worsening, and says there must be a finding on the probabilities that events or circumstances occurred which constitute those stressors. That again, in my submission, is correct. When you're talking about events inside the statement of principles, the tribunal needs be satisfied of those events. 56 As noted above, there was material before the Tribunal from which a finding that the appellant was an eyewitness to critically injured casualties might have been made. The first three stages of Deledio had been covered. The Tribunal then arrived at the point of moving beyond the mere existence of the material to a finding of fact whether the appellant had witnessed such casualties. In concluding that she had not, it proceeded on the balance of probabilities. This was, in my view, contrary to the requirements of s 120(1) of the VE Act. To the extent that the Tribunal understood s 120(1) as concerned only with proof of the connection between an established circumstance of the veteran's service and the injury which he or she sustained, or the disease from which he or she suffered, I would hold that that understanding does not reflect the terms of the subsection. What must be established beyond reasonable doubt is that "there is no sufficient ground" for determining that the veteran's injury or disease was war-caused. If the material before the Tribunal, if accepted, would constitute a sufficient ground, the veteran is entitled to succeed unless the Tribunal is satisfied beyond reasonable doubt that the material does not represent the facts as they occurred. This is the situation no less in the case of stressors under the SoP as in the case of other facts that may bear upon the veteran's entitlement. 57 Deledio itself did not deal specifically with the present problem, but there are two aspects of the Full Court's reasons in that case which point to the correctness of the position as I have attempted to explain it. First, their Honours held that it was only at the fourth stage that the Tribunal would be required to find facts from the material before it. That stage arose under s 120(1), which required the application of the reverse beyond reasonable doubt test. This suggests that, wherever in the disposition of a veteran's claim it is necessary to find the existence or non-existence of facts, that test must be applied. Secondly, although their Honours were critical of the use by the primary Judge in that case of notions of "onus", they appeared to endorse the principle embodied in the following passage from his Honour's reasons (Deledio v Repatriation Commission (1997) 47 ALD 261, 275; cited by the Full Court 83 FCR at 94): At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact. For example, in the present case the factors in the SoP include 70 gm/day consumption for at least 20 years. As it happens there was no dispute in the present case that the veteran's intake in fact was of this order. But if the commission were to deny this, then s 120(1) requires the commission to prove beyond reasonable doubt that the veteran's intake was in fact less than the SoP level. Transferred to the circumstances of the present case, this would seem to be tantamount to saying that, if the respondent put in issue, as it did, the appellant's having been an eyewitness to critically injured casualties, she was entitled to a finding in her favour on that issue unless the Tribunal were satisfied beyond reasonable doubt that she had not been such an eyewitness. 58 For these reasons, I would hold that, when the Tribunal found that the appellant had not viewed critically injured casualties as an eyewitness, it erred in law because it made that finding otherwise than by being satisfied beyond reasonable doubt of the fact referred to. The primary Judge likewise erred when his Honour held that it had not been an error for the Tribunal to have proceeded as it did. I would give the appellant leave to rely upon the new ground of appeal set out in para 47 above, uphold the appeal, set aside his Honour's order of 2 March 2015, allow the appeal under s 44 of the AAT Act and set aside the Tribunal's decision of 12 September 2014. The appellant should have her costs of the proceeding before the primary Judge and of the appeal. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Warren v Repatriation Commission

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