Hill v Repatriation Commission [2005] FCAFC 23 (28 February 2005)

Last Updated: 16 March 2006

FEDERAL COURT OF AUSTRALIA

Hill v Repatriation Commission [2005] FCAFC 23

VETERANS’ AFFAIRS – application by veteran for disability pension – claim for post-traumatic stress disorder and alcohol abuse arising out of operational service in Vietnam – veteran claimed to have witnessed incident in which crewmember drowned when attempting to escape from cockpit of aircraft that failed to land properly on board HMAS Melbourne – delegate of respondent rejected claim – appeal to Administrative Appeals Tribunal – Tribunal found that veteran had not witnessed incident as claimed – Tribunal therefore satisfied that incapacity did not arise from war-caused injury – Tribunal did not strictly follow four-step process laid down in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 but went directly to fourth step – whether Tribunal’s approach gave rise to appealable error – primary judge affirmed Tribunal’s decision – appeal to Full Court – new hypothesis connecting veteran’s conditions raised for first time during oral submissions – whether Tribunal required to consider hypothesis not raised by veteran – whether material before Tribunal points to or raises an hypothesis if it involves mere speculation or conjecture

WORDS AND PHRASES – "points to" and "raises"


Veterans’ Entitlements Act 1986 (Cth), ss 5D(2), 7, 9(1), 13, 119, 120(1) and (3), 120A, 180A, 196B
Administrative Appeals Tribunal Act 1975 (Cth) s 44


Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 applied
Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 explained
Dunlop v Repatriation Commission [2003] FCAFC 201 referred to
Repatriation Commission v Crane [2004] FCAFC 86 followed
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 discussed
BTR plc v Westinghouse Brake & Signal Co (Aust) Ltd (1992) 34 FCR 246 at 254 referred to
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 384 referred to
McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 618 referred to
Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560 referred to
Harris v Repatriation Commission (2000) 62 ALD 161 at 163 referred to
Tabag v Minister for Immigration and Ethnic Affairs (1982) 45 ALR 705 referred to
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 referred to
Federal Commissioner of Taxation v Swift (1989) 18 ALD 679 referred to
Nguyen Do Vinh v Minister for Immigration and Ethnic Affairs (1997) 46 ALD 528 at 532 referred to
Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 170 referred to
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576 referred to
Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 1277 at [29] referred to
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 followed
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] referred to
NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 referred to
Woolmington v Director of Public Prosecutions [1935] UKHL 1; [1935] AC 462 referred to
Jayasena v The Queen [1970] AC 618 at 623 referred to
Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 referred to
Tefonu Pty Ltd v Insurance and Superannuation Commissioner [1993] FCA 412; (1993) 44 FCR 361 at 366-7 referred to
Maretech CMDL Pty Ltd v Commissioner of Taxation (1996) 43 ALD 775 referred to
Federal Commissioner of Taxation v Raptis (1989) 19 ALD 726 referred to


Glanville Williams, "Evidential Burdens on the Defence" (1977) 127 New LJ 182 at 192
J D Heydon, Cross on Evidence, 6^th Australian ed., 2000 at [7210]


















KENNETH NORMAN HILL v REPATRIATION COMMISSION

NTD17 OF 2004


WILCOX, FRENCH & WEINBERG
28 FEBRUARY 2005
DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD17 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN:	KENNETH NORMAN HILL APPELLANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	WILCOX, FRENCH & WEINBERG JJ
DATE OF ORDER:	28 FEBRUARY 2005
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD17 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN:	KENNETH NORMAN HILL APPELLANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	WILCOX, FRENCH & WEINBERG JJ
DATE:	28 FEBRUARY 2005
PLACE:	DARWIN

REASONS FOR JUDGMENT

THE COURT

1 This is an appeal from a judgment of Mansfield J (Hill v Repatriation Commission [2004] FCA 851) given on 1 July 2004. His Honour dismissed an application by way of appeal under s 44(3) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") from a decision of the Administrative Appeals Tribunal ("the AAT") given on 17 November 2003. The AAT affirmed the decision of the respondent to reject the appellant’s claim for a disability pension under s 13 of the Veterans’ Entitlements Act 1986 (Cth) ("the VE Act"). It did so in respect of three conditions: post-traumatic stress disorder ("PTSD"), psychoactive substance abuse or dependence ("alcohol abuse"), and what it somewhat inaptly described as "electrocution".

THE BACKGROUND FACTS

2 The appellant was 17 years of age when he joined the Royal Australian Navy on 23 October 1965. He served until 19 March 1978. He had two periods of operational service, both aboard HMAS Melbourne, from 25 April 1966 to 6 May 1966 and from 30 May 1966 to 9 June 1966. These periods of operational service constituted "eligible war service", as defined in s 7 of the VE Act. He also rendered "defence service", as defined in Pt IV of the VE Act, from 7 December 1972 to 19 March 1978.

3 The appellant was assigned to HMAS Melbourne on 5 February 1966 after completing a three-months training course. His position was that of ordinary seaman, electrical mechanic.

4 The appellant began drinking in 1966. His consumption of alcohol increased progressively. By 1974, his service records indicated a provisional diagnosis of alcoholism.

5 The appellant’s claim for a disability pension was based on three alleged incidents in his service career:

• on 16 March 1966, he suffered an electric shock while on board HMAS Melbourne near Port Jervis in New South Wales;
• on 28 April 1966, while on operational service in Vietnam, he claimed to have witnessed an incident in which a crew member drowned when attempting to escape from the cockpit of a Sea Venom aircraft that failed to land properly on board the carrier, and so fell into the ocean and sank; and
• some years later, while stationed in New Guinea, he claimed to have experienced a life-threatening situation when guarding a property during a riot.

6 The appellant’s claim has had a long and complex history. It was initially rejected by the respondent in January 1998. That decision was affirmed by the Veterans’ Review Board in September 1998. In April 2000, the AAT affirmed the decision of the Veterans’ Review Board ("the first AAT decision"). The appellant then sought review under s 44(3) of the AAT Act, asserting error of law on the part of the AAT. The first AAT decision was set aside by a Judge of this Court, and the matter remitted for reconsideration. An appeal to the Full Court by the respondent was dismissed, save that the remittal was limited to the claims for PTSD and alcohol abuse. In effect, the Full Court determined that the claim for a pension in respect of electric shock should be rejected.

7 The decision now challenged by way of appeal from the judgment of the primary judge is the second AAT decision, given on 17 November 2003, after reconsideration of the appellant’s claims in respect of PTSD and alcohol abuse.

THE LEGISLATIVE FRAMEWORK

8 Section 13(1) of the VE Act provides that the Commonwealth is liable to pay pension to a veteran who has become incapacitated from a war-caused injury or disease. The circumstances in which a disease is taken to be war-caused are set out in s 9(1). The appellant claimed that his PTSD and alcohol abuse were each "war-caused" diseases within the meaning of that expression in ss 5D(2) and 9(1).

9 Where a claim relates to operational service, the standard of proof to be applied by the Repatriation Commission and, on review by the AAT when addressing the question whether a disease is war-caused, is that prescribed by ss 120(1) and 120(3). These provisions are as follows:

"120(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

...

102(3) In applying subsection (1) or (2) 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 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;

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c) that the death was war-caused or defence-caused;

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."

10 These provisions are to be applied in the manner explained by the High Court in Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564.

11 As the appellant’s claims were made after 1 June 1994, s 120A is also applicable. Subsection 120A(3) provides that, for the purposes of s 120(3), an hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by that person is reasonable only if there is in force a Statement of Principles ("SoP") determined under s 196B(2) or (11), or a determination of the Commission under s 180A(2) that upholds the hypothesis. In other words, any hypothesis raised by the material will only be reasonable if it is consistent with, or fits the template of, the SoP: Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 96 ("Deledio").

12 The method by which subsections 120(1), 120(3) and 120A(3) are to be applied was explained in Deledio at 97-98. The Full Court (Beaumont, Hill and O’Connor JJ) said:

"At the risk of being repetitious we would restate the course which the Tribunal is to take in a case, such as the present, (that is, 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 (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 ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it would 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 s 120(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."

THE PROCEEDING BEFORE THE AAT

13 Before the AAT, the appellant identified SoP No 15 of 1994 (as amended by SoP No 225 of 1995) as the relevant SoP that governed his claim for PTSD. The respondent proceeded upon the same assumption. In fact, at the time the AAT delivered its decision, and unbeknown to it, the earlier SoP had been repealed and replaced by SoP No 3 of 1999 (as amended by SoP No 54 of 1999).

14 The AAT said, in its reasons for decision, that it was prepared to proceed upon the assumption, without finally determining the matter, that the appellant suffered from PTSD and alcohol abuse. The respondent accepted alcohol abuse but did not at any stage concede PTSD.

15 The AAT noted that the appellant was not rendering defence service at the time of the riot in New Guinea. More significantly, it found that the New Guinea episode was in no way relevant to the claims for PTSD or alcohol abuse, largely because the appellant himself did not seek to attribute either of those conditions to that episode. Rather, he claimed that they were brought about either by the Sea Venom incident alone, or by that incident in combination with the earlier electric shock It should be noted that the appellant did not challenge the AAT’s conclusion regarding the New Guinea episode. Accordingly, the primary judge did not find it necessary to make any further reference to that incident.

16 The AAT set out and referred to each of the specific provisions that governed the appellant’s claims. In particular, it referred to the onus of proof, as explained in ss 120(1) and (3) and 120A(3). It then referred to the SoPs relating to PTSD and alcohol abuse, mistakenly identifying the 1994 SoP for PTSD as that which was applicable. The AAT noted that each SoP identified the factors which, as a minimum, had to exist before a reasonable hypothesis could be raised connecting PTSD and alcohol abuse with the circumstances of the appellant’s operational service.

17 Under the 1994 SoP for PTSD, the appellant was required to have experienced "a stressor" prior to the clinical onset of post-traumatic stress disorder, or the clinical worsening of that condition. Clause 4 of that SoP stated, inter alia:

"For the purposes of this Statement of Principles:

"DSM-IV" means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;

"experiencing a stressor" means the following (derived from DSM-IV):

(a) the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person’s, or other people’s, physical integrity; and

(b) the person’s response to that event involved intense fear, helplessness or horror;"

18 With regard to the claim for alcohol abuse, the AAT noted that the relevant SoP required the applicant to have experienced "a stressful event" prior to the clinical onset or worsening of that condition. The term "a stressful event" was defined as meaning:

"...an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress."

19 The AAT characterised the hypothesis put forward on behalf of the appellant in respect of the Sea Venom incident in the following terms:

"SEA VENOM INCIDENT

14. After the Melbourne left Singapore, Mr Hill was performing duties on the weather deck. He claims to have witnessed an incident involving a Sea Venom aircraft. He described the incident in the following terms:

"As part of my duties I was surveying an area of 2-deck which required repainting as determined by one of my superiors. Whilst I was in the vicinity of one of their after sponsons I was aware that there were aircraft landing and I heard what sounded like an aircraft come in to land and then what sounded like the arrestor wire snap and I was so very close to one of the sponson doors – these sponsons are an annex platform out on the side of the ship below the flight deck level. They used to carry anti-aircraft guns in its previous life. That sponson was actually clear and there were no gun apparatus on that sponson and I ducked out the hatch onto the sponson, staying under the eve of the flight deck, if you like, in time to see the Sea Venom. It occurred to me that he thought he’d snapped something and he’d given it full power to take off from the deck to try and fly around again and work things out or maybe even fly to a shore base somewhere if he got an assessment of the damage. He’d attempted to whack on full power and he seemed to have done that. The next thing I know is that the roar of the engines and the aircraft appeared over the side of the flight deck and he was suspended by his arrestor hook. He was just hanging there. The arrestor hook snapped and the aircraft plummeted down into the water. By this stage they decided to stop the ship and for some minutes I saw the aircraft floating out to the side of – directly below where I was standing and I saw a person in there trying to punch his way out through the canopy. That’s been very disturbing to me. The aircraft sank. Went to the bottom of the South China Sea, I assume."

In cross examination, Mr. Hill said that he first saw the Sea Venom hanging by its arrestor hook and saw the hook snap. He said that the HMAS Melbourne was put into reverse and the aircraft went alongside the ship. He said he could see a man in the aircraft trying to punch his way out of the cockpit; it was easy to see inside the canopy.

This event occurred when Mr. Hill was rendering eligible war service.

15. Mr. Hill’s evidence was that he believed that the pilot had died in the Sea Venom. When he was asked by his representative how he was affected by the incident at the time and what emotions he felt, Mr. Hill replied:

"Well, I really don’t know, I really don’t. No, I don’t know. It’s - I guess it was the confusion, a feeling of confusion. I could see it happening there, it wasn't happening to you but it [was] happening to somebody and you couldn't do anything about it."

16. Mr. Hill gave evidence before the Tribunal that HMAS Melbourne proceeded to Vietnamese waters, although it did not dock in Vietnam but went on to Hong Kong. When he went on shore leave, he became very drunk for the first time in his life "... to drown memories" of "... the electric shock incident, and secondly of seeing a bloke trapped inside a canopy and no way of helping him". (emphasis added)

20 The AAT observed that although the appellant had, at one time, relied upon the Sea Venom incident as having brought about a "clinical worsening" of the PTSD and alcohol abuse that he initially sustained as a result of the electric shock incident, that claim could no longer be maintained. That was because the clinical worsening claim had been rejected in the first AAT decision, and the Full Court reviewing that decision had concluded that there was no error in that finding. On the remitter, the AAT therefore saw no need to address the "clinical worsening" claim. It appears that the appellant did not challenge that finding before the primary judge. However, that did not prevent him from seeking to agitate the matter on the appeal to this Court.

21 The AAT described the only issues to be determined, on the remitter, as being:

"... whether Mr Hill experienced a stressor by witnessing the Sea Venom incident and whether that experience led to his current conditions of PTSD and alcohol abuse."

22 The AAT then turned to a detailed consideration of what, if anything, the appellant had seen or experienced in relation to that incident. It noted that he had made no mention of the Sea Venom incident when he first claimed a disability pension in September 1997. Nor had he raised it when examined by a psychiatrist in November 1997. In fact, he had not said anything about the Sea Venom matter until he spoke about it while giving evidence before the Veterans’ Review Board in September 1998. The AAT noted that it had considerably more evidence available to it than had been available at the first AAT hearing. It set out a detailed account of that additional evidence, and then went on to make findings regarding the incident.

23 In summary, the AAT accepted that on 28 April 1966, a Sea Venom aircraft had appeared to land normally on HMAS Melbourne, but that the arrestor wire had malfunctioned. Instead of slowing down, and stopping, the aircraft had continued to move forward down the deck at some speed. The pilot, Lieutenant John Da Costa, had applied full power in an effort to resume flight, but the problem had arisen too late for that to be done. In the space of a few seconds, the aircraft was propelled forward along the deck, and fell into the sea. As it was falling from the deck, Lieutenant Da Costa activated the "eject" function. The canopy was jettisoned and he ejected at about the point when the aircraft hit the water. He was subsequently rescued. The observer officer, Lieutenant E G (Ted) Kennell, also attempted, belatedly, to eject. In his case, the ejection process was only partially completed when the aircraft hit the water. Tragically, he drowned.

24 After an extensive analysis of the material before it, the AAT found that if the appellant had been surveying an area of 2-deck that required re-painting, as he claimed, he could not have had a line of vision to the flight deck. Accordingly, he could not have seen the aircraft go over the end of the ship, and plummet into the sea. Moreover, he could not have seen the aircraft suspended from the arrestor hook, or the crewmember trying to punch his way out of the canopy, as neither of these things had occurred.

25 The AAT proceeded from these findings to the following conclusion:

"The Tribunal is satisfied beyond reasonable doubt that Mr Hill did not see the Sea Venom incident. That is why it did not assume much importance in the first 12 months after he made his claim and why he felt no intensity about it." (emphasis added)

26 The AAT accepted that the appellant had done his best to give a truthful account of the events surrounding the Sea Venom incident. However, he was wrong about so many things that he could not possibly have seen that incident.

27 Two psychiatrists gave evidence to the effect that the appellant may have transposed aspects of the Sea Venom incident with an earlier event that occurred on 12 February 1966 involving a night deck landing in a Gannet XG796, off Jervis Bay. The pilot of that aircraft had executed a "last minute wave off" because he thought the ship was turning. However, the aircraft engaged an arrestor wire with the result that it went over the port side of the flight deck. It came to a precarious halt, suspended by a combination of the hook/arrestor wire and being partially embedded in a sponson below the flight deck. The ship came to a stop, and the aircraft remained suspended pointing vertically towards the water. In the end, the pilot and the observer were able to force the canopy open, and escape uninjured. However, the Gannet incident, having occurred off Jervis Bay, could not have been "war-caused" within the meaning of s 120(1) of the VE Act.

28 It was in the light of its finding that the appellant had not seen the Sea Venom incident that the AAT concluded that the hypothesis advanced on his behalf, linking his PTSD and alcohol abuse with the Sea Venom incident, was "not reasonable". The SoP for PTSD could not be satisfied because the appellant had not experienced "a stressor" during that incident. Similarly, the SoP for alcohol abuse was not met because he had not relevantly experienced "a stressful event".

29 It should be noted that the AAT, having rejected the appellant’s claim in relation to PTSD because he had not experienced a stressor, went on to add:

"...and he certainly did not have a response involving intense fear, helplessness or horror, nor subjective symptoms of increased stress."

30 The AAT seems to have based that additional observation upon the fact that the appellant had not seen the Sea Venom incident. Nonetheless, the reference to "intense fear, helplessness or horror" was plainly linked to the SoP for PTSD as it stood in 1994. It should be noted that the 1999 SoP, as amended by Instrument No 54 of 1999, deleted this requirement from the definition of "experiencing a stressor", replaced that expression with the term "experiencing a severe stressor", and relevantly defined events that might qualify as stressors as including:

"(i) threat of serious injury or death; or

(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;"

31 The AAT then affirmed the decision to reject the claim for disability payments for PTSD or alcohol abuse.

THE PRIMARY JUDGE’S DECISION

32 The main argument put on behalf of the appellant before the primary judge was that the AAT had failed to follow the decision-making process required by ss 120(1) and (3) and 120A of the VE Act, as explained in Deledio.

33 It will be recalled that Deledio laid down a four-stage process. It first required the AAT to consider all the material before it and determine whether that material pointed to an hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arose at that stage. If no such hypothesis arose, the application would fail. If the material did raise such an hypothesis, it next required the AAT to ascertain whether there was a relevant SoP in force. If not, the hypothesis would be taken not to be reasonable and the application would fail. If an SoP were in force, the AAT would have to consider whether the hypothesis raised was a reasonable one. It would do so by determining whether it was consistent with the template found in the SoP. If the hypothesis failed to fit within that template, it would be deemed not to be reasonable, and the application would fail. It was at the fourth stage that the AAT would consider under s 120(1) whether it was satisfied beyond reasonable doubt that the injury or disease was not war-caused. If the AAT were so satisfied, the claim would fail. It was only at this final stage that the AAT would be required to find facts from the material before it.

34 His Honour rejected a submission on behalf of the respondent that the AAT had implicitly followed the Deledio four-stage process. He concluded that it had truncated that process by moving immediately to the fourth stage. Having found, beyond reasonable doubt, that the appellant had not seen the Sea Venom incident, the AAT concluded that the hypothesis that he put forward, connecting his PTSD and alcohol abuse with the circumstances of his operational service, was "not reasonable".

35 His Honour then considered whether the AAT’s failure to follow the course laid down by Deledio, meant that the appeal should succeed. He noted that there was authority for the proposition that the AAT was not obliged to proceed from step to step in any mechanical manner: see Dunlop v Repatriation Commission [2003] FCAFC 201 and Repatriation Commission v Crane [2004] FCAFC 86. He accepted that the Deledio formulation was not to operate in substitution for the requirements of the VE Act.

36 Having given careful consideration to the matter, his Honour determined that the appeal should be dismissed. He concluded that the finding by the AAT, beyond reasonable doubt, that the appellant had not seen the Sea Venom incident, meant that his claim, as articulated, had to fail. If the appellant had not witnessed the Sea Venom incident, it could hardly constitute either a stressor, or a stressful event, within the meaning of the relevant SoPs. He found that the AAT’s approach, whereby it proceeded directly to the final Deledio step, having already determined that the facts were such as to render the previous steps irrelevant, did not of itself give rise to any appealable error.

37 In arriving at that conclusion, his Honour was meticulous in identifying the exact hypothesis upon which the appellant had relied. He noted that in written submissions, the hypothesis had been formulated as follows:

"[He] witnessed a ditching at sea by a ‘Sea Venom’ where the aircraft had broken up on impact and the observer was killed and his body never recovered."

38 His Honour accepted that, on one view, an hypothesis so formulated might be regarded as broad enough to encompass the appellant simply having seen some "segments" of the crash. However, he concluded that, upon a proper analysis, the appellant’s material raised the hypothesis connecting his diseases with his operational services:

"... by reason of him seeing the Sea Venom aircraft at least at a time where he realised the crew member was unable to survive and then subsequently was lost."

39 In substance, therefore, his Honour concluded that the hypothesis advanced on behalf of the appellant had, as its central feature, his having seen the aircraft plunge into the water, and further having seen a crew member directly below where he was standing trying vainly to punch his way out through the canopy until the aircraft sank. His Honour based that conclusion, in part at least, upon the detailed and graphic account that the appellant gave of the incident, and his comment that he found that sight "very disturbing". Indeed, the appellant laid great stress upon the profound effect that being a helpless bystander in these circumstances had had a upon him.

40 In his Honour’s view, the AAT had correctly identified the hypothesis put forward by the appellant, and rightly rejected the contention that it had caused, or aggravated, his PTSD or his alcohol abuse.

41 It followed that even accepting that the AAT had erred in failing to follow the four-stage process required by Deledio, it had nonetheless addressed the hypothesis put forward by the appellant. Moreover, it had done so in accordance with the requirements of s 120(3) because it had found, beyond reasonable doubt, that he had not seen the Sea Venom incident.

42 His Honour then dealt with an alternative submission, advanced on behalf of the appellant, that the AAT could not, on the evidence, have been satisfied beyond reasonable doubt that the appellant had not seen the Sea Venom incident, or at least some part of it. His Honour rejected that submission. He concluded that it had been open to the AAT, on the material before it, to find that the appellant could not have seen the incident as described. Indeed, it was highly likely that he had confused that incident with the earlier Gannet incident.

43 Finally, his Honour held that the fact that the AAT had applied the 1994 SoP for PTSD, rather than the 1999 version, was of no consequence. That was because the later version actually imposed a more onerous test by requiring that the applicant experience a "severe stressor" rather than a "stressor". In other words, the AAT’s finding that the appellant had not seen the Sea Venom incident would have been fatal to his claim irrespective of which SoP had been applied.

THE APPEAL TO THIS COURT

44 By notice of appeal filed on 22 July 2004, the appellant contends that the judgment and orders of the primary judge should be set aside, together with the decision of the AAT of 17 November 2003. He seeks instead an order that this Court find that the conditions of PTSD and alcohol abuse were war-caused, and that the matter be remitted to the respondent for assessment of the appropriate rate of pension. Alternatively, he seeks an order that the matter be remitted to the AAT, differently constituted, for further hearing and determination according to law.

45 The notice of appeal contains eleven grounds, numbered 3-13. It is in the following terms:

"3. His Honour erred in law when he failed to hold that the AAT failed to apply or to apply correctly, sections 9(1)(a), (b) (d) and (e), 120(1) and (3), and section 120A of the Veterans’ Entitlements Act 1986 (the Act).

4. His Honour erred in law in failing to recognize that it was a fatal error of law and not open to the AAT to reject the evidence of the appellant at the first stage in the Deledio process.

5. His Honour erred in law in finding that the AAT had accurately identified the hypothesis put forward by the appellant. The hypothesis was broader, and his Honour accepted that the Appellant had witnessed a traumatic event.

6. The AAT erred in law in failing to recognize that the hypothesis raised by the appellant, complete with inconsistencies, was still capable of meeting the Statement of Principles (SoPs) relevant to the appellant. His Honour failed to correct the error.

7. The AAT and His Honour erred in law in failing to appreciate that the 1999 SoP for Post Traumatic Stress Disorder, applicable at the date of the AAT hearing, was less onerous to the appellant, and did not require the witnessing of a "stressful event" that involved a response of "intense fear, helplessness or horror", all factors more closely associated with the narrow hypothesis of the Tribunal.

8. His Honour erred in law in finding that the AAT not having followed the steps outlined in Deledio, having misapplied each individual step, never-the-less addressed a final step in the process in the correct manner was sufficient for the application to fail.

9. The AAT erred in not applying the 1999 SoP. His Honour erred in determining that the failure to apply the 1999 SoP for Post Traumatic Stress Disorder could not make any difference to the outcome.

10. His Honour erred in law in determining that the appellant did not contend that it was wrong for the AAT not to have dealt with the clinical worsening hypothesis. The appellant did not raise the question of his age, the previous electrocution accident, and the other loss of aircraft at sea, prior to the "Sea Venom" incident, and provided a report from a Psychiatrist that also related these issues as relevant to his post traumatic stress disorder. These points were highlighted in oral submissions to his Honour, but his Honour erred in not taking them into account.

11. His Honour failed to acknowledge the beneficial nature of the legislation (S.119), and the fact that the appellant did not bear any onus of proof, S.120(6), raised by the appellant in oral argument.

12. His Honour erred in law in finding that it was permissible for the AAT not to follow the procedure set out in Deledio v Repatriation Commission.

13. His Honour erred in law by determining that the material before the Tribunal was sufficient for the Tribunal to be satisfied beyond reasonable doubt this was a question of law to be determined by reference to all of the material not simply the material selected by the Tribunal in its erroneous process."

THE APPELLANT’S SUBMISSIONS ON THE APPEAL

46 In his written submissions, counsel for the appellant, Mr De Marchi, contended that the AAT’s decision was erroneous in six separate ways. These were its failure to:

(a) apply correctly the legislative framework (grounds 3 and 11);
(b) follow the steps required in Deledio (grounds 4, 8 and 12);
(c) recognise the breadth of the hypothesis raised on behalf of the appellant (grounds 5 and 6);
(d) recognise that the 1999 SoP for PTSD, which ought to have been applied, was relevantly more favourable to the appellant than that actually applied (grounds 7 and 9);
(e) appreciate that the question of "clinical worsening" was still a live issue (ground 10); and
(f) find facts correctly (ground 13).

47 It was submitted that errors (b), (c), (d), (e) and (f) were all replicated by the primary judge.

48 In developing his written submissions in support of grounds 3 and 11, Mr De Marchi contended that the AAT’s consideration of the operation of ss 120(1) and (3) and 120A was flawed by its failure to take into account as well ss 9(1), 119 and 196B. As we understand his submission, he contended that the failure to focus upon s 9(1) meant that the possibility that the electric shock incident had contributed in some way to the later development of PTSD or alcohol abuse had been overlooked.

49 Mr De Marchi submitted that in failing to focus upon s 119(1)(g), which required the AAT to act "according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities", it had not adequately taken into consideration the appellant’s difficulties in recalling precisely what had occurred during the Sea Venom incident.

50 Finally, Mr De Marchi submitted that the AAT’s failure to have regard to s 196B(14) had resulted in an inadequate analysis of the causation issue.

51 With regard to grounds 4, 8 and 12, Mr De Marchi submitted that it was clear, as the primary judge found, that the AAT had failed to comply with the requirements laid down by the Full Court in Deledio. Those requirements were mandatory. The conflation of the four stage process into a single stage, based upon a finding of fact prematurely made, was so blatant a disregard of what the Full Court had said in Deledio that it should not be condoned. If the primary judge’s decision were permitted to stand, all future decision-makers would be emboldened to take impermissible short cuts, and simply ignore what Deledio had so carefully articulated.

52 Mr De Marchi’s submission in support of grounds 5 and 6 was essentially that both the AAT and the primary judge had significantly understated the breadth of the hypothesis upon which the appellant had relied. Indeed, he submitted that the AAT itself had raised a broader hypothesis than that formulated by the primary judge when it concluded that the appellant’s memory was "probably a compilation of his traumatic dreams and reality". That finding assumed that the appellant had been confronted with some event that had resulted in "traumatic dreams", an hypothesis that the AAT left entirely unexplored.

53 Mr De Marchi’s argument in support of grounds 7 and 9 was simply that by treating the AAT’s failure to apply the correct SoP as inconsequential, the primary judge had misunderstood the effect of the changes brought about by the 1999 amendments. In particular, those amendments had led to the removal of the requirement that the response involve "intense fear, helplessness or horror", a change that operated in favour of the appellant.

54 Mr De Marchi’s argument regarding ground 10 was put quite baldly. He submitted that the AAT’s failure to deal with the "clinical worsening" issue, in the mistaken belief that it had been determined by the earlier Full Court, meant that its decision was vitiated.

55 Finally, Mr De Marchi submitted in support of ground 13 that there was no evidence to support the AAT’s finding that the appellant had not seen the Sea Venom incident. That argument was put on the basis that the finding had to be made beyond reasonable doubt, and such a conclusion simply could not be reached.

THE RESPONDENT’S SUBMISSIONS ON THE APPEAL

56 Counsel for the respondent, Miss Ford, argued, in her written submissions, that there was no substance in Mr De Marchi’s claim that the AAT had failed to take into account certain provisions of the VE Act that were relevant, and pivotal, to the case before it. She noted, for example, that the AAT had referred to the argument regarding the electric shock incident and "clinical worsening" on several occasions in its reasons for decision. In particular, it had referred to the following observation of the first Full Court:

"[G]iven that the Tribunal’s rejection of the clinical worsening and clinical management hypothesis was unchallenged in this Court, the only possibility that fell for consideration by the primary judge was whether Mr Hill experienced a stressor prior to the clinical onset of PTSD."

57 Miss Ford submitted that the AAT had correctly concluded at [28] that the only issues before it on the remitter were whether:

"...Mr. Hill experienced a stressor by witnessing the Sea Venom incident and whether that experience led to his current conditions of PTSD and alcohol abuse."

58 Miss Ford submitted that having regard to the finding by the first Full Court that there was no error in the approach taken by the first AAT to the "clinical worsening" hypothesis, and the fact that Mr De Marchi could not point to any flaw in the approach taken by the second AAT to that issue, there was no substance in his complaint about this matter. She added that the Court should not now entertain this ground, as it had not been pressed before the primary judge.

THE NEW GROUND OF APPEAL

59 It soon became apparent during the course of oral argument before this Court that Mr De Marchi sought, in effect, to argue a point that was not contained in either the notice of appeal, or in his written submissions. He submitted that the AAT’s failure to strictly follow the Deledio steps gave rise to an error of law that had eluded the primary judge. In substance, Mr De Marchi contended that the material before the AAT "pointed to", or "raised", an hypothesis connecting the appellant’s PTSD and alcohol abuse with the circumstances of his particular service in a way that may have been quite different from his claim as originally formulated, but in a way that nonetheless had to be considered.

60 Mr De Marchi’s argument proceeded as follows. He acknowledged that a number of witnesses, who were present at the time of the Sea Venom incident, had given evidence before the AAT that could not possibly be reconciled with the appellant’s account of that incident. Those witnesses included Lieutenant Da Costa, the pilot of the Sea Venom, and Commodore Philip Mulcare who had been serving on HMAS Yarra, which was astern of HMAS Melbourne at the time.

61 Lieutenant Da Costa said that he had made a normal approach for an arrested landing. The touchdown felt normal and the aircraft appeared to be lined up parallel to the centreline but slightly offset to starboard. A wire was engaged and initial retardation experienced. However, that retardation abruptly ceased and the aircraft rolled down the deck. He immediately applied full power in an attempt to take off again, but realised that he did not have flying speed. He therefore called out to Lieutenant Kennell to "eject". Lieutenant Da Costa succeeded in ejecting just before the aircraft plunged into the water, and Lieutenant Kennell ejected immediately afterwards. Lieutenant Da Costa entered the water feet first and inflated his lifesaver as he submerged. He released his parachute harness and thought he was completely disentangled until an SAR helicopter appeared. Its slipstream began to blow the parachute canopy away and he found himself being dragged until he succeeded in untangling a shroud line hooked about his neck and shoulder. At no time after ejection did he see Lieutenant Kennell.

62 Lieutenant Da Costa went on to make the following points:

• the time between applying full power and lurching over the end of the flight deck was only two or three seconds;
• the aircraft did not, at any stage, remain hooked to the ship;
• the fuselage of the Sea Venom was made of wood – the aircraft broke up immediately upon entering the water;
• the ship did not stop and could not have done so – it was doing about 20 knots at the time and there were two other planes in the air which still had to land; and
• he heard the ship go past.

63 It should be noted that the AAT had also been provided with a statement that had previously been given to the Board of Inquiry into the Sea Venom incident by Lieutenant G de V Bessell-Browne, an observer in a helicopter that had been hovering near HMAS Melbourne at the time. His account of the landing, and the entry of the aircraft into the water, was substantially the same as that given by Lieutenant Da Costa. Importantly, he said that immediately after the crash, he could see Lieutenant Kennell floating face down in the water, out of his seat, legs almost straight, with his feet about eighteen inches apart. His parachute was submerged behind him and was open. As the helicopter hovered overhead, Lieutenant Kennell started to sink headfirst. At no time did Lieutenant Bessell-Browne see Lieutenant Kennell move. His body sank so rapidly that there was no chance to attempt a rescue. He seemed to be unconscious throughout.

64 Finally, Commodore Mulcare gave evidence to the effect that if the appellant was where he said he was when the incident occurred – in the vicinity of a gun sponson on 2-deck – he could not have seen anything under the edge of the flight deck. Nor could he have seen the aircraft plunge over the end of the flight deck, as he claimed. Commodore Mulcare said that the Sea Venom had entered the water about 150 feet ahead of the ship in line with the port bow side. It took less than thirty seconds for the aircraft’s debris to pass, and the debris ended up astern of the ship.

65 Commodore Mulcare also provided a statement to the effect that the appellant had been on HMAS Melbourne on 12 February 1966 when the Gannet incident occurred, off Jervis Bay. A statement by Lieutenant Peter Coulson, the observer on the Gannet, was also tendered. That statement made it clear that the appellant’s description of the Sea Venom incident closely matched what had in fact occurred during the Gannet incident.

66 It should be noted that there was evidence before the AAT that the Mirror Control Officer on board HMAS Melbourne at the time of the Sea Venom incident, who was forward of the appellant, and in a much better position than the appellant to see what was happening, actually saw the aircraft enter the water. He said that immediately after the crash, he saw Lieutenant Da Costa paddling feebly with his Mae West inflated. Importantly, he never saw Lieutenant Kennell.

67 It was in the light of this evidence, which was extensive and far-reaching, that the AAT concluded, "beyond reasonable doubt", that the appellant "did not see the Sea Venom incident". It noted that the first time he suggested that this incident was in any way linked to his PTSD or alcohol abuse was approximately twelve months after he lodged his claim. As previously indicated, two psychiatrists made the obvious point that he had simply transposed aspects of the Gannet incident to the Sea Venom incident.

68 The AAT concluded, on the basis of this evidence, that the hypothesis put forward on behalf of the appellant linking his PTSD and alcohol abuse with the Sea Venom incident was "not reasonable". Self-evidently, if he did not see that incident, it could not form the basis of a "stressor" or a "stressful event".

69 Mr De Marchi recognised that the stark difference between the appellant’s version of the incident, and that of all the independent eyewitnesses, created a problem for his client. The extent of that difference can readily be seen when one has regard to the appellant’s account given during the course of the first AAT hearing, as set out at [19] in these reasons for judgment.

70 It can readily be seen that the appellant’s account of the Sea Venom incident bears a marked resemblance to the Gannet incident, and almost none to what is known of the Sea Venom incident.

71 It was in the course of his oral submissions to this Court that Mr De Marchi first contended that even if his client’s account of the Sea Venom incident were totally rejected, the AAT still had an obligation, in accordance with Deledio, to consider whether there was an alternative hypothesis available whereby that incident might have operated as a "stressor". The alternative hypothesis that he proffered involved Lieutenant Kennell’s death, but in a completely different way. He submitted that it was possible that the appellant, having heard the snap of the arrestor wire, or perhaps the screech of the aircraft engine as it sought to take off again, might have raced from his position on 2-deck, to a point where he could see the debris associated with the crash, as it floated past the ship. On that hypothesis, the sight of the debris, even without any view of Lieutenant Kennell’s body, might have led to the appellant’s trauma.

72 Miss Ford objected to this submission being raised for the first time during oral argument. She submitted that had this hypothesis been advanced before the AAT, the respondent could easily have rebutted it by calling more detailed evidence. Nonetheless, she submitted that even on the existing evidence, the new hypothesis could not withstand close scrutiny. She pointed, in particular, to the statement of the Mirror Control Officer, and the evidence of a crewmember located at a position known as "three Delta", which made it plain that the appellant could not have seen the debris of the aircraft float by, as suggested. If neither the Mirror Control Officer, nor the person at three Delta, had seen any debris of a kind that might have triggered such strong trauma, it was obvious that the appellant could not have done so either. Moreover, the fact that he never claimed to have seen any such debris ought to be the end of the matter.

CONCLUSION

73 In our opinion, none of the grounds contained in the notice of appeal has been made out.

74 Grounds three and eleven may be considered together. Contrary to Mr De Marchi’s contentions, the AAT did not fail to apply, or to apply correctly, the relevant provisions of the VE Act. Nor did the primary judge fail to acknowledge "the beneficial nature" of the legislation, or the fact that the appellant did not bear any onus of proof.

75 It is true that s 119(1)(g) requires the Commission to act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities. This provision is similar in many respects to s 420 of the Migration Act 1958 (Cth). For a time, it was thought that that section gave rise to substantive rights, beyond those conferred by other provisions of that Act, or the requirements of procedural fairness. In Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, the High Court rejected that interpretation, holding that s 420 did not prescribe a procedure to be observed by the Refugee Review Tribunal in the making of a decision so as to found a right of review not otherwise available. The fact that the AAT rejected the appellant’s evidence, on grounds that were overwhelmingly justified, can hardly mean that it failed to act according to substantial justice and the substantial merits of the case.

76 Grounds four, eight and twelve are equally without merit. Mr De Marchi submitted that once it became apparent that the AAT had failed to follow the Deledio steps, the primary judge had no choice other than to set aside its decision.

77 There is no basis for this contention. Section 44(1) of the AAT Act provides:

"A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding."

78 Under s 44(4), the Court:

"... shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision."

79 Section 44(5), without limiting s 44(4), empowers the Court to make an order:

"...that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court."

80 In general, it is a salutary practice for the AAT to follow the Deledio steps because by doing so it is less likely to overlook an hypothesis that is fairly raised by the material and must therefore be considered. On occasion, a failure to follow those steps may give rise to an error of law. Indeed, the primary judge held that the AAT’s failure to follow those steps had been an error of law in the present case. However, in our view, a failure to follow the Deledio steps will not of itself give rise to an error of law, and certainly will not do so in all cases. Of course, and in any event, even if an error of law is demonstrated it does not necessarily follow that the decision must be set aside.

81 If an error of law can be seen to have affected the decision reached, or arguably even possibly have done so, ordinarily the decision will be set aside: BTR plc v Westinghouse Brake & Signal Co (Aust) Ltd (1992) 34 FCR 246 ("BTR plc") at 254. As a general proposition, it will be of no consequence that the decision is capable of being supported on a different basis. Nor will it be of any consequence that the decision can be justified on the available evidence.

82 Another way of approaching the matter is to say that a decision will be set aside once error of law has been demonstrated unless it is manifestly clear that the error in no way contributed to the decision: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 384 per Toohey and Gaudron JJ.

83 It is well established that, in the context of appeals from the AAT, the Court may decline to set aside a decision even where an error of law has been demonstrated provided that it considers that the AAT arrived at a decision that was clearly correct on the material before it: McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 618; Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560; and Harris v Repatriation Commission (2000) 62 ALD 161 at 163.

84 It goes without saying that it is only a "decision" that can be appealed. The task of the Court on an appeal under s 44(1) was said, in BTR plc, to be essentially to undertake judicial review of the AAT’s decision.

85 The AAT’s finding that it was "satisfied beyond reasonable doubt" that the appellant had not seen the Sea Venom incident makes it clear that, in that context, the AAT was addressing s 120(1) of the VE Act, which equates with the fourth stage of Deledio. There is ample authority, as cited by the primary judge, for the proposition that the AAT is not obliged to proceed step by step, in a mechanical manner. In addition, as his Honour noted, in Repatriation Commission v Crane, a Full Court made the point that the Deledio steps were not meant to operate in substitution for the requirements of the VE Act.

86 Subject to one qualification to which we shall return, Miss Ford submitted, correctly, that given the AAT’s finding that the appellant had not seen the Sea Venom incident, any failure on its part to follow the four stage procedure laid down in Deledio was immaterial. Even if the AAT had specifically applied the third step, and found that the hypothesis relied upon by the appellant did satisfy the relevant SoP, its finding in respect of the fourth stage would have resulted in the same outcome, namely the AAT affirming the respondent’s decision.

87 The short answer to grounds five and six is that the only hypothesis advanced on behalf of the appellant was that correctly identified by the primary judge. It involved, as its central feature, his having witnessed a crewmember struggling vainly to escape from the cockpit of the Sea Venom seconds before that crewmember drowned. At no stage did the appellant ever claim that the event that triggered his PTSD and alcohol abuse was seeing debris from the aircraft as it floated past the ship. Accordingly, there was no "broader hypothesis" raised.

88 The next error of law for which Mr De Marchi contended, as set out in grounds seven and nine, was that both the AAT and the primary judge failed to appreciate that the SoP regarding PTSD introduced in 1999, which was in force at the time of the second AAT hearing, was more favourable to the appellant than the 1994 SoP for PTSD that was actually applied. Accordingly, so it was submitted, the primary judge erred in determining that the failure to apply the correct SoP could not have made any difference to the outcome. The short answer to this submission is that the appellant’s claim failed because he could not satisfy the first limb of the definition that was common to both SoPs. Therefore, any error by the AAT in applying the wrong SoP was immaterial.

89 In addition, the AAT’s error in focussing upon the wrong SoP did not bring about any injustice to the appellant in the present case. That was because its reference to the requirement (in the 1994 SoP for PTSD) that the person’s response to the event involved intense fear, helplessness or horror was at most an additional reason for rejecting the appellant’s case. The primary reason, to which the appellant can provide no answer, was its conclusion that he did not experience a stressor or stressful event.

90 Ground ten must be rejected irrespective of whether, as Mr De Marchi contended, the issue of "clinical worsening" was technically still a live issue as part of the appeal to the primary judge. Miss Ford submitted that this issue had effectively been abandoned, but it is not necessary to resolve that question. It is fair to say that Mr De Marchi barely touched upon the point in either his written or oral submissions. In any event, the finding that there had been no stressor or stressful event puts an end to the "clinical worsening" argument, as well as the causation argument.

91 Finally, ground thirteen, as we understand it, complains about the primary judge’s finding at [53] of his reasons for judgment that it was open to the AAT, upon the whole of the material, to have been persuaded beyond reasonable doubt that the appellant did not see the Sea Venom incident. His Honour rejected counsel’s submission that this finding was "perverse". He remarked that it was for the AAT to give any particular evidence before it such weight as it thought fit. Mr De Marchi submitted that this reflected an erroneous approach to the ground of appeal, since the argument that a finding was perverse raised a question of law, and was not to be dismissed by characterising the finding as one of fact.

92 It must not be forgotten that s 44 of the AAT Act does not confer a general right of appeal from a decision of the AAT to this Court. The appeal must raise a question of law. An appellant who attacks a decision of the AAT upon the basis that there was an absence of evidence to support its decision must, in order to succeed, show that there was no material before the AAT upon which its conclusion could properly be based. To assert that the AAT attached undue weight to a particular matter, or gave some other matter excessive weight, does not, of itself, give rise to an error of law: Tabag v Minister for Immigration and Ethnic Affairs (1982) 45 ALR 705; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; and Federal Commissioner of Taxation v Swift (1989) 18 ALD 679.

93 A court should not disturb a finding of fact by a tribunal based upon its assessment of the credit or credibility of a witness unless it is satisfied that the tribunal did not take advantage of its opportunity to see and hear the witness, or that the conclusions that it reached were inconsistent with an overwhelming body of evidence, or were glaringly improbable: Nguyen Do Vinh v Minister for Immigration and Ethnic Affairs (1997) 46 ALD 528 at 532. In any event, given that "appeals" from AAT decisions are confined to errors of law, there will rarely be any scope for this Court to embark upon a consideration of issues of this kind.

94 Mr De Marchi’s argument in support of ground thirteen fails at a threshold level. Not only was the AAT’s finding that the appellant had not seen the Sea Venom incident open on the material before it, no other finding could sensibly have been made.

95 Had the matter rested there, the appeal would simply have been dismissed. However, as we have previously indicated, Mr De Marchi sought to rely upon the new point during the course of his oral submissions. He submitted that, had the AAT moved sequentially through the four steps set out in Deledio, instead of leaping directly to the fourth step, it would have realised that there was an alternative hypothesis raised by the material before it that it was obliged to consider. Had it considered that alternative hypothesis, it might have arrived at a different decision regarding the appellant’s claim.

96 The Full Court in Deledio no doubt chose its language carefully when it formulated the four-stage process that the AAT should normally follow. An obligation, expressed in the terms of the first stage, implies a duty to consider not merely the particular hypothesis put forward, but also any other hypothesis fairly raised by the evidence.

97 However, the AAT is not required to trawl through voluminous documentation, with a view to seeing whether somewhere within that body of material there might be the semblance of an hypothesis connecting the applicant’s condition with the circumstances of his or her service. There is a substantial difference between an hypothesis fairly raised by the material, and one which can only be postulated on the basis of speculation and conjecture.

98 That difference is reflected in the use of the terms "points to" and "raise" in the first and second Deledio steps. An hypothesis is neither pointed to, nor raised, unless it emerges both obviously and directly from the evidence in question. If it is necessary to couple a fertile imagination with a selective rendition of the evidence in order to create the hypothesis, it is not an hypothesis of the kind which the Full Court in Deledio had in mind.

99 The present case provides a good illustration of this point. The appellant’s claim was based entirely upon his account of having been present at, and witnessed, what would have been an horrific scene, namely a person struggling frantically to escape from the cockpit of an aircraft sinking in the ocean. Once that account was rejected, and the AAT found that he had not seen the Sea Venom incident at all, can it be contended that it was nonetheless bound to consider the possibility that he had seen something completely different and thereby experienced a stressor of a different kind?

100 In our view, the material before the AAT did not "point to" any hypothesis of the kind for which Mr De Marchi now contends. If one strains, one can conjure up a range of possibilities that might provide a connection between what occurred on the day of the Sea Venom incident, and the appellant’s present conditions. He might, for example, have been told, in graphic detail, of what someone else had seen, or thought they had seen, of that incident. However, there is nothing in the evidence to support that suggestion. In our view, the AAT was under no obligation to consider it.

101 The same may be said of Mr De Marchi’s somewhat belated attempt, in oral argument, to argue for an entirely different hypothesis. Of course it is conceivable that the appellant may have seen something quite different from what he claimed at the hearing before the AAT to have seen. He might, for example, have seen something quite traumatic had he raced out onto the deck of the ship after hearing the noise of the aircraft seeking to take off again after its aborted landing. Given his evidence about where he was stationed when he first heard that noise, that would be an unlikely, though not impossible, scenario. He would have had only a few seconds at most to move from one part of the ship to another, a considerable distance. It is also theoretically possible that when he reached the side of the ship, assuming that he did so, he saw something in the water, perhaps a small amount of debris, that triggered in him a strong emotional response. However, his case bore no resemblance to either of those scenarios. Perhaps more to the point, there was not a scintilla of evidence to suggest that he had witnessed these events in anything like the manner postulated above.

102 The AAT was under no duty to make further enquiries, or to obtain further material in relation to the appellant’s claim. It would be unduly onerous, and unfair, to impose such a task upon it. There is nothing in the VE Act, or in any of the authorities to which our attention was drawn, which supports the existence of any such duty: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 170 per Wilcox J; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576 per Gummow and Hayne JJ; and Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 1277 at [29] per French J.

103 It is one thing to say that a tribunal must consider any inferences that are reasonably open on the material before it. It is altogether another to say that a tribunal must consider every conceivable permutation of the facts, and engage in speculation and conjecture as to possible hypotheses. The former is a course that Deledio not only permits but requires. The latter has no place under the VE Act.

104 The question that must be considered at this stage is whether the AAT was required to consider an hypothesis that was said to be available on the material before it even though it had not been expressly raised, and actually required findings which ran counter to the applicant’s case.

105 There is a recent authority directly in point. In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 ("NABE"), a Full Court (Black CJ, French and Selway JJ) gave careful consideration to the circumstances in which a failure to deal with a claim could amount to jurisdictional error. Citing Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, their Honours observed that a failure to make a finding on "...a substantial, clearly articulated argument relying upon established facts" could amount to a constructive failure to exercise jurisdiction. The Full Court went on to say at [59]-[60]:

"There is some authority which might be taken to suggest that the Tribunal is never required to consider a claim not expressly raised before it. In SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 301, membership of a ‘particular social group’ was put to the Tribunal as a Convention ground for apprehended persecution. The Tribunal was held ‘not obliged to consider whether some other social group might be constructed ...’ at [19]. That decision however turned upon particular circumstances. Its correctness is not in contention here. It does not establish a general rule that the Tribunal, in undertaking a review, can disregard a claim which arises clearly from the materials before it.

In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364 at 368 [17], Selway J referred to the observation by Kirby J in Dranichnikov, at 405, that ‘[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances’. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 that ‘[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made’ (at [16]). Selway J however went on to observe in SGBB (at [17]):

‘But this does not mean the application is to be treated as an exercise in 19^th Century pleading.’

His Honour noted that the Full Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 1801 at [49] had said:

‘The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention "label" to describe his or her plight, but the Tribunal can only deal with the claims actually made.’

His Honour, in our view, correctly stated the position when he said (at [18]):

‘The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.’

This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it." (emphasis added)

See also NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695.

106 Of course, NABE and the other cases cited by the Full Court may have to be qualified when considering their application to the AAT and, in particular, the VE Act. The AAT, when dealing with a claim under that Act, is required to consider whether a particular hypothesis exists, before finding facts, and then find facts in circumstances where the onus rests upon the respondent to negate their existence beyond reasonable doubt. No onus of proof, as such, exists in migration cases, or many other forms of administrative decision-making. The VE Act is different in that regard.

107 Nonetheless, an unarticulated claim that does not "clearly arise" from the material before the AAT does not, in our view, fall within the Deledio steps.

108 Further support for this conclusion can be derived from the analysis generally applied to "defences" in criminal cases. The criminal jurisprudence is relevant because of its application of the concept of "reasonable doubt" which has been incorporated in s 120 of the VE Act. Ever since Woolmington v Director of Public Prosecutions [1935] UKHL 1; [1935] AC 462, matters which exempt or exonerate an accused from criminal responsibility, apart from the defence of insanity and certain statutory defences, must be "fairly raised", on the evidence, before a jury can be required to consider them.

109 In Jayasena v The Queen [1970] AC 618, Lord Devlin, delivering the advice of the Privy Council, observed at 623:

"This does not mean, as the House made clear in subsequent cases, that a jury must always be told that before it can convict, it must consider and reject provocation and self-defence and all other matters that might be raised as an answer to a charge of murder. Some evidence in support of such an answer must be adduced before the jury is directed to consider it; but the only burden laid upon the accused in this respect is to collect from the evidence enough material to make it possible for a reasonable jury to acquit."

110 In other words, an accused must adduce (whether through leading evidence or cross-examining prosecution witnesses) or be able to point to "that small modicum of evidence that might be taken by a reasonable jury to raise a reasonable doubt as to his guilt". See generally Glanville Williams, "Evidential Burdens on the Defence" (1977) 127 New LJ 182 at 192. The evidential burden of such common law "defences" is on the defendant, but once this burden has been discharged, the legal burden lies on the prosecution.

111 Some commentators have gone further, and distinguished between those cases in which an accused has an evidential burden, and those cases where the burden is merely "tactical". See, for example, J D Heydon, Cross on Evidence, 6^th Australian ed., 2000 at [7210]. That refinement is of no relevance to the present case. On no view is a jury obliged to consider any purely speculative hypothesis that is not advanced on behalf of the accused, and for which there is not a scintilla of evidence.

112 That is not to say that a trial judge is relieved of the duty to put to the jury for its consideration any defence that is fairly raised by the evidence even where the accused makes it plain that no reliance is placed upon that defence. In Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107, it was made clear that the course taken by the defence in the conduct of its case does not relieve a judge from the duty to put to the jury any matters upon which they might find for the accused. Thus, an accused who relies upon an alibi in answer to a charge of murder is still entitled to have self-defence and provocation left to the jury if the evidence fairly raises those defences. This ensures that a defence that may be entirely inconsistent with the accused’s version of events, but is sufficiently raised by the evidence, will nonetheless be left to the jury.

113 Once again, the analogy is somewhat imprecise. However, the principle underlying the allocation of evidential burdens in relation to defences in criminal cases is similar, in certain respects, to the principle that lies behind the first of the Deledio steps. It is not the task of the AAT to search for hypotheses that might establish the relevant connection. If the material points to such an hypothesis, it must be considered. If it is not advanced, and exists only as a speculative possibility, it can be ignored. The AAT’s failure to consider as a possibility that the appellant may have experienced a stressor by witnessing something quite different to what he claimed to have seen cannot, in our view, give rise to appealable error on its part.

114 The material before the AAT strongly suggests, as it found, that what the appellant claimed to have seen, on the day of the Sea Venom incident, was an example of what is sometimes described as the "displacement effect". In substance, the appellant appears to have conflated the Sea Venom incident with the earlier Gannet incident. The psychiatric evidence supports that conclusion. In these circumstances, it would be grossly unfair to criticise the AAT for not having considered, as a possible hypothesis, the claim now made for the first time by Mr De Marchi.

115 The steps set out in Deledio are those logically demanded by the provisions of the Act. Of course it may be that there is an immediate answer to the fourth step that would render the other steps irrelevant. An hypothesis can be summarily rejected if, for example, there is evidence that establishes incontrovertibly that the applicant could not have experienced a stressor of a relevant kind because that applicant was in another country at the time. As we have already indicated, however, it is normally a salutary practice for the AAT to follow the Deledio steps. By doing so, it is less likely to overlook an hypothesis that is fairly raised by the material and must therefore be considered.

116 There is one final factor to be considered. The Court may refuse to permit an argument not raised before the AAT to be advanced for the first time on appeal. Of course, if the point goes to jurisdiction, the Court must deal with it irrespective of whether it was raised below. Likewise, if the argument involves an important question of law, the resolution of which could not have been affected by any evidence that might have been led had it previously been raised, the Court will often permit the point to be taken. Much may depend upon whether adequate notice of the new point has been given to the other party before the hearing of the appeal: Tefonu Pty Ltd v Insurance and Superannuation Commissioner [1993] FCA 412; (1993) 44 FCR 361 at 366-7; and Maretech CMDL Pty Ltd v Commissioner of Taxation (1996) 43 ALD 775.

117 In the present case, Mr De Marchi gave no notice whatever of the new point to the respondent prior to the hearing of this appeal. Indeed, it emerged only in the course of his oral submissions. That is hardly satisfactory. Had the hypothesis now urged by him been raised below, the respondent may well have chosen to lead further evidence in order to rebut it. Clearly, it would be unfair in those circumstances to allow the new argument to be advanced.

118 However, as we have previously indicated, the more fundamental difficulty with the new point is that it lacks any evidential foundation. Moreover, as was noted by Gummow J in Federal Commissioner of Taxation v Raptis (1989) 19 ALD 726, there must be some difficulty in finding an "error of law" in the failure of the tribunal to make a finding first urged in this Court.

119 The appeal must be dismissed. The appellant must pay the respondent’s costs.

I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, French and Weinberg.

Associate:

Dated: 28 February 2005

Counsel for the Appellant:	Mr D. De Marchi
Solicitor for the Appellant:	Piper’s Barristers & Solicitors
Counsel for the Respondent:	Miss E. Ford
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 November 2004
Date of Judgment:	28 February 2005