Border v Repatriation Commission (No 2) [2010] FCA 1430

FEDERAL COURT OF AUSTRALIA

Border v Repatriation Commission (No 2) [2010] FCA 1430 Citation: Border v Repatriation Commission (No 2) [2010] FCA 1430

Appeal from: Border and Repatriation Commission [2009] AATA 924

Parties: ROGER KEITH BORDER v REPATRIATION COMMISSION

File number: QUD 309 of 2009

Judge: REEVES J

Date of judgment: 17 December 2010

Corrigendum 23 May 2011

Catchwords: DEFENCE AND WAR – application under ss 120 and 120A of the Veterans' Entitlements Act 1986 (Cth) – veteran made a claim for the costs of medical treatment and a pension for incapacity on the basis that his post traumatic stress disorder was war-caused within the meaning of s 9 of the Veterans' Entitlements Act 1986 (Cth) – veteran claimed that four events that occurred during his operational service either individually or collectively contributed to his developing post traumatic stress disorder – consideration of whether the Administrative Appeals Tribunal correctly undertook the third step outlined in Repatriation Commission v Deledio (1998) 83 FCR 82 – consideration of whether the veteran experienced a "life-threatening event" – the Tribunal is to test the veteran's hypothesis to determine whether the material before it points to facts which support it – since 1994, and the introduction of the Statement of Principles regime, the reasonableness of the veteran's hypothesis has to be determined by whether it fits into the template found in the Statement of Principles – the hypothesis will do this if it contains, as a minimum, one or more of the factors specified in the relevant Statement of Principles template – at this third stage the task is the testing of the hypothesis and not the examination of the correctness or otherwise of the premises upon which the hypothesis may rest – proof of facts is not required – the Tribunal is not concerned with conflicts in the material, whether they be of opinion or fact – "experiencing a life-threatening event" involves a subjective factor – consideration of how, and to what extent, the Tribunal should examine the feelings evoked in the veteran by experiencing that event to determine whether the event was life-threatening – the effect of the event and not the threat itself has to be assessed – it is the veteran's perception of the event that is critical, relevantly his or her perception that it posed a threat of death – if that perception was a reasonable one, it constitutes a life threatening event – that perception will be reasonable if, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death – the test is not to be applied in an unduly restrictive manner Held that, while the Tribunal identified the correct principles, it fell into error when it came to apply these principles to the four events – the Tribunal did not make the objective subjective assessment it had identified it had to make