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No.9 April 2008

Drew v Repatriation Commission

[2008] FCA 537

COURT Federal Court, Brisbane
DATE OF DECISION 15 April 2008
DECISION Appeal dismissed
ISSUES Claim for PTSD – whether AAT considered evidence of veteran


Mr Drew rendered operational service in the Royal Australian Navy. He made a claim for pension for Post Traumatic Stress Disorder (PTSD).  A delegate of the Repatriation Commission (Commission) rejected his claim.  The decision was affirmed on review by the Veterans’ Review Board (VRB).  Mr Drew sought further review by the Administrative Appeals Tribunal (Tribunal).

The Tribunal’s reasoning

Before the Tribunal, the issue in contention was whether or not Mr Drew was suffering from PTSD.  The Tribunal had the benefit of evidence from two specialist psychiatrists, Dr Likely and Dr Mulholland.  Each of those psychiatrists had had regard to the diagnostic criteria in DSM -IV as well as an account of the applicant’s service. Dr Likely had formed the view that applicant was suffering from post-traumatic stress disorder. He was the treating psychiatrist. Dr Mulholland had a different view. The Tribunal went on to find that it was not satisfied in relation to Mr Drew’s response at the time for the purposes of satisfying criterion (a)(ii). The critical paragraph of the Tribunal’s reasoning was:

[22]… While Mr Drew’s feelings of being afraid, of agitation and of concern are understandable, I am reasonably satisfied that they lack the intensity of response required in the diagnostic criterion (a)(ii) in DSM-IV and the statement of principles. On the evidence that he gave, I am satisfied that his reactions do not constitute a response which involved intense fear, helplessness, or horror.

Grounds of appeal

The applicant’s appeal to the Federal Court essentially concerned his written statement.  He contended that the Tribunal erred in law:

The Court’s consideration

Justice Logan noted that there was no explicit reference to the applicant’s statement in the Tribunal’s reasons.  However, his Honour considered that an analysis of the Tribunal’s reasons made it quite plain that the Tribunal had regard to the written statement and, indeed, adopted particular passages from it in its reasons. As such, his Honour was satisfied that the Tribunal did have regard to the Applicant’s statement in reaching its decision.

Further, his Honour noted the courts observation in Willcocks v Comcare (2001) 66 ALD 119:

As it is now well understood, any court reviewing a decision of the tribunal cannot turn "a review of the reasons of the decision-maker upon proper principles into a reconsideration for merits of the decision": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272. Those quite "proper principles" do not allow a doubtful fact finding to be characterised as an error of law. As Kenny J commented in Minister for Immigration and Multicultural Affairs v Rajalingim [1999] FCA 719; (1999) 93 FCR 220 at 257, "a tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis or because it adopts unsound or questionable reasoning." Likewise those "proper principles" do not require that it be shown that all matters raised in the proceeding before the tribunal are dealt with in the reasons. For the purposes of section 43(2B) of the AAT Act, the tribunal is not obliged to give a "line by line refutation" of an applicant’s evidence either generally or in those respects where there is evidence contrary to find things that material fact made by the tribunal: Re Minister for Immigration and Multicultural Affairs Ex Parte Durairajasingham [2000] HCA 1; (2000) 58 ALD 609; 168 ALR 407: see generally, Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 62 ALD 225; 180 ALR 1.

Justice Logan noted that the criteria in DSM-IV, including paragraph (a)(ii), concerns matters of primary fact. The Tribunal, in taking account of all of the evidence before it, particularly the oral evidence, was not satisfied as a matter of fact that the veteran’s experience in response to the alleged stressor met the description in (a)(ii). It followed from this that there was no factual foundation for a finding that PTSD was present.  His Honour considered that the process of reasoning of the Tribunal was both logical and reasonably open on the evidence before it.

Formal decision

Mr Drew’s appeal to the Federal Court was dismissed.   

Editorial Note

In Drew the Court was concerned with threshold issue of diagnosis of PTSD. The Court found that there was no error of law in the approach the Tribunal had taken in relation to the PTSD claim.

The issue before the Tribunal concerned criteria A, commonly known as the “causal factor” in the diagnostic criteria. Specifically, whether Mr Drew’s reaction to a traumatic event involved intense fear, helplessness, or horror: see criterion (A)(ii)in DSM IV.

Despite the fact that both the psychiatrists who gave evidence before the Tribunal concluded that criterion that (A)(ii) was met,  the Tribunal was reasonably satisfied that Mr Drew’s feelings lacked the intensity required by criterion (A)(ii).  Specifically, the Tribunal noted the evidence given by Mr Drew at the hearing on oath was not the same as the descriptions of his feelings given to the two psychiatrists.

The court held that the Tribunal’s reasoning was both logical and reasonably open to it. As such, no factual foundation existed for a finding that Mr Drew suffered from PTSD.

Had the Tribunal found to the contrary in Drew, that both diagnostic criteria ie. (A)(i) and (A)(ii) (and the subsequent criteria) were satisfied, and there was no allegation before the Tribunal that PTSD was due to a cause other than one that was service related, the issue of the connection of Mr Drew’s PTSD to his service would largely have been a mere formality. This is because the “causal factor” presented criteria (A)(i) and (A)(ii) would have already been found to exist on the more strenuous standard of proof – the balance of probabilities.

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