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No3. March 2010

Rana and Repatriation Commission

COURT Federal Court, Adelaide
JUDGE Lander J
DECISION Appeal dismissed
ISSUES Whether veteran appellant was a veteran/member of the Defence Force

Facts

Mr Rana enlisted in the Australian Army in October 1980. In 1981 he experienced some personal difficulties and for a period he was admitted to Hospital and diagnosed with “reactive depression”. In January 1982 he was charged for failing to appear at a place of parade and later in March 1982 he was charged and convicted of absenting himself without leave. Following these convictions a senior officer made a request for Mr Rana to be discharged from the Army under regulation 176(1)(n) of the Australian Military Regulations 1927 (Cth) that “his retention (in the Army) was not in the interests of Australia or the Army”. In March 1982 approval was given for Mr Rana to be discharged under this regulation.

In 2003, Mr Rana sought the benefits under the Veterans’ Entitlements Act 1986 (VEA), which are payable to members of the Forces identified in s 69 of VEA. A delegate of the Repatriation Commission (the Commission) had determined, as did the Veterans’ Review Board that the applicant was not a member of the Defence Force as defined in s 69 of the VEA. On appeal to the Administrative Appeals Tribunal (the Tribunal), Deputy President Hack affirmed the decision of the Commission. Mr Rana appealed from the Tribunal’s decision to the Federal Court.

The Tribunal’s reasoning

As Mr Rana had not completed 3 years of effective full-time service, he would only be eligible for the benefits he sought under the VEA if he could bring himself within the provision that he had been discharged from the Army “on the ground of invalidity or physical or mental incapacity to perform duties”: see section 69 of the VEA.

Mr Rana contended that he qualified under s 69 and that his discharge had been on that ground. Specifically, that he was subjected to racial abuse, discrimination and sexual assaults of varying severity during the period of his service. He contended that this resulted in him suffering from a psychiatric condition, which prevented him from adequately performing his duties and led to his discharge from the Army. He contended therefore he came within section 69 of the VEA.

The Commission, on the other hand, contended that whatever condition Mr Rana suffered from at the time of his discharge was mild and was not such that it rendered him incapable of carrying out his duties, and did not lead to his discharge from the Army. The Commission contended that Mr Rana was discharged for the reasons given; that is, because his retention in the Army was not in the interests of Australia or the Army.

Deputy President Hack approached this issue, firstly by considering whether Mr Rana had a condition at the relevant time which interfered with his capacity to perform his duties. He concluded that Mr Rana was suffering a mental condition, namely personality disorder.

The Deputy President then considered whether Mr Rana had the capacity to perform his duties during his Army Service. He concluded that the contemporary medical evidence did not draw any connection between the applicant’s difficulties with his service life which ultimately led to his discharge and any psychiatric condition. He also found that there was no evidence of any connection in the reports of soldiers and officers who served with Mr Rana at the time.

Mr Rana’s application before the Tribunal ultimately failed as Deputy President Hack did not accept that his mental state gave rise to the behaviour which led to his poor work performance and resultant discharge.

Grounds of appeal

Justice Lander noted the grounds of appeal set out in Mr Rana’s amended notice of appeal and considered that they were not questions of law at all. His Honour commented:

[90] The applicant is not entitled to argue under the guise of questions of law that the Deputy President arrived at the wrong factual conclusion.

Insofar as the appeal did raise a question of law, Justice Lander summarized this as whether the Tribunal should have proceeded the way it did. Specifically, was it correct to decide the preliminary issue, of whether the applicant was a veteran or member, before considering whether he was entitled to any benefits under the VEA.

The Court’s consideration

Approach to section 69

Justice Lander considered that Deputy President Hack's approach to the issues arising from Mr Rana's application was logical, sensible and practical:

[72] If the applicant was not a member of the Defence Force at the relevant time, there was no point conducting the s 70 inquiry whether he was incapacitated from a defence caused injury or defence caused disease. The applicant suffered no prejudice by the Deputy President proceeding in the way that he did.

The correct and preferable decision

Justice Lander noted that the other grounds of appeal raised by Mr Rana went to “the merits” and the failure by the Deputy President to make findings consistent with the evidence adduced by Mr Rana. His Honour commented that these were not matters which could be examined by the Federal Court:

[89] The applicant has wrongly assumed that because he adduced evidence in support of the proceeding the AAT was bound to accept it. The AAT was not bound to accept the applicant's evidence or contentions. It was bound to conduct a review of the decision and to determine whether on the evidence before him the decision under review was the correct or preferable decision: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 24 ALR 577.

Formal decision

Mr Rana's appeal was dismissed and he was ordered to pay the Commission's costs.

Editorial Note

Member of the forces

A member of the forces is a person who served in the defence force for a continuous period that commenced after 7 December 1972 and has the type of service required for the purposes of section 69 of the VEA.

Where a person has not completed 3 years of effective full-time service, they may still be considered as a member of the forces if his or her service ceases for reasons of medical discharge, or death.

Medical discharge exemptions

The leading case on the issue of medical discharge exemptions is Whiteman v Secretary Department of Veterans Affairs [1996] FCA 845. In Whiteman, the Federal Court held that a decision maker has power to go beyond the military's stated reason or administratively noted ground for discharge to determine the actual ground of discharge. Therefore, if it can be shown that the real reason why a person was discharged was a medical condition, it does not matter that the formal reason was something else.

In Rana, the Court made passing reference to Whiteman in relation to Mr Rana's particular circumstances. Prior to his appeal to the Court in this matter, Mr Rana had sought to have the Chief of Army inform the Defence Force Retirement and Death Benefits Authority, that at the time he was retired, grounds existed on which he could have been retired because of invalidity or physical or mental incapacity to perform his duties. If the Chief of Army did so, Mr Rana may have been eligible for DFRDB benefits. A delegate of the Chief of Army determined that at the time of Mr Rana's discharge, grounds did not exist whereby he could have been discharged because of a physical or mental incapacity to perform his duties. Mr Rana appealed this decision to the Federal Court and Justice Mansfield held that there was no reviewable error and dismissed the application.

Returning to the current matter, Justice Lander made some comment that Whiteman should be distinguishable in Mr Rana's circumstances. The point of distinction was that as Mr Rana had already unsuccessfully challenged the decision of the Chief of Army regarding his grounds for discharge, it would be a curious result if he could get a conflicting decision in a separate review application.

Please click here to read a full copy of the court's decision in Rana v Repatriation  Commission.

All Practice Notes