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Besson v Repatriation Commission (FCA)

[2014] FCA 881

COURT Federal Court, Brisbane
JUDGE Rangiah J
DATE OF DECISION 22 August 2014
DECISION The application was dismissed
ISSUES Application for extension of time - veteran made claim for pension on the basis that his PTSD was war-caused - whether AAT correctly applied the third step of Deledio

Facts

On 15 June 1964 Mr Besson was on operational service as a member of the crew of HMAS Sydney, when he claimed to suffer a “life threatening event”. He later developed post traumatic stress disorder. The Repatriation Commission rejected Mr Besson’s claim for disability pension, on the ground that his PTSD could not be linked to his operational service. The decision was affirmed on review by the Veterans’ Review Board and Administrative Appeals Tribunal (the Tribunal). The Tribunal decided that while Mr Besson genuinely believed his life was in danger, the facts did not answer the description of a “life threatening event” in the relevant Statement of Principles. Mr Besson appealed to the Federal Circuit Court of Australia (the FCC) and his appeal was dismissed. Mr Besson did not file a notice of appeal against the judgment of the FCC within the required time, and now seeks an extension of time.

The Court’s consideration

The matters relevant to the exercise of the Court’s discretion to grant an extension of time include:

  1. Whether the applicant has shown that there is an acceptable explanation for the delay - No
  2. Whether the applicant took any other steps to assert his or her rights - No
  3. The length of the delay - the delay was 97 days after the expiration of the date for filing the notice of appeal, which was substantial.
  4. Any prejudice to the respondent as a result of the delay - No
  5. The merits of the proposed appeal. The Court noted an appeal to the Federal Court from a judgment of the FCC is by way of rehearing. The applicant’s principal argument was that when the Tribunal found at the third step of Deledio that the facts did not answer the description of a life-threatening event, it made an impermissible finding of fact. The applicant argued that the Tribunal’s task at that stage was to determine whether there was material that “fits” the Statement of Principles rather than evaluating the evidence and accepting or rejecting that evidence. The Court noted:

The formation of the Tribunal’s opinion at the third stage of the Deledio process involves the reaching of a factual conclusion and involves the assessment of all the material before the Tribunal, but not the finding of facts or the rejection of material: Collins v Administrative Appeals Tribunal [2007] FCAFC 111.

The Court also cited Border v Repatriation Commission (No 2) [2010] FCA 1430, in which Reeves J considered what is required at the third stage in assessing a claim that PTSD has arisen out of a “life-threatening event”:

…It is the effect of the event and not the threat itself that has to be assessed. Moreover, 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 within the terms of subpara (a). That perception will be a reasonable one 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. Unlike subparas (b) and (c), this is a mixed objective and subjective test. Since there will be a very wide range of reactions to any event involving a threat of death, this test is not to be applied in an unduly restrictive manner. Thus, while at one extreme a totally irrational or baseless reaction will be excluded, it is necessary to be more open to acceptance as one moves across the spectrum of possible reactions. Furthermore, the question is whether the event might or was capable of giving rise to the perception of the threat of death, not whether it did. For this reason, the veteran’s conduct after the event is irrelevant to the assessment. So, too, is any information not know to the veteran which showed, objectively, that the event did no pose a threat of death, eg being threatened with a gun that was in fact unloaded.

The Court indicated:

It is clear from Border that at the third stage in the Deledio process the decision-maker must consider whether the applicant’s perception of the event as posing a threat of death is a reasonable one. If that perception is not reasonable, then the event will not meet the description “life-threatening”. This involves what was described in Collins as “the reaching of a factual conclusion”. That is not only permissible, but is required.

The Court found the Tribunal reached a factual conclusion that the event was not a life-threatening event but did not find facts or reject any material. The Tribunal did no more than decide whether, from the point of view of the hypothetical reasonable person, the event was capable of giving rise to the perception of the threat of death. It did not decide that the event was not in fact life-threatening.

Taking into account all of the relevant matters (including the applicant’s poor prospects of success) the Court considered its discretion should be exercised against an extension of time.

The Court’s Decision

The application was dismissed.

Editorial Note

The earlier practice note regarding the decision of the FCC in Besson v Repatriation Commission is also available on the VRB website. In this appeal, amongst other factors the Court examined the merits of the proposed appeal, in deciding whether to grant an extension of time to appeal against the decision of the FCC. The Court primarily examined whether the Tribunal erred in its approach to the third step of Deledio, and concluded it did not.

All Practice Notes