mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115
Outcome: referred to
The process of reasoning of the AAT is transparent. It made a factual decision on this aspect of the claim in the light of all the evidence. It has identified in its reasons the evidence upon which it made that decision. True it is that the AAT has not then minutely dissected that evidence to explain which particular parts of it attracted its general factual conclusions. But it has made findings on the material questions of fact (see per McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407), and its reasons for those findings are exposed sufficiently to enable the Court (and the parties) to understand how it reached those findings and so to discern if they were reached through legal error (see Commonwealth of Australia v Smith (1989) 18 ALD 224; Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115). In my view, no error of law by failing to comply with s 43 of the AAT Act has been made out in respect of the decision of the AAT concerning the invalidity service pension claim; see generally Comcare v Lees (1997) 151 ALR 647.
Case: Comcare v Lees (1997) 151 ALR 647
Outcome: referred to
The process of reasoning of the AAT is transparent. It made a factual decision on this aspect of the claim in the light of all the evidence. It has identified in its reasons the evidence upon which it made that decision. True it is that the AAT has not then minutely dissected that evidence to explain which particular parts of it attracted its general factual conclusions. But it has made findings on the material questions of fact (see per McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407), and its reasons for those findings are exposed sufficiently to enable the Court (and the parties) to understand how it reached those findings and so to discern if they were reached through legal error (see Commonwealth of Australia v Smith (1989) 18 ALD 224; Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115). In my view, no error of law by failing to comply with s 43 of the AAT Act has been made out in respect of the decision of the AAT concerning the invalidity service pension claim; see generally Comcare v Lees (1997) 151 ALR 647.
Case: Benjamin v Repatriation Commission (2001) 34 AAR 270
Outcome: discussed
The AAT proceeded on the basis that by reason of s 120(4) the first task was to be reasonably satisfied that the applicant suffered from the conditions he asserted. It expressed that task as being that "matters of diagnosis are to be determined on the balance of probabilities", relying upon Benjamin v Repatriation Commission (2001) 70 ALD 622 at [54]-[55] per Moore, Emmett and Allsop JJ. Neither that decision, nor the Full Court decisions of Repatriation Commission v Budworth [2001] FCA 1421 ; (2001) 116 FCR 200 or Repatriation Commission v Cooke (1998) 90 FCR 307 on the issue which preceded it, used the expression "on the balance of probabilities" as a substitute for the statutory expression "to its reasonable satisfaction", although in Cooke 90 FCR 307 at 313, reference is made to the "civil standard of proof". In substance, there may be no difference between the two expressions of the legal test for diagnosis of injury. As nothing was made of the difference in submissions, it is not necessary to explore that matter. As noted, applying that test, the AAT concluded that Mr Hill suffered from alcohol dependence, depressive disorder and pathological gambling, but not from PTSD.
Case: Repatriation Commission v Budworth [2001] FCA 1421 ; (2001) 116 FCR 200
Outcome: discussed
The AAT proceeded on the basis that by reason of s 120(4) the first task was to be reasonably satisfied that the applicant suffered from the conditions he asserted. It expressed that task as being that "matters of diagnosis are to be determined on the balance of probabilities", relying upon Benjamin v Repatriation Commission (2001) 70 ALD 622 at [54]-[55] per Moore, Emmett and Allsop JJ. Neither that decision, nor the Full Court decisions of Repatriation Commission v Budworth [2001] FCA 1421 ; (2001) 116 FCR 200 or Repatriation Commission v Cooke (1998) 90 FCR 307 on the issue which preceded it, used the expression "on the balance of probabilities" as a substitute for the statutory expression "to its reasonable satisfaction", although in Cooke 90 FCR 307 at 313, reference is made to the "civil standard of proof". In substance, there may be no difference between the two expressions of the legal test for diagnosis of injury. As nothing was made of the difference in submissions, it is not necessary to explore that matter. As noted, applying that test, the AAT concluded that Mr Hill suffered from alcohol dependence, depressive disorder and pathological gambling, but not from PTSD.
Case: Repatriation Commission v Cooke (1998) 90 FCR 307
Outcome: discussed
The AAT proceeded on the basis that by reason of s 120(4) the first task was to be reasonably satisfied that the applicant suffered from the conditions he asserted. It expressed that task as being that "matters of diagnosis are to be determined on the balance of probabilities", relying upon Benjamin v Repatriation Commission (2001) 70 ALD 622 at [54]-[55] per Moore, Emmett and Allsop JJ. Neither that decision, nor the Full Court decisions of Repatriation Commission v Budworth [2001] FCA 1421 ; (2001) 116 FCR 200 or Repatriation Commission v Cooke (1998) 90 FCR 307 on the issue which preceded it, used the expression "on the balance of probabilities" as a substitute for the statutory expression "to its reasonable satisfaction", although in Cooke 90 FCR 307 at 313, reference is made to the "civil standard of proof". In substance, there may be no difference between the two expressions of the legal test for diagnosis of injury. As nothing was made of the difference in submissions, it is not necessary to explore that matter. As noted, applying that test, the AAT concluded that Mr Hill suffered from alcohol dependence, depressive disorder and pathological gambling, but not from PTSD.
Case: Minister for Immigration and Ethnic Affairs v Wu [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
There was differing medical evidence, in particular from Dr Parker and from Professor Goldney, as to the time during his operational service when Mr Hill first had the clinical onset of alcohol dependence. There was also and significantly differing medical evidence from them on two other topics. The first was whether Mr Hill ever had the psychiatric disorder of alcohol intoxication or whether he was simply intoxicated from time to time and then his alcohol dependence further led to or exposed his subsequent intoxication from time to time. The second was whether (if Mr Hill did suffer from alcohol intoxication as a psychiatric disorder) his psychiatric disorder of alcohol intoxication only followed his alcohol dependence. That evidence and the lay evidence touching on it was carefully considered by the AAT. It concluded, in terms of s 120(3), that the hypothesis that Mr Hill was suffering from the psychiatric disorder of alcohol intoxication in Vietnam before the clinical onset of alcohol dependence was a reasonable one. In the context of the issues it was considering, I think that conclusion clearly represents a finding as to the hypothesis that his psychiatric disorder arose in Vietnam before the clinical onset of alcohol dependence and continued to exist to and at the time of the clinical onset of alcohol dependence. That was the principal issue of medical contention. It is consistent with that reading of the AAT's reasons that it described Dr Parker's evidence, upon which it found that hypothesis was reasonable and as fitting the AD SOP template, as saying that "alcohol intoxication pre-dated or co-existed with alcohol dependence". In my view, the contrary contention requires an over-zealous reading of the AAT's reasons: see Minister for Immigration and Ethnic Affairs v Wu [1996] HCA 6 ; (1996) 185 CLR 259 at 272; Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287.
Case: Collector of Customs v Pozzolanic (1993) 43 FCR 280
Outcome: cited
There was differing medical evidence, in particular from Dr Parker and from Professor Goldney, as to the time during his operational service when Mr Hill first had the clinical onset of alcohol dependence. There was also and significantly differing medical evidence from them on two other topics. The first was whether Mr Hill ever had the psychiatric disorder of alcohol intoxication or whether he was simply intoxicated from time to time and then his alcohol dependence further led to or exposed his subsequent intoxication from time to time. The second was whether (if Mr Hill did suffer from alcohol intoxication as a psychiatric disorder) his psychiatric disorder of alcohol intoxication only followed his alcohol dependence. That evidence and the lay evidence touching on it was carefully considered by the AAT. It concluded, in terms of s 120(3), that the hypothesis that Mr Hill was suffering from the psychiatric disorder of alcohol intoxication in Vietnam before the clinical onset of alcohol dependence was a reasonable one. In the context of the issues it was considering, I think that conclusion clearly represents a finding as to the hypothesis that his psychiatric disorder arose in Vietnam before the clinical onset of alcohol dependence and continued to exist to and at the time of the clinical onset of alcohol dependence. That was the principal issue of medical contention. It is consistent with that reading of the AAT's reasons that it described Dr Parker's evidence, upon which it found that hypothesis was reasonable and as fitting the AD SOP template, as saying that "alcohol intoxication pre-dated or co-existed with alcohol dependence". In my view, the contrary contention requires an over-zealous reading of the AAT's reasons: see Minister for Immigration and Ethnic Affairs v Wu [1996] HCA 6 ; (1996) 185 CLR 259 at 272; Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287.
Case: East v Repatriation Commission (1987) 16 FCR 517
Outcome: referred to
Counsel for Mr Hill did not contend that the AAT had misdirected itself in law. It correctly said that a hypothesis must be reasonable, that is more than a mere possibility or not fanciful, and it must be consistent with the known facts: East v Repatriation Commission (1987) 16 FCR 517; Bull v Repatriation Commission (2001) 188 ALR 756.
Case: Bull v Repatriation Commission (2001) 188 ALR 756
Outcome: referred to
Counsel for Mr Hill did not contend that the AAT had misdirected itself in law. It correctly said that a hypothesis must be reasonable, that is more than a mere possibility or not fanciful, and it must be consistent with the known facts: East v Repatriation Commission (1987) 16 FCR 517; Bull v Repatriation Commission (2001) 188 ALR 756.
Case: Willcocks v Comcare (2001) 66 ALD 119
Outcome: cited
In my view, the AAT's conclusion that, on the evidence as a whole, the hypothesis connecting Mr Hill's pathological gambling with his operational service was "speculative", based on "some very general research", was open to it. So too was its conclusion that the hypothesis was not pointed to by the facts. Its factual conclusions, so long as they were reasonably open to the AAT, do not expose error of law even though other decision-makers may have reached a different conclusion: see e.g. Willcocks v Comcare (2001) 66 ALD 119. 86 Some of the alternative grounds of cross-appeal on this issue are in reality merely alternative ways of putting the same argument. They can be shortly dealt with. The AAT is not shown to have failed to recognise the breadth of Mr Hill's hypothesis as to the aetiology of his pathological gambling: it was either that he developed pathological gambling during his operational service, or that the seeds for the condition were sown during that period, associated with substance abuse and his depressive disorder. The AAT expressly recognised both those alternatives. Its rejection of the claim involved firstly rejecting the reasonableness of the hypothesis that the clinical onset of pathological gambling occurred during his service, and then that its later onset was in some way connected to his service. In the AAT's reasons, there is nothing which in my view suggests that it imposed an onus of proof upon Mr Hill on this issue, rather than addressing the question it was required to address.
Case: Repatriation Commission v Whetton (1991) 31 FCR 513
Outcome: cited
One variation of this submission was to start with the observation of Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 414-415 that it will be rare that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner with appropriate expertise. The AAT was not unmindful of that statement. It referred to it elsewhere in its reasons. But the AAT did not regard the "raised facts" as supporting the hypothesis first suggested by Dr Parker, and as it explained upon all the evidence, Dr Parker's initial view came to be qualified. It was left with material upon which it did not regard the hypotheses put forward by Mr Hill as reasonable. In my view, it did not somehow misapply the law which, earlier in its reasons, it had correctly identified as applicable. In particular, it did not commit the error discerned in Repatriation Commission v Whetton (1991) 31 FCR 513 of reversing the question posed by s 120(3) to the positive existence of a reasonable hypothesis. That case, upon which counsel for Mr Hill relied, was quite different factually: the uncontroverted evidence in that case was that during service the deceased serviceman had been substantially exposed to material which could have led to the disease from which he did; the evidence in this matter in relation to pathological gambling did not go anywhere near so far.
Case: Mines v Repatriation Commission (2004) 86 ALD 62
Outcome: followed
In Mines v Repatriation Commission (2004) 86 ALD 62, Gray J after referring to the Full Court decisions I mentioned in [44] above said at 74, [48]: It is therefore clear that the question whether a veteran is suffering, or has suffered, a claimed injury or disease must be determined to the reasonable satisfaction of the decision-maker, that is, on the balance of probabilities. That question is not to be determined by asking whether there is a reasonable hypothesis that the veteran is suffering, or has suffered, the injury or disease and asking whether the material establishes that the facts supporting that hypothesis do not exist beyond reasonable doubt. If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran's operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD. Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio , come into operation. 105 Counsel for Mr Hill did not directly attack the correctness of that decision. It being a long standing decision of a judge of the Court, unless I am persuaded that it is clearly wrong, I should follow it. I propose to do so. Indeed, I respectfully agree with Gray J, and that his Honour's conclusion flowed from the Full Court decisions referred to. 106 It is perhaps curious that, once a disease is found to exist so that the decision-making process explained in the Deledio steps commences, a question may arise which asks firstly in a hypothetical way and then by the application of the reverse criminal onus of proof, the same question (or almost the same question) as is required to be answered as a fact to the decision-maker's satisfaction in the process of finding if a claimant suffers a particular disease. But that is the case where the existence of a disease such as PTSD requires as a fact the experiencing of a stressor (by its nature and definition).
Case: Byrnes v Repatriation Commission (1993) 177 CLR 465
Outcome: discussed
I do not think that the decisions referred to by counsel for Mr Hill in this context dictate a contrary conclusion. Bushell v Repatriation Commission [1992] HCA 47 ; 175 CLR 408 concerned the process by which a diagnosed disease might be connected to service. It proceeded on the basis of the claimant having suffered essential hypertension. So the question of "diagnosis" (to use the AAT's word) was not in issue. So too in Byrnes v Repatriation Commission (1993) 177 CLR 465. The claimant's condition of cervical and thoracic spondylosis was not in issue. What was in issue was its relationship to his service, in that case in the Royal Australian Navy between 1942 and 1945.
Case: Repatriation Commission v Constable [2006] FCAFC 102 ; (2006) 151 FCR 391
Outcome: discussed
Similarly, in Repatriation Commission v Constable [2006] FCAFC 102 ; (2006) 151 FCR 391, the fact that the claimant suffered from alcohol abuse or dependence was not in issue, and in Repatriation Commission v Hill (2002) 69 ALD 581, the claimant (not the same person as the present cross-appellant) was acknowledged by the Repatriation Commission to suffer from PTSD, so the question now under consideration did not arise.
Case: Repatriation Commission v Hill (2002) 69 ALD 581
Outcome: discussed
Similarly, in Repatriation Commission v Constable [2006] FCAFC 102 ; (2006) 151 FCR 391, the fact that the claimant suffered from alcohol abuse or dependence was not in issue, and in Repatriation Commission v Hill (2002) 69 ALD 581, the claimant (not the same person as the present cross-appellant) was acknowledged by the Repatriation Commission to suffer from PTSD, so the question now under consideration did not arise.
Case: Applicant A v Minister for Immigration &amp; Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225
Outcome: cited
The Tribunal did consider in some detail the question of the alleged membership of a particular social group. The Tribunal set out the tests to be applied in consideration of the determination and membership of a particular social group. It cited and applied the tests set out in Applicant A v Minister for Immigration &amp; Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 and Applicant S v Minister for Immigration &amp; Multicultural Affairs [2004] HCA 25 ; (2004) 217 CLR 387. It identified the claimed group as being ' Tamil persons who borrow monies from loan sharks in Malaysia ' or ' persons who borrow money from loan sharks ' or ' persons who are unable to repay debts to loan sharks '.
Case: Applicant S v Minister for Immigration &amp; Multicultural Affairs [2004] HCA 25 ; (2004) 217 CLR 387
Outcome: cited
The Tribunal did consider in some detail the question of the alleged membership of a particular social group. The Tribunal set out the tests to be applied in consideration of the determination and membership of a particular social group. It cited and applied the tests set out in Applicant A v Minister for Immigration &amp; Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 and Applicant S v Minister for Immigration &amp; Multicultural Affairs [2004] HCA 25 ; (2004) 217 CLR 387. It identified the claimed group as being ' Tamil persons who borrow monies from loan sharks in Malaysia ' or ' persons who borrow money from loan sharks ' or ' persons who are unable to repay debts to loan sharks '. 7 The second issue raised by the appellant is whether the Tribunal formulated the correct test in determining whether there was in existence the claimed particular social group and whether the appellant feared persecution for that reason. It is not suggested that the Tribunal applied the wrong test in principle in its application of the test set out in Applicant S at [36] per Gleeson CJ, Gummow and Kirby JJ. The Tribunal took into account the High Court's characterisation of a particular social group and relevant country information. It found nothing to enable it to be satisfied that the activities complained of by the appellant would be other than one of many such criminal activities causing concern to the Malaysian authorities, as such activities cause concern in many countries. 8 The Tribunal concluded that none of the country information satisfied it that a social group similar to that suggested by the appellant would be ' identifiable by a characteristic or attribute common to all members of the group ' or that the relevant ' characteristic or attribute would distinguish the group from society at large ' in order for them to be a social group for the purposes of the Convention. Accordingly, the Tribunal was not satisfied that the appellant would be persecuted for reason of his membership of a particular social group. 9 The appellant has not demonstrated that the Tribunal applied the wrong test.
Case: SZJDH v Minister for Immigration &amp; Citizenship [2007] FMCA 1561
Outcome: considered
The Tribunal's reasons set out in some detail the claims of the appellant and the material it considered in coming to its decision. The appeal to the Federal Magistrates Court ( SZJDH v Minister for Immigration &amp; Citizenship [2007] FMCA 1561) and to this Court raises the issue of the Tribunal's determination of the particular social group to which the appellant claimed he belonged. In his notice of appeal the appellant says that the Federal Magistrate erred by failing to hold that the Tribunal failed to take into account a relevant consideration being the failure, ' to discern convention reason with that convention reason being a particular social group '. 3 The way this ground has been framed in the appellant's written submissions is that he says that the Tribunal failed to discern the relevant Convention reason for his application. The appellant says that he belonged to a particular social group with that social group ' being group of persons who had dealings with loan sharks in Malaysia and who have been threatened by those loan sharks '. In his further written submissions the appellant characterised it as ' a person who had dealings with the loan sharks in who was unable to pay back the debts to the loan sharks '.
Case: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658
Outcome: cited
applicants relied on Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 to support their contention that, given the function of pleadings, the Court should grant leave to amend. In a well-known passage (at 664), the High Court said in that case that: Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it ...; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial ...; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Counsel for the applicants argued that the applicants would be at risk of the respondent claiming at trial that it was taken by surprise if they had not sought to amend their pleadings. Further, counsel stated that the applicants wanted to adduce evidence at trial concerning the fact of destruction of documents; and the admissibility of such evidence would not be apparent without the amendment. Further, counsel for the applicants said the amendment enabled the respondent to understand how the applicants put the case against it. In addition, as indicated above, the applicants sought discovery of two categories of documents: (a) the Respondent's policies or practices with respect to the retention and/or destruction of documents (including, but not limited to, email and MySingle correspondence); and (b) any variations or exceptions to those policies or practices implemented since November 2006.