Baker and Repatriation Commission (Veterans' entitlements)

This matter concerned an application for review of a Veterans’ Review Board (VRB) decision by the Applicant, who sought to have a condition described as ‘mefloquine neural toxicity’ recognised as related to war service. The Applicant had applied to the Administrative Appeals Tribunal (AAT) for a review of the VRB's decision, which had affirmed a prior determination that the condition was not service-related. The parties agreed that the AAT should determine a jurisdictional question as a preliminary issue, specifically whether the Tribunal had the power to review a declaration made by the Repatriation Medical Authority (RMA) not to make a Statement of Principles.

The central legal issue before the Tribunal was whether it possessed the jurisdiction to review the RMA's declaration dated 18 August 2017, which stated an intention not to make a Statement of Principles for chemically-acquired brain injury caused by mefloquine. This declaration was made on the basis that there was insufficient medical-scientific evidence to support such a link. The Applicant sought to challenge this declaration as part of the broader review of the VRB decision concerning their claim.

The Tribunal reasoned that its power to review the RMA's declaration was circumscribed by the Veterans’ Entitlements Act 1986 (VEA). Section 196Y(1)(e) of the VEA provides that review of an RMA declaration is to be undertaken by the Specialist Medical Review Council (SMRC). The Tribunal concluded that it did not have a general review power over RMA declarations and that the VEA did not confer such a power upon it. While the Applicant may have had standing to seek an SMRC review, the time limit for doing so had expired. The Tribunal noted that the SMRC had previously considered a similar request and found insufficient evidence to justify making a Statement of Principles.

Consequently, the Tribunal determined that it did not have jurisdiction to review the RMA Declaration dated 18 August 2017. The matter was to be returned to conference to ascertain the parties' intentions regarding the progress of the substantive application.