Balabouhin and Repatriation Commission - [2004] AATA 86

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 86
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/353, Q2001/1046

VETERANS' APPEALS DIVISION
)

Re JOHN BALABOUHIN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr O Rinaudo, Member
Date3 February 2004
PlaceBrisbane

Decision
The Tribunal:

(a) in respect of application Q2001/353, sets aside the decision under review and in substitution therefor determines that the applicant’s post traumatic stress disorder and alcohol abuse/dependence are war-caused within the meaning of section 9 of the Veterans’ Entitlements Act 1986, with effect from 9 November 1999;

(b) in respect of application Q2001/1046, decides that the applicant is not entitled to pension at the special rate and remits the matter to the respondent for assessment of the percentage of general rate pension payable to the applicant.

....................(Sgd)......................
O Rinaudo
Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – PTSD – whether applicant suffered a severe stressor – meaning of “severe stressor” – meaning of “actual threat” – reasonable hypothesis raised – hypothesis not disproved – decision set aside
VETERANS’ AFFAIRS – benefits and entitlements – pension – rate of pension – whether applicant entitled to pension at the special rate – alone test – applicant did not cease work solely due to his war caused conditions – ameliorating provisions – applicant not making genuine attempts to seek remunerative work – rate of pension payable at general rate to be assessed by respondent
Veterans’ Entitlements Act 1986, ss 9, 24(1)(c), 24(2)(b), 120(1), 120(3)
Forbes v Repatriation Commission [2000] FCA 328
Re Rice and Repatriation Commission [2003] AATA 143
East v Repatriation Commission (1987) 74 ALR 518
Repatriation v Bey (1997) 47 ALD 481
Deledio v Repatriation Commission (1997) 47 ALD 261
Stoddart v Repatriation Commission (2003) 197 ALR 283
Woodward v Repatriation Commission [2003] FCAFC 160
Repatriation Commission v Stoddart [2003] FCAFC 300
REASONS FOR DECISION

3 February 2004 Mr O Rinaudo, Member

Decision Under Review
1. There are two decisions under review in this application:
(a)a decision made by the Department of Veterans’ Affairs on 9 August 2000 to increase the disability pension to 70% of the General Rate with effect from 9 February 2000. This decision was affirmed by the Veterans’ Review Board (the VRB) on 10 August 2001; and
(b)a decision of the Department of Veterans’ Affairs dated 8 May 2000 to reject claim for post traumatic stress disorder, alcohol dependence or alcohol abuse and depressive disorder as being war-caused. This decision was affirmed by the VRB on 20 March 2001.

History
2. The applicant was born on 20 May 1937. He served in the Royal Australian Navy from 25 May 1956 until 24 August 1965. The applicant rendered eligible service (which is also operational service) between 17 March and 3 April 1958, 23 April and 13 August 1958 and 18 March to 28 April 1959. This was aboard HMAS Melbourne with the Far Eastern Strategic Reserve. The applicant also rendered operational service from 17 August to 25 September…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Balabouhin and Repatriation Commission

Details

AGLC: Balabouhin and Repatriation Commission [2004] AATA 86
Case: [2004] AATA 86
Decision Date: 3 February 2004

CaseChat Overview and Summary

Balabouhin was before the Administrative Appeals Tribunal in a dispute concerning benefits and entitlements under the Veterans’ Entitlements Act 1986. The applicant sought a pension based on his claim of post-traumatic stress disorder and alcohol abuse/dependence, which he asserted were war-caused. The Repatriation Commission had previously denied the application for a pension at the special rate, and this decision was the subject of the Tribunal's review.

The primary legal issues before the Tribunal were whether the applicant’s conditions were war-caused within the meaning of section 9 of the Act, and whether the applicant was entitled to a pension at the special rate as opposed to the general rate. This involved interpreting the terms “severe stressor” and “actual threat” in the context of the applicant's experiences and determining the applicability of the ameliorating provisions of the Act. The Tribunal also had to consider the applicant’s attempts to seek remunerative work and whether these were genuine.

The Tribunal found that a reasonable hypothesis existed that the applicant suffered a severe stressor during his service, which was not disproven by the evidence presented. Consequently, the Tribunal set aside the previous decision and determined that the applicant’s conditions were indeed war-caused from 9 November 1999. However, the Tribunal concluded that the applicant was not entitled to a pension at the special rate. The applicant had not made genuine attempts to seek remunerative work, and thus did not meet the criteria for the special rate. The matter was remitted to the Repatriation Commission to assess the appropriate percentage of general rate pension payable.

The Tribunal ordered that the decision under review be set aside and replaced with a determination that the applicant’s conditions were war-caused. It further decided that the applicant was not entitled to a pension at the special rate and instructed the Repatriation Commission to reassess the pension at the general rate.

Orders

Orders of the court

The Tribunal:

(a) in respect of application Q2001/353, sets aside the decision under review and in substitution therefor determines that the applicant’s post traumatic stress disorder and alcohol abuse/dependence are war-caused within the meaning of section 9 of the Veterans’ Entitlements Act 1986, with effect from 9 November 1999;

(b) in respect of application Q2001/1046, decides that the applicant is not entitled to pension at the special rate and remits the matter to the respondent for assessment of the percentage of general rate pension payable to the applicant.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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