Baljas and Repatriation Commission - [2008] AATA 225

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 225
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600286

VETERANS' AFFAIRS DIVISION )

Re ANTHONY BALJAS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr Egon Fice, Member
Date20 March 2008
PlaceMelbourne

Decision The Tribunal affirms the decision under review.
(sgd) Egon Fice
Member

VETERANS’ AFFAIRS – disability pension – special rate of pension – injury suffered after service – the alone test – the nature of remunerative work – effect of compensation claim
Veterans’ Entitlements Act 1986 ss 15, 19, 21, 24.
Repatriation Commission v Hendy (2002) 76 ALD 47
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (1999) 58 ALD 394
Peacock v Repatriation Commission (2004) 40 AAR 143
REASONS FOR DECISION

20 March 2008 Mr Egon Fice, Member

1. Mr Anthony Baljas is a veteran with a number of medical conditions for which the Department of Veterans’ Affairs (the Department) accepted liability. As a result he was receiving a disability pension at 90 per cent of the general rate. On 12 May 2004 Mr Baljas lodged an application with the Department for an increase in his disability pension. On 19 May 2005 a delegate of the Repatriation Commission (the Commission) increased his disability pension to 100 percent of the general rate. Mr Baljas was dissatisfied with that decision. On 7 June 2005 he lodged an application for review of the decision with the Veterans’ Review Board (VRB) claiming he was eligible for pension at the special rate in accordance with s 24 of the Veterans’ Entitlements Act 1986 (the Act). The VRB rejected Mr Baljas’ claim for a pension at the special rate and he now seeks a review of that decision.
2. The only issue before me is whether Mr Baljas satisfies the requirements of s 24 of the Act, thereby being eligible for a pension at the special rate.
RELEVANT BACKGROUND
3.        Mr Baljas was born on 1 November 1946 and therefore on the day that he applied for the special rate of pension he was 57 years old.
4.        For pension purposes, the Commission has accepted liability for the following of Mr Baljas’ medical conditions:
·     Bilateral sensorineural hearing loss
·     Bilateral tinnitus
·     Hypertension
·     Non melanotic malignant neoplasms of the skin
·     Post Traumatic Stress Disorder
·     Impotence
·     Alcohol Dependence

5.        Mr Baljas was assessed to be eligible for 100 per cent of the general rate from 12 May 2004.
6.        Mr Baljas was called up for National Service in 1967 and he had operational service in Vietnam between 15 March 1968 and 2 April 1969.
7.        Mr Baljas’ formal education concluded after he completed the third form at secondary level (equivalent to year nine). He worked as a labourer before being called up for National Service.
8.        Mr Baljas’ account of the work that he did after being discharged from the Australian Army (the Army) is unclear. In a statement which he made on 13…

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 Baljas and Repatriation Commission

Details

AGLC: Baljas and Repatriation Commission [2008] AATA 225
Case: [2008] AATA 225
Decision Date: 20 March 2008

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal was an appeal by Baljas against a decision of the Repatriation Commission. The dispute centred around the assessment of Baljas' entitlement to a war veteran's pension and related benefits. The Tribunal was tasked with reviewing the Commission's decision and determining whether it was lawful, reasonable, and just.

The primary legal issue before the Tribunal was whether the Repatriation Commission's decision to deny Baljas a war veteran's pension and related benefits was justified. This involved examining the evidence provided by Baljas, the applicable legislative and policy frameworks, and the Commission's application of these to the facts of the case. The Tribunal also considered whether the Commission's decision was open to review on the grounds of procedural unfairness or error in the application of the law.

The Tribunal carefully examined the evidence and submissions made by both parties. It found that the Commission's decision was supported by the evidence and was in accordance with the relevant legislation and policies. The Tribunal concluded that the Commission had not erred in its assessment of Baljas' entitlement to the pension and benefits and that the decision was lawful, reasonable, and just. As a result, the Tribunal affirmed the decision of the Repatriation Commission.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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