Beh and Repatriation Commission

[2005] AATA 284

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 284

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/957 & 977

VETERANS’ APPEALS DIVISION

)

Re

 GRAHAM BEH

 HEATHER BEH

Applicants

And  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  Senior Member B J McCabe

Date 4 April 2005

Place Brisbane

Decision  The application for an extension of time is denied.

...................[Sgd].......................

B J McCabe
  Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – Application for review – extension of time to lodge application – no factors giving rise to an extension of time present – extension of time to lodge application denied

Veterans’ Entitlements Act 1986 ss 57B, 175, 177

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315

REASONS FOR DECISION

4 April 2005

1.      Mr Graham Beh is a Vietnam veteran. Mr Beh and his wife, Heather Beh, are in receipt of a service pension. The Repatriation Commission decided Mr and Mrs Beh were overpaid between 26 September 1996 and 2 September 2002 because the applicants failed to properly report their income. The respondent resolved to recover the overpayment. The delegate made the decision on 3 September 2004 and the applicants were duly informed of their rights to appeal. They did not appeal within the time frame allowed under Part X of the Veterans’ Entitlements Act 1986. They later changed their mind and applied to the Tribunal for an extension of time to review the decision. The respondent opposes the extension, and both parties were given the opportunity to make written and oral submissions.

2. The discretion to allow an extension of time is contained in s 29(7) of the Administrative Appeals Tribunal Act 1975. The exercise of the discretion is guided by principles laid down in the decision of the Federal Court in Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315. There are at least three factors I must take into consideration. The first is whether there is any explanation or excuse for the delay. The second is whether the Commonwealth would be prejudiced by granting the extension of time. Third, I must consider the merits of the substantive application. I will deal with each factor in turn.

3.      An applicant’s explanation for delay in lodging an appeal against a decision is an important factor in considering whether to grant an extension of time. Mr Beh said that he was not highly educated and believed he had three months to lodge an appeal from the time he received the reviewable decision (in the sense of physically opening the correspondence). In fact he had approximately three weeks left to do so when he received the documents. He told the Tribunal he “went bush” at that point – it was his way of coping with stress. It was only later upon discussing the matter with his cousin and friends at the RSL that Mr Beh decided to lodge an application for review.

4.      Mrs Beh also gave reasons for her delay. Mr Riley (Mrs Beh’s representative) informed the Tribunal that Mr and Mrs Beh separated on or about the 20 February 2005. Mr Riley said that after the separation Mrs Beh’s mother fell ill and Mrs Beh became a full time carer. Mr Riley said Mrs Beh had little knowledge of the processes and time limits in the appeal process because Mr Beh managed all correspondence with the Department of Veterans’ Affairs.

5.      The excuses offered by the applicants are not particularly satisfactory, but that is not fatal to their application. The factors must be considered in their entirety.

6.      The length of the delay may also be a relevant consideration. The passage of time in some cases can greatly prejudice the Commonwealth. Evidence can be lost or destroyed over time and personal recollections of events can fade. This might make a just review of a decision near impossible. Due to the relatively short delay in the present case, prejudice to the Commonwealth is not an issue. Mr Harris conceded this was the case on behalf of the respondent.

7. I now turn to the merits of the substantive application. The original decision-maker decided the applicants had been overpaid service pension over a 6 year period between 26 September 1996 and 2 September 2002. The decision was affirmed under s 57B of the VEA. This appeal is an application under s 175(2) of the VEA for a review of the original decision. Section 177(5) imposes a practical limit on the Tribunal’s powers. Section 177(5)(b) says a decision of the Tribunal to adjust a pension can only take effect as and from the date of the application to the Tribunal if the application for review was filed more than three months after the respondent’s reasons for decision were provided to the applicant. This is a problem for the applicants: the evidence suggests the Commission’s reasons for decision were posted to the applicants on or about the 3 September 2004, while the application to the Tribunal was filed on 16 December 2004 (in the case of Mr Beh) and 20 December 2004 (in the case of Mrs Beh). Those applications clearly fell outside the three month period following the Commission’s despatch of its reasons, even allowing for minor delays in the post. It follows the Tribunal cannot give the relief which has been sought.

conclusion

8. The Tribunal cannot assist the applicants. It is prevented by law from giving the relief they seek. In those circumstances, there is no point in exercising the discretion to permit an extension of time under s 29 of the Administrative Appeals Tribunal Act 1975.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .....................................................................................
  Associate:  Sam J Appleton

Dates of Hearing   2 February 2005
  7 February 2005
Date of Decision   1 April 2005
Mr Beh represented himself.
Mrs Beh was represented by Mr Riley.
The respondent was represented by Mr Harris.