Bellamy and Repatriation Commission

[2005] AATA 134

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 134

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/718

VETERANS’ APPEALS DIVISION		)
Re		ERNEST BELLAMY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Robin Hunt

Date21 January 2005

PlaceSydney

Decision The Tribunal finds that it does not have power to review the determination of the Respondent dated 9 February 2004 and the determination dated 26 May 2004 which affirmed the Respondent’s original determination.

..............................................

Ms R Hunt

Senior Member

CATCHWORDS

VETERANS – Eligibility for Gold Card - Decision that applicant not entitled to Gold Card as his service was not qualifying service - Tribunal has no jurisdiction to review decision regarding eligibility for Gold Card – Application of sections 7, 85 and 175 of the Veterans' Entitlements Act 1986.

LEGISLATION

Administrative Appeals Tribunal Act 1975 s 25
Veterans' Entitlements Act 1986, ss 7A(1), 85(4A) and 175

CASE LAW

Stewart-Moore and Repatriation Commission [1999] AATA 573

REASONS FOR DECISION

21 January 2005 Robin Hunt, Senior Member         

summary

1.      It is not disputed that Mr Ernest Bellamy, the Applicant, served in the British Army from 1940 to 1947 and rendered qualifying service as a Commonwealth veteran during that period. Mr Bellamy subsequently served in the Royal Australian Air Force between 24 July 1950 and 8 February 1974. He was posted to the South East Asia Treaty Organisation (SEATO) Military Planning Office (MPO) in Bangkok between 2 January 1963 and 25 January 1965. On 5 January 2004, Mr Bellamy applied for a Gold Card at the age of 80, having been born on 28 September 1923. The Repatriation Commission rejected his application on 9 February 2004 and this determination was affirmed by another delegate on 26 May 2004. Mr Bellamy has sought review of the decision that he is ineligible for a Gold Card. The Tribunal has decided that it has no jurisdiction to review the refusal decisions.

issue

2.      The matters for the Tribunal’s decision are whether it has jurisdiction to review the decisions of the Respondent made on 9 February 2004 and affirmed on 26 May 2004 and, if so, whether Mr Bellamy rendered qualifying service as a member of the Royal Australian Air Force.

legislation

3.      The Veterans' Entitlements Amendment (Gold Card) Act 1998, which commenced on 1 January 1999, inserted new section 85(4A) of the Veterans' Entitlements Act 1986 (the Act) to extend the provision of a “Gold Card” covering treatment for all conditions to World War II veterans aged 70 or over who had rendered qualifying service. Section 7A of the 1986 Act defines qualifying service. Section 175 of the 1986 Act confers power on the Tribunal to review specific decisions made under that enactment as amended.

reasoning

4.        Mr Bellamy sought a Gold Card based on his Royal Australian Air Force (RAAF) service. The Respondent has conceded that Mr Bellamy rendered qualifying service as a Commonwealth veteran prior to his service with the RAAF. However, the delegates who made the determinations concerning Mr Bellamy in dispute found that he did not render qualifying service in accordance with subsection 7A(1) of the Act during his period of service with the RAAF. This finding meant that the delegates further found that Mr Bellamy was therefore ineligible for a gold card.

5.        The Tribunal has jurisdiction to review a decision concerning a claim as to qualifying service under Division 2 of Part 111 of the Act. However, Mr Bellamy has not sought review of a decision about qualifying service made but has sought review of the decision not to grant him a Gold Card. I have, therefore, examined whether the Tribunal has power to review a decision concerning entitlement to a Gold Card.

6.        The Tribunal only may review a decision made by the Commission if it is given the power to do so by either the Administrative Appeals Tribunal Act 1975 (the AAT Act) or another piece of legislation. This is the effect of section 25 of the AAT Act. Sub-section 25(1) and (2) provide that decisions made in the exercise of powers conferred by an enactment or another enactment having effect under that Act are the only decisions reviewable by the Tribunal. In this case, the appropriate enabling Act is the Veterans' Entitlements Act 1986. 

7. Section 175 of the Act deals with the classes of decision that may be reviewed by this Tribunal. Decisions as to a person’s eligibility for a Gold Card are not among the various types of decision listed in section 175. The Respondent has detailed in Facts and Contentions before the Tribunal the types of decision that are capable of review and I note this list with approval. It follows that the Tribunal does not have power to review the decision as to Gold Card eligibility in question in this matter.

8.        In Stewart-Moore and Repatriation Commission [1999] AATA 573, Deputy President Forgie considered a case similar to Mr Bellamy’s. The Deputy President noted section 85(4A) determined eligibility for the Gold Card. She further observed that applications for review related to gold card entitlement had sometimes come to the Tribunal under section 85 of the Act. However, the Deputy President observed that section 85(4A) made no provision for review of a decision regarding a person's eligibility for a Gold Card. As the Deputy President noted, section 85 is concerned with the wider issue of determining those veterans who are eligible to be provided with medical and other treatment under the Act. It is not concerned with whether the Tribunal has power to review a decision regarding eligibility.

9.        DP Forgie has dealt with applications under section 85 in detail. I find the decision and exposition of the law by DP Forgie strongly persuasive. Dealing with applications where a Gold Card has been refused because the applicant was found not to have rendered qualifying service, the Deputy President said, at paragraphs 29 and 30:

“It would seem that in dealing with applications to review determinations made in relation to applications for a Gold Card, both the Commission and the Tribunal have treated the applications as applications to review determinations made in relation to a claim for qualifying service under section 35B.  This is a somewhat artificial construction of the form completed by those seeking a Gold Card.  It is a construction which seeks to separate a decision on one criterion which must be satisfied before a person may be granted a Gold Card from the other criteria which are specified in sub-section 85(4A) and which must equally be satisfied.  Despite that, it is a pragmatic construction which, in the majority of cases, provides an avenue of review where none is provided for review of the ultimate determination.

In respect of the other criteria specified in sub-section 85(4A) there is, however, no right of review…. “

10. Section 85(4A) deals with “qualifying service” among other matters. For the purposes of the section, section 7A provides whether a person has rendered qualifying service as a member of the Defence Service. There is no argument in the present case that Mr Bellamy did render qualifying service for a period as a Commonwealth veteran prior to 1963. However, Mr Bellamy relies on his posting between 2 January 1963 and 25 January 1965 to seek the Gold Card. The types of service enunciated in the subparagraphs of section 7A have no application to Mr Bellamy for reasons explained in the statement of reasons of the delegate dated 26 May 2004. That is the criterion which the Commission has decided that Mr Bellamy does not meet for the purposes of entitlement to a Gold Card. Section 85(4A), therefore, does not provide a gateway for review of a Gold Card claim by this Tribunal in Mr Bellamy’s case. As this application is not one for review of a decision as to qualifying service but for entitlement to the Gold Card, I find that Mr Bellamy has no right of review by this Tribunal.

11.     Mr Bellamy told the Tribunal at a hearing of his case that he had read and understood the written submissions of the Respondent before the Tribunal. He was seeking a decision by the Tribunal in order that he might take his case to the Minister, having first exhausted review by this Tribunal.

decision

12.       I find that the Tribunal does not have power to review the determination of the Respondent dated 9 February 2004 and the determination dated 26 May 2004 which affirmed the Respondent’s original determination.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Robin Hunt, Senior Member.

Signed:         .....................................................................................
  Associate: Reuben Mansour

Date of hearing  13 January 2005
Date of decision     21 January 2005
Applicant  Self Represented

Advocate for the Respondent  Department of Veterans’ Affairs