Bennett-Post and Repatriation Commission - [2002] AATA 600

DECISION AND REASONS FOR DECISION [2002] AATA 600

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/1085
VETERANS'       AFFAIRS     DIVISION
  Re:         IAN JAMES BENNETT-POST
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             19 July 2002
Place:            Melbourne

Decision:The Tribunal does not have power to review the decision made on 9 August 2001, affirming a decision made by the respondent on 31 May 2001.

(sgd) M.J. Carstairs
Member
VETERANS' AFFAIRS –whether definition of "veteran" met under s85(4A) of the Veterans' Entitlements Act 1986 –- eligibility for Gold Card – whether Tribunal had jurisdiction to review decision regarding eligibility for Gold Card - decision that applicant not entitled to Gold Card as not a "veteran" – no jurisdiction
Administrative Appeals Tribunal Act 1975 ss25(1), (4), 37
Veterans' Entitlements Act 1986 ss.5C(1), 7, 7A, 35, 35B, 57, 85(4A), 175
Re Stewart-Moore and Repatriation Commission (1999) 30 AAR 29

REASONS FOR DECISION

19 July 2002 M.J. Carstairs, Member

This is the hearing of an application by Ian James Bennett-Post (the applicant) for review of a decision of a delegate of the Repatriation Commission (the respondent) made on 9 August 2001. This decision affirmed a decision made on 31 May 2001 that the applicant was not entitled to a Gold Card as he was not a "veteran" within the meaning of s5C(1) of the Veterans' Entitlements Act 1986 (the Act). A Gold Card gives the holder access to the full range of repatriation health-care benefits and provides for treatment of all medical conditions whether war-caused or not.
At the hearing the applicant represented himself. Mr G. Purcell, of counsel represented the respondent. The Tribunal had before it documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act1975 (the AAT Act). At the hearing the applicant lodged a folder of documents including a written submission and attached documents marked A to D.
BACKGROUND
The applicant was born on 27 August 1925 at Ascot Vale to parents James William Edward Post and Gladys Chrished Post, neither of whom was born in Australia. He left Australia at the age of 5 with his parents, his father having accepted a posting overseas.
The applicant enlisted in the Royal Air Force (RAF) on 11 May 1943 and served on the European front. He returned to Australia in approximately June 1948 and has remained here since, lodging tax returns, being eligible for a war services homes grant, and becoming a member of the Australian defence forces.
On 22 March 2001 the applicant made an application to determine "qualifying service/gold card", though he sated that he had no wish to apply for a service pension, only for a Gold Card [T28]. A decision was made on 31 May 2001 that, while the applicant had rendered "qualifying service" as a Commonwealth veteran, based on service with the RAF, he did not meet the definition of "veteran" under the Act. It is the latter definition that is the gateway to establishing entitlement to benefits in the form of treatment under s85(4A) of the Act.
When the applicant sought review of that decision, a senior delegate reconsidered it and affirmed the decision on 9 August 2001[T2]. On 23 August 2001 the applicant sought review with this Tribunal.
CONSIDERATION OF ISSUES
Prior to the hearing, the respondent had lodged a substantial body of case law on the question of domicile. This was the basis on which the senior delegate had decided that the applicant did not come within the definition of veteran under the Act.
Mr Purcell, however, submitted that a preliminary question in the matter was whether the Tribunal, or indeed, the senior delegate, who had reviewed the matter on 9 August 2001, had the power to review the matter under the Act. In making that submission Mr Purcell relied upon the Tribunal decision in Re Stewart-Moore and Repatriation Commission (1999) 30 AAR 29.
In that case the Tribunal said, correctly, that the Tribunal might only review a decision made by the respondent if there is specific power given to the Tribunal by legislation (s25(1) and s25(4) of the AAT Act). The Tribunal went on to analyse the specific provision in the Act that allows for review by this Tribunal. It is necessary to identify whether an applicant seeking a review of a decision refusing a Gold Card is able to come to this Tribunal to have such a decision reviewed. That is only so if the decision is one covered by s175 of the Act. Section 175 of the Act is the source of the power of this Tribunal to review decisions under the Act. It provides at ss175(2) (the Tribunal through detailed examination in Re Stewart-Moore having ruled out all other subsections as not relevant to this kind of decision) as follows:
…
(2) Where the Commission, under section 57B, affirms a decision of the Commission referred to in section 57 or sets it aside and substitutes another decision for it, a person may apply to the Administrative Appeals Tribunal for a review of the decision so affirmed or substituted.
The decision for which review is here sought arises because of the effects of s85(4A) providing for treatment, as follows
…
(4A) A veteran is eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act, if:
(a)the veteran is 70 or over; and
(b)the veteran has rendered qualifying service during the period covered by paragraph (b) of the definition of period of hostilities in subsection 5B(1); and
(c)either:
(i)the Department has notified the veteran in writing that he or she is or will be eligible for such treatment; or
(ii)the veteran has notified the Department in writing that he or she seeks eligibility for such treatment.
Within that provision are two terms defined elsewhere in the Act, namely qualifying service and veteran. Qualifying service is defined in s7A of the Act, and as identified by the senior delegate in her decision, the applicant meets that definition. Veteran is defined (insofar as is relevant in the applicant's case) in s7(1)(a) of the Act. It requires that a person who has served in the naval military or air forces of a Commonwealth country was domiciled in Australia immediately before his or her enlistment to those forces.
As identified by the Tribunal in Re Stewart-Moore, the question of whether a person has qualifying service for purposes of a Gold Card may enliven a jurisdiction in this Tribunal. This is because s175 allows for review of decisions made by the respondent under s57, which includes review of decisions that have been made in relation to a claim for a qualifying service determination under s35B: (ss35(1)(a). However, there is no provision in s175 that allows this Tribunal to review the question of whether the person meets the definition of veteran, as is also required in order to qualify for a Gold Card. As the Tribunal said in Re Stewart-Moore (at p.34):
…
30. In respect of the other criteria specified in s 85(4A) there is, however, no right of review. In particular, there is no right of review from a decision as to whether or not a person is a veteran. That is the criterion which the Commission has decided that Mr Stewart-Moore does not meet. It is the criterion which the Commission has determined that Mr Stewart-Moore does not meet on his claim for a Gold Card. His not meeting that criterion is fatal to his claim that he is eligible for a Gold Card.
For these reasons, the Tribunal decides that there is no power to review the decision rejecting the applicant's claim for a Gold Card.
At the hearing, the applicant made plain that his argument was not a legal one but a moral one. He submitted that the respondent's pamphlet How to apply for a Gold Card was misleading in its reference to the Gold Card being available for all Australian World War 2 veterans aged 70 years and over with qualifying service from that conflict. However as this Tribunal has no jurisdiction in this matter, these submissions cannot be taken into account, and are more appropriately raised elsewhere.
DECISION
The Tribunal does not have power to review the decision made on 9 August 2001, affirming a decision made by the respondent on 31 May 2001.
I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision herein of
M.J. Carstairs, Member
(sgd)       Catherine Thomas
              Clerk
Date of Hearing:  5 July 2002
Date of Decision:  19 July 2002
Solicitor for the applicant:           NIL – self-represented
Counsel for the respondent:        Mr G. Purcell
Solicitor for the respondent:        Advocacy Section, Department of Veterans' Affairs