Butler and Repatriation Commission (Veterans' entitlements)

[2022] AATA 785

Butler and Repatriation Commission (Veterans' entitlements) [2022] AATA 785 (14 April 2022)

Division:VETERANS' APPEALS DIVISION

File Number:          2021/8813

Re:Colin Butler

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans-Bonner

Date:14 April 2022

Place:Perth

I refuse to grant the Applicant’s application for an extension of time to lodge an application for review of the decision of a delegate of the Repatriation Commission dated 3 August 2020.

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Senior Member Dr M Evans-Bonner

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application – eligibility to receive a service pension – Applicant filed application with the Tribunal outside of the statutory time frame – no discretion to extend time – extension of time refused

LEGISLATION

Acts Interpretation Act 1901 (Cth) ss 29(1)
Administrative Appeals Tribunal Act 1975 (Cth) ss 29(2), 29(7)
Veterans’ Entitlements Act 1986 (Cth) ss 5G, 36H, 176(4)(a), 176(4)(b)

REASONS FOR DECISION

Senior Member Dr M Evans-Bonner

14 April 2022

1. Mr Butler is an Australian veteran who is seeking an extension of time to make an application for review of a decision of a delegate of the Repatriation Commission dated 3 August 2020.

2. The decision found that Mr Butler was not eligible to receive a service pension because he was residing in Thailand and not in Australia at the date when he lodged his claim. Therefore, Mr Butler did not satisfy the residency requirements under s 36H (and as defined by s 5G) of the Veterans’ Entitlements Act 1986 (Cth) (VEA).

3. Unfortunately, Mr Butler was provided with incorrect information when he attended the Department of Veterans’ Affairs Perth office in late 2019 or early 2020 to ask about his eligibility. He was told that he was eligible to receive the pension, even though he was living in Thailand. Accordingly, Mr Butler submitted his pension application on 22 January 2020.

4. In a letter from the Department dated 30 March 2020, Mr Butler was advised that his claim was refused. There was an error in this letter which referred to Mr Butler being an Allied Veteran when he was an Australian veteran. This error was subsequently acknowledged and corrected in a letter from the Department to Mr Butler dated 19 June 2020. However, it remained the case that the decision was correct because in his claim for a service pension Mr Butler stated that he was not residing in Australia permanently and that he was living in Thailand.   

5. I acknowledge that these errors caused Mr Butler a great deal of frustration. If he had been provided with the correct information, he may have done things differently, such as returning to Australia to satisfy the residency requirements. It was also frustrating to him that his service was not properly acknowledged by his being mistakenly described as an Allied Veteran.

6. Mr Butler had engaged an RSL (Returned and Services League) advocate to assist him with appealing the 30 March 2020 decision which refused his claim for a service pension. His advocate sought review of the decision, but on 3 August 2020 a delegate of the Respondent affirmed the decision. The delegate sent the decision with a covering letter of the same date to Mr Butler’s RSL advocate. The covering letter stated:

   If you are dissatisfied with any aspect of my decision, you may apply to the Administrative Appeals Tribunal to have the decision reviewed. An application for review by the Tribunal must be in writing and must be lodged within three months of the date you receive this letter.

7. Section 29(1) of the Acts Interpretation Act 1901 (Cth) (AIA) provides that service of this letter was effected at the time the letter would have been delivered in the ordinary course of post, which I note from the Australia Post website is currently three to six business days for an interstate letter. Allowing for the maximum period of six business days, the letter would be taken to be delivered on 11 August 2020.  

8. Instead of filing an appeal with the Tribunal, Mr Butler’s RSL advocate wrote to the Minister for Defence Personnel on 14 October 2020, asking for the decision not to award Mr Butler a service pension to be overturned. Apparently, the advocate had some success with writing to the Minister in another case, and so recommended that approach to Mr Butler, rather than appealing to the Tribunal. There was subsequent correspondence between the Minister’s office and Mr Butler, with the latest reply being a letter on behalf of the Minister dated 7 June 2021. When writing to the Minister was unsuccessful, Mr Butler made a complaint to the Commonwealth Ombudsman who investigated his complaint and responded to him in a letter dated 7 October 2021. 

9. Mr Butler contacted the Tribunal by email on 9 November 2021 and 21 November 2021, telling the Tribunal about his situation. I do not regard him as having made an application to the Tribunal because in the email dated 21 November 2021, Mr Butler states, “I am not asking that you review their decision”. Mr Butler subsequently lodged a written statement with the Tribunal on 28 November 2021 which I consider to be an application to the Tribunal. After receiving correspondence from the Tribunal Registry that he could apply for an extension of time, Mr Butler did so on 30 December 2021.    

10. The Respondent opposed the extension of time application on the basis that there was no longer any discretion for the Tribunal to extend the time. For reasons that I will now explain with reference to the applicable statutory provisions, the Respondent is correct.

11. Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that an application for review of a decision must be lodged with the Tribunal by no later than 28 days after the decision was given to the Applicant. However, s 176(4)(a) of the VEA amends s 29(2) of the AAT Act by substituting the 28-day period with a longer period of three months.

12. Subsection 29(7) of the AAT Act concerns the Tribunal’s ability to grant an extension of time. It provides:

    The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

13. Additionally, s 176(4)(b) of the VEA amends s 29(7) of the AAT Act by adding the words, “until such date, being a date not more than 12 months after the date on which the document setting out the terms of the decision was furnished to the applicant, as the Tribunal deems fit” to the end of that subsection. The effect of these provisions is that the Tribunal can exercise discretion to grant an extension of time if an applicant lodges their application after the three-month period but within the 12-month period after the applicant was given the decision. However, the Tribunal’s ability to exercise discretion to extend the time is removed after the 12-month period.

14. This means that if Mr Butler received the decision on 11 August 2020 (as I have identified above with reference to the AIA), I could only exercise discretion to extend the time until 12 months from that time, being 11 August 2021, at the latest.

15. Thus, as Mr Butler filed his application on 28 November 2021, the effect of s 176(4)(b) of the VEA is that he was outside of the 12-month period within which I could extend the time.

16. As explained to Mr Butler at the interlocutory hearing, I can only make decisions that are permitted by the statute. I am therefore unable to extend the time for him to make an application to 28 November 2021, because it was made after the latest time that I could extend the application to, which was 11 August 2021. 

17. I thank Mr Butler for his service, and I acknowledge that the misinformation and errors have caused him considerable frustration. Fortunately, he is not precluded from making a new application for a service pension if he again becomes an Australian resident.  

    DECISION

18. I refuse to grant the Applicant’s application for an extension of time to lodge an application for review of the decision of a delegate of the Repatriation Commission dated 3 August 2020.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

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Associate

Dated: 14 April 2022

Date of hearing:	12 April 2022
Applicant:	Self-represented
Solicitors for the Respondent:	Ken Rudge, Repatriation Commission