Carrick and Repatriation Commission - [2004] AATA 270

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 270

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/484

VETERANS' AFFAIRS DIVISION

Re: GRAHAM JAMES CARRICK AND
VIRGINIA ANN CARRICK

Applicants

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: Mr E. Fice, Member

Date: 16 March 2004

Place: Melbourne

Decision:The Tribunal does not have jurisdiction to review the decision made by the Repatriation Commission.

(sgd) E. Fice
Member

VETERANS' AFFAIRS - jurisdiction - service pension - overpayment correctly raised - conversion of United States pension amounts into Australian dollars for calculating Australian pension rate - whether any onus lies with respondent

Administrative Appeals Tribunal Act1975

Veterans' Entitlements Act 1986 ss 54, 56B, 56H, 57, 127, 175, 205, 206

Re Deason and Repatriation Commission (1991) 23 ALD 637

Re Knight and Repatriation Commission (AAT 9115, 12 November 1993)

Re Lobik and Repatriation Commission (1995) 42 ALD 331

Re Hildebrand and Repatriation Commission (1996) 42 ALD 133

Re Porritt and Repatriation Commission (AAT 11137, 3 June 1996)

Re Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd

(1979) 2 ALD 1

REASONS FOR DECISION

16 March 2004 Mr E. Fice, Member

Mr and Mrs Carrick have been paid service pension since 28 September 1995. They each received a letter, dated 29 January 2003, from the Commonwealth Department of Veterans' Affairs (the Department) informing them that their service pension had been overpaid. Consequently they were each required to repay the sum of $12,562.14. The letters notifying Mr and Mrs Carrick of the overpayments also stated that they could apply for a review of the decision if they lodged an application within three months of being notified of the decision.
Mr Carrick wrote a letter to the respondent on 10 February 2003, seeking a review of the decision.
Under the cover of a letter dated 24 March 2003, a delegate of the Repatriation Commission wrote to Mr and Mrs Carrick informing them that he had conducted a review but, regrettably, had decided to affirm the decision made by the first delegate. Written reasons for the affirmation were provided to Mr and Mrs Carrick.
Mr and Mrs Carrick are dissatisfied with the decision made by the Repatriation Commission's delegate on 24 March 2003 and seek to have it reviewed by this Tribunal.
At the hearing of this matter, Mr and Mrs Carrick were represented by Mr J. Jackson, an advocate from the Returned & Services League, and the Repatriation Commission was represented by its advocate, Mr R. Douglass.

BACKGROUND

Following the death of his first wife in 1978, Mr Carrick, while holidaying in the United States of America (USA, United States), met his current wife, Virginia. Following his return to Australia, he arranged for Virginia to travel to Australia and they were married in Melbourne in 1979.
In 1984, Mr and Mrs Carrick moved to California, USA, where they resided for some 11 years. While there, Mr Carrick applied for and was granted a "Green Card" enabling him to work. After a period of time, he…

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 Carrick and Repatriation Commission

Details

AGLC: Carrick and Repatriation Commission [2004] AATA 270
Case: [2004] AATA 270
Decision Date: 16 March 2004

CaseChat Overview and Summary

Mr and Mrs Carrick applied to the Administrative Appeals Tribunal (AAT) for a review of a decision made by the Repatriation Commission, which found that they had been overpaid their service pensions and required them to repay the overpaid amounts. The AAT was asked to determine whether it had jurisdiction to review the decision of the Repatriation Commission. The central legal issue was whether the AAT had the authority to review the decision of the Repatriation Commission regarding the recovery of the overpaid service pensions.

The AAT examined the provisions of the Veterans' Entitlements Act 1986 and previous decisions to determine if it had jurisdiction. The AAT noted that the Repatriation Commission had the authority to recover overpayments of pensions under section 56B of the Act and that any decision to recover such overpayments was not subject to review under section 57 of the Act. The AAT found that the decision of the Repatriation Commission to recover the overpaid service pensions from Mr and Mrs Carrick did not fall under any of the provisions of section 57 of the Act, and therefore, such a decision was not reviewable by the AAT. Consequently, the AAT did not have jurisdiction to review the decision made by the Repatriation Commission.

In conclusion, the AAT found that it did not have jurisdiction to review the decision made by the Repatriation Commission. As a result, the AAT could not consider the merits of the case and dismissed the application for review.

Orders