Cater and Repatriation Commission

[2006] AATA 1087

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1087

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/568

VETERAN’S APPEALS DIVISION		)
Re		RUTH CATER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date15 December 2006

PlaceBrisbane

Decision The Tribunal has jurisdiction to hear the application for review.

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

SENIOR MEMBER

CATCHWORDS

PRACTICE AND PROCEDURE – veterans’ affairs – appeal from Veterans’ Review Board – whether valid application for review was made to VRB – valid application made – Tribunal has jurisdiction

Veterans Entitlements Act 1986 s 31,135, 136

Bowen and Repatriation Commission (1994) 32 ALD 700

REASONS FOR DECISION

15 December 2006	Senior Member Bernard J McCabe
introduction

1.      The respondent says the Tribunal does not have jurisdiction to review the applicant’s case because the applicant failed to seek review of the relevant decision by the Veterans’ Review Board (the VRB) within the time laid down by the Veterans Entitlements Act 1986 (the Act). Mrs Cater, the applicant, says she did in fact request a review in writing within the time specified in the Act albeit that her advocate did not use the form provided by the Department of Veterans’ Affairs. The VRB accepted the application was made within the time contemplated in the Act and proceeded to conduct a review.

2.      Mr Williams represented the respondent at the hearing of jurisdiction. Ms Carter Nicoll of counsel represented the applicant. Both parties provided written submissions.

the facts

3.      The applicant is the widow of Mr Edwin Cater. Mr Cater was a veteran. He died in 1987. The applicant says Mr Cater’s death was related to his service. She has asked for a war widow’s pension. Her application was lodged on 28 February 2005. The delegate’s decision of 4 April 2005 concluded the veteran’s death was not war-caused. The letter enclosing the decision advises the applicant of her rights of appeal to the VRB. The letter says an application for review must be in writing and be lodged with the Department of Veterans’ Affairs within 12 months.

4.      Mrs Cater was advised by a Legacy advocate in relation to her application. The advocate prepared a document specifically requesting a review of the original decision pursuant to s 31 of the Act. Section 31 deals with reviews by the Repatriation Commission, not the VRB. Reviews by the VRB are conducted pursuant to s 135 of the Act. Section 136 sets out the process for making an application for review under s 135. They are simple: the application must be in writing and must be lodged with an office of the department.

5.      The document written by the Legacy advocate was lodged on 1 December 2005. The advocate did not complete the standard form provided by the respondent in relation to these applications. That form expressly seeks a review under s 31 and, if that review is unfavourable, seeks a review by the VRB pursuant to s 135. (A copy of the form was filled out on 2 December 2005 but it was not lodged until 27 April 2006.) The advocate’s submission did not seek a review under s 135 if the s 31 review was unsuccessful. But he did append a number of other documents to the submission. One of those documents was a letter written by the applicant dated 5 October 2005. The respondent says it did not receive a copy of the letter independently of the application, but it accepts the letter was amongst the documents it received from the Legacy advocate. The letter states in the last paragraph:

In conclusion I would appreciate if my [war widow’s pension] claim dated 21/12/2005 may be reviewed in light of the abovementioned information and a favourable decision may be forthcoming.

6.      The respondent considered the application for review under s 31. On 13 December 2005, an officer wrote to the applicant and advised the Commission would not intervene in the decision-making process. The applicant subsequently wrote to the VRB seeking a review on 27 April 2006. The application was received more than 12 months after the date of the original decision.

7.      The VRB considered the issue in the course of its reasons provided under cover of a letter dated 10 August 2006. The reasons are brief. After setting out the history of the communications between the applicant, the respondent and the Department of Veterans’ Affairs, the VRB said it was satisfied the letter of 5 October 2005 (received as part of the bundle of documents filed by the applicant on 1 December 2005) was a valid application for review.

8.      Mr Williams, for the respondent, said the VRB should not have allowed the review to proceed. If that is right, the Tribunal does not have jurisdiction to review the claim either: see Bowen and Repatriation Commission (1994) 32 ALD 700.

does the tribunal have jurisdiction?

9.      I think the VRB was right to proceed with the review. The requirements pertaining to the application have been satisfied: the letter dated 5 October 2005 that was lodged with the other documents on 1 December 2005 is in writing. It was lodged with the Department as required. The letter clearly requests a review of the original decision. That should be enough to trigger the review process, which includes review under s 135 of the Act. I note Mr Williams acknowledged the letter probably would have been sufficient to commence the review process if it had arrived without the advocate’s submissions on 1 December 2005.

10.     I accept the departmental officers may have been led into error by the advocate’s submissions. Mr Williams pointed out the advocate was a highly regarded individual, and the Department relied on what he wrote. I make no criticism of the Department for doing so. I also accept the respondent wrote to the applicant in relation to her application. It may be that the applicant should have realised the respondent was conducting a more limited review than she may have anticipated. I do not think that ultimately matters because I am satisfied the applicant satisfied the requirements in s 136 of the Act.

conclusion

11.     The Tribunal has jurisdiction to hear the applicant’s application for review.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:         .....................................................................................
  Associate      Adam Ryan

Date of Hearing  8 December 2006
Date of Decision  15 December 2006
The applicant was represented by Ms Carter Nicoll of Counsel.
The respondent was represented by Mr Williams, a departmental advocate.