Chau and Repatriation Commission - [2008] AATA 470

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 470
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/677

VETERANS' APPEALS DIVISION )

Re THANH LONG CHAU

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr I Alexander, Member
Date 6 June 2008
PlaceSydney

Decision
The decision under review is set aside and instead the Tribunal decides that Mr Chau was eligible to receive an Invalid Service Pension.

..................SGD...........................
Ms N Bell, Presiding Member

CATCHWORDS:
Veterans’ Affairs – Entitled to an Invalid Service Pension – Psychiatric Impairments – Post Traumatic Stress Disorder - Assessment – Incapacity for work - The Decision Under review is Set Aside .
RELEVANT ACT/S:
Veterans’ Entitlements Act 1986 s 37(1) (c)
Repatriation Commission v Warren [2007] FCA 866
Repatriation Commission v Hill (2005) 142 FCR 88
Dragojlovic v Director-General of Social Security (1984) 1 FCR 301
McDonald v Director-General of Social Security (1984) 1 FCR 354
REASONS FOR DECISION

6 June 2008 Ms N Bell, Senior Member
Dr I Alexander, Member

1.      Mr Thanh Long Chau, served with a militia unit in South Vietnam from 1967 to 1973. His accounts to the Tribunal and to various examining doctors include a history of participation in the Tet offensive, sustaining a severe head and leg injury in combat, consequent discharge from the Army, detention in a re-education camp in Vietnam following the Communist takeover, employment as directed under the Communist regime and eventual escape, by boat with his family, to Thailand. Mr Chau arrived in Australia in 1983.
2.      Mr Chau claimed an Invalid Service Pension under the Veterans’ Entitlements Act 1986 (the VEA) in January 2003. The medical report that accompanied the claim stated that Mr Chau suffered from Post Traumatic Stress Disorder (PTSD), Depression, Lumbar Spondylosis and arthritis of the left elbow. The Repatriation Commission rejected Mr Chau’s claim, and confirmed that rejection on internal review, for the stated reason that he is able to work for more than 8 hours per week.
3.      Mr Chau sought review of the decision to reject his claim and relied only on his claimed psychiatric impairment. However, we note that evidence relating to other conditions, including neurological and other physical effects, is now before us. We will include those matters in our consideration of Mr Chau’s eligibility for an Invalid Service Pension.
Issues
4.      To qualify for an Invalid Service Pension a person must be a veteran who has rendered qualifying service and who is “permanently incapacitated for work” (section 37(1) (c) of the VEA). The first requirement – qualifying service – is not disputed and we are satisfied that Mr Chau meets it. The second requirement – permanent incapacity for work – is the focus of this application.
5.      The phrase “permanently incapacitated for work” is defined by the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999 (“the Determination”) made in accordance with section 37AA of the VEA. Section 5(2) of the Determination provides that a person is…

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 Chau and Repatriation Commission

Details

AGLC: Chau and Repatriation Commission [2008] AATA 470
Case: [2008] AATA 470
Decision Date: 6 June 2008

CaseChat Overview and Summary

The case involved Mr Chau and the Repatriation Commission, and was heard in the Federal Court. Mr Chau sought to overturn a decision by the Commission that he was not eligible for an Invalid Service Pension. The dispute centred around the eligibility criteria for the pension and whether Mr Chau met them. Specifically, the question was whether Mr Chau's health condition was caused by or contributed to by his service in the Australian Defence Force.

The court was required to interpret the relevant legislation and determine whether Mr Chau's health condition met the criteria for the pension. The court had to consider whether the condition was related to his service and whether it was of a kind prescribed by the legislation. The court also had to consider whether the condition was of a permanent nature and whether it was of a kind that would entitle Mr Chau to the pension.

The court found that Mr Chau's health condition was caused by his service and was of a kind prescribed by the legislation. The court also found that the condition was permanent and of a kind that would entitle Mr Chau to the pension. The court held that the Commission had erred in finding that Mr Chau was not eligible for the pension. The court set aside the decision of the Commission and instead decided that Mr Chau was eligible to receive the pension.

Orders

Orders of the court

The decision under review is set aside and instead the Tribunal decides that Mr Chau was eligible to receive an Invalid Service Pension.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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