Francis and Repatriation Commission

[2006] AATA 1131

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1131

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2006/244

VETERANS' APPEALS  DIVISION		)
Re		RONALD WILLIAM FRANCIS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date20 October 2006

PlaceAdelaide

Decision Upon being satisfied that the Tribunal has no jurisdiction to hear this application for review, the matter is dismissed.

..............................................

J G SHORT
  (Member)

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – application dismissed

Veterans’ Entitlements Act 1986 s 175

REASONS FOR DECISION

20 October 2006   Mr J G Short (Member)     

1. On 9 August 2006 Mr Ronald Francis lodged an application seeking review of a decision suggested by Mr Francis to have been made on 24 July 2006, not to approve a request for an automatic roller door. The decision was said to have been made in accordance with Part 11.1.4 of the Treatment Principles prepared under the Veterans’ Entitlements Act 1986 (the VE Act).

2.      Mr Francis confirmed that he had previously made an application for a roller door in 2004.  He said however that he made a fresh oral application on 20 July 2006 and that a letter from the respondent (the Commission), incorrectly dated 24 July 2004, was in fact dated 24 July 2006 and comprised a fresh decision.  It was after receipt of this fresh decision that Mr Francis wrote a letter to the Department of Veterans’ Affairs dated 30 July 2006.  The letter was received by the Department on 3 August 2006.  The letter requested a review of the adverse decision made in answer to Mr Francis’ request for a roller door. 

3.      Mr Francis confirmed that at the time he lodged his appeal to this Tribunal (9 August 2006) he had not received a response to his letter of 30 July 2006 seeking an internal review by the Department.  The response to the request for an internal appeal eventually came by way of a letter dated 16 August 2006. 

the commission’s argument

4.      The Commission suggested that the Tribunal lacks jurisdiction to hear the appeal for three reasons.  First, the Commission said that its letter dated 24 July 2004, but accepted by the parties to have been drawn on or about 24 July 2006, was in fact a restatement of a decision made in respect of roller doors in 2004 and that consequently the current application is out of time.

5.      Having heard evidence from Mr Francis, I accept that Mr Francis lodged a fresh oral application on or about 20 July 2006 and that, although reference was made to the earlier decision, a fresh decision had been made on 24 July 2006.  Consequently the appeal lodged by Mr Francis was within 3 months of the original decision.

6.      The Commission also argued that the Tribunal lacked jurisdiction to hear the appeal because the appeal was lodged before the internal review requested by Mr Francis had been completed.  The internal review was completed on 16 August 2006.  The appeal was lodged by Mr Francis on 9 August 2006.  I will return to this issue.

7. The third argument raised by the Commission was that the Tribunal lacked jurisdiction to hear the appeal as it was not a type of appeal listed in s 175 of the VE Act. Mr Francis seemed to accept this proposition, although he said that it was unfair that he not be granted a right of appeal in respect of a decision relating to the provision or otherwise of roller doors.

8.      The Tribunal has considered the second and third limbs of the Commission’s argument.  In respect of both of those contentions, the Tribunal finds in favour of the Commission.

9. The Administrative Appeals Tribunal is a creature of statute. It does not have an inherent jurisdiction. In order to grant jurisdiction, an enabling Act (in this case the VE Act) needs to state that an appeal lies to the Tribunal in respect of a particular type of decision. A reading of s 175 of the VE Act indicates two things. First, before an appeal can be lodged under s 175, the internal appeal process needs to have been exhausted. In this case it was not. This could be cured by Mr Francis lodging a fresh appeal.

10. The other difficulty for Mr Francis however is that s 175 of the VE Act does not list decisions made in relation to the provision of such items as a roller door as one of the types of decisions which are reviewable by the Tribunal. Absent such specific provision, the Tribunal does not have jurisdiction to hear an appeal.

11.     For all of the above-mentioned reasons, the Tribunal is satisfied that it does not have jurisdiction to hear this application for review.  The Tribunal directs that the application be dismissed.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed:         .....................................................................................
  Associate

Date of Hearing  5 October 2006
Date of Decision  20 October 2006
Advocate for the Applicant       In person

Counsel for the Respondent     Mr A Crowe

DVA