Garton and Repatriation Commission (Veterans' entitlements)
[2021] AATA 1666
•19 May 2021
Garton and Repatriation Commission (Veterans' entitlements) [2021] AATA 1666 (19 May 2021)
Division:Veterans' Appeals Division
File Number(s): 2020/6528
Re:Peter Garton
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member B J Illingworth
Date:19 May 2021
Date of written reasons: 8 June 2021
Place:Adelaide
The decision dated 20 October 2020 is not a reviewable decision. Pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the application for review is dismissed.
...........................[SGND]..................................
Senior Member B J Illingworth
CATCHWORDS
PRACTICE AND PROCEDURE – JURISDICTION – Veterans’ Entitlement Act 1986 (Cth) – application to cancel debt accrued under Pension Loan Scheme – no reviewable decision – Tribunal does not have jurisdiction
LEGISLATION
Administrative Appeals Tribunal Act 1978 (Cth)
Veterans’ Entitlement Act 1986 (Cth)
REASONS FOR DECISION
Senior Member B J Illingworth
8 June 2021
At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for the decision have been transcribed by Epiq. Some minor amendments have been made to that transcript. Whereas those oral reasons, as amended, may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal’s decision.
I certify that the preceding three (3) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth.
……………[SGND]………………
Administrative Assistant Legal
Dated: 8 June 2021
Date of hearing: 18 March 2021 and 19 May 2021 (by telephone) Applicant:
Self-represented
Representative for the Respondent: Mr Ashley Burgess, Sparke Helmore Lawyers ORAL DECISION OF SENIOR MEMBER ILLINGWORTH [10.00am]
The Tribunal received an application for Mr Peter Lenard Garton (the Applicant) on 20 October 2020 for the review of a decision made by a delegate of the Respondent pursuant to the Veterans’ Entitlement Act 1986 (Cth) (the VEA) of that same date. In the application, the Applicant contended that the Respondent failed to correctly apply the provisions of the VEA in relation to an application to cancel the Pension Loan Scheme (PLS) loan debt.
The outcome of the decision was that the request for waiver of a debt, pursuant to the VEA, was denied as the Applicant’s circumstances did not meet the criteria under extreme or unusual circumstances, or any other criteria, which would make it unreasonable for the Respondent to recover that debt.
At page 3 of that decision the Applicant was advised of his review rights, namely, under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), and that pursuant to section 11 of the ADJR Act such application for review must be made within 28 days from the day of that decision. By letter dated 22 October 2020, the Tribunal Registry wrote to the Applicant and advised that the VEA did not provide for a review to the Tribunal in respect of that decision.
By email dated 26 October 2020, the Applicant responded to that letter and said:
i.the Applicant was confident that it is not within the power of the Department of Veterans’ Affairs, (the DVA), to assert the Applicant’s only avenue for review was the Federal Court of Australia;
ii.that section 206 of the VEA did not exclude or mention any limitation in respect of the making of a merits-based review;
iii.the VEA did not assert the Tribunal did not have jurisdiction, and the Applicant relied on section 27(1) of the Administrative Appeals Tribunal Act 1978 (Cth) (the AAT Act) which the Applicant said permitted the Tribunal to accept the application; and
iv.further, the DVA Consolidated Library of Information and Knowledge Guidelines which require compliance with the provisions of the ADJR Act, did not assert that the ADJR provisions were the only permissible course of review.
It is also noteworthy that the Applicant has subsequently said that he did not wish to apply to the Federal Court because of the potential cost ramifications in that jurisdiction.
The Tribunal Registry wrote to the Applicant on 30 October 2020, and referred to section 175 of the VEA which detailed those VEA decisions that are reviewable to the Tribunal, and that the waiver of debt under section 206 of the VEA was not a reviewable decision to the Tribunal. The Tribunal Registry also referred the Applicant to section 27 of the AAT Act and that the Applicant’s interpretation of that section was incorrect, and in particular section 27 did not grant power to consider any application for review, and that the relevant enactment, which is the VEA, must empower the Tribunal with such right to hear a review of a decision. The Respondent’s Statement of Facts, Issues and Contentions also referred to sections 25 and 43 of the AAT Act. Relevantly, section 25 provides that enactment may provide that application may be made to the Tribunal.
Section 175 of the VEA is the enactment that provides for those decisions made pursuant to the VEA that may be the subject of review to the Tribunal. Decisions made under section 206(1)(b) of the VEA are not one of those decisions. The Tribunal agrees with the Respondent’s submissions contained in the Statement of Facts, Issues and Contentions. Accordingly, a decision not to exercise the discretion to waive a debt pursuant to section 206(1) of the VEA is not a decision in relation to which jurisdiction has been conferred on the Tribunal to hear an application for review. The Applicant’s rights of review are correctly detailed at page 3 of the decision dated 20 October 2020, to which I have referred.
The Applicant also argues that the existence of the debt is related to an earlier application for review, made by the Applicant, to the Tribunal asserting an incorrect calculation of the Applicant’s service pension entitlement. It is submitted that the exercise of the PLS debt was consequent upon, and a direct result of, errors and omissions set out in that 2016 application for review, in case number 2016/6356. It is said that application incorporated the issue now in dispute. The application alleging an incorrect calculation of the Applicant’s service pension entitlement was a decision in respect of which the VEA conferred the power upon the Tribunal to hear a review of that decision, but not any subsequent application to waive the debt in consequence of that calculation.
Application 2016/6356 was finalised by an agreement reached between the parties, which was the subject of a written application pursuant to section 42C of the AAT Act, signed by the parties, advising that agreement had been reached, the terms of that agreement and inviting the Tribunal to make an order in those terms. Deputy President Bean made a decision on 3 May 2018 in accordance with those terms contained within the section 42C application and consent orders. That decision brought to an end that application and the jurisdiction of the Tribunal. That application, on its face, cannot be reopened. The Respondent correctly submits that the Tribunal is, at the moment, functus officio in respect of that matter and it cannot be reopened as an avenue to which the Applicant can seek review of the decision made pursuant to section 206 of the VEA.
Accordingly, the decision dated 20 October 2020 is not a reviewable decision. Pursuant to section 42A(4) of the AAT Act, the application for review is dismissed.
END OF ORAL DECISION [10.23 am]
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