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Gibson and Repatriation Commission

Gibson and Repatriation Commission

Case [2006] AATA 1090 18 December 2006

Jurisdiction

Standing

Review of Administrative Decisions

Decision-Making Process

Administrative Appeals Tribunal

Administrative Law

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CATCHWORDS – VETERANS’ AFFAIRS – jurisdiction – application to review decision refusing to accept condition as war-caused - whether jurisdiction to consider assessment of any pension payable after Tribunal’s substituting decision that condition war-caused – no jurisdiction.

VETERANS’ AFFAIRS - jurisdiction – purported dismissal of application of decision under review in relation to hypertension – recorded in transcript but no separate written record – whether power to dismiss part of an application – no power – whether Tribunal retains jurisdiction to review decision – retains jurisdiction

VETERANS’ AFFAIRS - jurisdiction – computer record of affirmation of decision under review in relation to hypertension – no written decision – whether Tribunal functus officio – whether Tribunal retains jurisdiction – retains jurisdiction.

Administrative Appeals Tribunal Act 1975 ss 3(3), 5, 25, 25(1), 25(3), 25(4), 37, 42A(1), 42A(1A), 42A(1B), 42A(2), 42A(4), 42A(5), 42B(1), 42C, 43, 43(1), 43(3), 43(4), 43(6), 44(1) and 44(2A)
Archives Act 1983
Commonwealth of Australia Constitution Act 1900 s 75(v)
Migration Act 1958 ss 360, 500, 500(6C), 500(6J), 501 and 501G(2)
Veterans’ Entitlements Act 1986 ss 9, 13(1), 13A, 14, 14(1), 14(3), 14(5), 14(6),14(7), 15(1), 15(2), 16, 17(1), 17(2), 17(3), 18(1), 19, 19(1), 19(3), 19(5A), 19(5B), 19(5C), 19(5D), 19(5F), 21A, 22, 23, 24, 25, 27, 30, 31, 34(1), 34(2), 135, 135(1), 135(5) and 175

Abebe v Commonwealth (1999) 197 CLR 510; 162 ALR 1; 55 ALD 1; 73 ALJR 584
Calvin v Carr (1979) 22 ALR 417
Chandler v Alberta Association of Architects [1989] 2 SCR 848
Collector of Customs (NSW) v Brian Lawlor (1979) 24 ALR 307; 2 ALD 1
Craig v The State of South Australia (1995) 184 CLR 163; 131 ALR 595; 39 ALD 193
Gibson and Repatriation Commission [2004] AATA 870
Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378; 33 AAR 446
Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387; 59 ALD 458
Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 494
McWilliam and Civil Aviation and Safety Authority [2005] AATA 1148
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; 76 ALJR 598
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225; 75 ALJR 1105
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; 195 ALR 24; 72 ALD 1; 77 ALJR 454
Project Blue Sky Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490
Re Michael and Secretary, Department of Employment, Science and Training;
Re Edwards and Secretary, Department of Health and Ageing [2006] AATA 277

Repatriation Commission v Tuite (1992) 37 FCR 571

DECISION AND REASONS FOR DECISION [2006] AATA 1090

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          S2001/149
GENERAL ADMINISTRATIVE DIVISION     )

Re BRUCE WARWICK GIBSON

Applicant

AndREPATRIATION COMMISSION
Respondent

DECISION

Tribunal: Deputy President S A Forgie
Date: 18…

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 Gibson and Repatriation Commission

Details

AGLC: Gibson and Repatriation Commission [2006] AATA 1090
Case: [2006] AATA 1090
Decision Date: 18 December 2006

CaseChat Overview and Summary

The case before the Administrative Appeals Tribunal (AAT) involved a review of decisions made by the Repatriation Commission (Commission) regarding the war-caused injuries of Bruce Warwick Gibson, who had passed away before the proceedings concluded. The Tribunal was required to decide whether it had jurisdiction to review decisions concerning the acceptance of certain conditions as war-caused and to assess the rate of pension payable. The first issue was whether the Tribunal had jurisdiction to review the decision relating to hypertension, considering whether the Tribunal had affirmed or dismissed the application for review. The Tribunal concluded that it retained jurisdiction to review the decision regarding hypertension, regardless of whether it had affirmed or dismissed the application. This was due to the lack of a written decision affirming the Commission’s decision and the absence of power to dismiss an application based on the correctness of the decision under review. The second issue addressed whether the Tribunal had jurisdiction to assess the rate of pension payable to Mr Gibson in light of the Tribunal’s decision setting aside the Commission’s decision regarding Post Traumatic Stress Disorder (PTSD) as war-caused. The Tribunal found that reviewing the rate of pension payable was outside its jurisdiction, as the Commission had not made such a decision, and any assessment of pension was solely within the Commission’s jurisdiction. Consequently, the Tribunal decided it did not have jurisdiction to consider the assessment of any pension payable to Mr Gibson but did have jurisdiction to review the decision concerning the acceptance of hypertension as a war-caused injury or disease.

Orders