Hoogkamer and Repatriation Commission

[2005] AATA 910

Administrative

Appeals

Tribunal

 

DIRECTION AND REASONS FOR DIRECTION [2005] AATA 910

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/679

VETERANS' APPEALS DIVISION		)
Re		HARRY HOOGKAMER

Applicant

And REPATRIATION COMMISSION

Respondent

DIRECTION

Tribunal Dr EK Christie, Member

Date14 September 2005

PlaceBrisbane

Direction The Tribunal Direction is that it has no jurisdiction to review the decision of the Repatriation Commission made on 4 August 2005.  

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

EK Christie
  Member

CATCHWORDS

PROCEDURE AND PRACTICE – Veterans’ Entitlements Act – disability pension – causation – no assessment of entitlement – decision of Repatriation Commission – Tribunal’s powers of review

Veterans’ Entitlements Act 1986 ss 9, 14, 15, 120(3), 120A(3), 175(1)
Administrative Appeals Tribunal Act 1975 ss 25(1), 25(4), 43(1)

Banovich v Repatriation Commission  (1986) 69 ALR 395
Repatriation Commission v Morris & Ors (1997) 50 ALD 156
Owen v Repatriation Commission  (1995) 38 ALD 241
Fitzmaurice and Repatriation Commission (AAT 4045, 23 December 1987)

WRITTEN REASONS FOR ORAL DIRECTION

20 September 2005 Dr EK Christie, Member     

I – Background to Direction

1.      The history of Mr Hoogkamer’s application for entitlements under the Veterans’ Entitlements Act 1986 (“the VE Act”) can be summarised as follows:

§  20 October 2000:  A decision by the Repatriation Commission in relation to a claim for a number of medical conditions.  The Commission did not deal with the question of assessment.

§  8 June 2001:  A decision by the Veterans’ Review Board to vary some aspects of the Repatriation Commission’s decision.  The Veterans’ Review Board did not deal with the question of assessment.

§  22 December 2003:  A decision by the Administrative Appeals Tribunal to affirm the Veterans’ Review Board decision.  The Administrative Appeals Tribunal decision did not deal with the question of assessment.

§  19 August 2004:  Decision of the Federal Court, inter alia, to remit the matter to the Administrative Appeals Tribunal to be heard and determined according to law, “such rehearing to be limited to the issue whether or not the applicant’s condition of Generalised Anxiety Disorder was caused by the applicant’s war service, within the meaning of ss 9, 120(3) and 120A(3) of the Veterans’ Entitlements’ Act 1986”. [Emphasis added]

§  14 February 2005:  The Administrative Appeal Tribunal decided that Mr Hoogkamer’s generalised anxiety disorder was “war-caused” and issued a Direction “that the respondent now consider the implications of this decision with respect to determining the degree of incapacity of Mr Hoogkamer from his accepted service-related disabilities and, in turn, the appropriate rate of pension entitlements”.

§  4 August 2005:  In response to the Tribunal Direction of 14 February 2005, the Repatriation Commission decided that Mr Hoogkamer be granted a disability pension at 40% of the General Rate.  The evidence used by the delegate in assessing the rate of pension “includes a lifestyle questionnaire from the veteran dated 18 April 2005 and a psychiatric report from Dr C Oelrich dated 19 May 2005”.

II – Issue For Which The Direction Is Sought

2.      Whether the Administrative Appeals Tribunal has jurisdiction to review the decision of the Repatriation Commission made on 4 August 2005.

III – Legal Principles

3.      The Tribunal has considered and applied the following legal principles:

§In Banovich v Repatriation Commission (1986) 69 ALR 395 at 404 the Full Court of the Federal Court, Fisher, Beaumont and Wilcox JJ, made the following pertinent remark:

“The task of the Administrative Appeals Tribunal in reviewing a decision relating to an application for a pension is to make the decision which the primary decision-maker  ought  to have made on the basis of the evidence before the Tribunal.”

§The jurisdiction of the Administrative Appeals Tribunal to review a decision of the Veterans’ Review Board is conferred by ss 25(1), (4) of the Administrative Appeals Tribunal Act 1975 read in conjunction with s 175 of the Veterans’ Entitlements Act:  Repatriation Commission v Morris & Ors (1997) 50 ALD 156 at 160.

§The provisions of the Veterans’ Entitlements Act s 175(1)(a) and of the Administrative Appeals Tribunal Act ss 25(4) and 43(1) all contemplate the Tribunal’s power of review being limited to a review of the decision in respect of which application is able to be made to it: Owen v Repatriation Commission (1995) 38 ALD 241 at 243.

§The above authorities indicate that the powers in s 43(1) of the Administrative Appeals Tribunal Act augment the powers in s 175(1) of the Veterans’ Entitlements Act. Section 175(1) gives a right of appeal to the Administrative Appeals Tribunal to review certain classes of decisions.

“175   Applications for review

(1)Where a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and affirmed, varied or set aside, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review:

(a)of the decision of the Commission that was so affirmed;

(b)of the decision of the Commission as so varied; or

(c)of the decision made by the Board in substitution for the decision so set aside;

as the case may be.”  [Emphasis added]

§The Veteran’s Review Board reviews decisions on entitlement and assessment matters.  For example, reviews of eligibility for disability pension.  The Veterans’ Review Board also reviews decisions on the degree of incapacity of the veteran (assessment matter).  The decision under review may have been made by the Commission, inter alia, pursuant to s 14 (“Claim for Disability Pension”) and/or the complementary provision, s 15 (“Application for an Increase in Pension”).

§In Fitzmaurice and Repatriation Commission (AAT 4045, 23 December 1987) the Tribunal made the following observations in this regard:

“The assessment of the pension payable is a natural concomitant of the determination that the incapacity was war caused…

Both aspects are part of the one decision, there are however two determinations which make up the one decision.  The decision itself may consist of many constituent parts for e.g. the determination that the incapacity is war caused, secondly the level of pension that ought to be paid on account of that particular incapacity and finally the date from which that pension ought to be payable…The later two determinations are natural concomitants of the first determination that the incapacity is a war caused disease or injury.  Section 19(7) requires that where the Commission determines an incapacity is war caused it may make an assessment of the level of pension the veteran should receive.   The provision is not directory in nature but mandatory.  It is an obligation cast upon the Commission whenever it adjudges an incapacity is war caused.  Similarly section 139(4) of the Act places the same mandatory obligations upon the Veterans Review Board if it determines an incapacity is war caused.”[Emphasis added]

IV - Consideration

4.      The Tribunal makes the following findings:

(i)In the present case, the decision under review for which a Direction is sought is a decision of the Repatriation Commission in respect of a claim made for assessment of disability pension for the accepted “war-caused” disabilities of “generalised anxiety disorder” and “alcohol dependence”;

(ii)Issues of assessment for disability pension for these accepted disabilities have not been considered by the Federal Court, the Administrative Appeals Tribunal, the Veterans’ Review Board or the Repatriation Commission (prior to 4 August 2005) – only causation issues have been considered; and

(iii)The decision made by the Repatriation Commission on 4 August 2005 has not been reviewed by the Veterans’ Review Board – notwithstanding that a review of assessment matters and eligibility for disability pension entitlement matters comes within the ambit of the review jurisdiction. Furthermore, the application of s 175(1) of the Veterans’ Entitlements Act is an express provision that requires the decision of the Commission to be affirmed, varied or set aside by the Veterans’ Review Board, before an application can be made to the Tribunal for a review of the decision of the Commission.

IV – Direction

5.      Applying the reasoning of the Tribunal in Fitzmaurice’s case, to the present case, both aspects of the decision (incapacity is war caused; assessment of pension) were not properly before the Veterans’ Review Board thus it cannot logically follow that both aspects of the decision are open to review by the Tribunal.  Any other approach would detract from the true and proper function of the Tribunal, which is the duty to make the correct and preferable decision; and

6.      Based on the above reasons, the Tribunal Direction is that it has no jurisdiction to review the decision of the Repatriation Commission made on 4 August 2005.

I certify that the 6 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

Signed:         Jeff Mills
  Legal Research Officer

Date/s of Hearing  14 September 2005
Date of Direction  14 September 2005
Date of Written Reasons          20 September 2005

Solicitor for the Applicant          Mr J Cockburn - Nicol Robinson Hallets
Counsel for the Respondent     Ms H Bowskill
Solicitor for the Respondent     Australian Government Solicitor