John Atkins and Repatriation Commission
[2014] AATA 42
•30 January 2014
[2014] AATA 42
Division VETERANS' APPEALS DIVISION File Number
2013/3205
Re
John Atkins
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member Date 30 January 2014 Place Sydney The Tribunal has no jurisdiction to review Mr Atkins’ application and accordingly dismisses it.
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Ms G Ettinger, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – jurisdiction – application for review of decision of the Veterans’ Review Board that it was functus officio – Applicant applied for review of 1996 decisions of the Repatriation Commission which have previously been the subject of applications for review by the Veterans’ Review Board and for which decisions had been given – operational service – Applicant suffers PTSD and bipolar disorder – PTSD compensated pursuant to Commonwealth Employees’ Compensation Act 1930 – Applicant has grievances against departmental officers – Tribunal has no jurisdiction to review decision.
LEGISLATION
Veterans’ Entitlements Act 1986 ss 135, 174, 175
Administrative Appeals Tribunal Act 1975 s 25
REASONS FOR DECISION
Ms G Ettinger, Senior Member
30 January 2014
SUMMARY
Mr John Atkins (the Veteran) seeks review of the decision of the Veterans’ Review Board (VRB) dated 3 June 2013, which held that it had no jurisdiction to review the decision of the Repatriation Commission dated 15 November 1996 refusing the Veteran’s claim for chronic sinusitis, and migraine, or the decision of the Repatriation Commission dated 19 November 1996, refusing his claims for lumbar spondylosis, osteoarthritis of the right shoulder, bipolar mood disorder and post traumatic stress disorder (PTSD).
Mr Atkins provided a bundle of documents which I have taken into evidence as Exhibit A1, and a further statement which is Exhibit A2. The T-documents prepared by the Repatriation Commission, the Respondent in these proceedings, is Exhibit R1. Mr Atkins attended the hearing, and gave oral evidence. He was accompanied by a friend, and assisted by another friend and advisor, Mr Paul Evans. The Respondent was represented by Ms Louise Buchanan, solicitor of the Australian Government Solicitor.
Much of the written documentation and some of Mr Atkins’ evidence was not relevant to the matter before me, and I have given that part of his evidence little or no weight in coming to a decision. Much of that concerned grievances he has against the Department of Veterans’ Affairs, and certain of its personnel, and others.
On the basis of the evidence and legislation before me, I find that this Tribunal does not have jurisdiction to hear Mr Atkins’ application for review. Accordingly the application must be dismissed. My reasons follow.
ISSUE BEFORE THE TRIBUNAL
The only issue before the Tribunal is whether it has jurisdiction to hear Mr Atkins’s application for review.
RELEVANT LEGISLATION
The relevant legislative enactments in this matter are the Veterans’ Entitlements Act 1986, (the VE Act), in particular sections 135, and 175, and section 25 of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
MR ATKINS’ EVIDENCE AND SUBMSSIONS
Mr Atkins commenced his evidence by telling me that he suffers bipolar disorder and PTSD which are war-caused, and that he has been very ill, indeed suicidal, and very vulnerable for a long time. He stated that he had been hospitalised a number of times, and that any apparent agreements which were before me in the documents were obtained under duress. He also said that his war service, and service on secret missions about which he could not speak, were to be considered in relation to his entitlement to special rate of pension.
He referred me to paragraph 26 of the Respondent’s submissions on jurisdiction which had been filed before the hearing and states as follows:
The applicant now seeks a further review of the same 1996 decisions of the Commission which have already been the subject of review by the Board and this Tribunal. Insofar as the present application seeks review by the Tribunal of decisions it has already reviewed in the past, this Tribunal is itself functus officio.
Mr Atkins strongly disagreed with the statement above, as he believes this Tribunal has jurisdiction to hear his application, and his grievances. He also referred me to pages 91 and 92 of the T-documents. Page 91 was a letter of the Deputy Registrar of the AAT directed to Mr Atkins via his then representative, Mr Reg Sherlock of the Legal Aid Commission, enclosing a consent decision dated 30 March 1999 (page 92), reflecting the agreement between Mr Atkins and the Repatriation Commission, made by a Senior Member of the Tribunal. Essentially, the decision set aside that part of the Repatriation Commission decision of 19 November 1996 which refused the Applicant’s condition of lumbar spondylosis, and remitted the matter to the Repatriation Commission with the direction that the condition was war-caused from 10 January 1996, and directed the Repatriation Commission to assess the rate of pension payable to the Veteran on that basis.
Mr Atkins denied having been present at the Tribunal in connection with the making of that consent decision, and denied he had been represented by Legal Aid, although during cross-examination, when he was taken to page 91 of the T-documents, he conceded he had perhaps been represented by Legal Aid.
Mr Atkins said that he did not agree to anything, and did not ask for a pension for his lumbar spondylosis, but that it had been handed to me. He said he did not agree to anything.
When asked in cross-examination about legal aid representation, Mr Atkins said that he had perhaps been assisted by the Legal Aid Commission in 1998, but that he had dismissed that assistance on the basis of wrong advice given to him in connection with a VRB hearing.
Mr Atkins agreed he had not challenged the 1999 decision which found that his lumbar spondylosis was war-caused, and that he received a pension on that basis, and following the 1999 consent decision. He said that the reason he did not challenge it, was that he had been in and out of hospital with PTSD and other conditions.
THE RESPONDENT’S SUBMISSIONS
Ms Buchanan relied on the Respondent’s submissions on jurisdiction in which she provided a detailed history of Mr Atkins’ claims as a basis for her oral submissions. Ms Buchanan submitted that the VRB had recognised Mr Atkins was seeking review of the two 1996 decisions in his letter of 19 September 2012 to the Repatriation Commission. As the applications had already been decided, the VRB could not re-open them, and had accordingly held that it had no jurisdiction to hear the applications, and was functus officio.
Ms Buchanan also referred to the jurisdiction of this Tribunal in this matter, citing section 25 of the AAT Act, and sections 135 and 175 of the VE Act.
THE TRIBUNAL’S FINDINGS AND CONCLUSIONS
I am mindful that the decisions Mr Atkins seeks to challenge in this Tribunal, even though he may not have put it that way, are:
·the decision of the Repatriation Commission of 15 November 1996 refusing his claim for chronic sinusitis and migraine;
·the decision of the Repatriation Commission dated 19 November 1996, refusing his claims for lumbar spondylosis, osteoarthritis of the right shoulder, bipolar mood disorder and PTSD; and
·the decision of the VRB dated 3 June 2013.
Notwithstanding Mr Atkins’ position that he was not present at the Tribunal, and that the decision (which has benefited him), was made under duress, I accept that what occurred was that the lumbar spondylosis was accepted as war-caused in a consent decision of the Tribunal dated 30 March 1999. As a result Mr Atkins has been receiving disability pension in that regard from 10 January 1996. He has been receiving pension at 90 percent of the General Rate since 2001, although that has since been increased to his present level of 100 percent of the General Rate. Mr Atkins did not appeal the decision of the AAT made by consent in 1999.
Liability was also accepted for aggravation of bipolar affective disorder under the Commonwealth Employees’ Compensation Act 1930.
I have noted Mr Atkins’ many grievances, and note that I cannot deal with those.
I explained to Mr Atkins that the AAT does not have inherent jurisdiction to hear any matter at large, and that its jurisdiction is conferred through the legislation under which it is empowered to hear matters and make decisions (section 25 of the AAT Act).
I have also noted that sections 174 and 175 of the VE Act are relevant. In short, section 174 explains that a reviewable decision is a decision which may be appealed to this Tribunal. Section 175 of the VE Act confers jurisdiction on this Tribunal to review decisions made by the Commission provided that the decision has been reviewed by the Board and affirmed, varied or set aside.
174 Interpretation
(1) In this Part, unless the contrary intention appears, reviewable decision means a decision in respect of which application may be made to the Administrative Appeals Tribunal under section 175.
….
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;
….
The situation is that the time has long passed for review of the 1996 decisions made in regard to Mr Atkins. The decisions have been reviewed by the VRB, and one of the decisions was the subject of an application to the AAT. Any further application to the AAT would be in regard to the 1996 decisions could be held to be frivolous and vexatious.
I note also that subsequent decisions, (mentioned above), have accepted liability for Mr Atkins’ lumbar spondylosis, and aggravation of bipolar affective disorder. A Senior Member of the Tribunal dismissed Mr Atkins’ application in 2008 because after a period of correspondence, he continued not to be able to identify a reviewable decision. In 2010, another Senior Member of the Tribunal made a consent decision that gave effect to an agreement between Mr Atkins and the Military Rehabilitation and Compensation Commission, which held that the Veteran had suffered PTSD, being a disease contributed to by his employment with the Australian Navy. He was compensated pursuant to the Safety, Rehabilitation and Compensation Act 1988.
The final point I make is that the decision of the VRB of 3 June 2013, held that it had no jurisdiction to hear Mr Atkins’ application for review of the 1996 claims, (which he asked for in a letter of 19 September 2012 at T26). Having made its decisions on the 1996 applications, the VRB recognised, correctly, that it was functus officio. Mr Atkins cannot obtain a pension at special rate by further appealing to the VRB.
Further, as the VRB has held that it has no jurisdiction, the AAT has no reviewable decision before it, and cannot review Mr Atkins’ application, which must accordingly be dismissed.
DECISION
The Tribunal has no jurisdiction to review Mr Atkins’ application and accordingly dismisses it.
I certify that the preceding 26 (twenty six) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member ..............[sgd]..........................................................
Associate
Dated 30 January 2014
Date of hearing 22 January 2014 Applicant In person Solicitors for the Respondent Ms L Buchanan, Australian Government Solicitor
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