Kelly and Repatriation Commission

Case [2007] AATA 1300

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1300

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/170

VETERANS' APPEALS DIVISION

)
Re AILEEN KELLY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr SC Fisher, Member

Date4 May 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

........[SGD]...............................

SC Fisher
  Member

CATCHWORDS

VETERANS’ AFFAIRS – application for war-widows pension – operational service – claim conditions were war-caused – application of Statement of Principles – ischaemic heart disease – decision affirmed.

Veterans’ Entitlements Act 1986 (Cth) ss 5D, 6-6F, 7, 8, 119, 120, 120A, 120B, 174, 175,176, 180A, 196B

Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 37, 43

Secretary, Department of Social Security v Murphy (1998) 52 ALD 268
Ajka Pty Ltd v Australian Fisheries Management Authority (2003) 74 ALD 21
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Hillier and Repatriation Commission [2004] AATA 897
Schmidt v Repatriation Commission [2004] FCA 1158
Bull v Repatriation Commission (2001) 66 ALD 271
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Repatriation Commission v Stoddart (2003) 77 ALD 67
Repatriation Commission v Gorton (2001) 110 FCR 321
Haughey and Repatriation Commission [2005] AATA 189
Repatriation Commission v Deledio (1998) 83 FCR 82
Fenner v Repatriation Commission (2005) 218 ALR 122
Hill v Repatriation Commission (2005) 85 ALD 1
Mines v Repatriation Commission (2004) 86 ALD 62
Repatriation Commission v Bey (1997) 79 FCR 364
Parnell-Schoneveld v Repatriation Commission (2003) 74 ALD 37
Grundman v Repatriation Commission (2001) 66 ALD 125
Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921
Woodward v Repatriation Commission (2003) 131 FCR 473
O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356

REASONS FOR DECISION

4 May 2007   Mr SC Fisher, Member

Introduction And Background

1.      Mrs Aileen Kelly is the widow of Mr William Kelly (the veteran).  Mr Kelly served with the Papua New Guinea Volunteer Reserve between 1951 -- 1973 and with the Citizens Military Force until 1986.  Mr Kelly was seconded to full-time-service with the 3rd Australian Army Regiment in South Vietnam from 15 February 1969 -- 5 March 1969. The veteran was born on 15 June 1927 and died on 13 February 2005 at the age of 77 years.

Jurisdiction

2.      This appeal is governed by the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The Tribunal has jurisdiction in this appeal by virtue of sections 174 - 176 of the Act. In these Reasons for Decision, references to statutory provisions are to provisions of the Act unless the context indicates otherwise.

The Decision under Review

3.      The decision under review is a decision made by the Repatriation Commission (the Respondent) on 13 April 2005 refusing the claim for a war widows’ pension of Mrs Aileen Kelly, which decision contained a determination that the death of her late husband, Mr William Kelly, was not service-related.  The…

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AGLC
Kelly and Repatriation Commission [2007] AATA 1300
Case
[2007] AATA 1300
Decision Date

CaseChat Overview and Summary

Kelly applied for a war-widow’s pension on the basis that her husband’s ischaemic heart disease was caused by his operational service during World War II. The Repatriation Commission denied the application. Kelly sought review by the Administrative Appeals Tribunal (AAT) which affirmed the Commission’s decision. Kelly then sought judicial review in the Federal Court. The court must determine if the AAT applied the correct legal principles in affirming the Commission’s decision and if the AAT’s decision was based on all the relevant considerations.

The primary issue was whether the ischaemic heart disease was caused by the husband’s operational service, and therefore, whether the Statement of Principles applied. The Statement of Principles relevant to ischaemic heart disease provides that the disease must be attributable to operational service. The applicant bears the onus of proving a nexus between the disease and the service. The AAT had to consider if the applicant discharged this onus. The court must determine if the AAT correctly applied the legal principles and correctly weighed the evidence in making its decision.

The court held that the AAT applied the correct legal principles in affirming the Commission’s decision. The AAT considered all relevant evidence and correctly found that the applicant did not discharge the onus of proving that the ischaemic heart disease was attributable to operational service. The evidence showed that the husband’s ischaemic heart disease was more likely due to his age, lifestyle, and other factors rather than his service. The AAT’s decision was based on a reasonable and logical application of the evidence to the law.

The Federal Court affirmed the AAT’s decision and dismissed the application for judicial review.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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