Keys and Repatriation Commission (Veterans' entitlements) - [2023] AATA 2605

Keys and Repatriation Commission (Veterans' entitlements) [2023] AATA 2605 (26 July 2023)
Division:GENERAL DIVISION
File Number: 2019/1310
Re:Ian Arthur Knox Keys
APPLICANT

AndRepatriation Commission
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:26 July 2023
Date of written reasons: 18 August 2023
Place:Melbourne

The application for reinstatement is not granted.

........................[sgd]................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
PRACTICE AND PROCEDURE - interlocutory application – reinstatement of application – where
application finalised in March 2020 by consent of the parties – consideration of Tribunal’s
consent, remittal, and reinstatement powers - relevant law and circumstances considered –
whether application dismissed in error - reinstatement application declined
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Aldridge and Repatriation Commission [2012] AATA 571
Keys and Repatriation Commission [2023] AATA 1796
Negri v Secretary, Department of Social Services [2016] FCA 879
Novosel v Comcare (2017) 72 AAR 269
Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240
Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 42
SECONDARY MATERIALS
Pearce, Dennis, Administrative Appeals Tribunal (5^th ed, LexisNexis Butterworths, 2020)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
18 August 2023
INTRODUCTION.

The Applicant, Mr Ian Keys, has asked the Tribunal to reinstate an application that was finalised by consent of the parties approximately three-and-a-half years ago on 12 March 2020 (“2020 consent agreement”).
The reinstatement hearing was held on 21 July 2023. The Applicant was represented by Ms Rae Coates-Kelly, who informed the Tribunal she is a ‘veteran advocate - not an Australian legal practitioner’. The Respondent was represented by Ms Lindsay Cooper, a lawyer from the Australian Government Solicitor (“AGS”).
The matter was adjourned about an hour after the reinstatement hearing commenced, so the Respondent could file additional documents regarding the basis upon which the 2020 consent agreement was concluded. The adjournment also enabled Ms Coates-Kelly to review the Respondent’s submissions, which were lodged 40 minutes prior to the hearing commencing. The hearing resumed on 26 July 2023, during which further documentary and oral submissions were made. This included documents relating to how the 2020 consent agreement was concluded and a nine-page document from Ms Coates-Kelly dated 25 July 2023, titled: ‘Applicant’s submissions on the question of law relating to s.42C and 42D’.
At the conclusion of the hearing and following an adjournment, the Tribunal declined the reinstatement application and gave ex tempore reasons. Ms Coates Kelly requested written reasons. These are now provided, consistent with the reasoning of Justice Bromberg in Negri v Secretary, Department of Social Services [2016] FCA 879, which considered the extent to which the Tribunal could elaborate upon its oral reasons when producing written reasons. His Honour stated at [27]:
‘...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What…

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.

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Details

Case: [2023] AATA 2605
Decision Date: 26 July 2023

CaseChat Overview and Summary

This matter concerned an interlocutory application before the Administrative Appeals Tribunal (AAT) concerning an application for veterans' entitlements. The applicant, Mr Keys, sought the reinstatement of his application, which had been finalised in March 2020 by the consent of the parties. The Repatriation Commission opposed the reinstatement.

The primary legal issue before the Tribunal was whether it had the power to reinstate Mr Keys' application, and if so, whether the circumstances warranted the exercise of that power. This involved considering the Tribunal's powers regarding consent, remittal, and reinstatement of applications, and determining whether the original finalisation of the application had been made in error.

The Tribunal considered the relevant legislative provisions and the circumstances surrounding the original finalisation of the application. It found that while the Tribunal possessed powers relating to consent and remittal, the specific power to reinstate an application that had been finalised by consent was not clearly established in the circumstances presented. Ultimately, the Tribunal concluded that the application for reinstatement should be declined.

Orders