Macaulay and Repatriation Commission

[2008] AATA 734

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 734

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2429

VETERANS’ APPEALS DIVISION		)
Re		GEOFFREY MACAULAY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date22 August 2008  

PlaceBrisbane

Decision The Tribunal dismisses the application for review pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

............Signed..................

Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – jurisdiction – applicant failed to apply for internal review within the required timeframe – no reviewable decision – the Tribunal lacks jurisdiction to determine the application – the application is dismissed pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975

Administrative Appeals Tribunal Act 1975 (Cth) – ss 25(4), 42A(4)

Veterans’ Entitlements Act 1986 (Cth) – ss 57, 57B, 175(2)

REASONS FOR DECISION

22 August 2008 Deputy President P E Hack SC    

1.The applicant, Mr Geoffrey Macaulay, seeks a review of a decision of the respondent, the Repatriation Commission. The Commission determined on 31 October 2007, in effect, that Mr Macaulay was not entitled to receive rent assistance and Mr Macaulay was sent a letter of that date informing him of the decision.

2.The letter also informed him that if he did not agree with the decision he could apply for an internal review of the decision within three months of the receipt of the letter of 31 October 2007.

3.Mr Macaulay did not seek a review until 19 May 2008, well outside the period of three months, and the delegate of the Commission determined on 30 May 2008 that the Commission was unable to review the determination of 31 October 2007.

4.It is not clear whether Mr Macaulay seeks a review of the decision of 31 October 2007 or that of 30 May 2008 however I am satisfied that the Tribunal lacks jurisdiction to review either of them.

5.The Tribunal does not possess any general jurisdiction. Its power to review is limited to decisions “in respect of which application is made to it under any enactment”[1]. Section 175 of the Veterans’ Entitlements Act 1986 (Cth) (the VEA) makes provision for review by the Tribunal of certain decisions made under the VEA. The only part of that section that has potential relevance here is subsection (2) which provides:

“Where the Commission, under section 57B, affirms a decision of the Commission referred to in section 57 or sets it aside and substitutes another decision for it, a person may apply to the Administrative Appeals Tribunal for a review of the decision so affirmed or substituted.”

[1] See s 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

6.Section 57 of the VEA enables claimants dissatisfied with a decision of the Commission in relation to service pensions, in particular a decision refusing a request for an increase in the rate of service pension, to request the Commission to review the decision. A request must be made “within 3 months after the person seeking review was notified of the decision”[2]. There is no power to extend the time within which a review may be sought.

[2]        See s 57A(1)(a) of the VEA.

7.Where the Commission reviews a decision it must either affirm the decision or set it aside[3]. It is the Commission’s decision under s 57B of the VEA which is reviewable under s 175(2) of the VEA. Section 175 does not make provision for the review of the Commission’s initial decision to refuse an increase in service pension, nor does it make provision for a review of a decision that the Commission could not review a decision when the request for review was made more than 3 months after notification of the original decision.

[3] See s 57B of the VEA.

8.It follows that the Tribunal lacks jurisdiction to review either of the decisions made here. There is no “reviewable decision” as that expression is used in s 175 of the VEA[4]. I would dismiss the application pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

[4]        See s 174(1) of the VEA.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         ..................Signed.................................................
  Jacqueline Woods, Associate

Date of Hearing  Hearing on the papers
Date of Decision  22 August 2008
Solicitor for the Respondent    Departmental advocate