McDonald and Repatriation Commission
[2000] AATA 740
•3 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 740
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1222
VETERANS' APPEALS DIVISION )
Re RONALD McDONALD
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date3 July 2000
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/1222
)
veterans' appeals DIVISION )
Re: RONALD JOHN MCDONALD
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date 3 July 2000
Place Orange
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Assets test for Service Pension. Curtilage of family home exceeded two hectares. Unable to subdivide to reduce curtilage to two hectares due to impecuniosity. As owner in fee simple of more than two hectares still held a qualifying interest in farm property and pension reduced.
Veterans' Entitlements Act 1986 - subs5P(5), s49A
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant through his Solicitors and pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong
....................................................................................Associate
Date of Hearing 3 July 2000
Date of Decision 3 July 2000Solicitor for Applicant Mr C Messenger, Messenger & Messenger
Advocate for Respondent Mr R Wallis, Department of Veterans' AffairsDRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N99/1222
By MR M.D. ALLEN, Senior Member
Ronald McDONALD and REPATRIATION COMMISSION
ORANGE, MONDAY, 3 JULY 2000MR ALLEN: In this matter, by application lodged with the Tribunal on 9 August 1999, the applicant sought review of a decision by a delegate of the respondent who, on 5 May 1999, confirmed a prior determination that the applicant was not entitled to an increase in service pension on the basis of having divested himself of his entire farming enterprise. The particular section of the Veterans' Entitlements Act is section 49A which at subsection (1) states:
Subject to subdivision 3 of this division applies to a person if:
(a)at any time after 14 September 1992 but before 15 September 2000 the person being then a qualifying farmer transferred by way of gift to one or more than one eligible descendant;
(i) his or her qualifying interest in the farm or farms in which he or she had such an interest; and
(ii) all the qualifying interest that he or she had in relevant farm assets;
The section then goes on to other sections to provide that in those circumstances the applicant can get a full entitlement to a service pension. In this case the applicant, Mr McDonald, has been in receipt, as I understand it, of part of a service pension and sought to take advantage of the provisions of section 49A so that he could receive the full pension. A claim was lodged on 10 August 1998 and one can sympathise with the applicant's complaint that it was not until January 1999 that he was informed of the original decision denying him his claim and the reasons therefore. He complains not without some justification that that would have delayed him taking appropriate remedial action.
Talking of the attitude of the applicant to this matter there are two which must be pointed out. The first, that the Administrative Appeals Tribunal is an administrative body and has those powers which have been vested in the original decision maker. It has no powers over and above that which has been granted to the original decision maker by the appropriate legislation. More importantly, it is not a court of equity,
macrepJ 3.7.00 P-1
©Auscript Pty Ltd 2000it cannot do what it regards what might be substantial justice, but it is bound by the law, and in this case it is bound by the Veterans' Entitlements Act 1987 (as amended).
The Tribunal may well feel that the provisions of an Act may, in an individual case, work in justice, but if an applicant has a complaint about that that is a matter which is properly raised with his local member of parliament but it cannot be raised before this Tribunal.
Here the applicant complains that because of impecuniosity he was unable to subdivide an area of 20 hectares of his property so that in accordance with the definition of principal home in subsection (1) of section 5L of the Veterans' Entitlements Act, together with the provisions of section 52 of that Act, the principal home was exempted from the assets test. Those provisions generally state that there is exempted from the assets test the principal home and its curtilage not exceeding two hectares.
In this case it appears that the applicant's curtilage is 20 hectares and he is therefore outside the provisions of the Act, and as has been pointed out, in order to reduce the principal home curtilage to two hectares a subdivision is required and a transfer of the remaining 18 hectares. That has not been done. As I understand it that matter is now proceeding and of course, once the transfer has been affected at the Land Titles Office then obviously Mr McDonald will have to make a new application. However, as it stands at present, section 5P subsection (5) of the Veterans' entitlements Act states:
A person has a qualifying interest in a farm if:
(a)the person has a legal estate or interest in the farm; …
The situation is then that section 5P subsection (5) taken together with section 49A results that Mr McDonald has not transferred all of his qualifying interest in this farm property but as he retains an excess of 18 hectares therein he is not entitled to the ameliorating provisions of section 49A and is not entitled to a full service pension. The legislation, in my view, is quite clear and there is literally nothing this Tribunal can do about it. As I said previously, if Mr McDonald does have another complaint this is a matter for his Local Member of Parliament, but otherwise the decision in this matter is affirmed.
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