Morison and Repatriation Commission

[2007] AATA 1273

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1273

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600808

VETERANS' APPEALS DIVISION		)
Re		MARTIN MORISON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date1 May 2007

PlaceBrisbane

Decision The Tribunal dismisses the application lodged on 7 November 2006 pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975.  

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

Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – Jurisdiction – review of a claim made outside the prescribed period – no mechanism for the Tribunal to review the decision of the Commission – no jurisdiction – application dismissed without review of decision

Administrative Appeals Tribunal Act 1975 – ss 25, 42A

Veterans Entitlements Act 1986 – ss 110, 112, 115, 175

Veterans Entitlements Regulation 1986 – Reg 9, 9AH, 9AI, 9AL.

REASONS FOR DECISION

1 May 2007 Deputy President P E Hack SC    

1.On 6 September 2006 the applicant, Mr Martin Morison, lodged a claim with the respondent, the Repatriation Commission, for the reimbursement to him of travelling expenses incurred by him in attending medical appointments.

2.Some, but not all, of the claim was accepted and paid by the Commission. That part of the claim that was not accepted was rejected because, in the view of the Commission:

“Travelling expenses can only be paid if a claim is lodged within 3 months of the completion of travel for the visit.”

3.I am not now concerned with the merits of that decision, rather what I am concerned to determine is a preliminary issue. That issue is whether there is jurisdiction in the Tribunal to undertake merits review of the decision not to accept that part of the claim that was lodged outside the period of 3 months of the completion of travel for the visit.

4.The Commission contends that there is no jurisdiction to review a decision of the type made here and the parties have agreed that that issue should be decided as a preliminary issue and that it ought be determined on the papers pursuant to s 34J of the Administrative Appeals Tribunal Act 1975. I am satisfied that it is appropriate to proceed in this way.

5.It is trite to say that the Tribunal does not enjoy an unfettered jurisdiction to review administrative decisions. Its jurisdiction is limited to reviewing decisions where an enactment provides that an application for a review of a decision may be made to the Tribunal[1].

[1] See s 25 Administrative Appeals Tribunal Act.

6.The starting point in considering the statutory framework against which this issue must be determined is s 110(1) of the Veterans’ Entitlements Act 1986 (“the VEA”). It provides, relevantly, that where a veteran travels, with the approval of the Commission, for the purpose of obtaining treatment,

“The veteran … is, subject to this section and to such conditions as are prescribed, entitled to be paid such travelling expenses, in connection with that travel, as are prescribed.”

By virtue of s 112(3) of the VEA an application for travelling expenses in connection with travel referred to in s 110(1) must be made within 3 months after the completion of the travel however the Commission may extend that period if there are exceptional circumstances that justify doing so.

7.Sections 110 and 112 are found within Part VI of the VEA. Part VI deals generally with allowances and other benefits. Division 2 of that Part deals with eligibility for allowances and other benefits. Thus between s 97 and 110 are a whole host of allowances that are payable for veterans in particular circumstances including, as has been noted, an entitlement to be paid travelling expenses by virtue of s 110. Sections 111 to 115 are found within Division 3 of Part VI and are described as procedural. Section 112, which have already been noticed, prescribes time limits for applying for certain benefits.

8.Section 115, also found within Division 3 of Part VI, is important in the present context. It gives to a person dissatisfied with certain decisions of the Commission in respect of various applications for allowances a right to request the Commission to review the decision. However there is no right conferred by that section on a person dissatisfied with a decision of the Commission in respect of an application under s 110.

9.For completeness I should say that a decision by the Commission made under s 115 is capable of being reviewed by the Tribunal by virtue of s 175(4) of the VEA but it is, of course, necessary that there be an antecedent decision capable of being made subject to an application under s 115 of the VEA.

10.It then becomes necessary to consider the Veterans Entitlements Regulation 1986. Regulation 9 deals with travelling expenses under, inter alia, s 110 of the VEA. That regulation deals with the method of calculation and quantum of travelling expenses. Regulation 9(2) is in these terms:

“Subject to this regulation, and to regulations 9AD and 9AE, travelling expenses comprise the amount required to reimburse in whole or part expenditure on:

(a) transport;

(b) accommodation; or

(c) meals;

necessarily incurred by or on behalf of an entitled person in connection with travel referred to in section 110, 132, 170B or 196ZO of the Act.”

11.The scheme of regulation 9 is that the Commission will determine, in accordance with that regulation, the amount of the entitlement to travelling expenses referred to in s 110 of the VEA. By virtue of regulation 9AH(1) a person dissatisfied with a decision of the Commission under regulation 9 may request the Commission to reconsider the decision. And, by virtue of regulation 9AI the Commission, if it receives a request under regulation 9AH, must either affirm or set aside the decision within a limited time. The power to seek a review to the Tribunal is conferred by regulation 9AL(1) in these terms:

“(1) application under Administrative Appeals Tribunal Act 1975 may be made to the Administrative Appeals Tribunal for a review of a decision of the Commission under regulation 9AG or 9AI.”

12.As it seems to me the review contemplated by regulation 9AL is not apt to include the reviewable decision to refuse a claim because it was made outside a prescribed period, rather that right of review seems to me to be limited to a review of a decision limiting the amount of the entitlement worked out under Regulation 9. A decision made on this basis is not a decision “under” either of regulation 9AG or regulation 9AI.

13.There is not then, so far as I can ascertain, any mechanism by which the decision of the Commission to refuse to accept a claim for travelling allowance under s 110 of the VEA may be reviewed. This, if I may say so, is a curious situation however I must give effect to what is the apparent intention of Parliament which is not to confer the right of review under the Administrative Appeals Tribunal Act upon persons dissatisfied with decisions of this nature. It is of course unnecessary for me to decide whether other mechanisms of redress are available to the applicant. It is sufficient for me to determine, in answer to the preliminary issue raised by the parties, that the decision of which the applicant complains is not reviewable by the Tribunal.

14.Accordingly I propose to dismiss the application pursuant to s 42A(4) of the Administrative Appeals Tribunal Act without proceeding to review the decision.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC  

Signed:         .....................Signed..............................................
  Lynne Stalley, Personal Assistant

Heard on the papers                 

Date of Decision                 1 May 2007