Nguyen and Repatriation Commission - [2003] AATA 1305

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 1305
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1732

VETERANS' AFFAIRS DIVISION )

Re THANH NHAN NGUYEN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S. Webb, Member
Date19 December 2003
PlaceSydney

Decision The decision under review is set aside and, in substitution therefor, the Tribunal decides that Mr Nguyen is entitled to an Invalidity Service Pension. The matter is remitted to the Repatriation Commission to determine the correct rate of pension that is payable in accordance with these reasons.
...............................................
Mr S. Webb, Member

CATCHWORDS
VETERANS' ENTITLEMENTS - invalidity service pension - qualifying service in allied forces - Vietnam - permanent impairment - post traumatic stress disorder, major depression - impairment rating of 40 points or more - permanently unable to work more than 8 hours per week solely because of the impairment – decision under review set aside
Veterans’ Entitlements Act 1986 ss. 37, 37AA, 37C, 120
Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999
Guide to the Assessment of Rates of Veterans’ Pensions
Repatriation Commission v Smith (1987) 15 FCR 327
Bowman v Repatriation Commission (1981) 34 ALR 556
McDonald v Director General of Social Security (1984) 1 FCR 354
REASONS FOR DECISION

19 December 2003 Mr S. Webb, Member

1.      Mr Nguyen is an allied veteran. His claim for an Invalidity Service Pension dated 10 September 2001 (T14) was rejected by the Repatriation Commission on 14 March 2002 (T8). By Mr Nguyen’s request the decision was reviewed and subsequently affirmed on 30 October 2002 (T2). Mr Nguyen was dissatisfied with that decision and applied for review by this Tribunal on 18 November 2002 (T1).
issue
2.      The issue for determination is whether Mr Nguyen is permanently incapacitated for work.
legal principles
3.      Mr Nguyen’s claim is under the Veterans’ Entitlements Act 1986 (“the Act”).
4.      For his claim to succeed the Tribunal must be reasonably satisfied that Mr Nguyen has qualifying service and is permanently incapacitated for work (s.37). The reasonable satisfaction standard of proof applies (s.120(4)) (see Repatriation Commission v Smith (1987) 15 FCR 327).
5.      The question of qualifying service is not in dispute, being the subject of a previous determination by the Repatriation Commission dated 7 August 2001 (T25, f183-186). The circumstances in which a person is permanently incapacitated for work are set out in the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999 (“the Determination”) pursuant to s.37AA.
6.      The test of incapacity for work has been considered by previous courts and tribunals (see Bowman v Repatriation Commission (1981) 34 ALR 556 at 564-565). The term ‘incapacity for work’ pertains to the effect of impairment on the saleability of a person’s labour on the open labour market. The measure of a person’s incapacity for work is their ability to earn on the open labour market.
7. In Mr Nguyen’s case he must satisfy the Tribunal pursuant to s.5(2) of the Determination that:

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.

Continue reading Nguyen and Repatriation Commission

Details

AGLC: Nguyen and Repatriation Commission [2003] AATA 1305
Case: [2003] AATA 1305
Decision Date: 19 December 2003

CaseChat Overview and Summary

The case of Nguyen v Repatriation Commission concerns a dispute between a veteran, Mr Nguyen, and the Repatriation Commission regarding his eligibility for an invalidity service pension. The Tribunal was tasked with reviewing a decision made by the Commission which had denied Mr Nguyen's application for a pension. The crux of the matter lies in whether Mr Nguyen's service in Vietnam and subsequent mental health conditions qualify him for the pension under the Veterans’ Entitlements Act 1986.

The primary legal issue the court had to address was whether Mr Nguyen's service in Vietnam, where he served with allied forces, qualified him for an invalidity service pension. Additionally, the court needed to determine if Mr Nguyen's permanent impairment, diagnosed as post-traumatic stress disorder and major depression, met the criteria for a pension. Specifically, the court had to consider if Mr Nguyen's impairment rating of 40 points or more, coupled with his inability to work more than eight hours a week due to his impairment, rendered him permanently incapacitated for work.

The court reviewed the relevant statutory provisions and case law to reach its decision. It was noted that the Veterans’ Entitlements Act 1986 provides for invalidity service pensions for veterans who are permanently incapacitated for work due to impairment resulting from their service. The court also examined the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999 and the Guide to the Assessment of Rates of Veterans’ Pensions. The court found that Mr Nguyen's service with allied forces in Vietnam did qualify him under the Act and that his diagnosed conditions and corresponding impairment rating sufficiently established his permanent incapacity for work. Consequently, the court set aside the decision of the Repatriation Commission and determined that Mr Nguyen was entitled to an invalidity service pension. The matter was remitted to the Commission to determine the appropriate rate of pension payable.

The final orders of the court were to set aside the decision of the Repatriation Commission and to determine that Mr Nguyen was entitled to an invalidity service pension. The matter was remitted back to the Commission to ascertain the correct rate of pension to be paid to Mr Nguyen in accordance with the court's reasons.

Orders

Orders of the court

The decision under review is set aside and, in substitution therefor, the Tribunal decides that Mr Nguyen is entitled to an Invalidity Service Pension. The matter is remitted to the Repatriation Commission to determine the correct rate of pension that is payable in accordance with these reasons.

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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