Nielsen and Repatriation Commission - [2007] AATA 1451

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1451
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q200600773

VETERANS' APPEALS DIVISION )

Re NOEL NIELSEN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member P McDermott, RFD
Date21 June 2007
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

..................[Sgd]...........................
Senior Member

CATCHWORDS
VETERANS’ APPEALS – veterans’ entitlements – disability pension – application for special rate of pension – applicant’s war-caused injury ’alone’ did not prevent the veteran from undertaking remunerative work – whether applicant genuinely seeking to engage in remunerative work – decision affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 19, 21A, 23, 24
Magill v Repatriation Commission [2002] FCA 744
Peacock v Repatriation Commission [2004] FCA 1449
Jebb v Repatriation Commission (1988) 80 ALR 329
Shi v Migration Agents Registration Authority [2007] FCAFC 59
Cavell v Repatriation Commission (1988) 9 AAR 534
Conway v Repatriation Commission (2003) 37 AAR 486
Hall v Repatriation Commission (1994) 33 ALD 454
Hendy v Repatriation Commission [2002] FCA 602
Fox v Repatriation Commission (1997) 45 ALD 317
REASONS FOR DECISION

21 June 2007   Mr P McDermott RFD, Senior Member

Introduction
1.      Mr Noel Nielsen, who is a veteran, has sought review of a decision made by the Repatriation Commission (the Commission), and varied by the Veterans’ Review Board (the Board), that he was not eligible to be paid a pension at the special rate. I am required to consider whether he meets the eligibility criteria for the payment of an earnings-related rate of pension. These eligibility criteria are provided for in the Veterans’ Entitlements Act 1986 (the Act).
Background
2.      Mr Nielsen served with the Royal Australian Air Force from 1971 until 1992. Mr Nielsen has a number of conditions which have been accepted as related to his service. These conditions being bilateral conductive hearing loss with tinnitus; osteoarthritis affecting both knees; lumbar spondylosis; post traumatic stress disorder; solar keratosis on face and both forearms; peptic ulcer disease; and alcohol dependence. He has been assessed by the Board as eligible for payment of pension at 100% of the general rate from 5 May 2006 because of these conditions.
Issues And Legislation
3.      Section 19(5C)(a) of the Act requires that the rate of pension is to be determined during the “assessment period”. That term is defined in s 19(9) of the Act to mean, in relation to a claim or application relating to a pension, the period starting on the application day and ending when the claim or application is determined.
4.      The application day in this case was 8 March 2004 and the assessment period runs from that day.
5.      An earnings-related rate of pension may be granted to a veteran provided that the applicant meets the requirements of s 24 of the Act. I will mention some relevant provisions from that section.
6.      The veteran must be under sixty-five years of age at the date of the claim: s 24(1)(aab). This requirement is satisfied in this case.
7.      The…

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 Nielsen and Repatriation Commission

Details

AGLC: Nielsen and Repatriation Commission [2007] AATA 1451
Case: [2007] AATA 1451
Decision Date: 21 June 2007

CaseChat Overview and Summary

In the Federal Court of Australia, Nielsen appealed a decision by the Repatriation Commission that had denied his application for a special rate of disability pension. The dispute centred on whether Nielsen's war-caused injury, on its own, was sufficient to prevent him from engaging in remunerative work, or if other factors should also be considered in determining his entitlement to a special rate pension. The court had to decide whether Nielsen was genuinely seeking to engage in remunerative work and if the Commission's decision was legally sound.

The court examined whether Nielsen's injury alone prevented him from undertaking remunerative work, or if other factors, such as his willingness to engage in such work, were relevant. This required a consideration of Nielsen's medical condition, his efforts to find employment, and the Commission's assessment of his capacity to work. The court referred to previous cases such as Magill v Repatriation Commission and Peacock v Repatriation Commission to interpret the relevant statutory provisions and determine the appropriate legal standards.

The court found that the Commission's decision was correct. Nielsen's war-caused injury did not, by itself, prevent him from undertaking remunerative work. The court held that the Commission was entitled to consider Nielsen's genuineness in seeking employment when assessing his eligibility for a special rate pension. The decision was affirmed as it was consistent with the statutory provisions and supported by the evidence.

The orders of the court affirmed the decision of the Repatriation Commission, upholding the denial of Nielsen's application for a special rate of disability pension. The court found that the Commission's decision was legally sound and properly considered all relevant factors.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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