Podkalicki and Repatriation Commission - [2002] AATA 38

DECISION AND REASONS FOR DECISION [2002] AATA 38

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V01/468

VETERANS' APPEALS DIVISION       )
           Re      MARIANNA PODKALICKI
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member

Date22 January 2002
PlaceMelbourne

Decision      The Tribunal affirms the decision under review.
  Joan Dwyer
  Senior Member
SERVICE PENSION – income test – reduction due to eligibility for overseas pension – not easily transferable to Australia – whether "income" within definition in Veterans' Entitlements Act 1986 – decision affirmed
LAW REFORM – reference to fact that a call for law reform made in a decision in 1990 had not lead to any statutory amendment
Veterans' Entitlements Act 1986 s 5H(1) and (2)

Rose v Secretary Department of Social Security (1990) 21 FCR 241

Re Menon and Repatriation Commission (AAT 891 1 August 1990)

Inguanti v Secretary to the Department of Social Security (1988) 8 AAR 502,

80 ALR 307

Re Hoogewerf and Secretary to the Department of Social Security

(AAT 4549, 10 August 1988)

Re Rose and Secretary, Department of Social Security (1989) 17 ALD 615

REASONS FOR DECISION

22 January 2002 Mrs Joan Dwyer, Senior Member

This is an application for review of a decision of the Repatriation Commission, made on 6 February 2001 and affirmed on 20 April 2001, which decided that the rate of service pension payable to Mrs Podkalicki be reduced by $26.30 per fortnight from 1 September 2000, because of her entitlement to a retirement pension from the Polish Government. At the relevant time the Polish pension entitlement was $169.61 per fortnight. That amount was paid into a bank account in Poland and was not transferred to Australia.
The matter first came on for hearing before the Tribunal on 27 November 2001. Mrs Podkalicki appeared and gave evidence with the assistance of Mr Mikolajewski, a Polish interpreter. Mr Douglass, an officer of the Department of Veterans' Affairs, appeared for the Repatriation Commission. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing by the respondent.
On 27 November 2001 the Tribunal adjourned the matter to 22 January 2002 on Mr Douglass' application. He had sought the adjournment by letter dated 22 November 2001 in which he pointed out that there was "a discrepancy of policy (on the issue of "blocked" foreign income") between the Department of Veterans' Affairs and the Department of Family and Community Services on what, are essentially, identical legislative provisions". He advised that attempts were being made at a national level to "harmonise the divergent policy positions, but that as the process had not been finalised, the respondent was unable to put a considered and final policy position to the Tribunal." Mr Douglass explained that the issue potentially affected thousands of pensioners and that therefore it was considered that any review of policy should be on the basis of comprehensive and complete submissions…

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.

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Details

Case: [2002] AATA 38
Decision Date: 22 January 2002

CaseChat Overview and Summary

The decision under review was made by the Repatriation Commission and it decided to reduce the rate of service pension payable to Mrs Marianna Podkalicki because of her entitlement to a retirement pension from the Polish Government. Mrs Podkalicki applied for review of the decision by the Administrative Appeals Tribunal (AAT). The Tribunal affirmed the decision of the Repatriation Commission. The key legal issue was whether the Polish retirement pension paid into Mrs Podkalicki's bank account in Poland should be considered "income" under the Veterans' Entitlements Act 1986 for the purpose of assessing her service pension entitlement. The Tribunal found that it was bound by the Full Court of the Federal Court decision in Rose v Secretary Department of Social Security which held that such a pension was income within the definition in the Act. The Tribunal noted that while the current position may cause hardship to pensioners who cannot access money in overseas accounts at all, it was bound to apply the law as clarified by the Full Court. The Tribunal also reiterated the need for statutory amendments to prevent such hardship in the future.

The Tribunal affirmed the decision of the Repatriation Commission.

Orders