Rana and Defence Force Retirement and Death Benefits Authority
[2009] AATA 404
•1 June 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 404
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1230
GENERAL ADMINISTRATIVE DIVISION ) Re RANJIT RANA Applicant
And
DEFENCE FORCE RETIREMENT & DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date1 June 2009
PlaceAdelaide
Decision For reasons given orally, the tribunal decides that it has no jurisdiction to review the matter which is the subject of the applicant’s application to this tribunal, and will not proceed further with the application.
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Deputy President
CATCHWORDS
JURISDICTION – condition precedent to the decision-maker’s power to make decision not satisfied – no constructive decision by respondent – held that tribunal had no jurisdiction.
Defence Force Retirement & Death Benefits Act 1973 (Cth), ss 37 and 99
Martincevic v Commonwealth of Australia (2007) 164 FCR 45
Re Laird and Australian Broadcasting Tribunal [1979] AATA 52
Re Rana and Defence Force Retirement & Death Benefits Authority [2005] AATA 291
Re Wade Ewart; Cox v O’Donnell (1972) 34 FCR 42
WRITTEN REASONS FOR ORAL DECISION
1 June 2009 Deputy President D G Jarvis 1. The applicant, Ranjit Rana, applies for review of a “constructive refusal by Richard Grant not to direct Chief of Army for reconsideration about my claims of paranoid schizophrenia & diabetes”. He relied in support of that application on certain submissions that he had made in proceedings against the Military Rehabilitation and Compensation Commission, in which he referred to evidence that, he contends, supports his claim that he was suffering from those conditions during his service with the Australian Army.
2. This morning Mr Rana referred to two decisions made by the Army. The first decision was a decision made by Brigadier Orme on 5 April 2005 to the effect that at the time of Mr Rana’s discharge from the Army on 13 July 1982 grounds did not exist whereby he could have been discharged because of a physical or mental incapacity to perform his duties. The second decision was made on 28 April 2005 and comprised a refusal of Mr Rana’s request to amend his Army records in relation to the reasons for his discharge.
3. Mr Rana informed me that after the date of those decisions he sent a letter to the Army requesting it to reconsider those decisions by taking into account that during his Army service he had not been given a final Medical Board assessment of his psychological condition. Mr Rana further said that during his Army service, when he was absent without leave in Nepal, he had been assured by a letter from Group Captain Gillard that all administrative matters would be attended to, notwithstanding his absence overseas. Mr Rana said that he understood this to include an obligation on the Army to carry out a final Medical Board assessment of his psychological condition. I did not have a copy of Group Captain Gillard’s letter before me, but Mr Dillon, who represented the respondent at this morning’s hearing, read out the text of the letter. It is not clear what Group Captain Gillard meant by the reference to all administrative matters being attended to, but from my understanding based on what Mr Dillon read out, the letter did not expressly refer to the carrying out of a final Medical Board assessment.
4. The second aspect that Mr Rana said he raised in his letter requesting a reconsideration of the two decisions in relation to his discharge from the Army was a request to take into account further medical evidence from a Dr Jha as to his psychiatric condition, and a letter from a Dr Felner as to his diabetes. Mr Rana informed me today that the Army had never reconsidered the decisions to which I have already referred so as to take into account the matters that he had raised in his letter. Mr Rana submitted also that because this had not been done, the Army had breached the rules of natural justice. He relied on two Federal Court cases in support of his contention, namely Re Wade Ewart; Cox v O’Donnell (1972) 34 FCR 42 and Martincevic v Commonwealth of Australia (2007) 164 FCR 45.
5. Mr Rana also referred to Re Rana and Defence Force Retirement & Death Benefits Authority [2005] AATA 291, a decision by the President of this tribunal, the Hon Justice Garry Downes. In that case, the President decided to adjourn a directions hearing for two weeks, and in his reasons for that decision, he referred to a continuing long delay of more than a year and a half in the Army responding to a request by Mr Rana to reconsider the grounds on which he had been discharged from the Army. After referring to that long delay, the principle that justice delayed is justice denied, and the importance of decisions reviewable by this tribunal being made expeditiously, the President directed that the Authority should furnish a copy of the reasons for his decision to the Chief of the Army personally, and to his delegate. The President went on to say that he expected that a decision would be made and communicated to Mr Rana at least two clear days before the adjourned date, and that if no decision was given within that time, he expected that the Authority would produce an affidavit from the Chief of the Army or his delegate explaining the delay, and that the witness would be available to be questioned by the tribunal on the adjourned day. Brigadier Orme made the decision to which I have earlier referred four days later, on 5 April 2005.
6. I further understand that Mr Rana took steps to challenge the decisions of 5 and 28 April 2005 in proceedings in the Federal Court that were heard by Justice Mansfield. It is not clear to me at the moment whether his Honour took into account the letter to which I have referred above, in which Mr Rana made reference to the asserted failure of the Medical Board to make a decision as to his psychological condition, and to the reports from Dr Jha and Dr Felner. In any event, Justice Mansfield dismissed Mr Rana’s application for review of the two decisions, and an appeal against his Honour’s decision was dismissed by a Full Federal Court.
7. I gave Mr Rana the opportunity today to lodge with me a copy of his letter requesting a reconsideration of the Army’s decisions by adjourning today’s hearing, but he did not think it was necessary for me to have a copy of that letter, and I therefore did not adjourn the hearing. The decision made by the President in 2005 was, I think, made in different circumstances. At that time the Army had not made any decision on Mr Rana’s request relating to the reasons for his discharge, and it is understandable that the President expressed concern about the delay. However, the present situation is different because the Army has considered Mr Rana’s earlier request, he has challenged that decision in the Federal Court and again in the Full Court of the Federal Court, and he has at least had an opportunity to raise the further matters which he raised in a letter subsequent to the Army’s decisions in 2005.
8. In Re Laird and Australian Broadcasting Tribunal [1979] AATA 52 President Davies J considered an application relating to the jurisdiction of this tribunal to review a decision of the Australian Broadcasting Tribunal. His Honour said:
“An application for review may not be made to the Administrative Appeals Tribunal unless an enactment specifically empowers the making of that application. An application so authorised is an application made under that enactment and thus an application to which s 25(4) of the Administrative Appeals Tribunal Act empowers the Administrative Appeals Tribunal to adjudge.”
It is therefore necessary to consider whether the legislation in question in these proceedings, the Defence Force Retirement & Death Benefits Act 1973 (Cth) (the Act), confers jurisdiction on this tribunal to consider the “constructive refusal” referred to in Mr Rana’s application to this tribunal.
9. Under s 99 of the Act, the tribunal has jurisdiction to review decisions that have been made by the respondent Authority after it has reviewed primary decisions. However, Mr Dillon pointed out that in this matter no decision has been made by the Authority, that is, neither a primary decision nor a decision on review has been made by the Authority, and he submitted further that the condition precedent to the power of the Authority to make a decision as to the matters raised by Mr Rana has not been satisfied.
10. The power of the Authority to make a decision to treat a member as having been retired for invalidity or incapacity is contained in s 37 of the Act. That section provides as follows:
“Where a contributing member has been retired otherwise than on the ground of invalidity or of physical or mental incapacity to perform his duties but, after his retirement, the Chief of Navy, the Chief of Army or the Chief of Air Force or a person authorized in writing by the Chief of Navy, the Chief of Army or the Chief of Air Force, as the case requires, informs the Authority that, at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties, he may, for the purposes of this Act, be treated as if he had been retired on that ground.”
11. The power on the part of the Authority to make the decision contemplated by s 37 accordingly depends on whether the Authority has been informed of a decision by the Chief of the Naval Staff, the Chief of the General Staff, or the Chief of the Air Staff, or a person authorised in writing by those Chiefs, to the effect that grounds existed on which a member of the Services could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties. It is only where the Authority is informed of such a decision that the Authority’s discretion (whereby it can treat the member of the Services as if he or she had been retired on the above ground of invalidity or incapacity) is enlivened.
12. However, as Mr Dillon has pointed out, in the present case the Authority has not been given the relevant information by the Chief of the Army or his delegate. On the contrary, it appears that the Authority has been informed that the Army was satisfied that grounds did not exist on which the applicant could have been retired on the ground of invalidity or incapacity. In these circumstances the Authority had no power to decide to treat Mr Rana as having been retired on the ground of invalidity or incapacity, and (as I am informed) has made no such decision. There is therefore no decision that is reviewable under s 99 of the Act. Further, unlike the position with some legislation, the Act makes no provision to the effect that a negative decision is deemed to have been made if a request is not determined within a stipulated period of time, and in any event, there could be no constructive decision when the condition precedent to the Authority’s power to make a decision has not been fulfilled. In these circumstances this tribunal has no jurisdiction to consider the matter which is the subject of Mr Rana’s application to this Tribunal.
Decision
13. For the reasons given orally, the tribunal decides that it has no jurisdiction to review the matter which is the subject of the applicant’s application to this tribunal, and will not proceed further with the application.
I certify that the 13 preceding paragraphs are a
true copy of the reasons for the decision
herein of Deputy President D G JarvisSigned: .....................................................................................
L. Staker AssociateDate/s of Hearing 1 June 2009
Date of Decision 1 June 2009
Applicant In Person
Counsel for the Respondent Mr A Dillon
Solicitor for the Respondent Australian Government Solicitor
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