Sewell and Repatriation Commission

[2005] AATA 1128

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1128

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/298

VETERANS' APPEALS DIVISION		)
Re		RONALD SEWELL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S C Fisher, Member

Date16 November 2005

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.........[Sgd]...........

S C Fisher
  Member

CATCHWORDS

VETERANS’ APPEALS – Veteran’s Entitlement Act – reduction in rate of service pension – illness separated couples – “special circumstances” considered – decision affirmed.

Veterans’ Entitlements Act 1986 ss 5E(2)(a), 5R (3), 5R (4), 5R(5),

Secretary, Department of Social Security v Murphy [1998] FCA 809

Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248

Bantick and Secretary, Department of Family and Community Services [2003] AATA 472

Bramwell v Repatriation Commission (1998) 51 ALD 56

Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598

Clarkson and Secretary, Department of Social Security 15 ALD 424

Poulos and Repatriation Commission [2000] AATA 234
Samsome and Secretary, Department of Family and Community Services [2005] AATA 829
Ryde v Secretary, Department of Family and Community Services [2005] FCA
866.
Whippey and Repatriation Commission [1999] AATA 1030
Main v Main (1949) 78 CLR 636
Tulk v Tulk [1907] VLR 64
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Dranichnikov v Centrelink [2003] FCAFC 133

REASONS FOR DECISION

16 November 2005  Mr S C Fisher, Member

Introduction And Background

1.      Mr Ronald Sewell (the Applicant) served with the Royal Australian Army during World War II including service in Morotai (this service being classified as operational service).

2.      The Applicant is in poor health, so with the agreement of all parties, the hearing was held at his home at the Gold Coast, Queensland.  The Applicant's spouse and his daughter were in attendance as well but did not take part in the hearing itself.

Jurisdiction

3.      This appeal is governed by the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The Tribunal has jurisdiction in this appeal by virtue of sections 174 - 176 of the Act. In these Reasons for Decision, references to statutory provisions are to provisions of the Act unless the context indicates otherwise.

The Decision under Review

4. The decision under review is a decision made by the Repatriation Commission (the Respondent) on 17 February 2005 to reduce the rate of service pension payable to the Applicant and his partner with effect from 25 January 2005. The basis of this decision was that the Respondent considered that the Applicant and his spouse no longer satisfied the definition of "illness separated couple" in section 5R(5) of the Act, so the Applicant was paid the lower rate applicable to members of a couple who are not illness separated.

The Role of the Tribunal

5. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy [1998] FCA 809. The Tribunal is…