van Tongeren and Repatriation Commission - [2011] AATA 263

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 263

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2009/5996

GENERAL ADMINISTRATIVE DIVISION )
RePeter van Tongeren

Applicant

And Repatriation Commission

Respondent

DECISION

TribunalMr RP Handley, Deputy President
Dr IS Alexander, Member

Date20 April 2011
PlaceSydney
DecisionThe decision under review is affirmed.

.....................[sgd]....................
Mr RP Handley
Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – entitlements - disability pension – special rate –meaning of “remunerative work” – whether employment during prison sentence was remunerative work – whether war-caused injury the only factor preventing veteran from undertaking remunerative work – capacity to continue to undertake remunerative work affected by a number of factors other than the accepted disabilities – decision under review affirmed

WORDS AND PHRASES – “remunerative”, “remunerative work”

RELEVANT ACT

Veterans’ Entitlements Act 1986: ss 5Q, 24, 120

CITATIONS

Flentjar v Repatriation Commission (1997) 48 ALD 1; (1997) 26 AAR 93

Repatriation Commission v Hendy (2002) 76 ALD 47; [2002] FCA 602

OTHER AUTHORITIES

Oxford English Dictionary (OED Online. March 2011. Oxford University Press. (accessed April 19, 2011).)

Macquarie Dictionary (5^th edition, 2009)

REASONS FOR DECISION

20 April 2011

Mr RP Handley, Deputy President

Dr IS Alexander, Member

Peter (Jack) van Tongeren has applied for the review of a decision of the Veterans’ Review Board (VRB) affirming a decision to refuse to increase the rate at which disability pension is paid to Mr Van Tongeren from 90% of the General Rate to the Special Rate.

Background

Mr Van Tongeren, who is aged 63, served in the Australian Army between 1968 and 1973. He saw active service in Vietnam in 1970-1971. Mr Van Tongeren has a number of accepted disabilities: recurrent diarrhoea, tinea, sensori-neural deafness, bilateral tinnitus and post traumatic stress disorder (PTSD). His PTSD was accepted as war-caused on 27 May 2004, from which date he has been paid a disability pension at 90% of the General Rate.
On 27 November 2007, Mr van Tongeren applied to the Repatriation Commission for an increase in the rate of his pension. On 21 August 2008, a delegate of the Commission decided that Mr van Tongeren should continue to be paid a pension at 90% of the General Rate. The delegate relied on a statement by Mr van Tongeren that he had ceased work in approximately 1984 to become a political activist and had not worked since. The delegate found that Mr van Tongeren’s age (60 at that time) and the length of time he had been out of the workforce were “major factors in his current inability to work and not his accepted disabilities alone”.
Mr van Tongeren sought a review of this decision by the VRB which, on 20 October 2009 affirmed the delegate’s decision. Mr van Tongeren received notification of the decision on 3 November 2009 and on 18 December 2009 lodged an application for a review of this decision by the Tribunal.

The Relevant Legislation

Eligibility for the payment of pension at the Special Rate is set…

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 van Tongeren and Repatriation Commission

Details

AGLC: van Tongeren and Repatriation Commission [2011] AATA 263
Case: [2011] AATA 263
Decision Date: 20 April 2011

CaseChat Overview and Summary

The applicants, van Tongeren and the Repatriation Commission, were involved in a legal dispute concerning the eligibility of a disability pension at the special rate under the Veterans’ Entitlements Act 1986. The case was heard and determined by the Federal Court of Australia. The central issue in this case was whether the employment undertaken by the veteran during his prison sentence should be considered "remunerative work." This determination was crucial in assessing the veteran’s eligibility for a special rate disability pension, which hinges on the absence of remunerative work.

The court was tasked with interpreting the term "remunerative work" and determining whether the veteran's employment during his imprisonment qualified as such. Furthermore, the court needed to establish if the war-caused injury was the sole factor preventing the veteran from engaging in remunerative work, or if other factors also played a role. The definition of "remunerative" was explored through various authoritative sources, including the Oxford English Dictionary and the Macquarie Dictionary, to ascertain the ordinary meaning of the term. The court also considered previous cases such as Flentjar v Repatriation Commission and Repatriation Commission v Hendy to contextualise its decision within existing legal precedents.

In its reasoning, the court examined the veteran's capacity to undertake remunerative work and found that multiple factors, beyond the accepted disabilities, affected his ability to do so. The court affirmed that the employment during the prison sentence did not constitute remunerative work under the ordinary meaning of the term. Given the presence of these additional factors, the decision to deny the special rate disability pension was upheld. The court concluded that the veteran's eligibility for the special rate did not meet the statutory requirements.

The final orders affirmed the decision of the Repatriation Commission, maintaining the denial of the special rate disability pension to the veteran.

Orders