Walker and Repatriation Commission (Veterans' entitlements)

[2022] AATA 1156

Walker and Repatriation Commission (Veterans' entitlements) [2022] AATA 1156 (13 May 2022)

Division:VETERANS' APPEALS DIVISION

File Number(s):     2022/0846          

Re:Grenville Walker

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Member W Frost

Date of decision:   13 May 2022

Place:Canberra

Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act1975, the Tribunal dismisses the application without proceeding to review the decision because it is satisfied that the decision is not reviewable by the Tribunal.

Member W Frost

Catchwords

PRACTICE AND PROCEDURE – s42A(4) of the Administrative Appeals Tribunal Act 1975 – dismissal of application if the decision is not reviewable by the Tribunal – no jurisdiction – application dismissed before proceeding to review

Legislation

Administrative Appeals Tribunal Act 1975, ss 25, 29(7), 34J, 42A(4)
Veterans’ Entitlements Act 1986, ss 135, 155(11), 174, 175, 176(4)

Cases
Kerrison and Repatriation Commission (1993) 35 ALD 797
Lees v Comcare (1999) 56 ALD 84
Storrie and Repatriation Commission (1988) 16 ALD 31
Walker and Repatriation Commission [2021] AATA 370

Secondary Materials
Pearce, D., Administrative Appeals Tribunal, 4^th edition, LexisNexis Butterworths

REASONS FOR DECISION

Member W Frost

13 May 2022

Introduction

1. The Applicant, Mr Grenville Walker, applied to the Administrative Appeals Tribunal (Tribunal) in relation to a purported reviewable decision made by the Veterans’ Review Board (VRB) not to further consider the reinstatement or reopening of its decision from 2014 regarding his various claimed conditions.

2. The Tribunal was not satisfied that it had jurisdiction to review the purported decision of the VRB. As a result, following directions made by the Tribunal, both parties provided written submissions regarding jurisdiction, which have been carefully considered by the Tribunal in reaching this decision. The parties also consented to the Tribunal determining the issue of jurisdiction without holding a hearing, pursuant to section 34J of the Administrative Appeals Tribunal Act 1975 (AAT Act). For the following reasons, the Tribunal dismisses Mr Walker’s application pursuant to subsection 42A(4) of the AAT Act, because it is satisfied that the decision is not reviewable by the Tribunal.

   Background

3. In June 2012, the Repatriation Commission (Commission) rejected Mr Walker’s claims for hypertension, gastro-oesophageal reflux disease, chronic pancreatitis, cirrhosis of the liver and diabetes mellitus, and increased the rate of disability pension to 40% of the general rate.

4. In March 2013, the Commission rejected Mr Walker’s claims for shin splints in the left leg and osteoarthritis of the left knee.

5. In August 2013, the Commission rejected Mr Walker’s claim for alcohol abuse/dependence.

6. All three of the Commission’s aforementioned decisions concerned claims made under the Veterans’ Entitlements Act 1986 (VEA).

7. On 27 August 2014, the VRB made a decision in relation to Mr Walker’s claims for various conditions that had been considered and rejected in the abovementioned three Commission decisions dated 19 June 2012, 1 March 2013, and 15 August 2013.

8. On 18 October 2021, the VRB decided to decline to reinstate Mr Walker’s application for review lodged on 5 December 2019, which had been dismissed by consent on 16 July 2020 under subsection 155(11) of the VEA. For completeness, the VRB stated at [14] that it had considered Mr Walker’s argument that the VRB retained jurisdiction to reopen its decision of 27 August 2014, but ‘the Board has no jurisdiction to review its own decisions, with that jurisdiction vested in the AAT’.[1]

   [1] VRB N19/1470.

9. On 2 March 2021, the Tribunal (under a different application) refused to grant Mr Walker an extension of time to bring an application for review of the VRB’s decision of 27 August 2014, pursuant to subsection 29(7) of the AAT Act, because it was not reviewable by the Tribunal in accordance with both the VEA and the AAT Act. That decision was Walker and Repatriation Commission [2021] AATA 370.

10. On 8 December 2021, Mr Walker sent a letter to the VRB making ‘an application requesting the VRB reopen the Veterans’ Review Board’s decision dated 27 August 2014’, because it was ‘attended with jurisdictional errors’.

11. On 16 December 2021, the VRB sent an email to Mr Walker in relation to his ‘request dated 8 December 2021…to have the Board’s decision of 27 August 2014, reinstated’. The VRB stated that ‘this issue was already canvassed by the Board at the directions hearing on 17 June this year, as referenced in paragraphs 14 to 19 of the Board’s decision dated 18 October 2021’. The email also noted that the VRB is ‘unable to further progress your request for reinstatement made on 8 December 2021’ and ‘will not be holding a second directions hearing to reconsider if there is a jurisdictional error in the Board’s determination from 2014’.

12. On 22 December 2021, Mr Walker wrote to the VRB and requested it reconsider the ‘decision’ of 16 December 2021, being the aforementioned VRB email regarding his request to reinstate or reopen the VRB decision from 27 August 2014.

13. On 14 January 2022, the VRB sent a further email to Mr Walker and again advised that it would ‘not be holding a directions hearing to consider a reinstatement’ of its 27 August 2014 decision.

14. By way of an application lodged with the Tribunal on 2 February 2022, Mr Walker sought review by the Tribunal of the purported reviewable decision of the VRB, being the email dated 14 January 2022, stating that it would not be holding a hearing to consider reinstatement of its decision from 27 August 2014. In an accompanying submission, Mr Walker stated that his application was ‘not an application for review or to reinstate a decision, it [is] an application to reopen a decision because of jurisdictional errors’, being the decision dated 27 August 2014.

15. On 2 March 2022, the Tribunal sent a letter to Mr Walker requesting he provide the Tribunal with written submissions identifying the Tribunal’s jurisdiction to review the ‘decision’ the subject of his application to the Tribunal.

16. On 9 March 2022, Mr Walker provided the requested written submissions and stated that, together with the VRB email of 14 January 2022, the VRB email of 16 December 2021 should have been included in his application to the Tribunal as the ‘decision’ or ‘decisions’ he wanted reviewed by the Tribunal. Mr Walker further stated that ‘[t]here has not been a dedicated hearing to determine if there have been jurisdictional errors attended at the Board’s 2014 hearing’ and that the VRB’s recent correspondence is ‘denying me the opportunity to give evidence to the VRB’.

17. On 18 March 2022, the Tribunal emailed Mr Walker, as follows:

    We refer to this current matter in which we understand you would like the Tribunal to review the Veteran’s [sic] Review Board (VRB) decision made on 27 August 2014.

    On 17 February 2021 a Member dismissed your request for an extension of time to bring a substantive application for review by the Tribunal of the decision made on 27 August 2014 by the VRB regarding your various claimed conditions. The written reasons dated 2 March 2021 were subsequently provided. This is linked to your Administrative Appeals Tribunal application “2021/8308”…

    Accordingly the Tribunal has already considered and determined your request in relation to the 2014 VRB decision, which is now the subject of [t]his new Tribunal application, being 2022/0846.

    As a result, any further review rights regarding the VRB decision of 27 August 2014 do not lie with the Tribunal.

    Please inform the Registry by close of business 22 March 2022 if you would like to withdraw this current application (2022/0846). Please be informed, if you do not withdraw this application, it will be dismissed.

18. On 22 March 2022, Mr Walker provided further written submissions to the Tribunal and stated that ‘my intention was to have the VRB reopen their decision of 27 August 2014, as a result of jurisdiction [sic] errors’ and that the Tribunal’s written reasons dated 2 March 2021, in application 2021/8308, ‘had very little to do with my application to the VRB to reopen their decision of 27 August 2014’. Mr Walker further stated that the VRB’s recent email correspondence refusing to reinstate or reopen its 2014 decision denied him natural justice. Mr Walker submitted it was these ‘decisions’ that his Tribunal application ‘is aimed at and to have the VRB conduct a review into whether jurisdiction [sic] errors have occurred’. Mr Waker concluded as follows:

    Given that the AAT is the authority that deals with decision [sic] by the VRB…[I] respectfully request the Tribunal re-evaluate the context of [its 18 March 2022 email] and provide me with an opportunity to express my concerns to a full panel of the VRB, where the veracity of claims can be assessed. If not and it is the remit of the AAT, perhaps, they could undertake this task. Or the VRB could simply invoke the suggestion…which, in essence, accords with the Bhardwaj High Court decision. 

    Please be advised, it is not my intention to withdraw my application and should it be dismissed, [I] request the AAT provide its reasons in writing.

19. On 23 March 2022, the Tribunal made directions for the parties to provide written submissions regarding its jurisdiction in this application and sought the parties’ views on the issue being determined without holding a hearing, pursuant to section 34J of the AAT Act. Written submissions were received from the Commission and Mr Walker on 22 April and 2 May 2022, respectively. In Mr Walker’s submissions on jurisdiction, he confirmed his contention that both of the VRB’s recent emails dated 16 December 2021 and 14 January 2022, were themselves ‘decisions’ reviewable by the Tribunal.

20. On 3 May 2022, the parties consented to the Tribunal determining the issue of its jurisdiction in this application without holding a hearing.  

    Does the Tribunal have jurisdiction?

21. The VRB decision dated 27 August 2014 is not reviewable by the Tribunal in circumstances where the Tribunal has no jurisdiction conferred upon it by an enactment for this purpose. This issue was previously decided by the Tribunal in Walker and Repatriation Commission [2021] AATA 370. The only material difference between that proceeding and this present application before the Tribunal is that Mr Walker now seeks review of what he purports to be a decision or decisions of the VRB constituted by its email correspondence, in December last year and January this year, not to progress his request to consider reinstatement of, or to reopen, its decision from August 2014.

22. The VRB, in its written submissions dated 22 April 2022 regarding the Tribunal’s jurisdiction, contended that the VRB email from January 2022:

    is not a decision of the VRB, as usually construed. It is not a decision made under s135 of the VEA. It is certainly not a decision captured under s175 of the VEA. The reviewable decision, under the identified pathway under s175 is the decision of the VRB dated 27 August 2014.

    The identifiable issue for consideration is therefore whether the AAT has jurisdiction to review the VRB decision which is the subject of the AFR.

    The Respondent relies upon the decision of the AAT in Re Grenville and Repatriation Commission in application 2020/8308. The Respondent says that the VRB decision dated 27 August 2014 is not reviewable by the AAT as the AAT has no jurisdiction conferred upon it for this purpose. An AFR [Application For Review] regarding the decision of the VRB dated 27 August 2014 would be out of time. As a result an application for an extension of time, (EOT), would be required.

    An EOT has not been made in these proceedings. Any EOT duly made could not be granted, and the AFR must be dismissed, as the application has been lodged out of time. Therefore the AAT lacks jurisdiction. [emphasis in original]

23. In his written submissions dated 2 May 2022 regarding the Tribunal’s jurisdiction, Mr Walker relevantly contended that:

    The two emails sent by the VRB were in response to letters not emails. I considered they were not “simply form correspondence” and I am not sure there was authority to summarily dismiss the applications/requests. These decisions, were given without due process.

    …Given the decisions in both emails were in response to an application and a request, respectively, I consider that no matter how they were construed they were decisions, rightly or wrongly, made on behalf of the actual VRB and are open to review by the AAT.

    …

    This Decision and the Reasons [being the Tribunal’s decision in 2021/8308] only addressed that part of the VRB decision that deals with my request to reinstate my application for review lodged on 05 December 2019 and makes no comment on the part of the VRB decision that gave consideration to the applicant’s argument that the Board retains jurisdiction to reopen its decision of 27 August 2014.

    The VRB has expanded its decision by reopening their VRB decision of 27 August 2014…therefore, I submit that the AAT has jurisdiction…

    …

    I submit that the emails, the subject of the application, were in fact decisions, rightly or wrongly and were not simply correspondence and as such the AAT does have the power to review those decisions.

    I also submit, that as the VRB has already reopened their decision of 27 August 2014 by virtue of Ref G [being the VRB decision dated 18 October 2021] and is borne out by the decisions in both emails, the subject of the application and having reopened the decision, omitted to consider other decisions that were identified as possible jurisdictional errors, the AAT should have the power to review that decision. The VRB was wrong on at least two accounts.

24. For the following reasons, the Tribunal does not accept Mr Walker’s submissions and is satisfied that it does not have jurisdiction in relation to this application.

25. Section 25 of the AAT Act relevantly states that:

    (1)   An enactment may provide that applications may be made to the Tribunal:

    (a) for review of decisions made in the exercise of powers conferred by that enactment…

    (4) The Tribunal has power to review any decision in respect of which application is made to it under any enactment. 

26. The Tribunal has no general power or jurisdiction to review decisions. The effect of subsection 25(1) of the AAT Act is that the Tribunal can only review decisions if an enactment, being an Act of Parliament or other legislative instrument, specifically provides the Tribunal with jurisdiction. This is for the purpose of reviewing a reviewable decision, it is not given powers that may be exercised at large: Lees v Comcare (1999) 56 ALD 84 at [39]. In determining jurisdiction, the Tribunal must relevantly consider whether an enactment confers it with jurisdiction.[2]

    [2] Pearce, D., Administrative Appeals Tribunal, 4^th edition, LexisNexis Butterworths, 2015, p. 20.

27. The AAT Act requires that applications for review are made pursuant to section 29 of that Act, which relevantly provides that:

    (2)  Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty eighth day after:

    (a) if the decision sets out the findings on material questions of fact and the reasons for the decision—the day on which a document setting out the terms of the decision is given to the applicant…

    (7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

    (8) The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.

28. Section 174 of the VEA determines that a reviewable decision is a decision permitted to be reviewed by the Tribunal under section 175 of the VEA. Section 175 denotes the class of decisions which may be considered reviewable decisions.

29. The Tribunal’s power to extend time under section 29 of the AAT Act may be overridden by the enactment giving it jurisdiction to review certain decisions. In this regard, subsection 176(4) of the VEA relevantly provides that:

    (4) Section 29 of the Administrative Appeals Tribunal Act 1975 applies to and in relation to an application to the Administrative Appeals Tribunal for a review of a reviewable decision:

    (a) as if “ending 3 months” were substituted for “ending on the twenty eighth day” in subsection (2) of that section; and

    (b) as if at the end of subsection (7) there were added “until such date, being a date not more than 12 months after the date on which the document setting out the terms of the decision was furnished to the applicant, as the Tribunal deems fit”.

30. Accordingly, the VEA imposes a 12 month time limit for an application for review to be made to the Tribunal from a reviewable decision that is made under the VEA. As the Tribunal stated in Walker and Repatriation Commission [2021] AATA 370 at [15], there was no evidence before the Tribunal, nor any contention, that Mr Walker did not receive the 27 August 2014 VRB decision soon after it was sent to him in September 2014. As a result, under the VEA, the 12 month time limit by which an application was required to be made with the Tribunal in relation to that VRB decision expired in or around September 2015. Mr Walker did not seek review by the Tribunal of the 2014 VRB decision within the requisite timeframe.

31. In Storrie and Repatriation Commission (1988) 16 ALD 31 (Storrie), it was noted that there is a three month time limit set out in subsection 176(4) of the VEA to make an application to the Tribunal, but that this provision does not allow the Tribunal to consider an application where the time limit in subsection 29(7) (as amended by subsection 176(4) of the VEA) has also elapsed, being a period of 12 months after the decision was provided to the applicant. It was held that such an interpretation would render redundant that time limit set by the amended subsection 29(7) of the AAT Act. For completeness, the Tribunal notes that, while subsection 29(8) of the AAT Act allows the Tribunal to consider an application for extension of time when the application itself is lodged outside the time prescribed in subsection 29(2), Storrie held that in the case of veterans’ review applications, the three month time limit set out in subsection 176(4) of the VEA does not allow the Tribunal to consider an application even though the time limit in subsection 29(7) of the AAT Act has elapsed because to do so would render redundant that time limit set by subsection 29(7) of the AAT Act as amended by the VEA.

32. Additionally, in Kerrison and Repatriation Commission (1993) 35 ALD 797, it was found that the effect of subsection 176(4)(b) of the VEA is to permit the Tribunal to extend the time for an application to review a decision provided that the application for the extension is made within 12 months after the date on which the decision was furnished to the applicant. In this regard, it was held that there is no discretion for the Tribunal to extend the time for an application after the 12 month period referred to in subsection 176(4)(b) has elapsed. Mr Walker did not make an application for review of the 2014 VRB decision within the requisite 12 month period following receipt of that decision. Accordingly, the Tribunal does not have jurisdiction in relation to that VRB decision.

33. In respect of Mr Walker’s claim that the VRB’s email correspondence in December 2021 and January 2022 constituted ‘decisions’ that were reviewable by the Tribunal, the Tribunal firstly finds that this correspondence from the VRB is not a decision or decisions of the Commission made under section 135 of the VEA, such that would allow them to be reviewed by the VRB. That provision states that:

    (1)  Where a person:

    (a) who has made a claim for a pension in accordance with section 14;

    (b) who has made application for a pension, or for an increased pension, in accordance with section 15; or

    (c) who has made an application for attendant allowance under section 98;

    is dissatisfied with any decision of the Commission in respect of the claim or application (including a decision under section 20 or 21 approving a date from which payment of a pension, or payment of a pension at a higher rate, may be made, but not being a decision under subsection 19A(1)), the person may, subject to this Act, make application to the Board for a review of the decision of the Commission.

    (2) Where the Commission, upon a review under section 31 of a decision in relation to a pension or attendant allowance, has made a further decision:

    (a)  revoking that decision; or

    (b) revoking that decision and substituting a new decision; or

    (c) varying that decision;

    the veteran, or the dependant of a deceased veteran, as the case may be, affected by that further decision may make application to the Board for a review:

    (d) of the further decision of the Commission revoking that previous decision; or

    (e) of the new decision of the Commission that was substituted for that previous decision; or

    (f) of that previous decision as varied by the further decision of the Commission.

1. After the abovementioned review process by the Commission, section 175 of the VEA relevantly provides that:

   (1)  If:

   (a) a decision of the Commission has been reviewed by the Board upon an application made under section 135; and

   (b) either:

   (i) the Board affirms or varies the decision; or

   (ii) the Board sets aside the decision in circumstances where subparagraph 139(3)(c)(i) or (ii) applies;

   applications may be made to the Administrative Appeals Tribunal for review of the decision of the Board.

2. The only ‘decision’ that has proceeded through the required legislative pathway under the VEA is the VRB decision of 27 August 2014. That decision was reviewable by the Tribunal, but an application for review was made to the Tribunal out of time pursuant to the requirements of the AAT Act as amended by the VEA and was therefore refused by the Tribunal in its decision of Walker and Repatriation Commission [2021] AATA 370. In addition, the substantive content of the VRB’s correspondence to Mr Walker by way of emails dated 16 December 2021 and 14 January 2022 is not a decision or decisions reviewable by the Tribunal. The Tribunal’s jurisdiction to review decisions of the VRB is limited to those set out under section 175 of the VEA. Relevantly for this proceeding, applications may be made to the Tribunal for review of a decision of the VRB affirming, varying or setting aside a particular decision of the Commission. Neither of the emails referred to by Mr Walker constitute such a decision of the VRB. Accordingly, there is no reviewable decision contained in the email correspondence from the VRB to Mr Walker that is reviewable by the Tribunal pursuant to the relevant legislation. The Tribunal therefore has no jurisdiction in relation to this present application brought by Mr Walker.

   Conclusion

3. For the foregoing reasons, neither the VRB decision from 2014 nor the VRB’s recent correspondence to him regarding its refusal to progress his request to reopen that 2014 decision is reviewable by the Tribunal. The Tribunal does not have the required jurisdiction under the VEA.

4. By way of completeness, the Tribunal notes the Commission’s submission that Mr Walker has made multiple claims under the VEA since 2014 and is presently receiving a disability pension at the Extreme Disablement Adjustment rate.

   Decision

5. Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act1975, the Tribunal dismisses the application without proceeding to review the decision because it is satisfied that the decision is not reviewable by the Tribunal.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

..........................[sgd]..............................................

Associate

Dated: 13 May 2022

Date final submissions received:      2 May 2022

Representative for the Applicant:      Self-Represented

Representative for the Respondent:Mr Tim O’Reilly, Department of Veterans’ Affairs