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

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.
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
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.
In March 2013, the Commission rejected Mr Walker’s claims for shin splints in the left leg and osteoarthritis of the left knee.
In August 2013, the Commission rejected Mr Walker’s claim for alcohol abuse/dependence.
All three of the Commission’s aforementioned decisions concerned claims made under the Veterans’ Entitlements Act 1986 (VEA).
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.
On 18 October 2021, the VRB decided to decline to reinstate Mr Walker’s application for review lodged on 5 December 2019, which…

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: [2022] AATA 1156
Decision Date: 13 May 2022

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal (AAT) concerned an application by Mr. Walker for review of a decision made by the Veterans Review Board (VRB). The dispute centred on whether the AAT had jurisdiction to review certain communications from the VRB, which Mr. Walker contended were reviewable decisions, or whether these communications were merely correspondence and the only reviewable decision was an earlier VRB decision from 2014, an application to review which would be out of time. The Tribunal was presided over by W Frost M.

The primary legal issue before the AAT was whether it possessed jurisdiction to review the VRB's communications, specifically two emails sent in January 2022. Mr. Walker argued these emails constituted reviewable decisions, asserting they were not mere form correspondence and were made without due process. Conversely, the Repatriation Commission (the Respondent) contended that these emails were not decisions within the meaning of the *Veterans' Entitlements Act 1986* (VEA), and that the only reviewable decision was the VRB's decision of 27 August 2014. The Commission further argued that any application to review the 2014 decision was out of time, and no extension of time had been sought or could be granted, thus divesting the AAT of jurisdiction.

The Tribunal reasoned that the VRB's communications in January 2022 were not decisions reviewable by the AAT. It accepted the Commission's submission that these communications did not constitute a decision made under section 135 or section 175 of the VEA. The Tribunal noted that an application for review of the VRB's 2014 decision would be out of time, and no application for an extension of time had been made. Consequently, the Tribunal concluded that it lacked jurisdiction to review the matter.

Pursuant to subsection 42A(4) of the *Administrative Appeals Tribunal Act 1975*, the Tribunal dismissed Mr. Walker's application without proceeding to a review of the decision, as it was satisfied that the decision was not reviewable by the Tribunal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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.

Ratio Decidendi

Legal Principle Established

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] 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.