Walker and Repatriation Commission (Veterans' entitlements)

[2021] AATA 4603

Walker and Repatriation Commission (Veterans' entitlements) [2021] AATA 4603 (3 December 2021)

Division:VETERANS' APPEAL DIVISION

File Number(s):     2021/8329          

Re:Grenville Walker

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Member W Frost

Date of decision:   3 December 2021

Date of written

reasons: 13 December 2021

Place:Canberra

The Tribunal dismisses the application pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975.

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

Member W Frost

Catchwords

PRACTICE AND PROCEDURE – dismissal for lack of jurisdiction – decision not reviewable by the Tribunal - application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 ss 25, 42A(4)
Veterans’ Entitlements Act 1986 ss 155, 155A

Secondary Materials

Pearce, Dennis, Administrative Appeals Tribunal (LexisNexis Butterworths, 4^th ed, 2015)

REASONS FOR DECISION

Member W Frost

13 December 2021

Introduction

1. The Applicant, Mr Grenville Walker, applied to the Administrative Appeals Tribunal (Tribunal) for review of a decision made by the Veterans’ Review Board (VRB) to decline reinstatement of an application he had made to the VRB for review of a Repatriation Commission decision.

2. The Tribunal dismissed Mr Walker’s application pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (AAT Act), because it was satisfied that the decision was not reviewable by the Tribunal. Mr Walker requested written reasons for the Tribunal’s decision and those reasons are as follows.

   The VRB’s decision

3. In Mr Walker’s application to the Tribunal dated 4 November 2021, he provided a decision of the VRB made on 18 October 2021, which had declined to reinstate his application lodged with the VRB on 5 December 2019 seeking review of a Repatriation Commission decision of 1 October 2019. Under section 155(11) of the Veterans’ Entitlements Act 1986 (VEA), on 16 July 2020, Mr Walker’s application to the VRB for review of the Repatriation Commission decision had been dismissed by the VRB with the consent of both Mr Walker and the Repatriation Commission. However, Mr Walker recently sought reinstatement of this application by the VRB.

4. In the VRB’s decision declining to reinstate Mr Walker’s application, it noted that dismissal and reinstatement of applications by the VRB is governed by section 155 of the VEA and that the relevant provisions are as follows:

   (1)   If each party to the review by the Board of a decision consents, the Principal Member may dismiss the application for review without proceeding to review the decision or, if the Board has started to review the decision, without completing the review.

   …

   (9) If an application is dismissed under this section, the review to which the application relates, unless the application is reinstated under subsection (10) or (11), is taken to be concluded.

   …

   (11) If it appears to the Principal Member that an application has been dismissed under this section in error, he or she may, on the application of a party to the review or on his or her own initiative, reinstate the application and give such directions as appear to him or her to be appropriate in the circumstances.

   Is the decision reviewable by the Tribunal?

5. In November 2021, Mr Walker applied to the Tribunal for review of the VRB’s decision and stated, among other things, that it was ‘wrong and implied that even if it was re-instated, there would be no prospect of success’.

6. However, the VRB’s decision declining to reinstate Mr Walker’s application for review of the Repatriation Commission decision is not reviewable by the Tribunal and was accordingly dismissed pursuant to subsection 42A(4) of the AAT Act. This is because there is no provision in the VEA that confers jurisdiction on the Tribunal to review a decision of the VRB that declines to reinstate an application under subsection 155(11) of the VEA. In this regard, subsection 155A(1) of the VEA specifically provides that: ‘Applications may be made to the Administrative Appeals Tribunal for review of a decision by the Principal Member [of the VRB] under subsection 155(4), (7) or (8) to dismiss an application’.

7. For completeness, the Tribunal notes that: subsection 155(4) of the VEA relates to dismissal of an application if the applicant fails to appear at a directions hearing or alternative dispute resolution process; subsection 155(7) relates to dismissal if the decision is not reviewable; and subsection 155(8) relates to dismissal if the applicant fails within a reasonable time to proceed with the application or comply with a direction. The VRB’s decision in relation to Mr Walker’s reinstatement application was not made pursuant to any of these relevant provisions of the VEA that would confer jurisdiction on the Tribunal.    

8. As stated above, Mr Walker’s application for reinstatement of his application to the VRB was declined by the VRB under subsection 155(11) of the VEA. It was not declined or dismissed under subsection 155(4), (7) or (8) of the VEA, such that would, in accordance with subsection 155A(1) of the VEA, confer jurisdiction on the Tribunal and therefore allow Mr Walker to make an application to the Tribunal for review of the VRB’s decision.

9. Section 25 of the AAT Act relevantly provides 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.  

10. Plainly, 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. In determining jurisdiction, the Tribunal must relevantly consider whether an enactment confers jurisdiction and whether that decision has been taken under the enactment conferring jurisdiction on the Tribunal.[1]

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

11. As set out above in these reasons, the relevant enactment, the VEA, does not give the Tribunal jurisdiction to review a VRB decision to decline to reinstate an application under subsection 155(11) of the VEA. Accordingly, the Tribunal is satisfied that the VRB’s decision the subject of Mr Walker’s application is not reviewable by the Tribunal.

    Decision

12. The Tribunal dismisses the application pursuant to subsection 42A(4) of the Act.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

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Associate

Dated: 13 December 2021