Walker and Repatriation Commission (Veterans' entitlements)

[2021] AATA 338

Walker and Repatriation Commission (Veterans' entitlements) [2021] AATA 338 (24 February 2021)

Division:VETERANS' APPEAL DIVISION

File Number(s):     2021/0995          

Re:Grenville Walker

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Member W Frost

Date of decision:   24 February 2021

Date of written

reasons:                1 March 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)

Secondary Materials

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

REASONS FOR DECISION

Member W Frost

1 March 2021

Introduction

1. The Applicant, Mr Grenville Walker, applied to the Administrative Appeals Tribunal (Tribunal) on 20 February 2021 for review of a decision made by the Respondent, the Repatriation Commission (Commission) not to review his claims regarding a Special Rate of Pension. On 24 February 2021, 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 Commission’s decision

2. In his application to the Tribunal, Mr Walker provided correspondence from the Department of Veterans’ Affairs dated 27 November 2020 regarding his request, pursuant to subsection 31(4) of the Veterans’ Entitlements Act 1986 (VEA Act), for ‘further review of your claims’ for a Special Rate of Pension. That provision relevantly states that where the Commission is ‘satisfied that evidence before the Commission when it made a decision was false in a material particular, the Commission may, in its discretion, review the decision’. Mr Walker had claimed that his claims were ‘misjudged, misinterpreted and included inconsistencies’. The Commission determined that ‘these alleged actions/factors are not the same as false evidence’ and found that subsection 31(4) of the VEA did not apply to Mr Walker’s claims. The Commission advised Mr Walker that it would not conduct any further review of those claims and noted that Mr Walker did not have ‘any formal appeal rights remaining’, but provided contact information for the Commonwealth Ombudsman if he maintained there had been ‘an error or mismanagement in the handling of your claims’.

   Is the decision reviewable by the Tribunal?

3. In February 2021, Mr Walker applied to the Tribunal for review of the Commission’s decision and stated, among other things, that it was ‘manifestly wrong’ and ‘did not explore the full scope of all my concerns’. However, the Commission’s decision not to review Mr Walker’s claims is not reviewable by the Tribunal and was dismissed pursuant to subsection 42A(4) of the AAT Act. This is because subsection 31(10) of the VEA specifically provides that if the Commission ‘refuses or fails to review, under this section, a decision in relation to a pension or attendant allowance, the refusal or failure is not subject to review by the Board or by the Administrative Appeals Tribunal’. Accordingly, in circumstances where the Commission has refused to review Mr Walker’s claims in relation to a Special Rate of Pension under section 31 of the VEA Act, the Tribunal does not have jurisdiction in relation to his application.

4. 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.  

5. 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.[1]

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

6. As set out above in these reasons, the relevant enactment, the VEA, expressly does not provide the Tribunal with jurisdiction to review matters of the kind brought by Mr Walker in his application to the Tribunal. Accordingly, in accordance with subsection 42A(4) of the AAT Act, the Tribunal is satisfied that the Commission’s decision the subject of Mr Walker’s application is not reviewable by the Tribunal.

7. For completeness, as noted by the Commission, the only relevant entity that may be in a position to consider Mr Walker’s matter is the Commonwealth Ombudsman.

   Decision

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

I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

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Associate

Dated: 1 March 2021