Walker and Repatriation Commission (Veterans' entitlements) - [2021] AATA 370

Walker and Repatriation Commission (Veterans' entitlements) [2021] AATA 370 (17 February 2021)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2020/8308
Re:Grenville Walker
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Member W Frost
Date of decision: 17 February 2021
Date of written
reasons: 2 March 2021
Place:Canberra

Pursuant to section 29(7) of the Administrative Appeals Tribunal Act1975, the Tribunal is not satisfied that it is reasonable in all the circumstances to grant an extension of time.
..........[sgd]..................................................
Member W Frost
Catchwords
PRACTICE AND PROCEDURE – discretion to grant an extension of time to lodge application for review – statutory time limit for an application for review to be made – Tribunal has no jurisdiction - extension refused
Legislation
Administrative Appeals Tribunal Act 1975 ss 25, 29(7)
Veterans’ Entitlements Act 1986 ss 174, 175, 176
Cases
Kerrison and Repatriation Commission (1993) 35 ALD 797
Storrie and Repatriation Commission (1988) 16 ALD 31
Secondary Materials
Pearce, Dennis, Administrative Appeals Tribunal (LexisNexis Butterworths, 4^th ed, 2015)
REASONS FOR DECISION
Member W Frost
2 March 2021
Introduction

The Applicant, Mr Grenville Walker, applied to the Administrative Appeals Tribunal (Tribunal) in December 2020 for an extension of time to bring his substantive application for review of a decision made in 2014 by the Veterans’ Review Board (VRB) regarding his various claimed conditions.
Both parties provided written submissions which were carefully considered by the Tribunal. On 17 February 2021, the Tribunal dismissed Mr Walker’s application pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (AAT Act), because it was not satisfied that it was reasonable in all the circumstances to grant an extension of time. Mr Walker requested written reasons for the Tribunal’s decision and those reasons are as follows.
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 decisions concerned claims made under the Veterans’ Entitlements Act 1986 (VEA).
In 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 three aforementioned Commission decisions dated 19 June 2012, 1 March 2013, and 15 August 2013.
In December 2020, Mr Walker sought review by this Tribunal of the VRB decision from 2014.
Is the VRB decision reviewable by the Tribunal?
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. As a result, Mr Walker’s requested extension of time cannot be granted.
Section 25 of the AAT Act relevantly states…

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: [2021] AATA 370
Decision Date: 17 February 2021

CaseChat Overview and Summary

This matter concerned an application by Mr Walker for an extension of time to seek review of a decision made by the Veterans' Review Board (VRB) in 2014. The Administrative Appeals Tribunal (AAT) was required to determine whether it had jurisdiction to grant such an extension and, consequently, whether the VRB decision was reviewable by the Tribunal.

The primary legal issue before the Tribunal was whether it possessed the necessary jurisdiction to review the 2014 VRB decision, particularly in light of the time elapsed since the decision was made. This involved considering the statutory framework governing the AAT's jurisdiction and the specific provisions of the *Veterans' Entitlements Act 1986* (VEA) that define reviewable decisions and the Tribunal's powers in relation to them.

The Tribunal reasoned that its jurisdiction is not general but is conferred by specific enactments, as stipulated by section 25 of the *Administrative Appeals Tribunal Act 1975* (AAT Act). While section 29 of the AAT Act generally permits extensions of time for applications, the Tribunal's power to do so can be limited or modified by the specific enactment granting jurisdiction. In this instance, section 176(4) of the VEA, which governs applications for review of VRB decisions, modifies the time limits and extension provisions found in section 29 of the AAT Act. However, the Tribunal found that the VRB decision in question was not a "reviewable decision" as defined by section 175 of the VEA, and therefore, no enactment conferred jurisdiction upon the Tribunal to review it. Consequently, the Tribunal lacked the power to grant an extension of time.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In December 2020, Mr Walker sought review by this Tribunal of the VRB decision from 2014.Is the VRB decision reviewable by the Tribunal? 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. As a result, Mr Walker’s requested extension of time cannot be granted. 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. 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 jurisdiction.[1] [1] Pearce, D., Administrative Appeals Tribunal, 4th edition, LexisNexis Butterworths, 2015, p. 20. 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. 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. 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 under that enactment. 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”.

Ratio Decidendi

Legal Principle Established

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