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

1. 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.

2. 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

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 decisions concerned claims made under the Veterans’ Entitlements Act 1986 (VEA).

7. 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.

8. In December 2020, Mr Walker sought review by this Tribunal of the VRB decision from 2014.

   Is the VRB decision reviewable by the Tribunal?

9. 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.

10. 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. 

11. 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, 4^th edition, LexisNexis Butterworths, 2015, p. 20.

12. 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.

13. 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.

14. 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”.

15. 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. There was no evidence before the Tribunal, nor any contention, that Mr Walker did not receive the 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 expired in or around September 2015. Mr Walker did not seek review of the VRB decision until more than 5 years later.

16. In Storrie and Repatriation Commission (1988) 16 ALD 31, 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 Act) has also elapsed, being 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.

17. 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 period referred to in subsection 176(4)(b) has elapsed.

    Decision

18. For the foregoing reasons, and following the abovementioned authorities, the VRB decision from 2014 received by Mr Walker shortly after that time is not reviewable by the Tribunal. 

19. 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.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

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Associate

Dated: 2 March 2021