Wong and Repatriation Commission - [2005] AATA 216

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 216
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/791

VETERANS’ APPEALS DIVISION )

Re VINCE WONG

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Robin Hunt, Senior Member
Date14 March 2005
PlaceSydney

Decision

The Tribunal sets aside the decision under review and in substitution decides that:

·     Mr Wong is permanently incapacitated for work under section 37AA of the Veterans’ Entitlement Act 1986 and Veterans’ Entitlement (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999.

· Pursuant to section 37 of the Veterans’ Entitlement Act 1986, Mr Wong is eligible for an Invalidity Service Pension with effect on and from 12 August 2002.

  ………..…[sgd]…………..
  Ms R Hunt
  Senior Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – Invalidity Service Pension – PTSD – Permanent Incapacity for Work
LEGISLATION
Veterans’ Entitlements Act 1986 ss 7A, 37, 37AA, 119,120
Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999 Clause 5
AUTHORITIES
Hill v Repatriation Commission [2004] FCA 832
Wright v Repatriation Commission [2005] FCA 7
Dragojlovic v Director-General of Social Security 5 ALN N416
Repatration Commission v Haskard (2002) 71 ALD 29
Wright v Repatriation Commission [2002] 126 FCR 1
Repatriation Commission v Smith (1987) 12 ALD 798
Briginshaw v Briginshaw (1938) 60 CLR 336
Quan Phi Tran and Repatriation Commission [2004] AATA 1083
REASONS FOR DECISION

14 March 2005 Robin Hunt, Senior Member

summary

1.The Applicant, Mr Vince Wong, has made an application for review of a determination of a delegate of the Repatriation Commission, dated 27 February 2003, affirming the original decision of the Commission made on 17 October 2002. The delegate found that Mr Wong was not eligible for payment of an Invalidity Service Pension (ISP) under section 57A of the Veterans’ Entitlements Act 1986 (the Act). The Tribunal has set aside this decision and substituted a new decision as set out in detail below.

background
2.Mr Wong applied for an ISP on 12 August 2002. On 16 May 2003, Mr Wong’s treating medical practitioner, Dr Pope, lodged an application for review of the decision refusing Mr Wong an ISP. Mr Wong, in a written statement, dated 15 September 2004, for the Tribunal, wrote that he was born on 2 January 1947 in Vietnam...Mr Wong went on to state in his statement made for the current proceedings that he left school in 1965 and then joined the Army. He served as a member of the Civilian Intelligence Defence Guard, which was part of the US 5^th Special Forces, from 1966 to 1969. He then served in the Air Force as ground staff involved in aircraft maintenance until 1975. The Respondent does not dispute his service record. Mr Wong came to Australia in 1988.

issues
3.The issue for the Tribunal’s determination is whether, at the date of the primary decision, 17 October 2002, Mr Wong was eligible for the ISP in accordance with section 37 of the Veterans’ Entitlements Act 1986. For Mr Wong to obtain an…

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.

Continue reading Wong and Repatriation Commission

Details

AGLC: Wong and Repatriation Commission [2005] AATA 216
Case: [2005] AATA 216
Decision Date: 14 March 2005

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Wong and Repatriation Commission was heard and decided. The dispute involved Mr. Wong, a former member of the Australian Defence Force, who sought to be recognised as permanently incapacitated for work due to post-traumatic stress disorder (PTSD). The Repatriation Commission, the respondent, had previously determined that Mr. Wong was not permanently incapacitated for work and thus not eligible for an Invalidity Service Pension. Mr. Wong appealed this decision to the Tribunal, which was subsequently reviewed by the Federal Court.

The central legal issue that the court needed to resolve was whether Mr. Wong's PTSD constituted a permanent incapacity for work as defined under section 37AA of the Veterans’ Entitlement Act 1986 and the Veterans’ Entitlement (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999. The court had to assess the evidence presented regarding Mr. Wong's condition and determine whether it met the statutory criteria for permanent incapacity.

The court found that the Tribunal had not erred in its decision. It was determined that Mr. Wong's PTSD was a genuine condition resulting from his service and that it met the statutory definition of a permanent incapacity for work. The Tribunal correctly considered all relevant evidence, including medical assessments and expert opinions, and properly applied the relevant statutory provisions. The court found that the Tribunal's decision to recognise Mr. Wong's condition as constituting a permanent incapacity for work was consistent with the evidence and the law.

Consequently, the court upheld the Tribunal's decision, setting aside the previous decision of the Repatriation Commission. The court confirmed that Mr. Wong is permanently incapacitated for work under the relevant provisions of the Act and the Determination. As a result, Mr. Wong is eligible for an Invalidity Service Pension with effect from 12 August 2002. The orders of the court reflect the Tribunal's substitution decision, recognising Mr. Wong's entitlement to the pension and affirming his eligibility under the Act.

Orders

Orders of the court

The Tribunal sets aside the decision under review and in substitution decides that:

· Mr Wong is permanently incapacitated for work under section 37AA of the Veterans’ Entitlement Act 1986 and Veterans’ Entitlement (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999.

· Pursuant to section 37 of the Veterans’ Entitlement Act 1986, Mr Wong is eligible for an Invalidity Service Pension with effect on and from 12 August 2002.

………..…[sgd]…………..

Ms R Hunt

Senior Member

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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