Yanda and Repatriation Commission (Veterans' entitlements)

[2021] AATA 1433

Yanda and Repatriation Commission (Veterans' entitlements) [2021] AATA 1433 (14 May 2021)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2021/2367

Re:Mr Alfred Yanda

APPLICANT

Repatriation CommissionAnd  

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:14 May 2021

Place:Sydney

The correct and preferable decision is to dismiss the Applicant’s application pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), on the basis that the Tribunal has no jurisdiction to review the decision.

.............................[SGD]...........................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

INTERLOCUTORY HEARING – veterans affairs – whether the Tribunal has jurisdiction to review the decision of the Department of Veterans Affairs – where the reviewable decision was not appealed to the Veterans Review Board under section 135 of the Veterans Entitlements Act 1986 (Cth) – application dismissed under section 42A(4) of the Administrative Appeals Act 1975 (Cth)

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42B

Safety, Rehabilitation and Compensation (Defence-related Claims)Act 1988 (Cth)

Veterans’ Entitlements Act 1986 (Cth) s 175

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

14 May 2021

BACKGROUND

1. The Applicant was born in Papua New Guinea. He gave evidence that he had joined the air force in 1980 and that he was discharged in 2016.

2. He has various entitlements in relation to compensable injuries and service in the defence force, including pension entitlements.

3. On 9 September 2020, the Applicant made an application to the Respondent for increase of disability pension under the Veterans’ Entitlements Act 1986 (Cth) (the “VEA”).

4. On 12 November 2020, an increase of pension was refused and his pension was continued at 100% of the General Rate. The delegate advised:

   “If you disagree with any aspect(s) of this determination you can ask the Veteran’ Review Board to review your case…You have 3 months from the date of this letter in which to apply for a review.”

5. The Applicant was issued with a copy of the decision by email on 18 November 2020.

6. On 19 November 2020, the Applicant requested that the Respondent reconsider its decision and he was informed that his request was forwarded to the Appeals Team “as a Section 31 Internal Review/Appeal matter”.

7. On 8 January 2021, a delegate of the Respondent advised the Applicant:

   “Having considered all the issues in your case, I have decided that I will not intervene under Section 31 and alter the decision…Please note that there is no right of appeal against my refusal to vary the original decision. As you only requested an internal review under Section 31, your case cannot proceed to the VRB unless you lodge a formal application within the time limits specified in the original decision.”

8. The Applicant responded on the same day, advising that he would appeal the decision “with immediate effect” and requesting copies of documents relating to “permanent impairment which have been accepted as service related”.

9. The Respondent replied on 18 January 2021, attaching a list of the Applicant’s accepted and rejected disabilities and reiterating that the Respondent was not intervening under Section 31 to alter the decision.

10. The Applicant was advised again that his case could not proceed to the Veterans Review Board (the “VRB”) unless he lodged a formal application within the time limits specified in the original decision. A Veterans’ Review Board – Application for Review Form was attached to the email, along with an Information Access Application form to facilitate the Applicant’s request for copies of permanent impairment documents.

11. No application for review by the VRB was ever lodged.

12. The Applicant was provided with a copy of the original decision on 18 November 2020, and therefore the three-month limit for an application to the VRB expired on 18 February 2021, under section 135(5) of the VEA.

    ISSUE

13. The issue in this case is whether the Tribunal has jurisdiction to review the decision of the Respondent dated 12 November 2020.

    THE LAW

14. In relation to a Disability Pension, section 175(1) of the VEA provides that an application for review may be made to the Administrative Appeals Tribunal where:

    (a) a decision of the Commission has been reviewed by the Board upon an application made under section 135; and

    (b) either:

    (i) the Board affirms or varies the decision; or

    (ii) the Board sets aside the decision in circumstances where subparagraph 139(3)(c)(i) or (ii) applies…

    “Board” means the Veterans’ Review Board continued in existence by section 134: section 5Q(1).

    DISCUSSION

15. At the hearing of this matter, the Applicant gave an outline of his service in the Australian Defence Forces and also information as to injuries he had suffered in the course of the service. The Applicant has pension entitlements under the VEA, and also under the Safety, Rehabilitation and Compensation (Defence-related Claims)Act 1988 (Cth) (the “DRCA”). The entitlements under the DRCA are not at issue in these proceedings.

16. The only issue is whether the Tribunal has the power to review the decision of 12 November 2020 given that the requirements of section 175(1) of the Act were not met.

17. In particular, the Applicant did not make an application to the VRB under section 135 and accordingly, the Board did not have the opportunity to review the decision as required by the legislation in order for the AAT to have jurisdiction in the matter.

18. At the hearing, the Applicant said that he had been confused by the wording in a letter from the Department of Veterans Affairs dated 8 January 2021 and signed by Review Officer “Kim”. In particular, the letter stated as follows:

    “Please note that there is no right of appeal against my refusal to vary the original decision. As you clearly requested an internal review under Section 31, your case cannot proceed to the VRB for consideration unless you lodge a formal application within the time limits specified in the original decision.”

19. Although on careful reading it is apparent that the letter writer did draw the Applicant’s attention to his right to approach the VRB for review, it is understandable that the Applicant might have been confused when the letter referred to “no right of appeal against any refusal to vary the original decision”. I believe the Applicant was telling the truth when he said he was confused; however, this does not assist in the resolution of the issue.

20. Unfortunately, this confusion meant the Applicant did not lodge an application for review with the Board as required by section 175(1) and this has placed the Applicant in a very difficult position. Unfortunately for the Applicant, the Tribunal has no discretion as to whether or not it will review the decision of 12 November 2020. Rather, the Applicant can only come to the Tribunal if the requirements of section 175(1) of the VEA are met. In this case, those requirements have clearly not been met.

21. The Tribunal is limited by the jurisdiction conferred upon it and cannot go beyond such jurisdiction, however meritorious or otherwise an application might seem. It is clearly not within the remit of the Tribunal to interfere in any way with the conduct of the VRB’s processes, but one possible course for the Applicant may be to approach the Board in order to explore any options that might be available to him in his circumstances.

    DECISION

22. The correct and preferable decision is to dismiss the Applicant’s application pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), on the basis that the Tribunal does not have jurisdiction to review the decision.

I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

...........................[SGD].............................................

Associate

Dated: 14 May 2021

Date(s) of hearing:	11 May 2021
Date final submissions received:	11 May 2021
Applicant:	In person (by Telephone)
Respondent:	Ken Rudge, Department of Veterans Affairs