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12.5.4 Federal Court and Income Support Matters

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This section outlines the reviews and appeal process for Income Support cases when the matter is referred to the Federal Court.

Questions of law may be referred to the Federal Court

Either an applicant or the Commission can appeal to the Federal Court on questions of law. Under the Administrative Appeals Tribunal Act 1975, the AAT may also refer matters involving questions of law to the Federal Court, either:

  • of its own motion, or
  • at the request of a party to a hearing before it.

It should be noted that this rarely happens.

Time period to lodge an appeal to the Federal Court

The Administrative Appeals Tribunal Act 1975 requires that an appeal be instituted by lodging the appropriate court documents at the registry of the Federal Court within:

  • the 28 days time period, or
  • following an application for extension of leave the Court may grant a longer period of time.

Where an appeal is lodged after 28 days the Court may extend, on application, the time for lodgement. The Court will take into account the merits of the case and the reasons for the delay.

Arrears payments to be held pending appeal

During the 28 day appeal period following notification of an AAT decision (and then 21 days for a Full Federal Court decision following a Federal Court decision) arrears of pension, where possible, should not be paid. If arrears are requested the recipient should be advised in writing that they will be recovered if the Commission is successful on the appeal.

Stay Orders

It is rare for the AAT to grant a stay order in favour of the Commission to permit the withholding of arrears. If you consider a stay order may be warranted you should seek advice from the Legal Services Group (LSG) in National Office, Canberra.

It is generally not possible to obtain a stay order from the Federal Court for arrears.    

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Payment for Loss or Detriment

Chapter 3.9

 

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Administrative Decisions (Judicial Review) Act 1977

Under this Act a person aggrieved by a decision of the Commission or the Secretary, for which there is no avenue of appeal under the VEA and the AAT Acts, may make an application to the Federal Court. Before considering an application under this Act, the person should consider whether they have exhausted other relevant means of review of the decision.

The grounds which a person can appeal to the Federal Court under this Act are:

  • that a breach of the rules of natural justice occurred in connection with the making of the decision,
  • that procedures that were required by law to be observed in connection with the making of the decision were not observed,
  • that the person who purported to make the decision did not have jurisdiction to make the decision,
  • that the decision was not authorised by the enactment in pursuance of which it was purported to be made,
  • that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made,
  • that the decision involved an error of law, whether or not the error appears on the record of the decision,
  • that the decision was induced or affected by fraud,
  • that there was no evidence or other material to justify the making of the decision,
  • that the decision was otherwise contrary to law.
Person may seek reasons for a decision under the Administrative Decisions (Judicial Review ) Act 1997

A person who is considering an application to the Federal Court under the Administrative Decisions (Judicial Review) Act 1997 for review of a decision, for which other means of review are not available, may request written reasons for the decision in accordance with section 13 of the Administrative Decisions (Judicial Review) Act 1997. Reasons must be given as soon as practicable, in any case, within 28 days of the person who made the decision receiving the request.

Form of request for information under the Administrative Decisions (Judicial Review) Act 1997

There is no prescribed form of words to be used by the person requesting the reasons under the Administrative Decisions (Judicial Review) Act. Words that adequately convey the request will suffice, even if they do not refer to the Administrative Decisions (Judicial Review) Act 1997.

A request shall be treated as an Administrative Decisions (Judicial Review) request if it:

  • specifically refers to the Administrative Decisions (Judicial Review) Act 1997, or
  • requests a statement in writing which sets out a decision makers findings on material questions of fact. The Federal Court's statement should:
  • refer to the evidence or other material on which those findings were based, and
  • give reasons for the decision.

Officers should be alert to the possibility that a request may be contained within the correspondence they receive.
 

 

According to Section 179 of the VEA, the Commission is a body corporate under the name of Repatriation Commission.

 

 

Administrative Appeals Tribunal.

 

 

According to Section 179 of the VEA, the Commission is a body corporate under the name of Repatriation Commission.