B31/1991 REVIEW OF ENTITLEMENT UNDER SECTION 5 OF THE VEA BY THE ADMINISTRATIVE APPEALS TRIBUNAL

DATE OF ISSUE:  3 July 1991

REVIEW  OF  ENTITLEMENT  UNDER  SECTION  5  OF  THE  VEA  BY  THE ADMINISTRATIVE APPEALS TRIBUNAL

PURPOSE

The purpose of this instruction is to inform officers of the decision by the Administrative Appeals Tribunal (AAT) in Sullivan and the Repatriation Commission (unreported, S90/188)which found that the AAT has jurisdiction to determine whether an applicant for pension satisfies the definition of "veteran".

2.In future, officers should ensure that applicants with similar cases who have lodged formal claims are informed of their appeal rights.

BACKGROUND

3.Mr Ronald Vivian Sullivan served as a Master on Merchant Ships attached to the United States Army in the South West Pacific theatre of operations from March 1944 until July 1946.  He satisfies the definition of "Australian Mariner" in section 35 of the Veterans' Entitlements Act 1986 (VEA) and receives service pension on that basis.  He also satisfies the definition of "Australian Mariner" contained in the Seamen's War Pensions and Allowances Act 1940 (SWPA Act) by virtue of section 3(1)(aa).

4.On 4 August 1989, Mr Sullivan lodged a claim for a disability pension.  On 19 September 1989, a delegate of the Repatriation Commission rejected the claim on the basis that the applicant was not a "veteran" within the meaning of section 5 of the VEA as he had not rendered eligible service as defined in section 7 of the VEA.  Mr Sullivan was therefore not eligible to claim a pension under section 14 of the VEA.

5.On 16 May 1990 the Veterans' Review Board (VRB) affirmed this decision and on 15 August 1990 it was appealed to the AAT.  The Repatriation Commission submitted that the AAT did not have jurisdiction to consider the appeal as:

.before a claim can be regarded as a valid claim under section 14 of the VEA, the applicant must satisfy section 5 of the VEA;

.therefore the decision was made pursuant to section 5 of the VEA, not section 14, and is therefore not a reviewable decision; and

.the VRB had no power to review that decision and its determination is null and void.

6.The matter came for a directions hearing before Senior Member Purcell on 6 February 1991.

7.The Tribunal quoted extensively from Director-General of Social Services v Hales (1983) 5 ALN N162 as authority that the AAT should not adopt a narrow or pedantic view of what is a reviewable decision.  The Tribunal found that:

.a claim lodged under section 14 of the VEA must be  investigated by the Secretary of the DVA and then submitted for consideration by the Commission;

.the Commission must satisfy itself on all matters relevant to the claim (sections 18 and 19 of the VEA);

.the applicant's eligibility as a "veteran" under section 5 of the VEA is a matter relevant to the determination of the claim;

.therefore the Commission's decision that the applicant is not a "veteran" is a decision pursuant to section 14 of the VEA;

.subsection 135(1) of the VEA provides that"

"135.  (1) where a person -

(a)  who has made a claim for a pension in accordance with Section 14;

... is dissatisfied with any decision of the Commission in respect of the claim ... the person may, subject to this Act, make application to the Board for a review of the decision of the Commission."  The right to review is not restricted to a "veteran";

.the AAT's jurisdiction to review decisions arises pursuant to sections 174 and 175 of the VEA; and

.In accordance with the principles outlined in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs, New South Wales (1978) 1 ALD 167, the Tribunal has jurisdiction to hear the application for review.

8.The decision accords with advice received from Counsel on a similar matter.  Copies of this advice and of the AAT decision in Sullivan and the Repatriation Commission are available from the contact officer:

Felicity Donnelly — Telephone (06) 289 6452

PETER HAWKER

NATIONAL PROGRAM DIRECTOR

BENEFITS

June 1991