This section outlines the reviews and appeal process for Income Support cases when the matter is referred to the Federal Court.
Either an applicant or the Commission [2] can appeal to the Federal Court on questions of law. Under the Administrative Appeals Tribunal Act 1975, the AAT [2] may also refer matters involving questions of law to the Federal Court, either:
It should be noted that this rarely happens.
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:
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.
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.
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.
More → [3]
Under this Act a person aggrieved by a decision of the Commission [2] 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:
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.
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:
Officers should be alert to the possibility that a request may be contained within the correspondence they receive.
Administrative Decisions (Judicial Review) Act 1977
http://www.comlaw.gov.au/comlaw/management.nsf/lookupindexpagesbyid/IP200401392?OpenDocument [4]
According to Section 179 [7]of the VEA [7], the Commission is a body corporate under the name of Repatriation Commission.
Administrative Appeals Tribunal.
According to Section 179 [7]of the VEA [7], the Commission is a body corporate under the name of Repatriation Commission.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/16755%23comment-form
[2] https://clik.dva.gov.au/%23
[3] https://clik.dva.gov.au/book/export/html/16755#tgt-cspol_part12_ftn111
[4] http://www.comlaw.gov.au/comlaw/management.nsf/lookupindexpagesbyid/IP200401392?OpenDocument
[5] https://clik.dva.gov.au/compensation-and-support-policy-library/part-3-income-support-eligibility/39-payment-loss-or-detriment
[6] https://clik.dva.gov.au/book/export/html/16755#ref-cspol_part12_ftn111
[7] http://clik.dva.gov.au/legislation-library