Risson and Repatriation [2002] AATA 469 (6 March 2002)

Last Updated: 19 June 2002

DECISION AND REASONS FOR DECISION [2002] AATA 469

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/1603

VETERANS' APPEALS DIVISION

Re: RONALD GILBERT RISSON

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: G.D. Friedman, Member

Date: 6 March 2002

Place: Melbourne

Decision: For reasons given orally at the telephone hearing, the Tribunal refuses the application for an extension of time.

(sgd) Graham Friedman

Member

PRACTICE AND PROCEDURE - extension of time to lodge application

Administrative Appeals Tribunal Act 1975 s29(7)

Veterans' Entitlements Act 1986 s176(4)

Hunter Valley Developments Pty Limited v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344

REASONS FOR DECISION

6 March 2002 G.D. Friedman, Member

1. This is an application by Ronald Gilbert Risson (the applicant) for an extension of time to lodge an application to the Tribunal for review of a decision of the Veterans' Review Board (VRB) made on 23 July 2001. The VRB affirmed a decision made on 22 January 2001 by the Repatriation Commission (the respondent) disallowing the applicant's claim for disability pension on the basis that he was not a veteran within the meaning of the Veterans' Entitlements Act 1986 (the Act). On 7 January 2002 the applicant sought review of the decision by the Tribunal.

2. The Tribunal conducted a hearing of this matter by telephone on 6 March 2002. The applicant represented himself, and Mr R. Douglass, Advocacy Section, Department of Veterans' Affairs, represented the respondent.

3. At the conclusion of the hearing the Tribunal made an oral decision refusing the application. On 12 March 2002 the applicant requested written reasons for the decision.

BACKGROUND

4. The decision of the VRB that was made on 23 July 2001 was forwarded to the applicant on 27 July 2001. On 2 December 2001 the applicant sent a facsimile to the VRB asking the VRB: Please list my case for AAT hearing, at your convenience. On 11 December 2001 the Tribunal received a copy of the facsimile. As the application was received after the time limit had expired the Tribunal informed the applicant that he should lodge an application for an extension of time. On 7 January 2002 the Tribunal received the application.

5. In his application for an extension of time the applicant stated under the heading Reasons for application:

Material put forward on original VRB ie HMAS Parramatta in Hanoi. Rubish! (sic) 1st RSL advocate lodged misleading material.

Also material starting to surface from PTSD programme Dec 2001.

6. On 17 January 2002 the respondent informed the Tribunal that it did not consent to the application.

EVIDENCE

7. The applicant told the Tribunal that he served in the Royal Australian Navy from 31 May 1968 until 25 April 1972. His service included time on HMAS Parramatta from 5 October 1968 until 14 July 1969, and during that time the Parramatta saw service in South-East Asian waters. He said that during this period he was seconded for a covert operation behind enemy lines in Vietnam for two or three days, and that this service constituted operational service within the meaning of the Act. He produced a letter of support from Brigadier K.R. Colwill, CBE (Retd) and a statutory declaration dated 20 July 2001 in which the applicant referred to flashbacks since the 1990s regarding his service in Vietnam.

8. The applicant told the Tribunal that at the VRB hearing his advocate had misled the VRB and had not presented the supporting material correctly. He also informed the Tribunal that he had been suffering from Post Traumatic Stress Disorder. He produced a certificate dated 19 February 2002 that stated that he had completed a Post Traumatic Stress Disorder Program in December 2001. The applicant said that his medical condition was an important factor in his failure to lodge his application to the Tribunal for review of the VRB decision within the prescribed time.

CONSIDERATION OF THE ISSUES

9. Under s176(4) of the Act an application for review which is made more than three months after the applicant was advised of the decision requires the approval of the Tribunal.

10. Under s29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act):

The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section).

11. In a submission dated 27 February 2002 the respondent stated that the VRB decision was properly served on the applicant. The respondent referred the Tribunal to Hunter Valley Developments Pty Limited v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-9, in which the Federal Court set out a number of factors to be taken into account when considering the exercise of the discretion to grant an extension of time:

* proceedings should not be commenced outside the prescribed time and to do so the applicant must offer an acceptable explanation for the delay and must demonstrate that the grant of an extension would be fair and equitable in the circumstances;

* action taken by the applicant, apart from making the application for review, which is relevant to the question of whether an acceptable explanation has been provided;

* any prejudice to the respondent;

* any unsettling of persons other than the respondent, or of established practices;

* the merits of the application for review;

* considerations of fairness between the applicant and other persons in a similar positions.

12. Mr Douglass, on behalf of the respondent, submitted that in this case the applicant had not provided any reasonable explanation for the delay in seeking review of the decision of the VRB. He said that the respondent would suffer prejudice if the application was granted, because it would face significant costs in re-investigating and defending the reviewable decision. He stated that even if there was no prejudice to the respondent, such absence of prejudice would be insufficient ground for granting an extension of time.

13. Mr Douglass submitted that the substantive application for review of the decision by the VRB lacked merit. He stated that the matter was the subject of a decision by the Tribunal on 17 March 1998 and two decisions of the VRB (25 February 1997 and 23 July 2001). On each occasion the applicant was held not to be a veteran within the meaning of the Act. Mr Douglass stated that the applicant had not provided any further material that would enable the Tribunal to conclude that the decisions of the Tribunal and the VRB were incorrect.

14. In reaching its decision the Tribunal takes into account the oral and written evidence and submissions. In applying the facts of this case to the factors in Hunter Valley Developments Pty Limited the Tribunal notes that the application for an extension of time was made more than five months after the reviewable decision. The Tribunal is satisfied that the VRB decision was properly served on the applicant, together with a statement providing information on the procedure for seeking review by the Tribunal. The Tribunal takes into account the evidence concerning Post Traumatic Stress Disorder and the completion of the course in December 2001. The Tribunal is satisfied that the applicant has not offered an acceptable explanation for the delay in lodging his application for review.

15. The applicant provided no additional material regarding his claim for disability pension. Because of the length of time that has elapsed since the reviewable decision the Tribunal finds that the respondent would suffer prejudice if an extension was granted, particularly as significant resources would need to be devoted to re-investigation and any subsequent hearing. The grant of an extension after such a long period may also unsettle existing practices regarding review processes and the gathering of evidence.

16. The Tribunal has considered the material contained in the reviewable decision and is satisfied that the VRB took all relevant matters into account and afforded the applicant and his advocate sufficient opportunity to present the applicant's case. The Tribunal notes the matters contained in the letter from Brigadier Colwill and the statutory declaration dated 20 July 2001. In the absence of evidence corroborating the claims made by the applicant, the Tribunal finds little merit in the application for review. In relation to fairness between the applicant and persons in a similar position, there is no evidence or other material that would satisfy the Tribunal that the public interest would best be served by the grant of the extension of time sought by the applicant.

17. For these reasons the Tribunal finds that the discretion in s29(7) of the AAT Act, to grant an extension of time to the applicant, should not be exercised.

DECISION

18. The Tribunal refuses the application for an extension of time.

I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision of:

G.D.Friedman, Member

(sgd) Olympia Sarrinikolaou

Clerk

Date of hearing: 6 March 2002

Date of decision: 6 March 2002

Solicitor for applicant: Nil

Solicitor for respondent: Mr R. Douglass, Advocacy section, Department of Veterans' Affairs