Conway v Repatriation Commission

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the "AAT Act"). Such an appeal must be brought within twenty-eight days after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the relevant person, or within such further time as the Court may allow. It is common ground that the applicant was out of time when the relevant application was filed, by a period of some weeks. The explanation for this delay is far from convincing, but it is reasonable to infer that it was caused by oversight on the part of the applicant's legal advisers. No prejudice is pointed to by the respondent, although it neither consents to, nor opposes the application for leave. In those circumstances, I would be minded to grant leave to appeal if I were satisfied that there was any substantial question to be agitated on appeal. 2 Pursuant to subs 44(1), the appeal must be as to a question of law. Much time has been consumed today in seeking to identify a question of law. The two questions which the applicant seeks to ventilate are firstly, that the Tribunal incorrectly applied a particular provision of the relevant legislation. The second is that the Tribunal failed to give adequate reasons as is allegedly required by subs 43(2B) of the AAT Act. 3 Pursuant to s 24 of the Veterans' Entitlements Act 1986 (Cth), a veteran is entitled to a pension at a special rate if he or she satisfies certain conditions which are specified in subss 24(1) and 24(2). It is common ground that the present applicant would be entitled to a special rate of pension only if he satisfied the requirements of par 24(2)(b), which provides: where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking. 4 The Tribunal was not satisfied that the applicant had been genuinely seeking to engage in remunerative work in the period between 1992 and the date of the determination, but particularly between 1992 and 1997 when he became totally incapacitated for work. The evidence discloses that he was employed until some time in 1992 when he was retrenched for reasons unassociated with any incapacity. Thereafter, he received different classes of social security payments, at least some of which related to his position as a parent rather than to his unemployed status or to any physical incapacity. Eventually, it became appropriate for him to seek forms of social security related to matters other than his parental status. As I say, in 1997 he became totally incapacitated for the purposes of s 24. 5 Over the period between 1992 and 1997, he made applications to twelve or thirteen different entities, seeking employment. In some cases he applied more than once. He also had regular recourse to the Commonwealth Employment Service and the Yellow Pages. He may also have taken other steps. Details appear at par 29 of the Tribunal's reasons, although that paragraph does not identify all of the steps which he took. The applicant's sister had assisted him in preparing a curriculum vitae and observed his attempts to find employment. She formed the view that, at some stage, he lost interest in doing so. 6 The Tribunal concluded at pars 74 - 77 as follows: 74 It is within the context of the authorities set out above, that the Tribunal has carefully considered all of the material before it and the submissions of both parties and has formed the view that at the relevant time the applicant was not genuinely seeking to engage in remunerative work that he would, but for that incapacity, be continuing to seek to engage in remunerative work. 75 In arriving at this view the Tribunal has taken into account that when the applicant ceased work he initially went onto sole parent benefit for three years and only commenced newstart allowance when he was no longer qualified for sole parent benefit because of the age of his daughter. And that subsequently the majority of his efforts to obtain work could not be seen objectively to be an active pursuit of work. The Tribunal has accepted the respondent's submission that the applicant only made brief and inconclusive attempts to return to work and that at the time of his application for pension on 16 June 1997 he had been out of the workforce for five years, was in receipt of pension from the Department of Veterans' Affairs and had in effect "given work away". 76 Accordingly the Tribunal is reasonably satisfied that the applicant does not satisfy the requirements of section 24(2)(b) of the Act. 77 It follows from the above findings that the Tribunal is reasonably satisfied that the applicant does not satisfy section 24(1)(c) of the Act and therefore pension is not payable at the Special Rate. 7 The applicant's first point is that the test has in some way been incorrectly applied. This submission relies upon a decision of Spender J in Hall v Repatriation Commission (1994) 33 ALD 454 in which his Honour said of s 24 (at 461): It seems to me that the question of whether a veteran has been "genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing to so (sic) seek" has to be addressed in a realistic way, having regard to the nature and extent of the incapacity. Many veterans are permanently incapacitated by war-caused injury or disease for any form of remunerative work, and the requirement that such persons should be genuinely seeking work seems to involve something of a charade. 8 That passage was quoted with apparent approval by Madgwick J in Hendy v Repatriation Commission [2002] FCA 602 at [52]. I am not entirely sure that I understand the significance of the passage. As I understand par 24(2)(b), there must be an inquiry as to whether or not the relevant applicant has been genuinely seeking to engage in remunerative work in the past, that is prior to his becoming incapacitated for the purposes of s 24. Then it is necessary to enquire whether or not he would be continuing to seek to engage in remunerative work had he not been incapacitated, and whether the incapacity is the substantial cause of his inability to obtain remunerative work. The "genuinely seeking" test relates to the work history of the applicant rather than to efforts which he might make after he becomes incapacitated. Although the construction of the section is not an easy matter, this appears to have been the view taken by the Tribunal in Re Hornery and Repatriation Commission (1998) 52 ALD 317 at 331. I consider it to be correct. 9 If this is so, then the observations made by Spender and Madgwick JJ mean only that a realistic approach must be taken to the efforts made by any particular applicant to find employment. There can be no objection to such a proposition, but it is of little assistance for present purposes. I do not consider that to assert that the Tribunal failed to take a realistic approach to the application of par 24(2)(b) raises a question of law. 10 As to the second criticism concerning the obligation of the Tribunal to give reasons, such obligation is implied by subs 43(2B) of the AAT Act, which provides: Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. 11 There is no reason to believe that the Tribunal rejected the evidence of any of the witnesses as to objective facts. The primary matter with which it was concerned was whether or not the applicant had been genuinely seeking to engage in remunerative work prior to his incapacity. That is very much a matter of state of mind. The Tribunal's finding as to that matter was the principal basis for its decision. This finding appears in par 74, and the reasons for it appear in par 75. Broadly speaking, the Tribunal based its inference upon objective facts rather than statements by the applicant. There is nothing unorthodox about this. Juries are often told that the only evidence available as to state of mind is what a person says and what he or she does. It is also not infrequently said that actions speak louder than words. The Tribunal chose to put substantial weight upon the fact that when the applicant initially ceased work, he went on to social security benefits. It also considered that his subsequent efforts to obtain work did not evidence genuine attempts to find work. It adopted a description of his efforts which was apparently advanced by the respondent, namely that such efforts were "brief and inconclusive". 12 It is true that in expressing its reasons the Tribunal did not examine in detail alternative ways in which the evidence might have been interpreted. However subs 43(2B) does not prescribe a detailed and complete statement of the logical process by which the Tribunal proceeds from the evidence to its ultimate conclusion. It is required only that the reasons include findings on material questions of fact and a reference to the evidence or other material on which those findings are based. Paragraphs 74 and 75 of the reasons satisfy that requirement. 13 In recent times, Courts have been counselled against taking unduly analytical approaches to the reasons given by Tribunals. I should not be taken as implying that I consider the Tribunal's reasons in this case to be elliptical or in any way deficient so as to warrant criticism. The conclusions recorded and explained in pars 74 and 75 could have been expanded upon and could have been more detailed. However I, for one, am not left in any doubt as to why the Tribunal decided as it did. I can see nothing illogical or disturbing about its conclusions or its reasons. 14 In my view, the submission concerning adequacy of the reasons is misconceived and based upon an overstatement of the obligation to give reasons imposed upon the Tribunal by subs 43(2B). I am not satisfied that any question of law has been raised in those proceedings. In those circumstances no good purpose would be served by giving leave to appeal. I will therefore refuse the application for leave to appeal. 15 I order that the applicant pay the respondent's costs of the proceedings, including reserved costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.