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VETERANS - remittal from Veterans' Review Board - rate of pension - powers and jurisdiction of Administrative Review Tribunal - question of whether a reviewable decision - dismissal application refused

Administrative Review Tribunal Act 2024

Irwin v Military Rehabilitation & Compensation Commission [2009] FCAFC 33

1. On 9 October 2023, the Veterans Review Board (VRB) handed down Exhibit R1 that set aside the primary decision maker's decision and found that certain medical conditions suffered by the Applicant were defence-caused, and others were not. The VRB then remitted the matter to the Respondent for assessment of the rate of pension.
2. Acting in accordance with the VRB's remittal, the Respondent has assessed the rate of pension. A subsequent application to the VRB for merits-review of that remittal decision was withdrawn and dismissed.
3. In oral submissions, and in Exhibit R2, the Respondent has submitted that s 139(3)(c) of the Veterans' Entitlement Act 1986 grants the VRB powers to remit matters to the Respondent. This, the Respondent says, raises threshold jurisdictional issues that:

(a) The Tribunal is only empowered to review a decision of the VRB and not to make a determination that the VRB should have made a decision. > > (b) The proper course for reviewing the rate of pension was to seek a review of the remittal decision of the Respondent, which had flowed from Exhibit R1.

4. Accordingly, the Respondent has sought that the application be dismissed for lack of jurisdiction because, it says, there is no reviewable decision before the Tribunal.
5. In oral submissions, and in Exhibit A1, the Applicant contends that the VRB was not required to remit the assessment of the pension to the Respondent but in fact should have done the assessment itself. There is strength to this submission where the discreet reasons for the remittal are opaque. Although not pressed during oral submissions, the Applicant had sought relief remitting this matter back to VRB to complete its statutory duties.
6. The Tribunal's power is administrative and not judicial. It would be highly unusual for the Tribunal to consider making a finding that the VRB has, or has not, fulfilled its statutory duties. To do so may be seen to usurp the powers of the Courts. In any event, without the VRB being joined as a party there would seem to be no clear pathway to remitting the matter to the VRB. Hence, the Tribunal is reasonably satisfied that it presently does not have the power or jurisdiction to remit the matter to the VRB on the basis that it should have made a decision.
7. With the benefit of hindsight, the better course for reviewing the rate of pension may have been to have concurrently sought review of the remittal decision of the Respondent together with Exhibit R1. That course is no longer open to the Applicant and, it is acknowledged, is also complicated by an extension of time granted by the Tribunal.
8. The present proceedings are not frivolous or vexatious. The Tribunal has the power to review Exhibit R1 on a de novo basis. In so doing, the Tribunal would be seized of the jurisdiction to determine issues of liability and, if liability were found, pension rate (see Irwin v Military Rehabilitation & Compensation Commission [2009] FCAFC 33, [23] Downes, Greenwood & Tracey JJ).
9. The power to dismiss an application is to be used sparingly, and the Respondent has brought its application in an accordingly responsible manner. Nevertheless, the Tribunal declines to dismiss the substantive application for want of jurisdiction as it is reasonably satisfied that Exhibit R1 is a reviewable decision within the meaning of s 97 of the Administrative Review Tribunal Act 2024.
10. This matter must now either resolve between the parties or proceed expeditiously to hearing.

1. The Tribunal decides that the Respondent's application to dismiss the substantive application for review is refused and the Tribunal directs that:

(a) On or before 13 October 2025, the parties are to file an agreed timetable to hearing; or failing agreement, the parties are to file and serve separate timetables to hearing.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for the decision herein of Senior Member George

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