Leane v Repatriation Commission

THIS APPEAL 22 The Veteran has appealed to this Court from the decision of the primary judge pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth). A number of grounds are contained in the Notice of Appeal and in the written submissions filed on behalf of the Veteran. However, counsel for the Veteran properly conceded that the Veteran could not succeed on any of his grounds unless he could show that the Tribunal had made an error of law in its interpretation and/or its application of s 24(2)(b) of the Entitlements Act. It is to that issue that we turn. 23 In order to come within the terms of s 24(2)(b) of the Entitlements Act, the Veteran was required to satisfy the Tribunal that he has been 'genuinely seeking to engage in remunerative work [and] that he 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 inability to obtain remunerative work'. The Tribunal was not satisfied that the Veteran was seeking to engage in remunerative work. On that basis the Tribunal did not need to consider the other aspects of s 24(2)(b) of the Entitlements Act. The Veteran criticised the Tribunal for not proceeding to consider those other aspects, but clearly enough the Tribunal was not required to do so unless its conclusion in relation to whether the Veteran was 'genuinely seeking to engage in remunerative work' involved some error of law. 24 The Tribunal's reasons for its conclusion in relation to s 24(2)(b) of the Entitlements Act are set out above (par [18]). It is clear that the Tribunal accepted that the Veteran had been employed by the AEC in 1997 for a limited period and for a limited purpose and again in 2001. It is also clear that the Tribunal found 'there was no evidence' the Veteran had sought further work with the AEC in 2001 or later. It is also clear that the Tribunal found that there was no evidence that he had sought other remunerative work. 25 These facts were insufficient to satisfy the Tribunal that the Veteran had been 'genuinely seeking to engage in remunerative work'. However, in reaching that conclusion the Tribunal relied upon its previous decisions as 'indicating the necessity for some objective signs of active pursuit of remunerative work'. The Tribunal concluded that, in the absence of such signs the Veteran 'cannot rely on the ameliorating provisions of 24(2)(b)' This would seem to involve the identification by the Tribunal of a legal test that the veteran could not establish that he had been genuinely seeking to engage in remunerative work unless he or she could satisfy the Tribunal that there were 'objective signs of active pursuit of remunerative work'. 26 The primary judge may have applied the same test. As his Honour put it (and has already been extracted in [21] above): 'The Tribunal was not satisfied that there were any "objective signs of active pursuit of remunerative work" on the evidence before it. That conclusion is not reviewable in this court there being no error of law that infected it.' 27 The policy of s 24(2)(b) of the Act was explained in the speech on the second reading of the Bill for the insertion of that provision (see per Sackville J in Repatriation Commission v Sheehy (1995) 133 ALR 654 at 660-661). In that speech the relevant Minister made the point that 'special provision is made by the bill to cover veterans who are under 65 years of age, are unemployed, and are genuinely seeking to engage in remunerative work.' 28 The primary judge interpreted the word 'seeking' to mean 'attempting to' or 'trying to'. This may be accepted. Such a meaning involves something more than a mere wish or hope. It requires that a claimant 'do' something. On the other hand the word 'genuinely' is used in the sense of 'sincerely' or 'honestly'. It involves an assessment of the subjective intention or purpose of a claimant. What is required is that the claimant honestly be trying to engage in remunerative work. 29 It may be accepted that, in the ordinary course, a person in the position of the Veteran would have difficulty in establishing that he or she was honestly trying to engage in remunerative work unless there were some 'objective signs of active pursuit of remunerative work'. However, it would be wrong to turn the practical issue of how a person might establish his or her case into some legal pre-condition. Assume, for example, that a claimant satisfied the Tribunal that:

he or she honestly wished to engage in remunerative work;
he or she had made a reasonable assessment of his or her disabilities;
he or she had reasonably concluded that he or she could only be employed in a particular type of work;
he or she was checking employment advertisements on the look out for such employment; but
he or she had not yet identified any such employment prospects. Counsel for the Commission properly conceded that, on these facts, the Tribunal might be satisfied that the claimant was 'genuinely seeking to engage in remunerative work'. This example highlights that the adjectives 'objective' and 'actual' in the redefinition adopted by the Tribunal are at least unhelpful and may be misleading. The proper course was for the Tribunal to ask itself whether, on the evidence before it, it was satisfied that the Veteran was 'genuinely seeking to engage in remunerative work' or not, rather then to ask itself the different question that it did ask. 30 We note, for completeness, that it was unnecessary for the Veteran to satisfy the Tribunal that he had been genuinely seeking remunerative employment at all times during the assessment period. Under s 19(5C) of the Entitlements Act the Tribunal was required to assess 'the rate or rates' at which the pension would have been payable 'from time to time' during the assessment period and, 'subject to subsection (6) the rate at which the pension is payable'. Section 19(6) provides: ' (6) Where the Commission has, pursuant to subsection (5C), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period.' 31 The effect of these provisions in this case is that the Tribunal was required to determine whether a special pension was payable at any time during the assessment period, being the period starting, in this case, November, 1996, and ending when the claim for application is ultimately determined: s 19(9) of the Entitlements Act. If a special pension was payable at any time during this period then the Tribunal was required to determine that the special pension was payable from that time, notwithstanding that at some subsequent time the Veteran might not have been able to establish that he would be entitled to a special pension. 32 As the Commission properly conceded, if the Veteran had satisfied the Tribunal that he had, at any time during the assessment period, complied with the requirements of s 24(2)(b) (including the requirement that he had been genuinely been seeking to engage in remunerative employment) then, at least from that time, the Veteran would have been entitled to a pension at the special rate, notwithstanding that at some later time he may not have established that he was genuinely seeking to engage in remunerative employment. 33 Having regard to the above, the questions that need to be considered are whether the use of the test adopted by the Tribunal and (it would appear) by the primary judge involved an error of law and, if it did, whether that error did affect or could have affected the decision ultimately reached by the Tribunal. As to whether there was any error of law, this depends upon whether the test adopted and applied by the Tribunal was merely unhelpful or whether it was positively misleading. In order to answer that question it is necessary to look at the evidence that was before the Tribunal to ascertain whether the Tribunal has misapplied that evidence in light of the test it adopted. As to whether any error (if it existed) affected the result, this also makes it necessary to consider the evidence that was before the Tribunal to see if there was any material before the Tribunal which was capable of satisfying it that the Veteran was 'genuinely seeking remunerative work' as properly understood. 34 The Veteran's case before the Tribunal simply did not address the question of whether the Veteran was genuinely seeking remunerative work. Clearly there was evidence that the Veteran had obtained remunerative employment with the AEC in 1997 and in 2001. The Veteran submitted to us that evidence that he had been employed necessarily established that he had been genuinely seeking to engage in remunerative employment during the period of the employment. 35 However, the mere fact that a person accepts remunerative work does not mean that he or she is seeking it, much less 'genuinely seeking' it. For example, the relevant employer could have sought out the prospective employee and requested that person's assistance which the employee had reluctantly given even though the employee had not been 'seeking' employment. This does not mean that evidence of employment could never give rise to an inference that the person had been seeking employment. If evidence was given, for example, that a person had been employed by a number of different employers over a relatively short period, there may be an almost overwhelming inference that that result could only have occurred by reason of the person 'genuinely seeking' employment. Of course, that inference could be displaced by other evidence. However, in this case, it would seem to us that the evidence that the Veteran had been employed on two different occasions by the same employer was not capable, by itself, of satisfying the Tribunal that the Veteran was 'genuinely seeking' remunerative work, even in 1997 or 2001. 36 The only further evidence there was about whether the Veteran was 'seeking remunerative work' was his answer to a leading question asked of him in cross examination: 'Since then [i.e. 1997] have you looked for work or not?---Yes, I have worked with the Electoral Commission again last year.' The answer 'yes' could be taken as suggesting that the Veteran 'looked for work'. Taking a generous view of it that might provide some evidence that he may have been seeking work. It does not establish that he was genuine. The answer also suffers from the problem of all qualified answers to leading questions, that it is unclear whether the Veteran did, in fact, understand the words 'looked for' as meaning 'seeking' or whether he understood them to mean 'obtained'. Beyond that unsatisfactory answer, there was no evidence at all, save for the Veteran's evidence in chief before the Tribunal that, if he had not been suffering from PTSD, he would want to work. As the Tribunal remarked, the evidence was 'very limited'. 37 We remind ourselves that the 'satisfaction' required in s 24(2)(b) of the Entitlements Act is the satisfaction of the Tribunal, not of this Court. Nevertheless, it seems to us that the limited evidence before the Tribunal was so inadequate that it was not capable of satisfying the Tribunal that the Veteran was genuinely seeking to engage in remunerative employment. This is not to suggest that there was any onus cast upon the Veteran - merely that the material before the Tribunal was not capable of satisfying it of matters upon which it had to be satisfied if it was to determine that the Veteran was entitled to a pension at the special rate. In those circumstances it is not possible to say that there was any error of law by the Tribunal in reaching its conclusion that s 24(2)(b) of the Entitlements Act did not apply. Nor is it possible to say that the primary judge was in error in accepting that conclusion. In any event, it is not possible to say that any such error (if it occurred) affected, or could have affected, the result. 38 The consequence is that the appeal must be dismissed with costs.

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