Mr Rayfield was informed in the letter of 21 March 2014 that if he were dissatisfied with any aspect of the decision he might apply to the Tribunal to have the decision reviewed. Understandably, Mr Rayfield again accepted that suggestion and lodged this application in July of this year. 4. The matter having proceeded to the stage of a telephone conference, the Commission identified in the course of that conference that it contended that the decision to raise and recover the claimed overpayment was not a decision capable of being reviewed in the Tribunal, hence the matter is before me after directions about the exchange of submissions in advance of the hearing to determine the issue of contested jurisdiction. 5. The statutory framework need only briefly be noted. Section 54 of the Act permits the Secretary to give notice requiring the recipient of the service pension to inform the department of specified events with changes in circumstances. Such a notice was given in the present circumstances. The topic of overpayment of pension is dealt with in s 205 of the Act. So far as is presently relevant, subsection (1) of that section provides,

Administrative Appeals Tribunal of Australia|2014-10-17|Before: Deputy President P

The applicant, Mr Colin Rayfield, has been receiving service pension pursuant to the Veterans' Entitlements Act 1986 (Cth) (the Act) for some time. One of the obligations imposed on him by the Act was to inform the respondent, the Repatriation Commission, of changes in his income or assets as the pension received by him was dependent on the level of his assets and of his income.
On 3 September 2013, the Commission wrote to Mr Rayfield telling him, in terms, that two decisions had been made in relation to his affairs. The first was that it had been decided that he had been overpaid service pension because his assets and income had increased. The second part of the decision informed him that his rate of pension thereafter would be reduced. Seemingly Mr Rayfield took up the correctness of that first decision with the delegate, with the result that on 17 October 2013 a further decision was made so far as overpayments were concerned which identified a different amount.

Mr Rayfield was informed that if he disagreed with that decision he could ask for a review, with an officer with no prior involvement to take a look at the case. Mr Rayfield took up that offer and sought a review on 19 December 2013. 3. On 21 March 2014, a decision was made by another delegate of the respondent in which the earlier decision to recover an overpayment was varied in a quite minor amount.

(1) This section applies where:

(a) in consequence of a false statement or representation, or of a failure or omission to comply with this Act, the regulations or any other legislative instrument made under this Act, an amount has been paid by way of pension, allowance or other pecuniary benefit under this Act that would not have been paid but for the false statement or representation or but for the failure or omission;

Section 205(8) of the Act defines recoverable amount to mean "an amount paid as mentioned in s 205(1)(a)". Section 205(1A) makes the recoverable amount recoverable in one of the ways specified including by deductions, by proceedings in a court of competent jurisdiction or by instalments.

The general power to seek a review in the Tribunal of decisions of the Commission is set out in s 175 of the Act. Subsection (2) provides,

Where the Commission, under section 57B, affirms a decision of the Commission referred to in section 57 or sets it aside and substitutes another decision for it, a person may apply to the Administrative Appeals Tribunal for a review of the decision so affirmed or substituted.

There was in the present case, what on its face was described as a decision made following the review under s 57B. Whether that is a correct description depends upon a reading of that section and upon the operation of s 57. Section 57 sets out the circumstances under which claimants, persons or pensioners dissatisfied with decisions of the Commission may seek a review of the decision. It sets out a variety of decisions which are capable of being made the subject of an internal review. None of them though, are decisions to raise and recover amounts alleged to have been overpaid.
The effect then seems to me to be this: the decision with which Mr Rayfield is dissatisfied is a decision to raise and recover a claimed overpayment and is not a decision of the types referred to in s 57 of the Act. It thus cannot be made the subject of an application for internal review under s 57A and, necessarily, cannot be made the subject of an application to the Tribunal for a review pursuant to s 175(2).
The conclusion which I have reached is consistent with earlier determinations of the Tribunal, including that of Deputy President Forgie in Re Nelson and Repatriation Commission,[1] particularly Deputy President Forgie's conclusion at paragraph [3], and the decision in Re Moretti and Repatriation Commission.[2]
In the result, I conclude that the Tribunal lacks jurisdiction and accordingly propose to dismiss the application.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

..........................[Sgd]..........................................

Mr Bruce Williams, Department of Veterans' Affairs

Appeal Tribunal Act 1975

Entitlements Act 1986

Rayfield and Repatriation Commission [2014] AATA 772 (17 October 2014)

Re Moretti and Repatriation Commission [2008] AATA 1067

Re Nelson and Repatriation Commission [2007] AATA 1069; (1994) 94 ALD 418

Rayfield and Repatriation Commission [2014] AATA 772 (17 October 2014)

At a glance

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Judgment (13 paragraphs)

Legislation Cited (2)

Cases Cited (3)

Rayfield and Repatriation Commission [2014] AATA 772 (17 October 2014)