FEDERAL COURT OF AUSTRALIA

Rana v Repatriation Commission [2010] FCA 280

THE COURT ORDERS THAT:

1.                  The application be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an application for judicial review of a decision of a Member of the Administrative Appeals Tribunal (AAT) made on 15 May 2009 in which the Member decided that an application by the applicant under the Veterans’ Entitlements Act 1986 (Cth) (the VE Act) should be considered first by reference to whether the applicant was a person to whom Part IV of the VE Act applied.

2                     This application was heard contemporaneously with an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) from a decision of Deputy President Hack QC, in which the Deputy President dismissed the applicant’s application finding that the applicant was not a person who could bring himself within s 69 of the VE Act and therefore was not a person entitled to a pension under Part IV of that Act.

3                     These reasons should be read in conjunction with the reasons published today in Rana v Repatriation Commission [2010] FCA 281.

4                     The applicant brought a proceeding in the AAT seeking a review of the Veterans’ Review Board affirming a decision of the respondent that the applicant was not a member of the Forces for the purpose of s 70 of the VE Act and therefore not entitled to a pension under Part IV of that Act.

5                     A directions hearing was held on 15 May 2009 when the AAT was constituted by Member Short.  At that hearing the respondent sought a direction that a preliminary issue be dealt with before the AAT considered the substantive merits of the applicant’s claim for a pension.  The respondent contended that it would be practical to proceed by first considering whether the applicant was a veteran/member of the Defence Force for the purpose of s 69 of the VE Act.  It was contended that if a finding were made adverse to the applicant, that would determine the application without the AAT needing to enquire into the matters relevant to s 70 of the VE Act.

6                     Member Short concluded that it would be appropriate to proceed by way of preliminary hearing and made an order:

1.         This matter will proceed by way of a preliminary hearing where the issue will be confined to whether Mr Rana is a veteran/member of the Armed Forces for the purposes of s 69 of the Veterans’ Entitlements Act 1986.

7                     The preliminary issue was subsequently heard by Deputy President Hack.  He conducted a further directions hearing on 15 June 2009 by telephone.  The applicant asked him at that directions hearing to vary the ruling, but the Deputy President declined.  He noted that whilst the applicant complained about the preliminary issue being heard, the applicant did not identify any prejudice or disadvantage to him by proceeding in that manner.

8                     On 4 September 2009 Deputy President Hack published reasons for concluding that the applicant was not a member of the Forces as that expression is used in s 70 of the VE Act and, that being so, there was no need to consider the merits of the claims made and questions of causation.  He affirmed the decision of the Veterans’ Review Board.

9                     The applicant has brought an application pursuant to s 39B of the Judiciary Act 1903 (Cth) seeking to quash the decision of Member Short made on 15 May 2009.

10                  In my opinion, the application should be dismissed for three reasons.

11                  First, both Member Short and Deputy President Hack were right to proceed in the manner in which they did for the reasons which I have given in Rana v Repatriation Commission [2010] FCA 281.  Shortly stated, the applicant’s claim is for a pension under Part IV of the VE Act.  He is only entitled to a pension if he can bring himself within the provisions of s 69 of that Act.  The preliminary question which was identified, whether the applicant could bring himself within s 69(1)(d), if decided adversely to the applicant meant that no inquiry was necessary to determine whether the applicant brought himself within s 70 of the Act.  In my opinion, it cannot be said that either Member Short or Deputy President Hack for that matter was wrong to proceed in the way that they did.

12                  Secondly, there is no utility in this appeal because Member Short did not hear the applicant’s application for review.  It was heard by Deputy President Hack who decided for himself to proceed in the way that he did by first considering the preliminary question.  Member Short’s decision was overtaken by that of Deputy President Hack.  I have dealt with the applicant’s complaint that Deputy President Hack was wrong to proceed in the manner he did in Rana v Repatriation Commission [2010] FCA 281.

13                  Thirdly, s 44 of the AAT Act empowers a disaffected party to appeal against a decision of the AAT on a question of law.  In fact the applicant has availed himself of that section by appealing against the decision made by Deputy President Hack.  He has complained on the hearing of that appeal about the Deputy President proceeding in the manner in which he did.

14                  However, the applicant could not have appealed from Member Short’s decision because it was not the effective decision or a decision which determined the application before the AAT: Director-General of Social Services v Chaney (1980) 47 FLR 80 at 99-100.  The impugned decision was merely a ruling as to how the proceeding for review would proceed.  The Court would in the exercise of its discretion refuse the applicant relief where the applicant sought to avoid the scheme of the AAT Act by calling into question a ruling of the AAT as to procedure which was not the effective decision and did not dispose of the application before it.  Applications of this kind which seek to review a ruling of the AAT made during the progress of an application before it should be discouraged.

15                  In my opinion, the application should be dismissed because it lacks merit.  Even if the application identified an error on the part of Member Short, there would be no utility in making an order because the matter proceeded in accordance with a ruling given by Deputy President Hack.  In any event, relief would be refused in the exercise of the Court’s discretion.

16                  The application must be dismissed.

17                  When this matter first came before the Court, I explained to the applicant that subsequent events, namely the decision of Deputy President Hack to proceed in the way that he did and his decision to affirm the decision of the Veterans’ Review Board, superseded Member Short’s decision and made his application otiose.  He appeared to understand the matters which I put to him and said that he would withdraw the application.  I invited him to file a notice of discontinuance.  Subsequently, he changed his mind and decided to proceed with the application.  I will hear the respondent in relation to any claim for indemnity costs.

Associate:

Dated:         26 March 2010