Tate v Repatriation Commission [2003] FCA 1169

FEDERAL COURT OF AUSTRALIA

Tate v Repatriation Commission [2003] FCA 1169 VETERANS AFFAIRS - entitlements - claim by widow of veteran - whether Administrative Appeals Tribunal failed to consider the hypothesis and evidence before it - Statement of Principles concerning malignant neoplasm of the prostate No 84 of 1999 Veterans' Entitlement Act 1986 (Cth) ss 8, 120, 120A Administrative Appeals Tribunal Act 1975 (Cth) s 43(2), s 43(2B)

Bushell v Repatriation Commission (1992) 175 CLR 408 discussed Byrnes v Repatriation Commission (1993) 177 CLR 564 discussed Repatriation Commission v Deledio (1998) 83 FCR 82 applied Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 applied Collector of Customs v Pozzolanic (1993) 43 FCR 280 cited Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited NORMA ACACIA CECILIA TATE v REPATRIATION COMMISSION Q16 OF 2003 COOPER J BRISBANE 24 OCTOBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q16 OF 2003

BETWEEN: NORMA ACACIA CECILIA TATE

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: COOPER

DATE OF ORDER: 24 OCTOBER 2003

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the costs of the application, to be taxed, if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q16 OF 2003

BETWEEN: NORMA ACACIA CECILIA TATE

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: COOPER

DATE: 24 OCTOBER 2003

PLACE: BRISBANE

REASONS FOR JUDGMENT

background 1 The applicant is the widow of George Hamilton Albert Tate. Mr Tate was born on 9 May 1909 and died on 26 September 1979 from prostate cancer. He served in the Australian Army from 2 December 1941 to 8 January 1946. His service was operational service for the purposes of the Veterans' Entitlements Act 1986 (Cth) ('the Act'). The applicant lodged an application for a war widow's pension on 10 August 1994, claiming that the death of her husband was war caused within s 8 of the Act. The claim was rejected on 30 March 1995. The rejection decision was affirmed by the Veterans' Review Board on 13 June 1997 and by the Administrative Appeals Tribunal ('the AAT') on 17 January 2003. 2 The applicant has applied to this Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act').