Demczuk v Repatriation Commission [2003] FCA 1188

FEDERAL COURT OF AUSTRALIA

Demczuk v Repatriation Commission [2003] FCA 1188 VETERANS' AFFAIRS – Appeal from Administrative Appeals Tribunal – whether Tribunal erred in applying the relevant Statements of Principle (SoP) – whether Tribunal erred in making findings of fact in determining whether there was a reasonable hypothesis in accordance with the relevant SoPs. Veteran's Entitlements Act 1986 (Cth) Byrnes v Repatriation Commission (1993) 177 CLR 564 followed Repatriation Commission v Deledio (1998) 83 FCR 82 followed Repatriation Commission v Keeley [2000] FCA 532; (2000) 98 FCR 108 cited Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321 cited Lees v Repatriation Commission [2002] FCAFC 398; [2002] 36 AAR 484 cited Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited Mason v Repatriation Tribunal [2000] FCA 1409 cited Delidio v Repatriation Commission (1997) 47 ALD 261 cited Morales v Minister for Immigration & Ethnic Affairs (1995) 60 FCR 550 cited Arnott v Repatriation Commission (2001) 106 FCR 83 cited McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 cited Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 200 ALR 332 considered VICTOR DEMCZUK v REPATRIATION COMMISSION S 441 OF 2003 MANSFIELD J 29 OCTOBER 2003 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 441 OF 2003

BETWEEN: VICTOR DEMCZUK

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 29 OCTOBER 2003

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application by way of appeal is allowed. 2. The application by way of cross-appeal is allowed. 3. The decision of the Administrative Appeals Tribunal made on 31 March 2003, to the extent that: (a) it confirmed the decision of a delegate of the respondent rejecting the applicant's claim to a pension entitlement in respect of generalised anxiety disorder; (b) it set aside the decision of a delegate of the respondent rejecting the applicant's claim to a pension entitlement in respect of alcohol abuse and determined that the applicant is entitled to a pension in respect of alcohol abuse; is set aside. 4. The application of the applicant to a pension entitlement in respect of: (a) generalised anxiety disorder; and (b) alcohol abuse; is remitted to the Administrative Appeals Tribunal for re-hearing according to law.