Baljas v Repatriation Commission [2009] FCA 171

FEDERAL COURT OF AUSTRALIA

Baljas v Repatriation Commission [2009] FCA 171

VETERANS' AFFAIRS – pension – special rate – "alone" test – whether applicant's war-caused incapacity alone prevented him from continuing to undertake remunerative work he had been undertaking – whether Administrative Appeals Tribunal applied wrong test – whether Tribunal misstated its task – whether Tribunal took wrong approach to determining what was remunerative work that applicant was prevented from continuing to undertake – whether Tribunal focused on wrong time – whether Tribunal failed to take into account applicant's evidence – whether Tribunal required to apply provision applying to a veteran who "has not worked" – whether Tribunal failed to take account of beneficial nature of legislation and provisions requiring lenient approach – whether Tribunal's reasons inadequate Held: Appeal dismissed

Veterans' Entitlements Act 1986 (Cth), ss 13(1)(b), 13(1)(d), 14(1), 15(1), 19, 19(6), 22, 23, 24, 24(1)(b), 24(1)(c), 24(2), 24(2)(a), 24(2)(b), 119, 119(1) Administrative Appeals Tribunal Act 1975 (Cth), ss 43(2B), 44(1) Repatriation Commission v Hendy [2002] FCAFC 424 cited Repatriation Commission v Smith (1987) 15 FCR 327 cited Banovich v Repatriation Commission (1986) 69 ALR 395 cited Sheehy v Repatriation Commission (1996) 66 FCR 569 distinguished Giesen v Repatriation Commission [2005] FCA 846 (2005) 87 ALD 347 applied ANTHONY BALJAS v REPATRIATION COMMISSION

VID 224 of 2008

GRAY J

2 MARCH 2009

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 224 of 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MEMBER FICE

BETWEEN: ANTHONY BALJAS

Applicant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: GRAY J

DATE OF ORDER: 2 MARCH 2009