Border v Repatriation Commission [2010] FCA 264

Border v Repatriation Commission [2010] FCA 264

The respondent did not establish that the appellant's proposed appeal had no reasonable prospects of success. The Tribunal's language that the evidence had to point to the Statement of Principles criteria, together with its detailed assessment of the four incidents to decide whether each was objectively a life threatening event, raised a real and sufficiently strong question of law as to whether the Tribunal impermissibly engaged in fact finding at the third Deledio step and whether it properly discharged its function under s 120(1), read with ss 120(3) and 120A, of the Veterans' Entitlements Act 1986 (Cth).

Jurisdiction
Australia
Judgment Date
23 March 2010
Procedural Posture
Appeal From the Administrative Appeals Tribunal Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) Concerning a Veterans' Entitlements Claim / Respondent's Notice of Motion to Strike Out the Appeal Under S 31 a of the Federal Court of Australia Act 1976 (cth) and Appellant's Application for Leave to Amend the Notice of Appeal
Outcome
Respondent's strike out application dismissed; appellant granted leave to amend the notice of appeal.
Legal Topics
['strike Out Application' 'no Reasonable Prospects of Success' 'appeal From Administrative Appeals Tribunal on a Question of Law' 'statements of Principles' 'war Caused Disease' 'post Traumatic Stress Disorder' 'deledio Four Step Approach']
['practice and Procedure' "veterans' Entitlements" 'administrative Law'] ['strike Out Application' 'no Reasonable Prospects of Success' 'appeal From Administrative Appeals Tribunal on a Question of Law' 'statements of Principles' 'war Caused Disease' 'post Traumatic Stress Disorder' 'deledio Four Step Approach']

Case Brief

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Procedural Posture

Appeal From the Administrative Appeals Tribunal Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) Concerning a Veterans' Entitlements Claim / Respondent's Notice of Motion to Strike Out the Appeal Under S 31 a of the Federal Court of Australia Act 1976 (cth) and Appellant's Application for Leave to Amend the Notice of Appeal

Legal Issues

  1. 1 ["Whether the appellant identified a proper question of law arising out of the Tribunal's decision for the purposes of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)." 'Whether the respondent established that the appellant had no reasonable prospect of successfully prosecuting the appeal under s 31A of the Federal Court of Australia Act 1976 (Cth).' "Whether there was a real question that the Tribunal engaged in fact finding at the third Deledio step when assessing whether the appellant's hypothesis was consistent with the applicable Statement of Principles."]

Ratio Decidendi

The respondent did not establish that the appellant's proposed appeal had no reasonable prospects of success. The Tribunal's language that the evidence had to point to the Statement of Principles criteria, together with its detailed assessment of the four incidents to decide whether each was objectively a life threatening event, raised a real and sufficiently strong question of law as to whether the Tribunal impermissibly engaged in fact finding at the third Deledio step and whether it properly discharged its function under s 120(1), read with ss 120(3) and 120A, of the Veterans' Entitlements Act 1986 (Cth).

Court Disposition

Respondent's strike out application dismissed; appellant granted leave to amend the notice of appeal.

Orders

  • ["The respondent's notice of motion to strike out the appeal be dismissed." 'The appellant be given leave to amend his notice of appeal.']