whether the applicant meets the eligibility requirements
jurisdiction of the tribunal to review decision that applicant does not have a relevant condition
Quick Take
1ACAT's review jurisdiction under the VAD Act is confined to the reviewable decisions listed in Schedule 1 — decisions that an applicant does not have a relevant condition (s 11(1)(b)) or is not suffering intolerably (s 11(1)(c)) are not reviewable, and the interpretive obligation under s 30 of the Human Rights Act cannot expand clear statutory limits on jurisdiction.
2A review of decision-making capacity under s 11(1)(d) is not futile merely because the applicant does not meet other non-reviewable eligibility requirements; the tribunal may and should conduct such review given its implications for autonomy and human dignity, and the order takes effect as the decision-maker's decision under s 146.
3Decision-making capacity under s 12 of the VAD Act requires only a general understanding of the nature of the applicant's conditions, choices and consequences — not clinical correctness about whether conditions are terminal — and the presumption of capacity under s 12(2) means the onus is on establishing lack of capacity.
