Amery and Secretary, Department of Defence (Practice and procedure)
[2025] ARTA 1708
•9 April 2025
Amery and Secretary, Department of Defence (Practice and procedure) [2025] ARTA 1708 (9 April 2025)
Applicant:Thomas Amery
Respondent: Secretary, Department of Defence
Tribunal Number: 2024/7289
Tribunal:Senior Member D Thomae
Place:Brisbane
Date:9 April 2025
Decision:The Tribunal dismisses the application for review pursuant to s 101(b) of the Administrative Review Tribunal Act 2024 (Cth).
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Statement made on 09 April 2025 at 10:09am
CATCHWORDS
DEFENCE - Defence Home Ownership Assistance Scheme (DHOAS) – subsidy certificate – applicant separated from Regular Army and transferred to Army Reserve in January 2018 – applicant subsequently applied for subsidy certificate – subsidy certificate given to applicant in August 2021 – subsidy certificate expired in August 2022 – applicant applied for subsidy certificate in August 2023 – applicant did not “perform effective service as a member of the Reserves” from July 2020 to 2024 - applicant not then a member of the Defence Force for purposes of DHOAS – subsidy certificate must not be given to applicant in response to 2023 application – s 101(b) Administrative Review Tribunal Act 2024 – no reasonable prospects - application for review dismissed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Defence Home Ownership Assistance Scheme Act 2008 (Cth)
Defence Home Ownership Assistance Scheme Regulations 2008
Cases
Clement v Australian Bureau of Statistics [2016] FCA 948
Jefferson Ford Pty Ltd v Ford Motor Company of Australia (2008) 167 FCR 372
Kitoko v University of Technology Sydney [2021] FCA 360
Moore and Secretary, Department of Defence [2025] ARTA 179
Secretary, Department of Defence v Perry [2011] FCA 214
Ullmer and Secretary, Department of Defence [2011] AATA 542
Statement of Reasons
INTRODUCTION
On 17 September 2024, the applicant, Mr Amery, made an application for review to the General Division of the Administrative Appeals Tribunal (the AAT)[1] of the decision by the respondent, the Secretary, Department of Defence (the Secretary), dated 13 September 2024, to affirm the decision that Mr Amery was not entitled to a subsidy certificate under the Defence Home Ownership Assistance Scheme Act 2008 (Cth) (DHOAS).
[1] On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
As stated in Moore[2], the DHOAS assists current and former members of the Australian Defence Force (ADF) to achieve home ownership by the payment of tiered financial subsidies applied to the repayment of a home loan. A subsidy certificate issued by the Secretary under the DHOAS is proof of eligibility to access a subsidised home loan under the scheme.
[2] Moore and Secretary, Department of Defence [2025] ARTA 179 at [2].
The Secretary seeks dismissal of Mr Amery’s application for review pursuant to s 101(b) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) on the basis that Mr Amery’s application has no reasonable prospects of success.
Mr Amery was self-represented at the hearing and the Secretary was represented by Mr Davidson, instructed by the Australian Government Solicitor.
The Tribunal admitted into evidence the T-Documents filed in the matter as exhibit R1 and considered the written submissions provided by the parties as well as the oral evidence at the hearing.
BACKGROUND
Mr Amery served as a regular member of the Australian Army (Army) for six years from November 2011 to January 2018, attaining the rank of corporal as an Army Medic.[3] He was awarded the Australian Service Medal with clasp ‘CT/SR’ and the Australian Defence Medal for his service in Army. His service history lists his extensive qualifications gained from his time in Army, but particularly in special operations.
[3] Exhibit R1, T3.
Mr Amery then transferred to the Army Reserve as an ‘active’ reservist in January 2018 with postings to the Special Operations Engineer Regiment and most recently to the 4th Brigade.
Mr Amery seeks by his application for review for a further subsidy certificate from the Secretary under the DHOAS. At the hearing, Mr Davidson for the Secretary, in his oral submissions helpfully explained the operation of the DHOAS to give Mr Amery a clear understanding of the application of the DHOAS to Mr Amery’s personal circumstances.
LEGISLATIVE SCHEME
The relevant process that applies for the granting of a subsidy certificate under the DHOAS is:
(a)Section 14 provides that a person may apply to the Secretary for a subsidy certificate and that must be in the approved form.
(b)Section 16 requires the Secretary to:
(i)give a subsidy certificate if s 17, 18, 19 or 20 applies; or
(ii)refuse to give a subsidy certificate if those sections do not apply.
Section 18 (surviving partners), s 19 (discharge of loan due to destruction or loss of property) and s 20 (discharge of loan as property was sold) do not apply to Mr Amery’s circumstances.
Section 3 provides:
3Definitions
In this Act:
…
effective service, in relation to a person who is, or has been, a member of the Defence Force, means service in the Defence Force by the person that:
(a) if the person has, at any time before, on or after the commencing day, stopped being a member of the Defence Force, and, more than 5 years later, again become a member of the Defence Force—does not include service before the person again became a member of the Defence Force; and
(b) in any case—is recognised as effective service in accordance with the regulations.
eligible has the meaning given by section 7.
…
Permanent Forces means the Permanent Navy, the Regular Army or the Permanent Air Force.
Reserves means the Naval Reserve, the Army Reserve or the Air Force Reserve.
…service year means a year prescribed by regulations made for the purposes of the definition of effective service in this section.
Section 5 provides:
5 When a person is a member of the Reserves
Membership of the Reserves
(1)For the purposes of this Act, a person who has been engaged (by enlistment, appointment or transfer) as a member of the Reserves at a particular time (the engagement time) is to be treated as a member of the Reserves until:
(a) the engagement ends; or
(b)during a service year:
(i) the engagement does not end; but
(ii)the person does not perform effective service as a member of the Reserves.
Effect of failure to perform effective service
(2)If a person’s membership of the Reserves ends under paragraph (1)(b) in relation to a service year, this Act applies to the person, and is taken to have applied to the person, as if he or she had:
(a) in the case of a person who was a member of the Reserves at the end of the previous service year—stopped being a member of the Reserves immediately after the end of the previous service year; or
(b) in any other case—not been engaged as a member of the Reserves at the engagement time.
Note: This section may have the following effects:
(a)the time at which a person is taken to stop being a member of the Reserves (or of the Defence Force) may be affected;
(b)there may be a retrospective loss of entitlements in relation to subsidy certificates, the payment of subsidy, service credits and accrued subsidy periods and loan limits;
(c)in particular, an authorisation of the payment of subsidy on the basis of a person’s membership of the Reserves may be revoked retrospectively (see section 44);
(d)if a subsidised borrower who is taken not to have been a member of the Reserves because of the operation of subsection (2) would have been otherwise entitled to subsidy, the authorisation of the payment of subsidy to the person may be varied retrospectively (see section 45).
Section 7 defines who is eligible and provides:
7 Eligibility—who is eligible?
A person is eligible if the person is eligible as any of the following:
(a) a serving member (see section 8);
(b) an incapacitated member (see section 9);
(c) a rejoining incapacitated member (see section 10);
(d) a rejoining member (see section 11);
(e) a separated member (see section 12);
(f) an old scheme member (see section 13).
Section 17 provides:
17 Decision to give subsidy certificate—eligible applicants
(1) Subject to this section, the Secretary must give a subsidy certificate to the applicant if the Secretary is satisfied that the applicant:
(a)is eligible; and
(b)does not hold a subsidy certificate that is in force; and
(c)if the applicant is not a member of the Defence Force—has not previously applied for a subsidy certificate since he or she stopped being a member of the Defence Force.
The Defence Home Ownership Assistance Scheme Regulations 2008 (DHOAS Regulations) relevantly provides:
Part 1 Preliminary
…
3 Definitions
(1) In these Regulations:
Act means the Defence Home Ownership Assistance Scheme Act 2008.
…
Reserve service means service in one or more of the Reserves.(2)In these Regulations, a day of Reserve service is a day on which a member was required for, and attended, duty.
(3) For section 4 (sic) of the Act:
service year means the period from 1 July of one calendar year to 30 June of the following calendar year.
Part 2 Effective Service
Division 1 Preliminary4 Effective service
For the definition of effective service in section 3 of the Act, service calculated under this Part is effective service.
…
Division 3 Effective service — Reserves members7 Purpose of Division
This Division sets out the methods for calculating effective service for a member of the Reserves for the purpose of calculating the member’s:
(a) qualifying service period (Act, paragraph 8 (2) (b)); and
(b) accrued subsidy period (Act, section 47); and
(c) loan limit (Act, section 51).8 Effective service — qualifying service period
(1) This regulation prescribes the service types and periods that can be used to calculate the effective service that is to be counted in calculating the member’s qualifying service period.
(2) If the member performs Reserve service on 20 or more days in a service year, the member has 1 year of effective service.
(3) If:
(a) the member of the Reserves renders, in a service year, a period or periods of continuous full‑time service; and
(b) the period, or the sum of the periods, of continuous full‑time service is not greater than 6 months;
the member has 1 year of effective service.
(4) If:
(a) the member of the Reserves renders, in a service year, a period or periods of continuous full‑time service; and
(b) the period, or the sum of the periods, of continuous full‑time service is greater than 6 months;
the member has 2 years of effective service.
(5) Subject to subregulation (6), if the member has effective service in more than 1 service year, the member’s effective service for this regulation is the sum of the effective service calculated for each service year.
(6) If the amount calculated under subregulation (5) is more than the number of years of effective service that the member requires for his or her qualifying service period, any service in excess of that requirement is to be disregarded.
EVIDENCE
The non-contentious evidence before the Tribunal is that:
(a)On 16 January 2018, Mr Amery transferred to the Army Reserve.[4]
[4] Exhibit R1, T3.
(b)On 18 March 2020, Mr Amery was issued with a subsidy certificate.[5]
[5] Ibid, T4.
(c)On 17 March 2021, Mr Amery’s subsidy certificate expired, without any recorded subsidy payments.
(d)On 29 July 2021, Mr Amery applied for a subsidy certificate.[6]
[6] Ibid, T6.
(e)On 2 August 2021, Mr Amery was issued with a further subsidy certificate.[7]
[7] Ibid, T7.
(f)On 1 August 2022, Mr Amery’s subsidy certificate expired, without any recorded subsidy payments.
(g)On 14 August 2023, Mr Amery applied for another subsidy certificate.[8]
[8] Ibid, T12.
(h)On 25 August 2023, the DVA, as delegate of the Secretary, determined that Mr Amery was ineligible for a further subsidy certificate.[9]
[9] Ibid, T13.
(i)On 25 August 2023, Mr Amery requested an internal review of the decision dated the same day.[10]
[10] Ibid, T14.
(j)On 13 September 2024, an internal review by a delegate of the Secretary affirmed Mr Amery’s ineligibility for a subsidy certificate (Reviewable Decision).[11]
(k)Mr Amery’s days of Reserve service (s 12 DHOAS Regulations):[12]
(i)2018 – 47 days.
(ii)2019 – 53 days.
(iii)2020 – 21 days.
(iv)2021 – 13 days.
(v)2022 – 0 days.
(vi)2023 – 16 days.
(vii)2024 – 12 days.
[11] Ibid, T1.1.
[12] Ibid, T20.
CONTENTIONS
Mr Amery’s contentions
Mr Amery’s primary contentions are in respect of the circumstances of his inability to satisfy the requirement to render 20 Reserve Days, as required by the DHOAS, during his Army Reserve Service in the period from 1 July 2020.[13]
[13] Submissions from Mr Amery, by email to the Tribunal, dated 2 April 2025.
Firstly, that he was unable to complete the required 20 Reserve days from 1 July 2020 because he was not provided the opportunity by his unit at the time.
Secondly, his medical condition at times during the period from 1 July 2020 was such that he was ‘incapacitated’ to render service.[14]
[14] See for example, Exhibit R1, at T11 for medical incapacity to work for the period 22 May 2023 to 23 May 2025.
The Secretary’s contentions
The Secretary contends that the Tribunal should dismiss Mr Amery’s application for review because there are no reasonable prospects of success.[15]
[15] Secretary’s submission on summary dismissal at [33]-[52]
The Secretary does not dispute that Mr Amery satisfies the requirements of s 17(a) and (b) of the DHOAS.[16]
[16] Ibid, at [35].
It is contended, in circumstance where no effective Reserve service was rendered since the 2019/2020 financial year, that Mr Amery was not a member of the ADF for the purposes of the DHOAS from 1 July 2020 and is therefore ineligible for a further subsidy certificate. [17]
[17] Ibid at [43] to [45]
As to eligibility, the Secretary relies on the decision of Secretary, Department of Defence v Perry[18] (Perry), for defining the term ‘member of the Defence Force’ for the purpose of s 7 of the DHOAS.
[18] [2011] FCA 214.
The effect of the Secretary’s contentions is that Mr Amery was not a member of the ADF, for the purposes of the DHOAS, at the time that he applied for a further subsidy certificate and therefore was not eligible pursuant to s 17(c) of the DHOAS.
As to the discretion to dismiss Mr Amery’s application for review because it has no reasonable prospects of success, the Secretary relies on Kitoko v University of Technology Sydney [2021] FCA 360, per Griffiths J:
(a) The effect of s 31A is to lower the bar below that fixed by previous authorities for obtaining summary judgment. It is not necessary to demonstrate that a claim/defence be “hopeless” or “bound to fail” for it to have no reasonable prospects of success (s 31A(3) of the Federal Court of Australia Act 1976 (Cth) (FCA Act); Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 at [17]-[26] per French CJ and Gummow J).
(b) The Court must make a practical judgment as to whether the opposing party has reasonable prospects of success, one which is “real, not fanciful or merely arguable” (Spencer at [25] per French CJ and Gummow J);
(c) Where the moving party establishes a prima facie case in support of summary judgment, the onus shifts to the opposing party to point to factual or evidentiary issues making a trial necessary (Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; 167 FCR 372 at [127] per Gordon J). Page 6
(d) Determination of an application for summary dismissal is a value judgment to be made in the particular circumstances of the case, in the absence of a full and complete factual matrix; in other words requiring a “practical judgment” of the case at hand. It does not require a “mini trial”, but rather a “critical examination of the available material to determine whether there is a real question of law or fact that should be decided at trial” (Australian Securities and Investment Commission v Cassimatis [2013] FCA 641; 220 FCR 556 at [46] per Reeves J).
(e) The Court retains a discretion whether or not to determine proceedings summarily or to refer them to trial, albeit that this discretion must be exercised judicially (Cassimatis at [50] per Reeves J).
(f) Notwithstanding that s 31A of the FCA Act sets a lower bar than previously stated for the summary determination of a proceeding, the power to enter summary judgment is not to be exercised lightly (Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ).
The Secretary also cites Jefferson Ford Pty Ltd v Ford Motor Company of Australia (2008) 167 FCR 372 and Clement v Australian Bureau of Statistics [2016] FCA 948 for the proposition that Tribunal, where accepting Mr Amery’s contentions, it is able to resolve a contested legal issue summarily, and there are no reasonable prospects of success, it should do so without undue delay.
CONSIDERATION
The issue for determination is whether Mr Amery is eligible for a subsidy certificate pursuant to s 16 of the DHOAS in response to his 2023 application.
The Tribunal is satisfied that Mr Amery’s application was compliant with s 14 of the DHOAS and that ss 18, 19 and 20 of the DHOAS do not apply in this application for review.
The Tribunal is satisfied that Mr Amery satisfies ss 17(a) and (b) of the DHOAS.
The question arises in respect to s 17(c) of the DHOAS, whether Mr Amery is ‘not a member of the Defence Force – has not previously applied for a subsidy certificate since he or she stopped being a member of the Defence Force’[19].
[19] s 17(c) of the DHOAS
In Perry, Dowsett J, considering eligible reserve service under the DHOAS, stated:
- The grounds of appeal appear more clearly from the outline of submissions. After setting out, in a coherent and economical way, the facts of the case, the relevant legislation and the decision, the Secretary contends that in exercising the residual discretion pursuant to s 44(2), the Tribunal erred by taking into account irrelevant considerations, namely Air Commodore Perry’s willingness to service and the difficulty, in times of budgetary constraint, in finding duties for such a person. He further submits that those considerations had to be considered in the context of the Tribunal’s finding that Air Commodore Perry had not performed effective service in the 2008-09 year, and so had ceased to be a member of the Reserves for relevant purposes. He was not eligible pursuant to s 8 and had no service credits as required by s 16(2) of the Act. Thus, the conditions for payment of the subsidy were not met.
- In considering this matter one must distinguish between Air Commodore Perry’s full-time service prior to 11 July 2000 and his service as a member of the Reserves. I have demonstrated that the only basis upon which he may be eligible is as a serving member. In that capacity, he will only be eligible pursuant to s 8 of the Act if he has served eight years of effective service. Where a person transfers from the Permanent Forces to the Reserves, combined service in both may count as effective service. See reg 15. However, when a person has ceased to be a member of the Defence Force for more than five years, and then rejoins, prior service cannot be effective service for the purposes of the Act. See s 3.
- Air Commodore Perry, in fact, has not ceased to be a member of the Defence Force at any time since his original engagement in 1966. However, for the purposes of the Act, he was not a member in any service year since the 2000-2001 year, or, perhaps, the 2001-2002 year, because he did not perform effective service in those years. Save for the 2008-2009 year, there was not, in any of those years, an obligation upon him to perform such service, at least as far as the evidence goes. Thus, when I speak of his failure to perform service, I do not imply that he failed in his duty. Such “failure” occurs only for the purposes of the Act. In 2008-2009, he undertook an obligation to perform up to 90 days service, if called upon to do so. However the Act looks to the actual performance of service, not availability. At first blush, it may seem unfair that Air Commodore Perry is to be disadvantaged by a failure to perform service which he was not obliged to perform, or which he was willing to perform, but was not asked to perform. However the point is that the Act uses effective service as a criterion for entitlement to a benefit. Air Commodore Perry was not, at least in connection with service prior to 1 July 2008, such a person. Of course, his full-time service had entitled him to similar benefits under earlier legislation, but that is not to the point.
- As to 2008-2009 he engaged the Act by applying for a certificate and receiving a subsidy. However his ultimate entitlement to both depended upon his performing effective service in that year, and having the requisite period of effective service pursuant to s 8. Because he had ceased to be a member for more than five years, any service prior to his termination was not effective service for the purposes of the Act, and he has not performed effective service in any subsequent year. Hence Air Commodore Perry was not an eligible person at the date of the certificate. It should not have been granted. See ss 16(3)(a) and 17(1)(a). Further, for similar reasons, he did not have a service credit and therefore did not satisfy s 16(2)(b) so that, again, a certificate should not have been granted. Service credits are calculated pursuant to ss 46 and 47. The starting point, for the purposes of s 46, is a relevant person’s accrued subsidy period pursuant to s 47. Various deductions are then made in order to identify the person’s service credit. Pursuant to s 47(1), a serving member’s accrued subsidy period is the number of months of effective service which he or she has completed since becoming an eligible member. Air Commodore Perry has never become an eligible member and has no effective service.
…
- On the basis of my reasoning and the Tribunal’s findings of fact, there can be no basis for any conclusion other than that the certificate ought not to have been granted. My attention has been drawn to no consideration which, in those circumstances, would lead to the view that the authorization should not be revoked. It has not been suggested that the discretion under reg 20 could be exercised so as to provide Air Commodore Perry with eight years of effective service and the ongoing service credit. I should not generally arrogate to myself the decision-making function of the Tribunal. However, in this case, the only possible outcome must recognize that he was simply not entitled to a certificate or to any benefit under the Act.
The Tribunal finds that Mr Amery has not performed ‘effective service’[20] in the Army Reserve in the period from 1 July 2020 to the present, because the evidence unequivocally shows that he has not done the required 20 Reserve days for each of those years. This fact is not contested by Mr Amery, rather he cites exceptional circumstances for his inability to render effective Reserve service.
[20] s 3 and s 5 DHOAS; s 8 DHOAS Regulations
As Mr Amery did not perform ‘effective service’ in the Army Reserve in the period from 1 July 2020, for the purpose of the DHOAS he ‘was not a member of the ADF’[21] and as he had previously applied for a subsidy certificate, he was not entitled to another.
[21] s 5 DHOAS
In Perry, the applicant had not rendered effective service in the Reserves and sought internal review on the basis of ‘special circumstances’ as to the unavailability of tasks from the RAAF to perform Reserve service.
In the present circumstances, Mr Amery has not sought internal review of the Secretary’s decision that he was not required for duty in the relevant period. Accordingly, the decision by the Secretary not to grant an exemption for effective service on exceptional circumstances grounds is not presently before the Tribunal.[22]
[22] s 71 DHOAS; s 22 DHOAS Regulations
This was explained to Mr Amery at the hearing and Mr Davidson helpfully undertook on behalf of the Secretary to provide Mr Amery with contact details of the appropriate delegate for Mr Amery to submit any request for exemption on exceptional circumstances grounds under s 17 of the DHOAS Regulations.
The Tribunal determines that Mr Amery does not satisfy s 17(c) of the DHOAS and therefore Mr Amery is not entitled to a subsidy certificate pursuant to s 16(2)(a) of the DHOAS.
Section 101(b) of the ART Act provides the Tribunal the discretion to dismiss an application if satisfied that the application has ‘no reasonable prospects of success.’
The Tribunal’s decision to dismiss under s 101 of the ART Act is not to be taken lightly, but the authorities cited by the Secretary provide the basis for consideration of summary dismissal where a legal question can be determined on the basis of acceptance of Mr Amery’s contentions, without the requirement to go to a full hearing.
The Tribunal is satisfied, because the evidence is not in dispute in respect of Mr Amery’s ineligibility for a subsidy certificate under s 17(c) of the DHOAS, and the clear statutory interpretation of s 16 of the DHOAS arising from the undisputed facts, is that the refusal to issue a subsidy certificate is not discretionary but rather mandatory.
The Tribunal is satisfied that Mr Amery has no reasonable prospects for success in his present application for review.
The Tribunal dismisses the application under s 101(b) of the ART Act.
DECISION
The Tribunal dismisses the application for review under s 101(b) of the ART Act.
Date(s) of hearing: 2 April 2025 Date final submissions received: 2 April 2025 Representation for the Applicant: Mr Amery, Self-represented litigant Solicitors for the Respondent: Mr Davidson, Australian Government Solicitor
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