Au and Repatriation Commission (Veterans' entitlements)

The Administrative Appeals Tribunal (AAT) considered a dispute between Mr. Xuong Au, representing himself and his wife Ms. Mai Le (the Applicants), and the Repatriation Commission concerning the calculation of their service pensions. The Applicants contended that their entitlements had been incorrectly calculated and that their assets were overstated, leading to an incorrect pension rate. They also sought clarification on why the Department of Veterans' Affairs (DVA) calculation differed from their own using an online calculator.

The primary legal issues before the Tribunal were whether it possessed jurisdiction to review decisions regarding the recovery of overpayments under section 205 of the *Veterans’ Entitlements Act 1986* (Cth), and whether the correct method had been applied in reducing the Applicants' service pension rate. The Tribunal was required to determine the appropriate test for calculating pension entitlements and the validity of the DVA's assessment.

The Tribunal reasoned that it did not have the power to review the determination concerning the recovery of overpayment under section 205 of the Act. Regarding the calculation of the service pension rate, the Tribunal found that the Applicants were confused about the applicable tests, which are either an income test or an assets test, and that it is not permissible to combine elements of both. The legislation mandates strict adherence to one of these tests, with the one resulting in a lower payment rate being applied. The documentary evidence did not support the Applicants' claim that their assets were overstated.

Consequently, the Tribunal affirmed the Repatriation Commission's determination dated 10 December 2018, which related to the appropriate rate of the Applicants' service pensions from 31 October 2013 to 16 July 2018. The Tribunal reiterated that any application for assessment under the assets test due to changed circumstances would be a matter for the Applicants to pursue separately, not within the scope of the current Tribunal review.