Rogers and Repatriation Commission (Veterans' entitlements)

[2020] AATA 3690

Rogers and Repatriation Commission (Veterans' entitlements) [2020] AATA 3690 (21 September 2020)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2020/2536

Re:Moira Rogers

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:The Hon. Dennis Cowdroy AO QC, Deputy President

Date:21 September 2020

Place:Sydney

The decision under review is affirmed.

............................................[sgd].........................................................

The Hon. Dennis Cowdroy AO QC, Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – partner service pension – whether Applicant meets Australian residency requirements set out in s 38H of the Veterans’ Entitlements Act 1986 – decision under review affirmed

LEGISLATION

Acts Interpretation Act 1901, s 15AA

Administrative Appeals Tribunal Act 1975 (Cth), s25
Social Security Act 1991 (Cth) s 23
Social Security (international Agreements) Act 1999

Veterans’ Entitlements Act 1986 (Cth) ss 5E, 5G, 5Q, 36C, 38H

CASES

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ Case) (1920) 28 CLR 129

Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355

REASONS FOR DECISION

The Hon. Dennis Cowdroy AO QC, Deputy President

21 September 2020

1. The Applicant, a New Zealand resident, applied for a Partner Service Pension (“PSP”) on 16 October 2019. Such pensions are made available under the provisions of the Veterans' Entitlements Act 1986 (Cth) (“the Act”), and comprise payments to eligible partners, former partners and widows or widowers of veterans.

2. On 9 April 2020, a delegate of the Repatriation Commission made a determination that the Applicant was not entitled to PSP under the Act. Such decision affirmed an earlier determination made on 28 October 2019. The basis of the rejection of the application was the fact that the Applicant did not satisfy the requirements of section 38H of the Act in relation to her residential status.

3. The Applicant seeks a review of the decision made on 9 April 2020.

   Facts

4. The facts in these proceedings are not in dispute. Accordingly, the Tribunal recites the relevant facts hereunder as are contained in the Respondent’s Statement of Facts, Issues and Contentions:

   4. The applicant was born on 22 February 1959 and is currently 61 years old.

   5. The applicant was born in Scotland but has been a permanent resident in New Zealand since 1972.

   6. The applicant’s husband, Guy Rogers, enlisted in the Royal Australian Navy in 1968. He served on HMAS Sydney from 3 July 1969 to 11 January 1970. He discharged from service in 1983.

   7. Mr Rogers has been resident in New Zealand since 1983.

   8. On 27 July 2017, Mr Rogers requested assistance from the Department of Veterans’ Affairs (‘DVA’) in processing his eligibility for the (Australian) social security age pension and to ‘continue the ongoing administration’, including after his death so that his wife did not have to deal with more than one government department in Australia. [T3]

   9. In an email on 28 July 2017, having applied for the social security age pension, Mr Rogers noted that his wife would not qualify for an age pension in her own right and that it appeared that she was ‘not entitled to any DVA benefit even though I am’. [T4]

   10. Mr Rogers wrote to DVA again on 1 August 2017 at which time he stated that he understood that his wife did not qualify for a partner service pension. However, he asked that it be confirmed that a mandatory requirement for his wife’s eligibility was that she have Australian residency. [T6]

   11. On 30 August 2017, it was determined that Mr Rogers was an eligible veteran and that he had rendered qualifying service. [T7]

   12. On 30 August 2017, DVA notified Mr Rogers of the requirements to be eligible for a service pension. [T8]

   13. Mr Rogers was granted the social security age pension effective as of 22 January 2018, when he turned 65½ years of age. [T9]

   14. On 13 February 2018, Mr Rogers noted that, in discussions with Centrelink International Services, it was confirmed that there was ‘no eligibility for Moira to receive an Australian benefit under the joint Australia/New Zealand agreements’…

   15. On 20 February 2018, Mr Rogers lodged a claim for a service pension. [T11]

   16. On 24 April 2018, Mr Rogers’ claim for a service pension was accepted with effect from 20 February 2018. [T12]

   17. On 25 April 2018, Mr Rogers’ social security age pension was cancelled on the basis that he was receiving a payment from the Department of Veterans’ Affairs (ie the service pension). [T14]

   18. On 7 August 2018, Mr Rogers maintained that his wife was entitled to the partner service pension but that, ‘by virtue of the fact she lives in New Zealand this has not been recognised and accepted by DVA’. [T17]

   19. On 14 August 2018, Mr Rogers requested a copy of his age pension application and also requested that Centrelink investigate the status of his wife’s claim relating to whether she is entitled to receive a carer benefit. [MR1 Appendix 1A]

   …

   21. On 14 September 2018, the applicant’s claim for a carer payment was rejected by Centrelink on the basis that she did not meet the Australian residence rules under the social security agreement between Australia and New Zealand. [T19, pp90 & 91]

   …

   24. On 28 September 2018, Mr and Mrs Rogers sought review of the decision made by Centrelink on 14 September 2018. [MR1]

   …

   26. On 24 October 2018, the decision made on 14 September 2018 to reject the applicant’s claim for a carer payment was found to be correct. The decision was made on the basis that Mr Rogers was not, and had never been, in receipt of a disability support pension and, as such, the applicant could not be qualified for a carer payment under the agreement between Australia and New Zealand as set out in schedule 3, article 2, clause 1(a)(iii) of the Social Security (International Agreements) Act 1999. [T32, pp164-166]

   …

   33. On 16 October 2019, the applicant submitted a claim for a partner service pension under the Act. Attached to the claim were various documents, including documents in relation to her claim for a carer payment under the Social Security Act 1991 (‘SS Act’). [T32]

   34. On 28 October 2019, a delegate of the Commission determined that the applicant was not entitled to receive partner service pension. The delegate considered that the applicant did not satisfy the residency requirements under s38H of the Act. That is, the applicant was not an “Australian resident” (as defined in s5G(1AA of the Act) and the applicant was also not in Australia on the day on which the claim was lodged. [T33]

   35. On 29 October 2019, Mr Rogers wrote to DVA requesting a review of the decision made on 28 October 2019…

   36. On 9 April 2020, a delegate of the Commission affirmed the decision made on 28 October 2019. It was again explained to Mr Rogers why the service pension and partner service pension were not covered under the Social Security (International Agreements) Act 1999, given that they were not specifically listed in that Act. It was noted that Mr Rogers had acknowledged that the applicant was not able to be granted a partner service pension because she was not in receipt of a listed benefit under the social security international agreement legislation. Turning to the request for review, the delegate found that the applicant did not satisfy the residency requirements under s38H(1) of the Act because she did not hold a permanent visa and that the applicant did not satisfy the requirements under s38H(2) of the Act because she was not in receipt of a specified payment. [T36]

   …

   38. On 22 April 2020, the applicant applied to the Tribunal for a review of the decision made on 9 April 2020. [T1]

   Legislation

5. It should be observed that there is no definition of “Partner Service Pension” contained in the Act. Subsection 5E(1) of the Act, contained in Part 1, defines the word “partner” as follows:

   partner, in relation to a person who is a member of a couple, means the other member of the couple.

6. The term “member of a couple” is also defined in section 5E(1) as follows:

   member of a couple has the meaning given by subsections (2), (3), (4) and (4A).

7. Subsections (2), (3), (4) and (4A) of section 5E of the Act refer to persons who are legally married or are in a registered partnership or de facto relationship, subject to certain conditions.

8. Part III, Division 5 of the Act is titled “Partner Service Pension”. Subdivision A contains the requirements for eligibility for and payability of entitlements to PSP under the Act. Significantly, the claimant must be an Australian resident and in Australia when the claim is made.

9. Section 38H of the Act provides as follows:

   Claimant must be Australian resident and in Australia

   (1) Subject to subsection (2), a claim is not a proper claim unless the person making the claim, or

   on whose behalf the claim is being made, is:

   (a) an Australian resident; and

   (b) in Australia;

   on the day on which the claim is lodged.

   (2) Subsection (1) does not apply to a person's claim if:

   (a) the person is outside Australia and is receiving:

   (i) age service pension; or

   (ii) invalidity service pension; or

   (iia) veteran payment; or

   (iii) a social security pension; and

   (b) the person would, if that pension or payment were cancelled, be eligible for partner service pension.

10. The definition of “Australian resident” is contained in section 5G(1AA) of the Act as follows:

    An Australian resident is a person who:

    (a) resides in Australia; and

    (b) is one of the following:

    (i) an Australian citizen;

    (ii) the holder of a permanent visa;

    (iii) the holder of a special category visa who is likely to remain permanently in Australia

    Issues

11. It is common ground that the Applicant is not an Australian resident, as defined by subsection 5G(1AA), and as required by paragraph 38H(1)(a). Further, the Applicant was not in Australia on the day on which the claim was lodged as required by paragraph 38H(1)(b) of the Act.

12. Accordingly, only If the Applicant were able to satisfy the provisions of subsection 38H(2) of the Act could the application succeed.

    Applicant’s contentions

13. The Applicant contends:

    (i)If her husband had qualified for a Disability Support Pension {“DSP”} under the Social Security Act 1991 (Cth) (“the SS Act”), the Applicant would have qualified for a Carer Payment under that Act;

    (ii)That pursuant to subsection 5Q(1) of the Act, “social security pension” has the same meaning as it has in the SS Act. Pursuant to section 23(1) of the SS Act, a social security pension includes a carer payment; and

    (iii)Even though no payments were received, she and her husband had an underlying entitlement to Carer Payment and DSP, respectively. It follows, therefore, that the Applicant satisfied the requirement of subparagraph 38H(2)(a)(iii) of the Act at the time she applied for PSP.

    Observations

14. The Applicant’s claim for a Carer Payment was rejected by Centrelink in a decision dated 14 September 2018. That decision was affirmed on review on 24 October 2018.

15. The review decision states:

    After careful consideration of the evidence, I have made these key findings:

    •          You have claimed Carer Payment under an international agreement.

    •          Your partner is not in receipt of Disability Support Pension.

    •          You are not qualified for Carer Payment.

16. In the Applicant’s written submissions dated 7 August 2020, reference is made to an extract of a letter dated 15 September 2018 issued by Centrelink and addressed to the Applicant’s spouse, Mr Rogers, in response to the Applicant’s claim for a Carer Payment. The quoted extract is as follows:

    Whilst you may be qualified it appears that you are not payable due to the payments you receive from the Department of Veterans Affairs (DVA), specifically your Military Compensation Payment.

17. Such letter also provided three options for consideration by the spouse of the Applicant, one of which was to relinquish Mr Rogers’ DVA compensation entitlement. The letter also stated:

    I have consulted with our International Agreement policy experts and our DVA policy experts and we all agree that there is no entitlement to DSP based on current evidence, and as such, your partner has no entitlement to Carer Payment.

18. The Applicant acknowledges that payments made under military compensation incapacity provisions under the Act preclude her husband from receiving DSP, and therefore preclude her from receiving a Carer Payment as required by subsection 38H(2) of the Act.

    Pension entitlement

19. The Applicant’s spouse, Mr Rogers, is in receipt of a service pension as defined in section 5Q of the Act.

20. Mr Rogers’ claim for an Age Service Pension was granted on 24 April 2018 and took effect from 20 February 2018. Paragraph 36C(1)(b) of the Act provides that an Age Service Pension is not payable to a veteran if the veteran is receiving a social security pension. Accordingly, on 25 April 2018 Mr Rogers’ social security age pension was cancelled because he was now receiving an Age Service Pension. Mr Rogers became a “service pensioner” as defined in section 5Q of the act.

21. Mr Rogers has never been in receipt of DSP: accordingly, it was impossible for the Applicant to have met the requirements for a Career Payment since such payment is dependent upon the partner receiving DSP.

22. It follows that the Applicant was not entitled to a Carer Payment pursuant to the agreement between Australia and New Zealand as set out in schedule 3, article 2, clause 1(a)(iii) of the Social Security (International Agreements) Act 1999 (Cth). The payments recognised By Article 2 under such agreement are confined to Age Pension, DSP, and Carer Payment in respect of a person whose partner is in receipt of DSP.

23. The Applicant is not entitled to a social security pension, or any other pension referred to in section 38H(2)(a). Further, the provisions of subparagraph (2)(b) only apply if one of the pensions or payments referred to in (2)(a) were cancelled. Since the Applicant has no social security pension, the provisions of (2)(b) have no application.

24. The Applicant’s submission that there existed an entitlement for Mr Rogers to receive DSP and therefore that she herself was entitled to PSP, is predicated upon a hypothesis. That is, that because an underlying eligibility to a Carer Pension could have arisen in respect of the Applicant, had her spouse ever been in receipt of DSP, the entitlement to a Carer Payment is vested giving rise to her entitlement to PSP under paragraph 38H(2)(b) of the Act.

25. The text of subsection 38H(2) states, relevantly:

    (2) Subsection (1) does not apply to a person’s claim if:

    (a) the person is outside Australia and is receiving:…

    [Emphasis added]

26. In answer to the Applicant’s submission that, because she was hypothetically entitled to a Carer Payment, she is entitled to rely upon the provisions of subsection 38H(2), regard must be paid to the intention of Parliament as conveyed by the words used in the section. As was stated by the majority in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 (“Project Blue Sky”) at [69]:

    The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways  (NSW) v Agalianos (1955) 92 CLR 390 at 397, Dixon CJ pointed out that “the context, the general purpose and policy of provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

27. As part of this examination, the majority further said at [71]:

    Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth Baume (1905) 2 CLR 405 at 414 Griffith CJ cited R v Berchet (1688) 1 Show KB 106; [89 ER 480] to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent.

28. At [78], the majority referred to the section then in question and said, inter alia:

    However, the duty of the court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

29. The principles expounded above are well-established at common law. The literal approach to interpretation was defined in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ Case) (1920) 28 CLR 129 at 161 – 162 per Higgins J as follows:

    The fundamental rule of interpretation, to which all others are subordinate, is that the statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic.

30. Such principle was followed in Project Blue Sky, referred to above. It is also reflected in section 15AA of the Acts Interpretation Act 1901 (Cth) which provides:

    In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

31. Applying these principles of statutory construction, it can be observed that the text clearly shows that there must be a present entitlement of that person to a social security pension, and that payments are actually being paid to that person. It can be assumed that Parliament intended that the provisions of section 38H were intended to apply where, factually, the Applicant was in receipt of payments, as evidenced by the words in s38H(2)(a): “… Is receiving”.

32. Such interpretation is reinforced by the provisions of section 38H(2)(b). It states:

    the person would, if that pension or payment were cancelled…

    [Emphasis added]

33. The pension or payment referred to can only relate to an existing pension.

34. The statutory construction of section 38H(2) advanced by the Applicant would require an extension of the class of persons who “is receiving” to a wider group of persons who might be eligible for a pension, but in respect of such persons, no determination had been made of eligibility.

35. There is no basis for importing into the clear words of section 38H a hypothesis by including, after the word “receiving”, the concept that eligibility would extend to a person who, whilst not then in receipt of a pension, would have an entitlement to a pension if it were applied for. The plain text of section 38H(2) is unambiguous and requires a present entitlement to, and payments from, a pension.

36. The Tribunal accordingly rejects such submission and finds that the Applicant does not satisfy the requirements of section 38H of the Act, and is therefore not eligible for PSP.

    Subsidiary issue

37. During the course of oral submissions, Mr Rogers, who presented his submissions on behalf of the Applicant, requested that the Tribunal review the decision of Centrelink contained in its letter of 24 October 2018. In such letter, Centrelink Appeals Branch stated the reasons for its decision to reject the Applicant’s claim for Carer Payment as follows:

    The agreement between Australia and New Zealand in regards to your entitlement to Carer Payment is unambiguous. The agreement notes that only a person who has a partner in receipt of Disability Support Pension can be entitled to Carer Payment under the agreement.

    Your partner is not, and has never been, in receipt of Disability Support Pension. As such you cannot be qualified for Carer Payment under the agreement between the two countries.

    This means the decision to reject your claim for Carer Payment was correct.

1. The Tribunal is empowered, by virtue of section 25 of the Administrative Appeals Tribunal Act 1975 (Cth), to review certain decisions. The reviewable decision in this application Is that of the delegate of the Respondent dated 9 April 2020. Since no application has been filed by the Applicant to review any decision of Centrelink, the Tribunal is not empowered to review the decision of 24 October 2018 in this application.

   Conclusion

2. It follows that because the Applicant does not satisfy the statutory requirements under section 38H of the Act, she is not eligible to obtain PSP. Accordingly, the decision under review is affirmed.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO QC, Deputy President

................................[sgd]........................................

Associate

Dated: 21 September 2020

Date(s) of hearing:	7 September 2020
Applicant:	By telephone
Solicitors for the Respondent:	Moray & Agnew Lawyers