Sands and Repatriation Commission (Veterans' entitlements)

Sands and Repatriation Commission (Veterans' entitlements) [2021] AATA 1342 (14 May 2021)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL  )
  )               No: 2020/8139
VETERANS' APPEALS DIVISION  )
Re: Lynne Dorning Sands
Applicant

And: Repatriation Commission
Respondent
CORRIGENDUM

TRIBUNAL:  Member D Mitchell
DATE OF CORRIGENDUM:            17 May 2021
PLACE:           Brisbane

The Tribunal directs the Registrar, pursuant to section 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision as follows:
(1)the date “17 February 2020” as it reads on page 17 at paragraph 41 should read “17 July 2020”.
........................[SGD]....................................
Member D Mitchell

Division:VETERANS' APPEALS DIVISION
File Number:2020/8139
Re:Lynne Dorning Sands
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:14 May 2021
Place:Brisbane

The Tribunal affirms the reviewable decision.
.................[SGD]...................................................
Member D Mitchell
CATCHWORDS
VETERANS’ AFFAIRS – claim for partner service pension – applicant not in Australia on the day application made – residence requirements – proper application – impacts of COVID-19 – decision under review
LEGISLATION
Shipping Registration Act 1981 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
REASONS FOR DECISION
Member D Mitchell
14 May 2021
INTRODUCTION

Ms Lynne Dorning Sands (the Applicant) is seeking review of a reconsideration decision made by the Respondent on 21 September 2020.[1]
[1] Exhibit 1, T Documents, T1, pages 7-17, Application for Review.
The reviewable decision affirmed a decision[2] that the Applicant was not eligible for a partner service pension (PSP) as she had not made a proper application pursuant to section 38H(1)(b) of the Veterans’ Entitlements Act 1986 (Cth) (VE Act) as she was not in Australia on the day on which her claim was lodged.[3]
[2] Exhibit 1, T Documents, T5, pages 64-67, Determination.
[3] Exhibit 1, T Documents, T9, pages 79-84, Reviewable Decision.
BACKGROUND
On 17 July 2020, the Applicant lodged a claim for PSP.[4] At that time the Applicant was 60 years of age.[5]
[4] Exhibit 1, T Documents, T4, pages 28-63, Partner Service Pension Application.
[5] Exhibit 1, T Documents, T4, pages 62-63, Applicant’s Birth Certificate.
The Applicant is an Australian citizen[6] who has been married for over 20 years to her husband, Eric Toyer[7] (Mr Toyer) who is a veteran receiving a disability pension related to his service.[8]
[6]     Exhibit 1, T Documents, T4, page 61, Applicant’s Certificate of Australian Citizenship.
[7]     Exhibit 1, T Documents, T4, page 45, Applicant’s Certificate of Marriage.
[8]     Exhibit 1, T Documents, T4, page 32, Partner Service Pension Application.
In the claim for PSP form, the Applicant provided that she was born in England and after first arriving in Australia in December 1997 had lived in Australia on and off ever since.[9] The Applicant provided that she does not permanently live in Australia, had not moved to or returned to live in Australia in the previous 12 months[10] and that she lives “on an Australian built & registered vessel currently in lockdown in Cebu, Philippines.”[11]
[9]     Exhibit 1, T Documents, T4, page 34, Partner Service Pension Application.
[10]    Exhibit 1, T Documents, T4, page 34, Partner Service Pension Application.
[11]    Exhibit 1, T Documents, T4, page 35 and 43, Partner Service Pension Application.
On 30 July 2020, the Respondent determined that the Applicant was not eligible for PSP on the basis that she did not satisfy the requirements in section 38H(1)(b) of the VE Act as she had not been in Australia on the day on which her claim was lodged.[12]
[12] Exhibit 1, T Documents, T5, pages 64-67, Determination.
On 3 August 2020, the Applicant sought review of that decision,[13] providing the following reasons:[14]
1.    At this time it is not possible for me to travel to Australia due to Covid 19. My original intention was to fly home to Australia in March to visit family and submit my application, however Covid 19 forced the global lockdown, which has been particularly strict here in the Philippines.
2.    Being over 60 Eric & I are both bound by rules here in the Philippines to remain ‘at home’ (home being our AUSTRALIAN registered vessel)
3.    Being over 60 we are not even permitted a domestic flight, never mind an International flight.
4.    I have no quarantine pass that even permits me to enter shops within the local area (barangay) where we are anchored (Dunggoan Barangay, Danao City, Cebu, Philippines). Eric has a quarantine pass which allows him to go to the local market and supermarket but not outside the boundaries of our barangay. Even so, at times he has been challenged at the supermarket as he is over 60, but his response is ‘how am I supposed to eat?’
5.    My husband, Eric Toyer, …, has an accepted service related asbestos linked lung condition that at best will remain stable, at worst could be fatal. Even if I could travel back to Australia at this time, I would be unable to return from Australia due to Covid 19 and global travel restrictions, in the event of him requiring medical attention or needing to relocate the boat due to weather or other issues.
6.    As Australians overseas onboard our only home our situation is precarious in these unprecedented times of Covid 19, as we wait for information regarding which countries are planning to open their borders and what kind of immigration status we will be granted, if any. We all await our fate with trepidation. We are bound by immigration laws, and importation laws if our vessel remains in one location for too long. In addition we are bound by Australia’s laws on importing our vessel and our dogs, both of which do not allow for us to return home and have been exacerbated further due to Covid 19, as we cannot even get our dogs to an AQIS approved country at this time due to border closures. Believe me when I say our dearest wish at this time is to be safely home in Australia with our family, both human & furry!
7.    Finally, in my humble opinion, it is inhumane to expect me to leave Eric alone for an extended period and nor can we return to Australia for the reasons I have explained above & in all previous correspondence, including the support letter which was attached to my application addressed to Sandra Jenkins and Eric’s letters to the Minister in July 2019 & July 2020, which we will be happy to resend if required.
[13]    Exhibit 1, T Documents, T6, pages 68-70, Request for Reconsideration.
[14]    Exhibit 1, T Documents, T6, page 68, Request for Reconsideration.
On 21 September 2020, the Respondent affirmed the determination that the Applicant was not eligible to receive a PSP.[15] The Respondent found that the Applicant was not in Australia on 17 July 2020, being the date she lodged her claim for PSP, and therefore her claim was not a properly made claim as she did not meet the requirements of section 38H(1)(b) of the VE Act.[16]
[15] Exhibit 1, T Documents, T9, pages 79-84, Reviewable Decision.
[16] Exhibit 1, T Documents, T9, page 83, Reviewable Decision.
The decision maker provided that they were mindful of, and empathised with the Applicant’s current circumstances and the impact of COVID-19, however, had no discretion under the VE Act to circumvent the legislative requirements of subsection 38H(1) of the VE Act which required the Applicant to be an Australian resident and present in Australia on the day on which her claim for PSP was lodged.[17]
[17] Exhibit 1, T Documents, T9, page 84, Reviewable Decision.
The Applicant sought review of the matter by this Tribunal by way of an application dated       4 December 2020.[18] In her application the Applicant provided:[19]
We are contesting this decision as we are in unprecedented times due to Covid19 and I am unable to travel back to Australia for the foreseeable future to apply for and claim my Partner Service Pension, as this would involve me leaving my Vietnam Veteran husband overseas onboard our only home (our yacht) in the Philippines. My husband has a service related lung condition and on 70% disability pension which puts him in the high risk bracket. If I had left him at Easter to return to Australia, as per our plan, I could not have returned to assist him in the event of any health or other issue, due to border closures etc.
[18]    Exhibit 1, T Documents, T1, pages 7-17, Application for Review.
[19]    Exhibit 1, T Documents, T1, page 10, Application for Review.
On 6 May 2021, a Hearing was conducted in relation to this matter. At Hearing the Applicant was self-represented, appeared by telephone and gave evidence under affirmation. The Applicant was supported by Mr Toyer who also gave evidence under affirmation.
THE LAW
Part 3 of the VE Act provides for services pensions, with Division 5 of that part making provision for entitlement to be paid a PSP. Subdivision A sets out the eligibility requirements to be granted a PSP and Subdivision B sets out the claim requirements.
Relevantly Subdivision A, of Division 5 of Part 3 of the VE Act provides:
38 Eligibility for partner service pension
(1) Subject to this section, a person is eligible for a partner service pension if the person:
(a) is a person:
(i) who is a member of a couple; and
(ii) whose partner is a veteran who is receiving an age service pension or invalidity service pension, or who would be receiving such a pension if not for the operation of one or more disqualifying provisions; or
………
(1B) Subject to subsections (1C) and (1D), a person is not eligible for a partner service pension under subsection (1) unless the person:
……..
(c) has reached qualifying age.
Note For qualifying age see section 5Q.
In this matter the Applicant reached qualifying age upon turning 60.
Relevantly Subdivision B, of Division 5 of Part 3 of the VE Act provides:
38D Need for a claim
A person who wants to be granted a partner service pension must make a proper claim for that pension.
38E Who can claim?
(1) Subject to subsection (2), the claim must be made by:
(a) the person who wants to be granted the partner service pension; or
(b) with the approval of the person—another person on his or her behalf.
(2) If the person is unable, because of physical or mental incapacity, to approve another person to make the claim on his or her behalf, the Commission may approve another person to make the claim.
38F Making a claim
(1) To be a proper claim, the claim must be:
(a) made in writing; and
(b) in accordance with a form approved by the Commission; and
(c) accompanied by any evidence available to the claimant that the claimant considers may be relevant to the claim; and
(d) lodged at an office of the Department in Australia in accordance with section 5T.
(1A) A claim lodged in accordance with section 5T is taken to have been made on a day determined under that section.
(2) The approved form may require the claimant to disclose whether the claimant is registered as a member of:
(a) the pension bonus scheme (see Part IIIAB); or
(b) the corresponding scheme under Part 2.2A of the Social Security Act.
38H 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.
Note: For Australian resident see section 5G.
(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.
Note 1: If the person ceases to be an Australian resident after having made a proper claim and after having met all the eligibility requirements (section 38), the person’s eligibility for partner service pension is not affected.
Note 2: For social security pension see subsection 5Q(1).
Relevantly, section 5G of the VE Act defines Australian resident as follows:
(1AA) An Australian resident is a person who:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
……..
(1A) In deciding for the purposes of this Act whether or not a person resides in Australia, regard must be had to:
(a) the nature of the accommodation used by the person in Australia; and
(b) the nature and extent of the family relationships the person has in Australia; and
(c) the nature and extent of the person’s employment, business or financial ties with Australia; and
(ca) the nature and extent of the person’s assets located in Australia; and
(cb) the frequency and duration of the person’s travel outside Australia; and
(d) any other matter relevant to determining whether the person intends to remain permanently in Australia.
Section 58M of the VE Act provides for portability if a claim is based on short-term residence and provides:
58M No portability if claim based on short‑term residence
(1) If:
(a) a person is an Australian resident; and
(b) the person ceases to be an Australian resident; and
(c) the person again becomes an Australian resident; and
(d) the person makes a claim for:
(i) an age service pension; or
(ii) an invalidity service pension; or
(iii) a partner service pension; or
(iv) income support supplement; and
(e) the claim is made within the period of 12 months after the person again became an Australian resident; and
(f) the person leaves Australia before the end of that period of 12 months; and
(g) there is no determination in respect of the person under subsection (2);
a pension granted on the basis of that claim is not payable to the person while the person is outside Australia.
……..
ISSUES
The issue to be determined by the Tribunal is whether the Applicant is entitled to a PSP under the VE Act. In order to proceed to consider whether the Applicant meets the entitlement to PSP requirements the Tribunal must first determine whether the Applicant made a proper claim for PSP in accordance with section 38H(1) of the VE Act.
APPLICANT’S EVIDENCE AND CONTENTIONS
Throughout the Tribunal process the Applicant provided a number of written submissions by email which provide attachments ranging from correspondence herself and Mr Toyer have written to their local Member and the Minister of Veterans’ Affairs and responses received,[20] a medical report[21] and a letter from Mr Toyer[22] all in relation to the Applicant’s claim for PSP.
[20]    Exhibit 2, Tribunal Book, TB2, Applicant’s Submissions dated 8 March 2021, with attachments, pages      9-24; TB3, Applicant’s Submissions dated 22 March 2021, with attachments, pages 25-32; TB4,           Applicant’s Submissions dated 13 April 2021, with attachments, pages 33-40; TB5, Applicant’s Submissions dated 25 April 2021, pages 41-50.
[21]    Exhibit 2, Tribunal Book, TB3, Medical Report of Dr Scurrah dated 13 January 2021, pages 28-32.
[22]    Exhibit 2, Tribunal Book, TB4, Statement of Mr Toyer dated 12 April 2021, pages 37-39.
The outcome of the correspondence between the Applicant, Mr Toyer and relevant members of parliament was advice that there are no provisions that allow for the residency requirements under the VE Act to be waived and the Minister for Veterans’ Affairs does not have the power or discretion to intervene in individual cases.[23]
[23] Exhibit 2, Tribunal Book, TB2, Letter from the Minister of Veterans’ Affairs dated 17 December 2020, pages 21-24.
The Applicant acknowledges the requirements of the VE Act, however, to sum up her contentions quite simply, she contended that the reason she was not present in Australia at the time of making her claim for PSP and for the 12 months thereafter is due to the COVID-19 situation. As the sole carer of her husband she considers that to leave him alone without any support or care during the pandemic, knowing that she could not return to him in the event of any medical or other emergency would have been morally wrong.[24] The Applicant is seeking that her claim for PSP be considered on compassionate grounds, given the unprecedented times caused by the COVID-19 pandemic.
[24] Exhibit 2, Tribunal Book, TB4, Applicant’s Submissions dated 13 April 2021, page 34.
In relation to matters raised in the Respondent’s Statement of Facts, Issues and Contentions in relation to Australian residency considerations, the Applicant provided:[25]
·While they are physically outside of Australia most of the time, they are living on an Australian registered vessel (a piece of Australia) and are travelling in different countries on tourist visas and they have not had residency in any country, other than Australia, since closing their business in Tanzania in 2006. They are simply tourists, stuck overseas during an unprecedented pandemic.
·She would have been in Australia at the time of lodging her claim for PSP and would have remained there for the year if it had not been for the pandemic, lockdown and country border closures.
·They have no employment or business ties in Australia as they are retired.
·They want nothing more than to be physically at home in Australia with their family. It is their home and they miss their family more than they can bear, however like others they are stuck overseas and have no choice but to deal with it.
·They are seeking compassionate consideration in light of the unprecedented pandemic.
[25] Exhibit 2, Tribunal Book, TB4, Applicant’s Submissions dated 13 April 2021, pages 35-36.
The Applicant provided a letter from Mr Toyer dated 12 April 2021 in support of her application.[26] Mr Toyer provided an overview of what has led to this point and submitted that had COVID-19 not happened his wife would have completed her “time” by now and would have been allocated her PSP.[27]
[26] Exhibit 2, Tribunal Book, TB4, Statement of Mr Toyer dated 12 April 2021, pages 37-39.
[27] Exhibit 2, Tribunal Book, TB4, Statement of Mr Toyer dated 12 April 2021, page 37.
Mr Toyer submitted that Force Majeure could be applied to allow the Applicant to be granted PSP. It was submitted that Force Majeure:[28]
“Is a common clause in contracts which essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as war, strike, riot, crime, epidemic, pandemic, sudden legal changes, or an event described by the legal term “act of god” prevents one or both parties from fulfilling their obligations under the contract. In practice, most Force Majeure clauses do not excuse a party’s non-performance entirely, but only suspend it for the duration of Force Majeure.”
The Covid 19 situation clearly satisfies the parameters of “Force Majeure”. “A situation generated by circumstances beyond control of either or both parties”
[28] Exhibit 2, Tribunal Book, TB4, Statement of Mr Toyer dated 12 April 2021, page 38.
Mr Toyer provided examples of where Force Majeure applied in shipping contract situations and acknowledged that to claim Force Majeure requires the recognition of a contractual arrangement between the parties, that being himself and DVA/Repatriation Commission and that any such contractual arrangement is recognised by the parties involved. He submitted such a relationship existed by means of him having an accepted condition caused by his service which was accepted by the Respondent and that the resulting disability payment determines that there is a contractual relationship between him and the Respondent. As such he seeks to claim Force Majeure against the Respondent due to the COVID-19 pandemic in relation to the residency requirements that apply to the Applicant in her application for PSP.[29]
[29] Exhibit 2, Tribunal Book, TB4, Statement of Mr Toyer dated 12 April 2021, pages 38-39.

The Applicant provided an email submission on 25 April 2021, which included an email trail to the Australian Embassy and Australian Passport Office.[30] There were links to news articles referred to in this email trail and again in a further email submission made by the Applicant on 29 April 2021.[31] The Applicant sums up her position as follows:[32]
We understand the complexity of our situation and that this AAT case is not even about addressing the fact that there is nothing more that we would like than to return home to Australia & family with our boat & dogs, but it is to address the complete lack of compassion, humanity, morality connected to making a concession (Force Majeure?) IN LIGHT OF THE PANDEMIC to the residency requirements regarding the DVA Spouse pension. We are not asking for the rules to be changed during normal circumstances, but these are NOT normal circumstances and I have explained that I was absolutely committed to return to Australia last March to satisfy the residency requirements and would LOVE to be there now with our family in Australia AND my husband and dogs.
If concessions can be made for Matt Damon, Ed Sheeran, Julia Roberts, Natalie Portman, Dev Patel and tennis players who in January arrived for the Australian Open, along with their vast entourages, then what is the difference between them and us?
[30]    Exhibit 2, Tribunal Book, TB5, Applicant’s Submission dated 25 April 2021, pages 41-49.
[31]    Exhibit 2, Tribunal Book, TB6, Applicant’s Submission dated 29 April 2021, pages 50-55.
[32]    Exhibit 2, Tribunal Book, TB6, Applicant’s Submission dated 29 April 2021, page 53.
At Hearing the Applicant and Mr Toyer both made submissions which were consistent with the written material they had provided to the Tribunal. The Applicant had prepared her oral submission, of which in the Tribunal’s view she delivered with eloquence, passion, and conviction. In addition to the matters set out above that were provided prior to the Hearing the Applicant and Mr Toyer also drew to the Tribunal’s attention that:
·The Applicant has been unrepresented throughout this matter and has followed all instructions provided to her by the Department of Veterans’ Affairs (DVA) in relation to making a claim for PSP and subsequently seeking review of the decisions made in relation to that claim.
·Every decision the Applicant and Mr Toyer have made have been considered and taken into account the health and care needs of Mr Toyer and the ability for their dogs to return to Australia. The Applicant could not leave Mr Toyer as he needs her assistance.
·Had it not been for COVID-19 the Applicant would have returned to Australian in March 2020 and by now would have met the residency requirements to be granted the PSP.
·The Applicant did not return to Australia in March 2020 due to the COVID-19 lockdowns and because she is the sole carer of her husband who having been diagnosed with a service related lung condition and consequently with an adjustment disorder, and is considered a high risk and vulnerable person in relation to contracting COVID-19. If the Applicant had of returned to Australia and if Mr Toyer had of needed her to return to assist him due to his declining health she would have been unable to do so as she is not a resident of the Philippines. He would have been stuck on the yacht by himself.
·The medical report of Dr Scurrah confirms that Mr Toyer needs the assistance and care provide to him by the Applicant.
·The Applicant and Mr Toyer are not residents of the Philippines, they are tourists. It is now difficult to obtain boat and health insurance.
·The Applicant and Mr Toyer have since 2016 been trying to sell their yacht so that they could return full time to Australia. They have two dogs and the costs and avenues available to bring them back to Australia with them have been prohibitive.
·The Applicant and Mr Toyer have sought advice from the ATO, customs and AQIS in relation to customs and import duties and arrangements for their dogs on numerous occasions from at least 2016, however have been provided with no clear direction. They are aware of a number of different circumstances where different boats have returned to Australia, even sometimes to the same ports and have incurred different duties and have been required to comply with different guarantee requirements. There had been a 12 month exemption from excise at one time in relation to vessels returning to Australia, however they were unable to get a clear answer or assurance that they would be granted an exemption.
·The Applicant feels that she has been ignored as Mr Toyer’s wife through his DVA process. Mr Toyer is worried about what will happen to the Applicant should he pass away. He is concerned that she would be given no support at all. The Applicant has been told that if Mr Toyer passes away that unless his death was service related she would not receive assistance.
·The Applicant is of the view that if a case by case approach can be taken by the Government in relation to the ‘rich and famous’ and concessions be made then why is DVA unable to make a decision on a case by case basis in relation to her PSP claim given the exceptional circumstances.
·The Applicant does not concede that she was at the time of making her claim for PSP or now not an Australian resident. The Applicant contends that their yacht, as an Australian registered vessel is of itself a piece of Australia. The Applicant drew a comparison to a diplomat working in an overseas embassy is still seen to be working on Australian soil within the embassy.
·The Applicant leaves the yacht for at most an hour each day, some days not at all. She takes COVID-19 safe precautions at all times as she is aware and frightened of the impact that contracting COVID-19 would have on Mr Toyer.
·The Applicant feels that DVA are ignoring the risks to her husband of him not being able to return to Australia and of him requiring her assistance which she says constitutes criminal negligence.
·The Applicant and Mr Toyer have not seen their family for over two years. They are their greatest assets and biggest ties to Australia.
RESPONDENT’S CONTENTIONS
At Hearing the Respondent sought to rely on the submissions outlined in the Statement of Facts, Issues and Contentions dated 7 April 2021.[33] Relevantly, the Respondent contended:[34]
[33]    Exhibit 2, Tribunal Book, TB1, Respondent’s Statement of Facts, Issues and Contentions dated 7 April 2021,       pages 1-8.
[34]    Exhibit 2, Tribunal Book, TB1, Respondent’s Statement of Facts, Issues and Contentions dated 7 April 2021,       pages 5-7, paragraph 16, 22-29.
16.      The Commission contends that the applicant has not made a proper claim under the Act, as required under s38H(1) of the Act, and therefore she is not eligible to be granted a PSP under the Act.
…….
22.      The applicant concedes that she does not currently reside in Australia. The Commission submits that she is therefore not an “Australian resident” within the meaning s5G(1AA) of the Act. However, for the sake of certainty, the Commission contends that she does not meet the requirement within s38H(1)(a) of the Act, the basis that she is not an “Australian resident” (and that she was not an “Australian resident” at the time she lodged her claim for PSP). That is on the basis that, although she is an Australian citizen, she is not a person who “resides in Australia” as required by s5G(1AAA)(a) and having regard to the matters raised in s5G(1A) of the Act. Having regard to those matters:
(a)The applicant does not have a permanent place of abode in Australia. She and her husband have lived permanently on their boat overseas.
(b)Although they have returned ‘on a regular basis to visit family when possible given geographical, visa and weather constraints’, the applicant and her husband have lived permanently outside Australia since May 2002.
(c)The applicant was not living in Australia permanently, and she had not been in Australia for at least 12 months, when the claim for a PSP was made.
(d)The applicant and her husband have no employment or business ties in Australia and very limited financial ties in that they have several Australian bank accounts and a SMSF from which they derive income.
(e)Their only asset in Australia is a motor vehicle worth approximately $1,000.
(f)No other matters are obviously relevant to determining whether the applicant intends to remain permanently in Australia. It may be that the applicant intends to return to Australia permanently at some stage in the future. That simply supports the conclusion that the applicant does not reside in Australia.
23.      The applicant concedes that she was not in Australia on the day on which the claim for a PSP was made. As such, the Commission further contends that the requirements of s38H(1)(b) of the Act are also not met.
24.      Subsection 38H(1) is subject to s38H(2), which provides that s38H(1) does not apply if the person is outside Australia and is receiving a listed pension and the person would, if that pension were cancelled, be eligible for PSP. In other words, the requirements set out in s38H(1) are not applicable if the applicant is able to satisfy the criteria in s38H(2) of the Act. However, the applicant does not contend that s38H(2) applies and there is no evidence that she satisfies the requirements of s38H(2) of the Act in any event.
25.      As the applicant is not an “Australian resident” and was not in Australia on the day on which the claim was lodged, a proper claim has not been made as required under s38H(1) of the Act.
26.      The circumstances described in s58M do not apply to the applicant, as she is not an Australian resident. Section 58M(1) relevantly applies to a person who has made a claim for a PSP having again become an Australian resident, after having ceased to be an Australian resident.
27.      There are no other provisions in the Act, and no other legislative provisions, that may be applied to circumvent the requirements of sections 38D, 38H and 58M of the Act.
28.      The doctrine of frustration or force majeure is not applicable to the circumstances of the applicant’s case. This is because it is applies to obligations owed under the laws of contract only and it does not extend to rights or obligations that arise under statutory provisions, including those referred to above in relation to this Act.
29.      Accordingly, as the applicant has not made a proper claim, she is not eligible to be granted a PSP under the Act.
CONSIDERATION
In looking at this matter the Tribunal appreciates the concerns raised by the Applicant in relation to the impact that COVID-19 and the resulting movement restrictions have had and continue to have upon both her and her husband’s health and ability to return to Australia. The Tribunal acknowledges and accepts the Applicant’s evidence and position as to why she is presently and has been for more than 12 months now residing on their yacht in the Philippines.
The Applicant’s frustration, desperation and fright in relation to the current limitation on her and Mr Toyer’s ability to travel anywhere and especially to return to the Australia was evident and in the Tribunal’s view in no way unreasonable in these unprecedented times. The Applicant’s love for and dedication to her husband are commendable.
The Applicant’s frustrations in relation to different situations that have arisen during the past 12 months within Australia and those of which were referred to the Tribunal that appeared within the press are not matters that can be commented upon by the Tribunal. The role of the Tribunal is limited to standing in the shoes of the original decision maker and making the correct and preferrable decision at law based on the information before it.
The requirements to be eligible for PSP are clearly set out in the VE Act. The first step requires that a proper claim is made. For a proper claim to be made the person must be an Australian resident and be present in Australia on the day on which the claim is lodged.
The evidence before the Tribunal is clear and undisputed. On 17 July 2020, the day the Applicant lodged her claim for PSP she was not present in Australia. On this basis alone, in the absence of a discretion allowing otherwise, her application for PSP was not properly made.
The Respondent made contentions in relation to the Applicant’s residency status and this point was addressed in detail at Hearing, however the Tribunal considers it is not necessary to deal with this issue. Regardless of any findings in relation to the Applicant’s residency status, her application would still fail on the basis that she was not present in Australia on 17 July 2020, unless an exemption or discretion provided otherwise.
The Applicant raised the application of the Force Majeure doctrine and sought its application to her claim for PSP. Mr Toyer correctly identified that this principle applies to contracts. It should also be pointed out that ordinarily such a clause is only added to contracts with the agreement of the parties.
While there is some logic sitting behind how Mr Toyer felt such a contract could be said to exist between himself and DVA/Respondent, at law the relationship between Mr Toyer and DVA/Respondent is not a contractual one. The VE Act and other related legislation provides a framework for the Australian Government to provide support to past and present serving members of the Australian Defence Forces and their families. Entitlement to benefits only arise where legislative requirements are met, this then creates an obligation for those benefits to be paid. There is no scope for a veteran to change the terms of any such entitlement or the qualification requirements, the scheme is one that is a creature of statute not of contract.
The Applicant contended that their yacht is an Australian registered vessel, was built in Australia and is therefore a piece of Australia. The Tribunal understands that by being an Australian registered vessel pursuant to the Shipping Registration Act 1981 (Cth) on the Australian general shipping register means that vessel has Australian nationality and the vessel is then afforded Australian protection on the high seas and in foreign ports.[35] This does not in any way mean that the vessel becomes a floating part of Australia, as such the Tribunal does not accept the Applicant’s contention that by living on their Australian registered vessel she continues to reside in Australia.
[35] Australian Government: Australian Maritime Safety Authority (Web Page, May 2021), <
The Applicant raised that a case by case assessment should apply and not be restricted because of the law. While the Applicant is right on every occasion a case by case assessment should apply, that assessment can only occur in accordance with the law in place. To do otherwise would be to step outside of the power of the relevant decision maker. The laws are put in place by statute made by Parliament, it is then the role of administering agencies like DVA to give effect to those laws regardless of whether they agree with them. The Tribunal is likewise constrained to acting within the law that is in place.
The Applicant has requested that a compassionate view be taken to her claim for PSP given the unprecedented situation caused by COVID-19 and the need for care and support to be provided by her to her husband.
The Tribunal agrees that the COVID-19 pandemic has created a raft of exceptional circumstances and has and continues to have impacts upon all aspects of life. While the Tribunal empathises with the Applicant’s situation, there have been no COVID-19 related amendments to the VE Act in relation to the PSP requirements and there is no discretion within the VE Act for the Tribunal to make any finding outside of that which results from the application of Division 5 of Part 3 of the VE Act in this case. Further the Tribunal has been unable to identify any other discretion that could be applied in the Applicant’s circumstances.
If the Tribunal was to make a decision that did not accord with the VE Act it would be acting outside of its power in doing so. Consequently, the Tribunal finds that as the Applicant was not present in Australia on 17 February 2020, the day on which she lodged her claim for PSP, by virtue of section 38H(1) of the VE Act, that claim was not a proper claim. Therefore, the Applicant was not entitled to be granted the PSP.
DECISION
The Tribunal affirms the reviewable decision on the basis that the Applicant did not make a proper claim for the partner service pension as she was not present in Australia on the day that her claim was lodged.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

............[SGD].................................................
Associate
Dated: 14 May 2021

Date of Hearing: 6 May 2021

Applicant: By phone

Solicitors for the Respondent:
Mr Brendan O’Brien

Moray & Agnew Lawyers

[2021] AATA 1342

14 May 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness

Standing

Natural Justice

Date of Hearing:	6 May 2021
Applicant:	By phone
Solicitors for the Respondent:	Mr Brendan O’Brien
Moray & Agnew Lawyers