Sands and Repatriation Commission (Veterans' entitlements)

The Administrative Appeals Tribunal considered the case of an applicant seeking a partner service pension (PSP) and the Repatriation Commission. The applicant had lodged a claim for the PSP while residing on an Australian-registered vessel in the Philippines during the COVID-19 pandemic. The Commission had determined that the applicant was ineligible for the pension because she had not made a proper application, specifically failing to meet the requirement of being in Australia on the day her claim was lodged.

The central legal issue before the Tribunal was whether the applicant had made a proper claim for a PSP under section 38H(1) of the *Veterans’ Entitlements Act 1986* (Cth). This required determining if the applicant satisfied the residency and presence requirements stipulated in the Act at the time of lodging her claim, particularly in light of her circumstances due to the global COVID-19 pandemic.

The Tribunal reasoned that section 38H(1) of the VE Act mandates that a claimant must be in Australia on the day their claim is lodged to be considered a proper application. The applicant conceded she was not in Australia on 17 July 2020, the date she submitted her claim. While the applicant argued that her inability to travel to Australia was due to COVID-19 restrictions and that her situation warranted compassionate consideration, the Tribunal found that the Act did not provide for exceptions or waivers of these residency requirements based on such circumstances. The Tribunal concluded that the doctrine of frustration or force majeure was not applicable to statutory entitlements.

Consequently, the Tribunal affirmed the reviewable decision. It held that as the applicant was not present in Australia on the day she lodged her claim for the PSP, her claim was not a proper claim under section 38H(1) of the VE Act, and therefore she was not entitled to the pension.