THE OANH NGUYEN and REPATRIATION COMMISSION

[2009] AATA 784

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 784

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5481

VETERANS' APPEALS  DIVISION		)
Re		THE OANH NGUYEN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal MS N BELL, Senior Member
MS J TOOHEY, Senior Member

Date13 October 2009  

PlaceSydney

Decision The Tribunal affirms the decision under review

...................SGD..........................

Ms N Bell, Presiding Member

CATCHWORDS

VETERANS’ APPEALS – Entitlement - Invalidity Service Pension - Age Service Pension - whether veteran qualified by age -  residency requirement - whether qualifying service rendered – decision under review is affirmed.

Veterans’ Entitlements Act 1986 (Cth)

REASONS FOR DECISION

13 October 2009 MS N BELL, Senior Member
MS J TOOHEY, Senior Member  

1.      Mr The Oanh Nguyen, born on 25 December 1942, served in the Armed Forces of the Republic of Vietnam from May 1969 to April 1975.  There is no dispute that Mr Nguyen is an allied veteran within the meaning of section 5C (1) of the Veterans Entitlements Act 1986 (“the Act”).

2.      Mr Nugyen came to Australia with his wife on 17 December 2006 on a "contributory parent" visa. 

3.      On 10 May 2007, Mr Nguyen lodged with the Repatriation Commission an application to determine qualifying service.

4.      On 12 November 2007, the Commission notified him that he has qualifying service.  On 19 March 2008 he lodged a claim for invalidity service pension.  That claim was refused, internally reviewed and finally the original decision was affirmed.  Mr Nguyen seeks a review of that decision.

5.      The qualification requirements for both the invalidity service pension and the age service pension include 10 years residence in Australia.  There is no dispute that Mr Nguyen does not have that period of residence in Australia.  Nor is there any dispute that he is not and was not a refugee.  Being a refugee would exempt him from this residence requirement.

6.      In relation to the invalidity service pension, the residence requirement is also not applicable if Mr Nguyen became permanently incapacitated for work while an Australian resident, that is, after 17 December 2006.  However, section 37E (1) of the Act provides that a person may not lodge a claim for an invalidity service pension if the person has reached the age of 65 years.  

7.      While Mr Nguyen lodged his application to determine qualifying service on   10 May 2007 when he was 64 years old, it was not until 19 March 2008, when he was 65, that he lodged his claim for a service pension.  Mr Nugyen submitted that, in effect, his application to determine qualifying service was the first step in his claim for a service pension and therefore his date of claim should be taken to be 10 May 2007 when he was 64.

8.      Therefore the issues in this application are:

i)can Mr Nguyen’s application to determine qualifying service be taken as a claim for service pension?

ii)if so, did Mr Nugyen become permanently incapacitated for work when he was an Australian resident?

can Mr Nguyen’s application to determine qualifying service be taken as a claim for service pension?

9.      The Act provides that people who wish to establish qualifying service must make a claim, in the proper form, for a determination that such service has been rendered (section 35B (1)).  Similarly, those who wish to claim age service pension and invalidity service pension must also make a claim in the proper form (sections: 36D and 37D respectively).

10.     Section 20(2) of the Act provides for a determination of a claim for pension to take effect three months prior to the date when a person makes a claim in writing. That is so even if the claim is not in the proper form, as long as a claim is made in the proper form within three months after the date of the claim made in an improper form.

11.     It is difficult to construe Mr Nguyen’s application for a determination of qualifying service as a claim, in proper form or not, for a service pension.  Indeed, in prominent type on the cover page of the application appear the words “This form is NOT a claim for service pension.  A veteran or mariner should complete Form D0503 (Claim for Service Pension by a Veteran or Mariner) if they wish to claim a service pension”.  Even if Mr Nguyen’s application to determine qualifying service could be construed as a claim for pension, his proper form claim for pension was made some ten months later – considerably later than the three months allowed by section 20(2) of the Act.

12.     We consider there is no basis on which to regard Mr Nguyen’s application for a determination of qualifying service as a claim for pension and no basis on which to deem his claim for service pension to have been made prior to his 65^th birthday.

13.     Given the prohibition in section 37E of the Act on claiming an invalidity service pension after reaching the age of 65, there is no basis on which Mr Nguyen can be paid an invalidity service pension, regardless of when he may have become permanently incapacitated for work.  It is therefore unnecessary for us to consider the issue of date of incapacity. Mr Nguyen is not eligible to receive invalidity service pension

14.     Given that Mr Nguyen has less than the required 10 years’ residence, nor is he eligible to receive the age service pension.

decision

15.     The decision under review is affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Snr Member Bell and Snr Member Toohey.

Signed:         ..................................SGD...................................................
  Associate: Felicia Daniele

Date/s of Hearing  21 August 2009
Date of Decision   13 October 2009
Solicitor for the Applicant           Self-represented
Counsel for the Respondent     Mr G Purcell
Solicitor for the Respondent      Department of Veterans’ Affairs