Trung Tran and Repatriation Commission

[2010] AATA 520

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 520

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0188

VETERANS' APPEALS  DIVISION		)
Re		Trung Tran

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal M D Allen, Senior Member

Date30 June 2010

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review.

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

M D Allen,
  Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Claim for service pension rejected.   Applicant recognised as Allied Veteran, Australian citizen, and permanently incapacitated for work.  Not entitled to invalidity pension as had turned 65 prior to date of claim.  Not entitled to age service pension as not Australian resident for continuous period of at least ten years. Decision under review affirmed.

LEGISLATION

Veterans Entitlements Act 1986 Section 37.

REASONS FOR DECISION

12 July 2010 M D Allen, Senior Member            

1. At the conclusion of this hearing of the above matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and Respondent of a copy of the decision that was in fact made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish to them a statement in writing of the reasons of the Tribunal for the decision,

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3.      The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.

I certify that this and the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:  .........................[sgd]..........................................

K. Lynch, Associate

Date of Hearing  30 June 2010
Date of Decision  30 June 2010
Date of Written Reasons  12 July 2010
Representative for the Applicant           Mr T Tran (self)

Representative for the Respondent      Mr K Rudge,

Department of Veterans’ Affairs

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR ALLEN:    By application made 15 January 2010, the Applicant seeks review of a decision made 5 January 2010 affirming a prior determination rejecting his claim for a service pension. 

The Applicant was born on the 5 April 1942 in Vietnam.  During the Vietnam War, he served in the Army of the Republic of South Vietnam.  As such he is an Allied Veteran and that status has been recognised by the Respondent in a determination dated 21 February 2008.  I would also mention that he was granted Australian citizenship on the 1 November 2007. 

On 18 March 2009, the Applicant lodged a claim for a service pension on the basis of invalidity. The grounds for the grant of an invalidity service pension are set out in subsection 37(1) of the Veterans’ Entitlements Act 1986, (“VEA”) which states inter alia:

“A person is qualified for an invalidity service pension if the person is permanently incapacitated for work.”

Whereas there seems little doubt that the Applicant is permanently incapacitated for work, section 37E of the VEA states:

“A veteran may not claim invalidity service pension if he has turned 65.”

As Mr Tran was born in 1942, he would have turned 65 in 2007. That is to say prior to making a claim for invalidity service pension. He may have been able to claim an age service pension, however, subsection 36(2) of the VEA states inter alia:

“A person who is a veteran by reason only of being an allied veteran must have been an Australian resident for a continuous period of 10 years.”

It appears from the material before me that Mr Tran arrived in Australia in 2005.  That being so, he has not been resident in Australia for a continuous period of at least 10 years.  Consequently, he is not entitled to an age service pension.  The inevitable result, therefore, is that the decision under review must be AFFIRMED.

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