1. The Applicant submitted at the Hearing that after separating from the Australian Defence Force when the initial subsidy certificate was granted, he has experienced a difficult and challenging time due to a number of factors including suffering a marital breakdown, medical issues relating to his service that have eventuated in him being deemed totally and permanently incapacitated, having primary care responsibilities for four young children (three with special needs) and struggling to obtain permanent employment resulting in significant financial hardship. He contended that it was particularly this last factor that precluded him from being able to use the subsidy certificate while it remained valid because he could not gain approval for a home loan to apply the subsidy certificate to.
2. On questioning specifically about the extension of time application and the delay in lodging his substantive application, the Applicant explained that since receiving notification of the determination, he had undertaken house renovations in February 2025 before moving house in mid-March 2025 (the second move in 12 months) while simultaneously caring for his young children and managing a high stress work environment with ongoing serious neck and back issues.
3. During the Hearing, he earnestly stated that while he was aware of the timeframe for an appeal to the Tribunal, he did not appreciate the significance of it with all of the other matters going on in his life at that time requiring his immediate attention. He respectfully and apologetically sought the Tribunal's empathy and understanding of his circumstances and allow an extension until 7 April 2025.
4. The Respondent confirmed that, on provision of the additional detail provided by the Applicant as to his family circumstances, it accepted his explanation for the delay in lodging the substantive application as being reasonable, resiling from its earlier position in relation to the first ground of objection. The Respondent further acknowledged that there was no obvious prejudice to it in granting the extension of time given the delay between the agreed extended date of 28 February 2025 to 7 April 2025 was not substantial.[13]
5. The Respondent submitted, however, that irrespective of its acceptance of these factors and even if the extension of time application were by consent, the issue remained that where there are no reasonable prospects of success in the substantive proceeding, the Tribunal has little choice but to refuse the extension of time, consistent with its objectives under section 9 of the ART Act to finalise matters as quickly, informally and economically as proper determination of the matter permits.
6. Given the strictness of the operation of the DHOAS Act with no allowance for any discretion in the issuing of more than one subsidy certificate, the Respondent maintained that there were no reasonable prospects of success in the substantive proceeding having regard to the decisions of Moore and Secretary, Department of Defence;[14] and Amery and Secretary, Department of Defence[15] on this precise legal issue, where the Tribunal had dismissed each of the applications. It contended, therefore, that the Tribunal could not exercise its discretion to allow the extension of time under section 19(1) of the ART Act on this ground.
7. This application for an extension of time, consequently, effectively is tantamount to being a dismissal application for all intents and purposed, dependent on whether the substantive proceedings are determined to have any real, and not merely arguable or fanciful, prospects of success and therefore the issues in the substantive proceedings also require careful scrutiny and consideration to avoid the probability of an injustice being done if refused.[16]

1. Section 18 of the ART Act requires that applications for review must be made within the prescribed period unless it is extended pursuant to section 19 of the ART Act. The applicable prescribed period is defined under Rule 5(3) of the ART Rules as being 28 days after notification of the decision to the Applicant.
2. The exception to this time requirement is where the Tribunal extends that period under section 19(2) of the ART Act:

Section 19 Exception - Tribunal may extend period

Application to extend period

(1) A person (the applicant) may apply to the Tribunal to extend the period during which the applicant may apply to the Tribunal for review of a decision.

(2) The Tribunal may, by order, extend the period if the Tribunal considers that it is reasonable in all the circumstances to do so.

(3) The Tribunal may extend the period even if it has expired.

...

1. The ART Act itself does not provide for any mandatory or obligatory considerations that the Tribunal must take into account in determining whether to exercise its discretion to extend the prescribed period other than that is 'be reasonable in all the circumstances to do so'.
2. The principles governing when an extension of time ought be granted beyond the prescribed time limit are well established in case law to provide guidance to the Tribunal when considering such an application, and are clearly set out in detail in the Respondent's written submissions.[17]
3. The Respondent refers to a number of applicable decisions identifying the common factors identified in the relevant case law to be weighed in determining an extension of time application, including specifically the decisions of Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs;[18] Hunter Valley Developments Pty Ltd v Cohen;[19] and Bonimpa and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship).[20]
4. In summary, to exercise the Tribunal's discretionary power under section 19 of the ART Act and grant an extension of time, it must have regard to the following factors:

(a) The length of the delay between notification and applying for review; > > (b) Whether there is good reason to do so in the circumstances and not simply because the Applicant has 'rested on his rights'; > > (c) Whether the Respondent was entitled to regard the matter as finalised and whether any prejudice is occasioned against to the Respondent (or any third-party) as a result of the delay, including in defending against the proceedings; > > (d) Whether it is fair and equitable to exercise the discretion; and > > (e) The merits of the substantive application.

5. In this subject proceeding, it is the final factor regarding the merits of the substantive application that is of primary importance in determining whether the extension of time should be granted on this occasion.
6. As accurately observed by General Member Papalia in Karimi and Minister for Immigration and Multicultural Affairs (Citizenship),[21] "an applicant for an extension of time has the positive burden of demonstrating that the circumstances of their matter requires the extension".

1. The Applicant states in his substantive application that he received notification of the Respondent's decision on 12 December 2024, and therefore any review was due to be lodged by 2 January 2025 in compliance with the prescribed period.
2. The inference from the Respondent's email of 10 January 2025, however, tends to indicate some uncertainty on whether the Applicant was notified at the time of the decision, thereby extending the due date to 7 February 2025. I conservatively accept the notification date to the Applicant to be the latter date of 10 January 2025 in the absence of any definitive evidence to the contrary.
3. The clear intention of the Respondent in its email, was to allow the Applicant a further period until 28 February 2025 to submit any review before it would take issue and oppose any extension of time request. It was entirely reasonable for all involved to rely upon the Respondent's email that the due date for any review was 28 February 2025, calculating the length of the delay to be two months. I do not consider this to be a significant period, taking into account the circumstances of the matter and any (minimal) impact on the Respondent in terms of be able to believe the matter to be finalised.

1. I accept that on the basis of the Applicant's submissions, and noting the Respondent's agreement, there were compelling reasons for the Applicant's delay in seeking review that understandably required his attention and placed him under significant pressure in the ensuing period after notification of the Respondent's determination, whether that notification was at the date of the determination on 11 December 2024, or by the Respondent's email of 10 January 2025. This is not a matter where the Applicant was simply resting on his rights, but rather his focus was directed towards several competing and major life events relating to his family and children while having a medical incapacity. In these extenuating circumstances, empathy should properly play a role in the Tribunal's deliberation, and I find that the delay was reasonable and fairness would dictate an extension be granted.

1. While the absence of prejudice towards the Respondent is not itself enough to justify granting an extension of time,[22] in the specific circumstances of this application the Respondent acknowledges that it has not suffered any prejudice as a result of the delay and where the short delay is relatively insignificant, I agree that there is no identifiable prejudice were the extension to be granted.

1. In Benjamin v Commissioner of Taxation,[23] Davies J observed that:

... the merits of the substantive application are relevant to take into account in the exercise of discretion as to whether to grant an extension of time, but this does not involve a determination of the substantive application. The matter to be addressed is whether an arguable case on the merits of the application is shown based upon the material relied upon by the applicant, and not upon an inquiry into the true existence of the facts....

2. The Respondent references McKerracher J in Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation[24] in his consideration of a summary dismissal application, specifically:

"... the moving party in an application for summary dismissal is likely to succeed if it is able to demonstrate to the Court that the applicant's success in the principal proceedings relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial."

3. In this matter, the Respondent contends that section 16(3) of the DHOAS Act does not provide for any discretion to allow the issuing of more than one certificate post separation from the Australian Defence Force, pursuant to section 17(c) of the DHOAS Act:

17 Decision to give subsidy certificate - eligible applicants > > The Secretary must give a subsidy certificate to the applicant if the Secretary is satisfied that the applicant:

(a) is eligible; and

(b) does not hold a subsidy certificate that is in force; and

(c) if the applicant is not a member of the Defence Force - has not previously applied for a subsidy certificate since he or she stopped being a member of the Defence Force.

1. There is no dispute on the facts that the Applicant was issued with a subsidy certificate as a separated member of the Australian Defence Force. He did not use the subsidy certificate within the valid period and therefore failed to satisfy the necessary legislative requirements before it expired. He has not served since discharge. These are accepted facts.
2. It then becomes a question of law whether the DHOAS Act provides for any discretion to the Respondent, and therefore the Tribunal, to grant a second subsidy certificate having regard to section 17(c) of the DHOAS Act. The DHOAS Act requires that a separated member must satisfy the requirements of Part 4 before the expiration of the subsidy certificate. This is also specifically stated within the subsidy certificate. There are no exceptions expressed in the DHOAS Act to extend the subsidy certificate or grant another should an initial subsidy certificate be granted but not used by the separated member before the expiry date.
3. There is an ever growing wealth of recent authorities of this Tribunal contemplating that very question, and invariably, the decisions are consistently and overwhelmingly of the view that a separated member of the Australian Defence Force is entitled only to one subsidy certificate and there is no discretion for the decision-maker to extend an extension of a subsidy certificate or issue a second certificate, notwithstanding the initial certificate has not been utilised or there have been seriously extenuating circumstances.[25]
4. The Applicant contends that the decision refusing a second subsidy certificate was wrong and that a different decision should have been made, as the information regarding his post-service circumstances, including the status of being totally and permanently incapacitated, having significant caregiving responsibilities for four young children (three with medical needs), and financial hardship following divorce, were not adequately considered.
5. He further states that while he applied for a home loan when serving in the army, he then had great difficulty in obtaining employment post separation other than casual employment while continuing to suffer medical issues arising from his service. As a result, without the financial means to service a mortgage, the Applicant was unsuccessful in being approved for a home loan to be able to use the subsidy certificate despite his high income while serving and having already received pre-approval. These factors prohibited his ability to benefit from the initial subsidy certificate within the eligible period.
6. The Applicant submits that following lengthy medical assessments after discharge, the Respondent has recently determined him to be totally and permanently incapacitated and therefore eligible to a pension that is sufficient to satisfy the criteria to obtain a home loan. It seems that now that he is finally able to get a loan, he cannot use the subsidy certificate to receive the subsidised home loan payments because it has now expired, despite being eligible for it previously and not accessing it.

1. The Applicant contended that the issue with the legislation is that it does not explain what happens or what to do in the event a subsidy certificate expires when it has not been used and where there are extenuating circumstances, and he seeks a review of this to the Tribunal in an effort to obtain a decision granting a second subsidy certificate. He asserts that the strict application of the legislation does not reflect the intent of the DHOAS scheme in cases involving ex-service members with complex medical and financial hardship.
2. I agree with the Applicant and believe this criticism of the DHOAS Act is entirely justified. The lack of discretion to consider the circumstances of each application on its own merits is unnecessarily restrictive and, in practical terms, operates to deliberately limit the number of service men and women who would otherwise be considered eligible from being able to access a subsidy to their home loan, if not done within the required timeframe and prohibit those servicemen and women from eligible entitlements that it is supposed to favour.
3. There is no doubt in my mind that the Applicant is a forthright, genuine and honest man who has served our country to the best of his abilities and after discharge, has fallen on difficult times through no fault of his own that have acted against him in being able to apply the subsidy certificate toward a home loan. Sadly, I expect that his experience of the challenges to former servicemen and women in obtaining permanent employment post separation and lengthy medical assessments and determinations of pensions is not an unusual one, and this obviously has serious and adverse repercussions on any application for a home loan.
4. I understand that there is a movement seeking amendments to the DHOAS Act to ensure that the scheme properly operates as it was intended, to benefit servicemen and women in home ownership.
5. There is no statutory power within the DHOAS Act at the present time, however, to extend the operation of a subsidy certificate or give a further subsidy certificate due to extenuating circumstances.[26] The Tribunal is required to apply the relevant legislation and cannot act beyond it in its considerations and determinations. Regrettably in this matter, the overly restrictive nature of the DHOAS Act mean that there are no reasonable prospects of success of the substantive application.
6. It is clear from section 19 of the ART Act that the Tribunal must be satisfied it is reasonable in all the circumstances to extend time. In this matter, I cannot be satisfied where the substantive application on the question of law as it currently stands cannot succeed.
7. To allow the extension of time would be contrary to the interests of justice and the public interest, and not consistent with the objectives of section 9 of the ART Act and would be inappropriate to proceed, only for the Applicant to then be subjected to an inevitable dismissal application where he is unlikely to succeed having regard to the case law on this particular question of law.
8. On balance, having carefully considered the interests of the parties and with regard to the objectives in section 9 of the ART Act, I am not satisfied that the Tribunal can exercise its discretion and grant an extension of time in these proceedings, notwithstanding that I accept there was good reason for the delay and no prejudice occasioned against the Respondent by the delay.

1. Based on the above, I refuse the Applicant's extension of time and accordingly, dismiss the application for review.

Respondent: Ms Jenny Davenport, Australian Government Solicitors

[1] Rule 5, Administrative Review Tribunal Rules 2024

[2] Respondent's written submissions dated 11 July 2025, accompanied by a List of Authorities

[3] Applicant's written submissions dated 7 April 2025, Document 1.1

[4] Applicant Service Record as at 31 January 2013, Document 10

[6] Application for Subsidy Certificate dated 1 February 2013, Document 2

[7] Subsidy Certificate dated 4 February 2023, Document 5

[9] Determination dated 28 August 2024, Document 7

[10] Respondent's Email to the Applicant dated 10 January 2025, Document 9

[11] Application for Review filed 7 April 2025

[12] Respondent's Email to the Tribunal dated 12 June 2025

[16] Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878; (1994) 48 FCR 83, French J at [98]

[18] [2022] HCA 28; (2022) 276 CLR 579

[19] [1984] FCA 176; (1984) 58 ALR 305

[20] [2023] AATA 1755

[22] Phillips v Australian Girls' Choir Pty Ltd & Anor [2001] FMCA 109

[23] [2016] FCA 1157

[24] [2020] FCA 808

[25] Amery and Secretary, Department of Defence [2025] ARTA 1708; Moore and Secretary, Department of Defence [2025] ARTA 179; Pantazis and Secretary, Department of Defence [2025] ARTA 1535; Winton and Secretary, Department of Defence [2025] ARTA 2462; Cox and Secretary, Department of Defence [2025] ARTA 1972

[26] Cox and Secretary, Department of Defence [2025] ARTA 1972, para [36]