DISMISSAL - application for review of a decision - applicant not a member of the Defence Force - prior application for certificate pursuant to statutory scheme - application made after ceasing to be a member of the Defence Force - scheme allows for only one application from non-member - scheme bars approval of subsidy certificate where prior application made after applicant ceased to be a member of the Defence Force - facts not disputed - no reasonable prospect for success - proceedings dismissed

Administrative Review Tribunal Act 2024 (Cth)

Defence Home Ownership Assistance Scheme Act 2008 (Cth)

Defence Home Ownership Assistance Scheme Amendment Act 2022 (Cth)

1. Eustratios Pantazis made an application for a subsidy certificate under the Defence Home Ownership Assistance Scheme Act 2008 (Cth) (DHOAS Act) (the subsidy certificate) on 13 January 2018.[1] The Department of Veterans' Affairs, then responsible for the operation of that scheme, granted the subsidy certificate on 16 January 2018 and advised the applicant that the certificate applied from that date up to 15 January 2019 'or the earlier date on which subsidy first becomes payable to you'.[2]
2. At the time of his application he had been discharged from the Regular Army, part of the Australian Defence Force. That discharge took effect on 4 May 2016.[3] During service he had been a Trainee Commando, a Rifleman and Supervisor. He served between 6 April 2010 and 4 May 2016, slightly over 6 years. His service included a period of operational service between November 2012 and May 2013.[4]
3. The applicant's disabilities at the time of discharge were several and varied in nature and would have been such to preclude further service in the Reserves. Those disabilities were recognised by the Commonwealth Superannuation Corporation (CSC) in its decision of 25 January 2025 to provide a Class A pension under Rule 30 the Military Superannuation Benefits Trust Deed, effective from 4 May 2016, the date of his discharge. The 'retiring impairments' assessed by the CSC included Chronic Lumbar Back Pain, Left Ankle Pain and Instability, Left Elbow Common Extensor Tendinopathy, Bilateral Hearing Loss and Tinnitus, Bilateral Carpal Tunnel Syndrome, Bilateral Ulnar Neuropathy, Adjustment Disorder with Mixed Anxiety and Depression, Delusional Disorder (Persecutory Type) and Post-Traumatic Stress Disorder.[5]
4. This retrospective award of a higher level of pension is critical to the nature of the application made by the applicant. Mr Pantazis says that when the DHOAS subsidy certificate was granted in 2018, he had no real capacity to use it for a mortgage approval with a bank since he had insufficient income to support repayments. There are a limited number of banks participating in the scheme. He claims that it was only in 2025, seven years later, at the time he was granted proper impairment compensation as well as the Class A pension by CSC, that he was able to practically support a mortgage and take proper advantage of the subsidy certificate.
5. The DHOAS subsidy certificate expired on 15 January 2019.
6. On 2 April 2024 the applicant made another application for a subsidy certificate under the DHOAS Act.[6]
7. Shortly prior to that application, the Military Rehabilitation and Compensation Commission (MRCC) awarded a total of $417,166.44 pursuant to section 80 of the Military Rehabilitation and Compensation Act 2004 (Cth) (MRCA) in respect of a total degree of impairment of at least 80 points.
8. The application for a further subsidy certificate under the DHOAS Act was rejected on 5 April 2024 on the ground that the applicant had previously applied for a subsidy certificate.[7] The applicant requested review of that decision by email dated 8 April 2024.[8] However, the respondent maintained the refusal to grant the subsidy certificate by letter dated 27 September 2024.[9]
9. On 19 November 2024 the applicant sought review of this reviewable decision to the Administrative Review Tribunal (ART).
10. The respondent has applied for dismissal of this application pursuant to section 101 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) on the grounds that it has no reasonable prospects of success.

1. Section 101(1)(b) of the ART Act confers a power on the Tribunal to dismiss an application for review without a hearing if it is satisfied that the application as 'no reasonable prospects of success.'
2. Section 16 of the DHOAS Act provides the circumstances where the Secretary of the Department of Defence must, or must refuse, to grant a subsidy certificate.

16 Decision to give subsidy certificate - general > > Scope > > (1) This section applies if a person applies for a subsidy certificate in accordance with section 14. > > Decision to give, or to refuse to give, subsidy certificate > > (2) The Secretary must give a subsidy certificate to the applicant if:

(a) section 17, 18, 19 or 20 applies; and

(b) either:

(i) the applicant has a service credit (see section 46); or

(ii) for a case in which section 18 (surviving partners) applies - the applicant has a service credit, or would, if the subsidy certificate were in force, have a service credit (because of the operation of section 63).

Note: As soon as a subsidy certificate given under section 18 (surviving partners) comes into force, the surviving partner has the service credit the deceased partner would have had, if he or she had not died (see sections 63 and 64).

(3) The Secretary:

(a) must refuse to give a subsidy certificate to the applicant if subsection (2) does not apply; and

(b) despite subsection (2), may refuse to give a subsidy certificate to the applicant under that subsection if, in relation to a previous entitlement period:

(i) the applicant failed to comply with section 42 (which deals with the disclosure of changes of circumstances); or

(ii) the Secretary has revoked an authorisation of the payment of subsidy to the applicant under section 44.

1. It is common ground that the circumstances set out in sections 18, 19 and 20 of the DHOAS Act do not apply in the present case.
2. Section 17 of the DHOAS Act provides for the grant of a subsidy certificate in relation to 'eligible applicants':

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. It is common ground between the parties that Mr Pantazis is eligible to the subsidy certificate as a 'separated member', as referred to in subsection 7 and defined in section 12 of the DHOAS Act. Further, he no longer holds a subsidy certificate that is in force since the original subsidy certificate expired on 15 January 2019.
2. The primary contention of the respondent is that as a former member of the Defence Force, Mr Pantazis had previously applied for a subsidy certificate after he stopped being a member of the Defence Force, referring to the application made on 13 January 2018.[10] Hence, subsection 17(c) of the DHOAS Act prevents the Secretary from granting a subsidy certificate in response to the application made on 2 April 2024.
3. Mr Toppenberg, on behalf of the applicant, made submissions that the operation of the Act defeats the very purpose for which it was created, where a former member of the Defence Force cannot make use of a certificate until they have secured an income that would service a mortgage. In the present case, Mr Pantazis was unable to secure his income until a quite lengthy assessment of his disabilities was made by the Department of Veterans' Affairs, the MRCC and the CSC in 2024 and 2025. It does not assist him in relation to the grant of a subsidy certificate that the higher level of pension was backdated to 4 May 2016, the date of his discharge from service, because the DHOAS subsidy certificate expired on 15 January 2019.
4. It might be thought that a prudent applicant would delay an application for subsidy certificate until such time as an income to service a mortgage was secured. However, at the time of his application, there was a rule created by now repealed subsection 17(3) of the DHOAS Act that limited the grant of a subsidy certificate to a separated member to the period within two years of discharge from service. The former subsection 17(3) of the DHOAS Act read:[11]

(3) If the applicant is eligible as a separated member, the Secretary may give a subsidy certificate to the applicant under subsection (1) only if the application for a subsidy certificate is made within 2 years after the applicant stopped being a member of the Defence Force.

1. When Mr Pantazis made his application for a subsidy certificate on 13 January 2018, he was nearing the end of the window of opportunity within which to make application. He perhaps could only hope that his applications for compensation and pension would be assessed quickly enough for him to take advantage of the certificate. If that was his hope, it was not realised until some years later.
2. Mr Toppenberg rightly pointed out that because of these circumstances, Mr Pantazis is denied any real access to the support given to former Defence Force members to achieve home ownership. It would appear that this is so because of the time taken to fully assess the extent of his compensable injuries and degree of disability.
3. Mr Toppenberg indicated that he, among others, were seeking amendments to this legislation to ensure that the scheme worked in the manner originally conceived so that disabled former Defence Force members like Mr Pantazis do not miss out on access to this useful scheme supporting home ownership for serving and former Defence Force members.
4. Nevertheless, the DHOAS Act as it presently stands prevents the Secretary from granting a certificate to this eligible former member because he previously applied for such a subsidy certificate after ceasing to be a member of the Defence Force.
5. If the Secretary is prevented from granting such a subsidy certificate, then the Tribunal is similarly bound by the absence of discretion by reason of the provision of section 17(c) of the DHOAS Act. If there is no possibility of any alternative decision being made, Mr Pantazis' application for review has no reasonable prospect of success.
6. Accordingly, I am satisfied that this application has no reasonable prospects of success, and it is dismissed pursuant to section 101 of the ART Act.

Representative for Applicant: Mr Lachlan Toppenberg, CTWealth

Counsel for Respondent: Ms Jenny Davenport, Australian Government Solicitor

[1] T3, 8-18. References to 'T-Documents' are references to documents lodged with the Tribunal pursuant to a Notice to the Respondent pursuant to s 23 of the Administrative Review Tribunal Act 2024 (ART Act), requiring a decision-maker to give to the Tribunal all documents within its control relevant to the review. They are generally known as 'Tribunal documents', sequentially numbered, with subsequent page references.

[11] The provision was repealed, effective from 1 January 2023, by paragraph 7 of Schedule 1 of the Defence Home Ownership Assistance Scheme Amendment Act 2022.