Beutler and Repatriation Commission - [2001] AATA 326

DECISION AND REASONS FOR DECISION [2001] AATA 326

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1304

VETERANS' APPEALS DIVISION          )
           Re      GERRIT BEUTLER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date23 April 2001
PlaceSydney

Decision      The decision under review is set aside and in substitution therefor, the Tribunal decides that the Applicant satisfies the requirement for qualifying service pursuant to section 7A of the Act, and is entitled to an age service pension under subsection 36(1).
  [sgd] Rear Admiral A R Horton AO
  Member

CATCHWORDS

VETERANS' AFFAIRS – Application for service pension – applicant accepted as allied veteran – claim of service with Dutch resistance movement – service in Royal Netherlands Navy- whether qualifying service rendered in service either with resistance forces or during naval service

Veterans' Entitlements Act 1986 - ss 5C, 5R, 7A, 35, 36(1), 36(2), 120(4), 120B
Repatriation Commission v Thompson (1988) 15 ALD 501
Boots v Repatriation Commission (1993) 29 ALD 702
Nolan v Repatriation Commission (1999) 58 ALD 275
Nolan v Repatriation Commission (1999) 56 ALD 217
Re Boots and Repatriation Commission (AAT 9207, 23 December 1993)

REASONS FOR DECISION

Rear Admiral AR Horton AO, Member

This is an application for review of a decision made on 18 March 1999 by a delegate of the Repatriation Commission ("the Respondent"), and affirmed by review under section 57 of the Veterans' Entitlements Act 1986 ("the Act") on 5 July 1999, that Gerrit Beutler ("the Applicant") was ineligible for a service pension because he had not rendered qualifying service pursuant to section 7A of the Act. The Applicant lodged an application for review with the Administrative Appeals Tribunal ("the Tribunal") on 27 August 1999.
At the hearing before the Tribunal on 16 February 2001, the Applicant was self represented. Mr J Marsh, Senior Advocate, appeared for the Respondent.
The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following:
Exhibit No     Description    Date
A1      Letter to the Tribunal, with attachments, from the Applicant 9 August 2000
A2      Statement by the Applicant 16 February 2001
R1      Report, with attachments, by Mr B G O'Keefe, Consulting Historian 14 July 2000
R2      Report, with attachments, by Mr B G O'Keefe, Consulting Historian 23 September 2000

ISSUES BEFORE THE TRIBUNAL

The Applicant, in oral evidence, stated that he arrived in Australia from the Netherlands in 1950 under the Ex-Servicemen's Scheme. He applied for a service pension in November 1983. Correspondence in respect of this application is in the T documents (T3-T11, pp8-28), a relevant file indicating that the application was declined in June 1985 due to insufficient evidence. At Exhibit A2 and in oral evidence, the Applicant stated that he ceased pursuing the claim due to language problems leading to difficulty in understanding the requirements, and because he was unable to obtain the required information in support of his claim. He…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Beutler and Repatriation Commission

Details

AGLC: Beutler and Repatriation Commission [2001] AATA 326
Case: [2001] AATA 326
Decision Date: 23 April 2001

CaseChat Overview and Summary

The case before the court involved an application for a service pension by Mr. Beutler, who was accepted as an allied veteran. The dispute centered on whether Mr. Beutler's service with the Dutch resistance movement and his subsequent service in the Royal Netherlands Navy constituted qualifying service for the purposes of the Veterans' Entitlements Act 1986. The court had to determine whether the applicant's involvement with the Dutch resistance and his naval service met the statutory requirements for qualifying service.

The court examined the relevant provisions of the Act, including sections 5C, 5R, 7A, 35, 36(1), 36(2), 120(4), and 120B, and considered previous case law such as Repatriation Commission v Thompson, Boots v Repatriation Commission, and Nolan v Repatriation Commission. The primary legal issue was whether Mr. Beutler's activities with the Dutch resistance and his naval service met the criteria for qualifying service as defined by the Act. Specifically, the court needed to determine if his service with the Dutch resistance constituted qualifying service under the statutory definition of service with a recognised defence force, and whether his service in the Royal Netherlands Navy, which began after the cessation of hostilities, qualified under the Act.

The court found that Mr. Beutler's service in the Royal Netherlands Navy did not qualify as it did not occur within the statutory period of hostilities and he did not incur any danger from hostile forces. His service in the Navy began after the cessation of hostilities and during his training period, he did not believe he had incurred danger, and offered no evidence to the contrary. Regarding his involvement with the Dutch resistance, the court held that such activities did not constitute qualifying service as they lacked an official imprimatur from a government or allied government and did not involve a formal structure. The court relied on the requirement of an organisational or formal structure, as interpreted in previous cases.

The court concluded that Mr. Beutler did not render qualifying service either with the Dutch resistance or during his service in the Royal Netherlands Navy. Consequently, his application for a service pension was denied. The decision was based on the lack of evidence that he had incurred danger from hostile forces during his naval service and the absence of formal recognition or structure in his activities with the Dutch resistance.

Orders

Orders of the court

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Background

Background to the litigation

The relevant standard of proof is that of reasonable satisfaction, pursuant to subsection 120(4) of the Act, equating to proof on the balance of probabilities. Pursuant to subsection 120(6), there is no onus of proof on either party.FACTS AND EVIDENCE Mr Beutler was born in Holland in 1923. In September 1942 he became an unsalaried apprentice fitter-turner in the Central Workshop of the N.V.Dutch Railways (Exhibit A1). He gave evidence that he lived with his parents in Hilversum, travelling by rail to his place of work, which was usually in Utrecht. He was issued with the necessary documentation to meet the requirements of the German occupation forces. He attended technical college in the evenings in Utrecht, as part of his apprentice training. On 17 September 1944, the Netherland railway system was shut down by strike action, coincident with the Allied airborne assault on river and canal bridges in that country, and the Applicant's employment, and that of all railway employees, was severed. The Applicant gave evidence that he returned to Hilversum from Utrecht 'on the last train' and thereafter occasionally visited his family home but generally lived on farms and in barns, often sleeping in haystacks, as he participated in activities with the Dutch resistance. He continued to do so until the end of the war in Europe in May 1945, and it is this eight months that is the first period in which qualifying service was claimed. The Applicant did not return to the railways after the war, when railway services were resumed, but volunteered for the Royal Netherlands Navy. Some weeks later, he was enlisted (on 7 July 1945 as shown in his Service record), completing his service on 14 January 1949. He subsequently migrated at his expense to Australia in 1950, receiving a small payment from the Australian Government as an ex-serviceman. Resistance Activities The claimed period of activities with the Dutch resistance movement is that from 17 September 1944 when the railway strike commenced until the end of the war in Europe in May 1945. At the outset of his evidence, Mr Beutler spoke to the differing geographical circumstances within Holland as allied forces advanced towards Germany. He described the Dutch Army, under Prince Bernhard, as forming part of the advance 'along the eastern border with Germany', liberating that part of Holland. The low lying lands to the west, much of it being inundated by water from damaged dykes, where he was located, remained under German occupation. To avoid being sent to Germany as forced labour, he was rarely at the home of his parents, living from 'place to place, farm to farm….sleeping in haystacks, under floors, between ceilings'. His parent's home was one of three adjoining houses; a dentist in one operated a warning bell to alert residents to the arrival of German police or troops. Mr Beutler gave evidence that after the railway strike commenced he was approached by individuals, including the neighbouring dentist, to participate in resistance activities, but in any event wanted to do whatever he could because of the atrocities committed against the Dutch people. He was not approached by an organisation as such, but by individuals. His initial involvement was acting as a courier (T15), and in evidence he also referred to assisting people to escape from trains transporting them to Germany. His subsequent resistance activities included the severing of railway communications, blocking the points systems on the railway, and damaging enemy vehicles. He agreed with the statement by Mr O'Keefe at exhibit R1 that the extent of sabotage operations increased after September 1944, particular activities being the blowing up of railway lines, disruption of road communications and the destruction of German vehicles. He variously worked with in a team of up to six or eight people, depending on the nature of the operation. When recovering parachuted weapons, it would often require the larger numbers. He carried a spiked knife and on some occasions was provided with a pistol or small bayonet.

Evidence

Evidence Before The Court

The Applicant's Record of Service confirms that part of his full time service took place within the period of hostilities ending on 29 October 1945. He confirmed in evidence that during that period (from 7 July 1945 until 29 October 1945) he was under training, initially in Holland and then in the United Kingdom. He did not believe he had incurred danger at any time in that period, and no evidence was given to the contrary. On completion of his training in early 1946, he was posted to the Mine Countermeasures service clearing mines off the coast. He considered this dangerous, but conceded that it occurred after the war finished and outside the period of hostilities; he gave no evidence of any particular incidents. He subsequently served at sea and ashore, and in the Netherlands East Indies, further details of his service being given by him at folio 12 of the section 37 documents.ANALYSIS OF EVIDENCE AND FINDINGS Having conceded that the Applicant was an allied veteran pursuant to section 5C of the Act (paragraph 11), the Respondent submitted that the matter hinged on whether he had rendered qualifying service in either his underground activities or during his later service in the Royal Netherlands Navy. In considering the Applicant's service in the latter organisation, the Respondent submitted that his service did not commence until after the cessation of hostilities in Europe, and that his subsequent service up until the end of the statutory period of hostilities, that is 29 October 1945, took place under training in Holland and in the United Kingdom. The Respondent submitted that from his evidence, the Applicant had not incurred danger from hostile forces of the enemy, a requirement pursuant to subsection 7A(1)(c). The Full Federal Court (Davies, Wilcox and Foster JJ) defined 'incurred danger' in Repatriation Commission v Thompson (1988) 44 FCR 20 as providing an objective, rather than subjective test. In evidence to the Tribunal, Mr Beutler stated that he did not believe he had incurred danger at any time in this period, that is, he conceded that he had no subjective or objective concept of incurring danger, and offered no evidence as to any event that might be considered by the Tribunal as having placed him in a situation of incurring danger in any sense. Events outside the period of hostilities, such as during his service in the Netherlands East Indies are not relevant to this consideration, nor indeed were any raised before the Tribunal. Thus the Tribunal finds on the facts before it, that Mr Beutler did not incur danger during his service in the Royal Netherlands Navy, within the statutory period of hostilities, and accordingly has not rendered qualifying service during this period. In respect of Mr Beutler's earlier underground or resistance activities, the Respondent referred the Tribunal to the wording of subsection 7A(1)(c), submitting that it required "some form of official impromata given by a government, an allied government or a government in exile, to those forces which would be recognised as …a defence force established by an allied country", and that such an interpretation would exclude "private armies or individually constituted acts…. There needs to be some organisational or formal structure involved."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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