BROWN And REPATRIATION COMMISSION - [2001] AATA 261

DECISION AND REASONS FOR DECISION [2001] AATA 261

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/647

VETERANS'      APPEALS      DIVISION         )
           Re      DOUGLAS ALFRED BROWN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr A. Argent, Member

Date2 April 2001
PlaceMelbourne

Decision The Tribunal affirms the decision under review.

...…....(Sgd) A. Argent........
Member
CATCHWORDS
VETERANS' AFFAIRS – Gold Card – whether qualifying service – whether incurred danger from hostile forces – decision affirmed
Veterans' Entitlements Act 1986 s. 7A
Repatriation Commission v Thompson (1988) 82 ALR 352

REASONS FOR DECISION

2 April 2001 Mr A. Argent, Member

This is an appeal by Mr Douglas Alfred Brown ("the veteran") against a decision of a Service Pension Review Officer of the Repatriation Commission ("the Commission") dated 30 March 2000.
That decision affirmed a previous decision of the Commission dated 9 March 2000 which determined the veteran had not rendered qualifying service during the period of hostilities of World War II and thus was not entitled to a Gold Card.
The period of hostilities of World War II is from 3 September 1939 to 29 October 1945.
Qualifying service is defined at section 7A of the Veterans' Entitlements Act 1986 ("the Act"). Part of this section reads:
"7A. (1) …, a person has rendered qualifying service:
(a) if the person has, as a member of the Defence Force:
(i)rendered service, during a period of hostilities specified in paragraph (a) or (b) of the definition of 'period of hostilities' in subsection 5B (1), at sea, in the field or in the air in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when the person incurred danger from hostile forces of the enemy in that area or on that aircraft or ship; …"
Section 85(4A) of the Act specifies that a veteran is eligible to be provided with treatment, that is, entitled to a Gold Card, if the veteran is aged 70 or over and has rendered qualifying service during World War II.
Issue
The issue before the Tribunal is whether the veteran rendered qualifying service during World War II and specifically whether he "incurred danger from hostile forces of the enemy".
The Evidence
The Tribunal had before it the documents ("the T documents") lodged by the Commission pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Included in these documents are:
(a)Statements made by the veteran on 21 January 2000 and
24 March 2000 concerning his service in the RANR
(b)Itinerary of HMAS Arunta 2 January 1945 – 30 July 1946
Other documents taken in as evidence were:
(a)A1 – submission by the veteran
(b)R1 – report by Associate Professor J. McCarthy
dated 21 November 2000
(c)R2 - report by Associate Professor J. McCarthy
dated 22 December 2000
(d)R3 - respondent's Statement of Facts and Contentions
The veteran presented his own case and the respondent was represented by Mr R. Douglass, a Commission advocate.
The veteran was born on 18 October 1926 and enlisted in the Royal Australian Navy Reserve on 6 February 1945 and was demobilized on 23 October 1946. He was aged 73 when he applied for a Gold Card.
The veteran based his claim for a Gold Card on his service in HMAS Arunta when:
(a)He went ashore at Koepang with others of the crew on 27 October 1945 and saw Japanese soldiers under the armed guard of Australian soldiers
(b)He was a member of an armed guard that sailed in Esperance Bay from Koepang to Surabaya, Java from 29 October–4 November 1945. On board Esperance Bay were about 1400 Indonesians returning from Australia to the then Netherlands East Indies ("NEI").
In his further evidence, the veteran said he went ashore, with others of the ship's company, at Koepang on 27 October 1945. The party was unarmed and the exercise was more recreation and a break from on-board duties than anything else. He recalls Japanese soldiers on the wharf and saw them at other points during their journey. His party travelled in Australian Army transport and they also walked around Koepang. He said the Japanese were under Australian armed guards. The Japanese were unarmed and some were engaged in disposing of Japanese weapons.
The veteran believes the enemy, by definition, is always hostile and just because they never did anything to him or his party does not mean they were not hostile. Thus, he believes he incurred danger from these Japanese.
The written evidence of Associate Professor McCarthy is that the Japanese surrendered on 15 August 1945 and the Japanese forces at Koepang surrendered to the Australian forces on 11 September 1945. The terms of surrender were observed and carried out by the Japanese in an orderly fashion.
Concerning the boarding parties of 2 officers and 50 ratings from HMAS Arunta deployed in Esperance Bay, the evidence is that the 1400 Indonesians on board were discharged NEI servicemen, seamen and civilians. There was unrest amongst these people because of the political turmoil in the NEI and the purpose of the armed guard was to keep order in Esperance Bay.
Members of the RAN armed guard were advised that there was a grave possibility of active and belligerent action from natives who were known to possess firearms.
The veteran pointed out that he was obeying orders of his CO and indirectly or directly of the Australian government and he was placed in danger during this voyage to Surabaya.
In the event, there were no untoward actions taken by the Indonesians in Esperance Bay against the RAN armed guard, of which the veteran was a member. There is no evidence that the Japanese were in anyway involved in the unrest of the Indonesians aboard Esperance Bay.
Findings
The standard of proof in this case is on the balance of probabilities; that is, on the balance of probabilities did the veteran incur danger from hostile forces of the enemy when:
(a)He went ashore at Koepang on 27 October 1945 and saw Japanese soldiers
(b)He was a member of an RAN armed party on board Esperance Bay on 29 October
"Incurred danger" is defined by the Full Court of the Federal Court in Repatriation Commission v Thompson(1988) 82 ALR 352. Their Honours said:
"The words 'incurred danger' provide an objective, not a subjective, test. A serviceman incurs danger, when he encounters danger, is in danger or is endangered. He incurs danger from hostile forces when he is at risk or in peril of harm from hostile forces. A serviceman does not incur danger by merely perceiving or fearing that he may be in danger. The words 'incurred danger' do not encompass a situation where there is a mere liability to danger, that is to say, that there is a mere risk of danger. Danger is not incurred unless the serviceman is exposed, at risk of, or in peril of harm or injury."
The Tribunal finds the veteran did not incur danger from the hostile forces of the enemy on 27 October 1945 when he was ashore at Koepang because the Japanese were unarmed, they were under Australian Army armed guards and the Japanese made no hostile action against the veteran or his group. In short, the veteran was not exposed, at the risk of or in peril of harm or injury from the Japanese who had surrendered six weeks previously.
His contention that the enemy is always hostile, while correct in dictionary terms, can not reasonably apply to forces who have surrendered and abided by the terms of the surrender.
Turning to his second claim, that he was in danger when he was a member of the armed guard on board Esperance Bay on its voyage from Koepang to Surabaya on 29 October – 4 November 1945, the Tribunal understands the immediate post-war turmoil in the NEI, the unrest on board the ship and grave risk of violence by the Indonesians and the consequent apprehension of the veteran.
However, despite the gravity of the situation the evidence is that on 29 October 1945 (the last day of the period of hostilities) there was no hostile action taken by the enemy, i.e. the Japanese, against the veteran and that he did not incur danger from their forces.
Furthermore, the fact that the Japanese during their occupation of the NEI encouraged anti-western emotions and ideas and thus were, in many ways, responsible for the immediate post-war turmoil both in Java and in the returning Indonesians in Esperance Bay, cannot make the Indonesians "the enemy" in the terms of the Act.
Therefore, the claim must fail because the Indonesians were not the enemy of the Allies during World War II.
The Tribunal therefore finds the veteran did not incur danger from the hostile forces of the enemy during the period 27-29 October 1945. Consequently, he did not render qualifying service and is not entitled to the issue of a Gold Card.
Decision
The decision of the Commission is affirmed.
I certify that the twenty-eight (28) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr A. Argent, Member
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  13 March 2001
Date of Decision  2 April 2001
Solicitor for the Applicant         Self-represented
Solicitor for the Respondent    Mr R. Douglass, departmental advocate