Charles and Repatriation Commission - [2001] AATA 283

DECISION AND REASONS FOR DECISION [2001] AATA 283

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1653

VETERANS' APPEALS DIVISION       )
           Re      BRUCE CHARLES
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date 9 April 2001
Place Sydney

Decision The Tribunal determines that the decision under review be affirmed.

[sgd] Dr J D Campbell
Member
CATCHWORDS
Veterans' Affairs – gold card - qualifying service - volunteer defence corps - Italian prisoners of war - incurred danger test
Veterans' Entitlements Act 1986, ss 78,120(4)
Veterans' Entitlements Amendment (Gold Card) Act 1998 – s 85(4a)
Repatriation Commission v Thompson (1988) 82 ALR 325

REASONS FOR DECISION

In this application Mr Bruce Charles ("the Applicant") seeks a review of the determination of a delegate of the Repatriation Commission ("the Respondent") dated 6 August 1999, which affirmed an earlier determination of the Repatriation Commission dated 4 March 1999, which found that the Applicant had not rendered qualifying service in accordance with section 7A of the Veterans' Entitlement Act 1986 ("the Act") and is hence ineligible for a Gold Card under section 85(4A) of the Veterans' Entitlements Amendment (Gold Card) Act 1998 ("the Gold Card Act").
A hearing was held before the Tribunal at Narrandera on 15 November 2000 at which the self represented Applicant gave oral evidence to the Tribunal. The Respondent was represented by Mr Marsh, an advocate from the Department of Veterans' Affairs. Mr O'Keefe presented telephone evidence to the Tribunal.
The following material was placed into evidence before the Tribunal.
Exhibit No     Description    Date
T1-T15 PP 1-33 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
R1      Respondent's Statement of Facts and Contentions     9 November 2000
R2      Report by Mr O'Keefe        30 March 2000
R3      Report by Ms C Carter       3 April 2000

issue

The relevant issue in this matter is whether the Applicant rendered qualifying service, as defined in section 7A of the Act, as a prerequisite for eligibility for a Gold Card established pursuant to section 85(4A) of the Gold Card Act.
legislation
The relevant legislation in this matter is the Veterans' Entitlement Act 1986 ("the Act"), in particular sections 7A and 120(4), and the Veterans' Entitlements Amendment (Gold Card) Act 1998, section 85(4A).
background
The Applicant lodged an application for a Gold Card on 26 February 1999. In his application Mr Charles nominated his part time service with the Volunteer Defence Corps as commencing on 24 June 1942 and ceasing on 12 July 1944. The Applicant indicated in his application that he faced danger when helping to capture two escaped Italian prisoners of war on 20 August 1942 (T7, P17).
On 4 March 1999, the Respondent determined that the Applicant was not eligible to receive a Gold Card as he had not rendered World War II qualifying service as defined in section 7A of the Act (T8, P21).
The decision of 4 March 1999 was further reviewed following receipt of further information from the Applicant dated 20 June 1999 (T12), and affirmed in a determination dated 6 August 1999.
The standard of proof in this matter is one of reasonable satisfaction as nominated in section 120(4) of the Act.
applicant's evidence
The Applicant told the Tribunal that he was born on 12 May 1924 and had worked as a farmer since leaving school. He confirmed that he served as a part time soldier with the Volunteer Defence Corps between June 1942 and July 1944, and that the incident upon which he based his claim occurred on 20 August 1942, in hill country between Grong Grong and Narrandera.
In describing the incident, the Applicant stated that two Italian prisoners of war had escaped from the Yanco prison farm on the 19 August 1942 and on the day of the 20 August 1942 they had come to the McKenzie farm seeking food, which was given by Mrs McKenzie. After their departure up into the hills, Mr McKenzie came to the Charles farm, where the Applicant said his mother rang the post office at Grong Grong, where his non- commissioned officer (NCO), a Mr Bill Snare (a World War I veteran) resided. Mr Snare summoned eight members of the platoon, notified the authorities of the occurrence and moved to the McKenzie farm.
On arriving, a camp fire was noticed to be burning in the hills and Mr Snare instructed the Applicant to position himself behind the two escapees. The Applicant said it took him three quarters of an hour to get into position behind the escapees. Further, the Applicant being armed with a single shot BSA Rifle and three bullets, was to fire a warning shot, if the prisoners attempted to move.
Having positioned himself without being heard to a point some 30 yards from the fire, the Applicant stated that he fired a warning shot into the fire, when the escapees started to move downhill towards the headlight of a truck, which had been sent from Yanco. The escapees accelerated their flight towards the truck where they surrendered. On being searched, each was found to be carrying a knife. The Applicant stated that he was unaware of this until after the event. The escapees were returned to the Yanco prison farm.
evidence of mr o'keefe
Mr O'Keefe, a consulting historian, in his written report dated 30 March 2000 (Exhibit R2) confirmed that two Italian prisoners of war did escape from the Yanco Prisoner of War Labour Detachment at about 15:30 hours on 19 August 1942, and that they did call at the McKenzie farm for food. Mr O'Keefe further confirmed, that the prisoners later camped on a hill a few miles from Narrandera, where they built a small fire, and that there recapture was effected on the night of 20 August 1942.
In oral evidence, Mr O'Keefe stated that the Yanco prisoner of war was essentially a camp for low security, with the prisoners being of a low risk group. Further, there was no evidence of violence by the Italian prisoners of war towards the guards or civilians. Mr O'Keefe stated that the first Italian prisoners of war arrived in the Riverina in late 1940 and that the only evidence of a die hard fascist attitude was in a small group in Murchison, Tasmania.
submissions:
the applicant
The Applicant considers that he was at risk of harm or injury during the activities on the night of 20 August 1942, as his NCO, Mr Snare, had warned him not to hesitate if he had to use his rifle to defend himself. It is the Applicant's contention that he satisfies the incurred danger test and that he should be granted a Gold Cent card.
the respondent
The Respondent, in accepting that the Applicant took part in the recapture of two escaped Italian prisoners of war on 20 August 1942, notes that the escapees did not resist capture or offer any threat to their capturers, and that the escapees had not offered any threat of violence when seeking food from the McKenzie farm. In such circumstances, and acknowledging the activities undertaken by Italian prisoners of war at the Yanco prison farm as described in the two historical reports, the Respondent contends that the Applicant did not incur danger from hostile forces of the enemy during his service with the Volunteer Defence Corps. As such, the Respondent contends that the Applicant did not render qualifying service, as that term is defined in section 7A of the Act.
consideration and findings:
The Tribunal notes that section 85 (4A) of the Gold Card Act in establishing eligibility for a Gold Card,, requires that a veteran have rendered qualifying service as defined in section 7A(1) (a)(i). The relevant subparagraph is as follows:
Qualifying service
7A.(1) For the purpose of Part III, 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.
The Tribunal also notes the interpretation of the term "incurred danger" as outlined by the Full Federal Court in Repatriation Commission v Thompson (1988) 82 ALR 352 at 356.
"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, 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 danger incurred must of course be more than a mere fanciful danger or a danger so minimal that the rule of de minimis applies. But to say that it is not to give a flavour to the word. Rather it is to use it in its ordinary sense."
In considering the circumstances surrounding the events of 20 August 1942, the Tribunal notes the behaviour, as detailed, of the escaped prisoners of war and in particular the details that they escaped on the afternoon of 19 August 1942, sought food without threats of violence from the McKenzie farm on the afternoon of 20 August 1942, and then camped and lit a fire on a hill, which drew their position to the attention of all. Further, the Tribunal notes the evidence of the Applicant and in particular his positioning some 30 yards to the rear of the men and their fire. Further the Applicant detailed that he fired a warning shot into the fire only when the two escapees started to move towards the headlights of the approaching truck at the bottom of the hill. Further, the Tribunal notes, that the Applicant was unaware that the two escapees were armed with knives until after their surrender to police and guards accompanying the truck.
In considering the particular evidence, the Tribunal concludes that no doubt the Applicant was both excited and apprehensive as he positioned himself some 30 yards behind the two escapees. Nevertheless, he was armed with a rifle and three rounds and carried through his orders as bid, when the two escapees moved down towards the lights of the truck, with the Applicant discharging one shot into the campfire.
In assessing the Applicant's circumstances on the evening of 20 August 1942, the Tribunal finds that at no stage was the Applicant exposed to, or at risk of, or in peril of harm or injury. He, as did many others on that evening, carried through the task of recapturing two escaped Italian prisoners of war, who, having partaken of hospitality at the McKenzie farm earlier in the afternoon, lit a fire on a hill to ensure that there presence was noted or at least to provide some warmth on a cold night. The Tribunal further concludes that, while the Applicant may have entertained some apprehension about his tasks on that evening, there is no objective evidence to suggest that at any stage during the proceedings he was at risk or in peril of harm from the two escapees.
In summary, the Tribunal concludes that the Applicant did not incur danger as a consequence of his participation in the activities of the night of 20 August 1942, when two Italian prisoners of war surrendered voluntarily to police. Further, the action of firing his rifle was an action undertaken by the Applicant in obeyance of orders, when the escapees started to move towards the truck and away from the Applicant.
As a consequence of the Tribunal's finding that the Applicant had not incurred danger as a result of his activities on the night of 20 August 1942, associated with the surrender of two escaped Italian prisoners of war, the Tribunal further finds that the Applicant has not rendered qualifying service pursuant to section 7A(1)(a)(i) of the Act. Accordingly, the Applicant is not eligible for a Gold Card under section 85(4A) of the Gold Card Act.
Determination
The Tribunal determines that the decision under review be affirmed.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  15 November 2000
Date of Decision  9 April 2001
Counsel for the Applicant        Self Represented
Counsel for the Respondent    Jim Marsh