Chenu and Repatriation Commission
[2003] AATA 461
•23 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 461
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1735
VETERANS' APPEALS DIVISION ) Re ALAN CHENU Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO Date23 May 2003
PlaceSydney
Decision The decision under review is affirmed.
…………………………………
Rear Admiral AR Horton, AO Member
CATCHWORDS
VETERANS AFFAIRS – eligibility for Gold Card – whether Applicant is a veteran – no qualifying service in RAAF from 1943 to 1945 - whether Applicant meets legislative requirements for qualifying service whilst employed as Qantas aircrew during ferry flights to and from Saigon - whether Tribunal has jurisdiction to review decision of Respondent – whether Applicant incurred danger from hostile forces
Administrative Appeals Tribunal Act 1975 – section 25
Veterans’ Entitlements Act 1986 – sections 5, 5c, 6, 7, 7A, 7C, 35, 57, 79, 80, 85, Part V, 115, 118Z, 135, 175, 176, 177, 178
Re Stewart-Moore and Repatriation Commission [1999] AATA 573 (5 August 1999)
REASONS FOR DECISION
23 MAY 2003 REAR ADMIRAL A R HORTON AO 1. Mr Alan Chenu, the Applicant in this matter, seeks review of a decision made on 4 November 2002 by the Repatriation Commission (“the Respondent”) under section 57 of the Veterans Entitlements Act 1968 (“the Act”), which affirmed a decision of a delegate of the Respondent made on 1 May 2002, that he is not eligible for a Gold Card. A Gold Card gives its holder access to the full range of repatriation health‑care benefits and provides for treatment of all medical conditions whether war‑caused or not. The Applicant lodged an application for review by the Administrative Appeals Tribunal (“the Tribunal”) on 15 November 2002.
2. By agreement with both parties, and following a Telephone Directions Hearing on 1 April 2003, the matter has been considered, and a decision reached, on the papers. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (“the T-documents”). Also before the Tribunal was the Respondent’s Statement of Facts and Contentions dated 26 February 2003. The decision under review is that the Applicant is ineligible for qualifying service during the Vietnam conflict as he is not a “veteran” in respect of post World War 2 service, as defined in section 5C of the Act, and thus not entitled to a Gold Card. .
BACKGROUND
3. Mr Chenu was born at Jerilderie in New South Wales on 1 April 1923. He served in the Melbourne University Regiment from December 1941 until January 1942. He enlisted in the Royal Australian Air Force (“the RAAF”) on 18 June 1943, serving in the category/mustering of Airman Pilot until his transfer in the rank of Flight Sergeant to the RAAF Reserve on 24 June 1945. He was discharged from the Reserve on 5 March 1947. As recorded in his Record of Service (T2), he had no “overseas/operational service”, did not serve outside the mainland of Australia, and did not serve in the Northern Territory north of parallel 14.5 degrees south during World War 2.
4. At some point after his discharge from the RAAF Reserve, the Applicant became an aircrew employee of Qantas Airways. In an application for the Gold Card, he stated that he captained Qantas aircraft on a number of occasions between September 1967 and July 1972, ferrying troops into Saigon. Whilst there is no primary evidence of such flights before the Tribunal, this Qantas service has not been disputed by the Respondent. Further, it was effectively confirmed in that the Applicant was awarded the Vietnam and Logistic Support medal and the Australian Active Service Medal 1945-1975 with Clasp ‘Vietnam’.
5. In July 2001 the Applicant applied for the Commonwealth Seniors Health Card, for which he was found ineligible by the Respondent as he did not render qualifying service (during his RAAF service) as defined in sub-section 7A(1) of the Act.
6. On 25 February 2002, Mr Chenu applied for the Gold Card (T7), the criteria for which is defined in section 85 of the Act. The decision of the Respondent on 20 March 2002 was that he had not rendered “qualifying service” pursuant to section 7A of the Act. The case notes prepared by the Respondent (T8) when considering this application determined that whilst he was a “veteran” as defined in section 5C of the Act on the basis of his full-time service with the RAAF in World War 2, he did not meet the criteria for qualifying service.
7. On 17 April 2002, Mr Chenu submitted an ‘Application to Determine Qualifying Service by a Veteran or Mariner’ (T10). In response to the question as to which branch of the armed forces he had served in he responded ‘civil pilot’, the period of such service being September 1967 to July 1972 in respect of flights ferrying troops into Vietnam. In response to the question as to what danger he experienced from enemy forces, he responded ‘anti aircraft shelling’. In the consideration of this application , the delegate determined on 1 May 2002 that whilst the Applicant “is a veteran as described in paragraph a) of the definition of veteran in section 5C of the VEA”, he “has not rendered post WWII Qualifying Service as defined in sect 7A of the VEA” (T11). This determination, advised to Mr Chenu on 2 May 2002 (T12) took account of the previous determination of the Respondent in respect of World War 2 service (T8), and his service as Qantas aircrew. In respect of the latter service, the Respondent concluded that Mr Chenu had not been allotted for duty in an operational area vide Schedule 2 of the Act, nor did he have “warlike service” (as per section 5C(1) of the Act).
8. On 4 November 2002, the primary decision of the Respondent was varied on review under section 57A of the Act, wherein it was determined that “Mr Chenu is not a “veteran” in respect of post World War 2 service, as defined in section 5C of the Veterans’ Entitlements Act 1986 (the VEA)” and that he “is therefore ineligible for qualifying service during the Vietnam conflict” (T14).
LEGISLATION
9. Sub-sections 85(4A) and (4B) of the Act, falling under Part V (Medical and other Treatment), define the provisions relating to the Gold Card as relevant to World War 2 and post-World War 2 service respectively. Those provisions were inserted by the Veterans’ Entitlements Amendment (Gold Card) Bill 1998 and Veterans’ Entitlements Amendment (Gold Card Extension) Act 2002 respectively. They provide:
“(4A)A veteran is eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act, if:
(a) the veteran is 70 or over; and
(b)the veteran has rendered qualifying service during the period covered by paragraph (b) of the definition of period of hostilities in subsection 5B(1); and
(c) either:
(i)the Department has notified the veteran in writing that he or she is or will be eligible for such treatment; or
(ii)the veteran has notified the Department in writing that he or she seeks eligibility for such treatment.
(4B) A veteran is eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act, if:
(a) the veteran is 70 or over; and
(b)the veteran has rendered qualifying service within the meaning of sub-paragraph 7A(1)(a)(ii), (iii) or (iv) or paragraph 7A(1)(b), (c) or (f); and
(c) …”
10. In this matter, the Respondent accepts that the Applicant is over 70 years of age. In respect of World War 2 service, the Respondent found that whilst Mr Chenu was a “veteran” as per section 5C(1) of the Act, he did not satisfy the criteria in sub-section 85(4A) of the Act in that he had not rendered “qualifying service”. That matter is not before this Tribunal, although on the papers, the Tribunal is of the opinion that this was the correct and preferable decision.
11. The matter before this Tribunal is that of the later determination of 4 November 2002, wherein the Commission made a determination in respect of post World War 2 service, the decision being that Mr Chenu was not a “veteran” and “was therefore ineligible for qualifying service”.
ELIGIBILITY AS VETERAN
12. The Respondent contended that in respect of the Applicant’s involvement in the Vietnam conflict, Mr Chenu is not a “veteran” as per the definition in section 5C of the Act, and that, following the decision in Re Stewart-Moore and RepatriationCommission [1999] AATA 573 (5 August 1999), the Tribunal does not have jurisdiction to review a decision under section 85 of the Act as to whether a person is a “veteran”.
13. In the alternate, the Respondent contended that, as Mr Chenu did not serve in the Australian Defence Force in the period September 1967 to July 1972, that is, the period when he was flying into Vietnam, he cannot meet the definition of “veteran” in section 5C(1) of the Act. Further, the Respondent contended that Mr Chenu does not have “qualifying service” under section 7A(1) of the Act during this period.
14. “Veteran” is relevantly defined, in section 5C(1) as it applies to Part V (Medical and other treatment) of the Act, to mean:
“(a) a person (including a deceased person):
(i)who is, because of section 7, taken to have rendered eligible war service; or
…”
15. Section 7 of the Act relevantly states:
“(1) Subject to subsection (2), for the purposes of this Act:
(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and
(b) … ”
Subsection (2) is not relevant to this matter.
16. Operational service as it applies to World Wars, is defined in section 6A of the Act. It requires a person to have been a member of the Defence Force (which is further defined in section 30 of the Defence Act1903 as consisting of the Australian Navy, Army and Air Forces), or alternatively, to have been a “member of the naval, military or air forces of a Commonwealth country or of an allied country, who was domiciled in Australia or an external Territory immediately before his or her appointment or enlistment in that force”, and to have “undertaken continuous full-time service…”.
17. As previously conceded by the Respondent in the determinations of 20 March 2002 (T8) and 1 May 2002 (T11), Mr Chenu met the criteria for eligibility as a “veteran” by dint of his RAAF service in World War 2. He rendered operational service as a member of the Defence Force, thus rendering eligible war service, and in turn thereby meeting the criteria for veteran as defined in section 5C(1) of the Act.
18. The Respondent sought before the Tribunal to impose a requirement that the Applicant’s qualification as a “veteran” must be satisfied in respect of each period of his service. That is, in considering “service” in a later conflict, Vietnam in this instance, the Applicant must “re-qualify” as a veteran. No argument has been advanced for this view. Indeed, as noted above, the Respondent determined in respect of the Applicant’s claim for “qualifying service” during the Vietnam conflict on 1 May that Mr Chenu “is a veteran” (T11). The subsequent advice on 2 May 2002 to Mr Chenu in respect of his claim made no specific reference to his eligibility as a veteran, only addressing the matter of “qualifying service”.
19. It was not until the later determination under the section 57A review on 4 November 2002 (T14) that Mr Chenu was advised he was not a “veteran”, “in respect of post World War 2 service”.. The statement of reasons in that determination opened as follows:
“On 01.05.02 a Delegate of the Repatriation Commission decided that Mr Chenu was not a “veteran” for his service as Qantas aircrew during the Vietnam conflict, and consequently did not render qualifying service…”
That statement misrepresents the decision of the delegate on 1 May 2002, wherein it was determined that Mr Chenu was indeed a “veteran” (T11). Further, whether or not Mr Chenu was a “veteran” in respect of his service in the Vietnam conflict, was not specifically addressed when the Applicant was advised of that determination on 2 May 2002 (T12).
20. The letter of advice of 2 May 2002 stated that Mr Chenu had not been allotted for duty in an operational area as described in column 1 of Schedule 2 of the Act referring to post World War 2 service, nor did he have “warlike service”, and hence he could not meet the “qualifying service” requirement. Be that as it may, in the view of the Tribunal it does not follow that Mr Chenu is no longer a “veteran” for the purposes of eligibility for the Gold Card. That is, the legislation is not so worded that a person has to meet the criteria as a “veteran” for each “conflict” in which he or she may have been involved.
21. In this instance, it has been determined that Mr Chenu is a “veteran” by dint of his RAAF service in World War 2 and hence there is nothing before the Tribunal that requires that matter to be reconsidered. Accordingly, there is no question of lack of jurisdiction on the part of the Tribunal.
QUALIFYING SERVICE
22. In respect of post World War 2 qualifying service, for the purposes of section 85(4B) of the Act in respect of eligibility for the Gold Card, qualifying service must be the rendered within the meaning of sub-sections 7A(1)(a)(ii),(iii) or (iv) or (1)(b),(c) or (f) of the Act, which relevantly state:
“7A Qualifying Service
(1) For the purposes of Parts III and VA and sections 85 and 118V, a person has rendered qualifying service:
(a) if the person has, as a member of the Defence Force:
(i) …
(ii)rendered service after 29 October 1945 in respect of which the person has been awarded, the Naval General Service Medal or the General Service Medal (Army and royal Air Force) with the Minesweeping 1945-51 Clasp, the Bomb-Mine Clearance 1945-53 clasp, the Bomb and Mine Clearance 1945-49 Clasp or the Bomb and Mine Clearance 1945-56 Clasp; or
(iii)rendered service outside Australia in an area described in column 1 of Schedule 2 during the period specified in column 2 of that Schedule opposite to that description, as a member of a unit of the Defence Force that was allotted for duty, or as a person who was allotted for duty, in that area; or
(iv) rendered warlike service; or
(b)if, during a period of hostilities, the person has, as a member of the defence force established by a Commonwealth country, rendered, in connection with war or war-like operations in which the Naval, Military or Air Forces of Australia were engaged:
(i) service, in an area outside that country, at a time when the person incurred danger from hostile forces of the enemy in that area; or
(ii) service within that country, being service in respect of which the person has been awarded, or has become eligible to be awarded, a campaign medal; or
(c) if the person is an allied veteran who, during a period of hostilities, has, as a member of the defence force established by an allied country, rendered, in connection with a war, or war-like operations, in which the Naval, Military or Air Forces of Australia were engaged, service in an area within or outside the country in which the person enlisted in those forces, being service in respect of which the person incurred danger from hostile forces of the enemy; or
(d)…
(e) …
(f) if the person is a person in respect of whom a pension is payable in
pursuance of 13(6); or
…”
23. On the evidence before the Tribunal, the only relevant sub-sections under section 7A of the Act for consideration are sub-section (1)(a)(iii) relating to the rendering of service in an area prescribed under Schedule 2, and sub-section (1)(a)(iv) which refers to “warlike service”.. There is no evidence that Mr Chenu is eligible for, or has been awarded, the medals referred to in subsection 7A (1)(a)(ii), that he is a Commonwealth veteran pursuant to sub-section (1)(b), or an Allied veteran pursuant to sub-section (1)(c). Nor is there any evidence that the circumstances of sub-section (1)(f) in respect of pensions are relevant.
24. As applicable to this matter, Schedule 2 of the Act defines the period relevant to the Vietnam operational area. Sub-section 6C(1) defines the circumstances in which Schedule 2 is to be considered, stating relevantly:
“6C Operational service-post World War 2 service in operational areas
(1)Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
(a) a member who was allotted for duty in that area; or
(b) a member of a unit of the Defence Force that was allotted for duty in that area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.”
25. The relevant criteria that must be met is that the veteran must have been rendering full-time service as a member of the Defence Force at the time, and that he or she or his or her unit must have been allotted for duty in the area. There is no evidence before the Tribunal to suggest that on the occasions of flying in and out of Vietnam, Mr Chenu was a member of the Defence Force (as defined in section 30 of the Defence Act 1903) or that he was allotted for duty. At the Directions hearing, Mr Chenu confirmed that at all times he was employed by Qantas Airways and directed in operations by his employer.
26. Further there is no evidence before the Tribunal that suggest that Qantas Airways was “allotted for duty”, the definition of which is to be found in subsection 5B(2) of the Act which states relevantly:
(2)A reference in this Act to a person, or a unit of the Defence Force, that was allotted for duty in an operational area is a reference:
(a)in the case of duty that was carried out in an operational area described in item 1,2,3,4,5,6.7 or 8 of Schedule 2 (in column 1) – to a person, or unit of the Defence Force, that is allotted for duty in the area (whether retrospectively or otherwise) by written instrument issued by the Defence Force for use by the Commission in determining a person’s eligibility for entitlements under this Act; or
…”
The above sub-section confirms the requirement that the member or unit must be a member of the Defence Force. As Mr Chenu was not a member of the Defence Force, and neither he nor his employer was allotted for duty, it follows that he cannot meet this criteria in respect of qualifying service.
27. Sub-section 7A(a)(iv), referring to the rendering of “warlike service”, remains to be considered. Such service is defined in section 5C as being “service in the Defence Force of a kind determined in writing by the Minister for Defence to be warlike service”. In the context of his operations during the Vietnam conflict, Mr Chenu did not serve in the Defence Force and there is no evidence of any relevant determination by the Minister for Defence.
28. Mr Chenu has variously drawn attention to the relevance of the award of the Vietnam and Logistic Support and the Australian Active Service Medal 1945-1975 with ‘Vietnam’ clasp, as being clear evidence of his operational involvement in the Vietnam conflict and an eligibility for the Gold Card. However, entitlement to the award of such medals is not a matter referred to in the legislation relating to eligibility for the Gold Card. The Tribunal also refers the Applicant to the advice previously provided by the Respondent in respect of the Mohr Report (Review of Service Entitlement Anomalies in respect of South East Asia 1955-75) wherein Qantas aircrew were accorded a civilian status. Whilst not relevant to the decision in this matter, the recently completed Report of the Review of Veterans’ Entitlements by a committee chaired by the Honourable John Clarke QC, a report yet to be considered by government, contains a recommendation that the current policy precluding the access of civilians including “Qantas aircrew who flew in and out of Saigon” to veterans’ benefits under the VEA, should continue.
29. Mr Chenu referred in his claim to experiencing danger from anti-aircraft shelling whilst operating in and out of Saigon. Unfortunately, the veterans’ legislation makes no provision for the consideration of such issues except by members of the Defence Force.
DECISION
30. Whilst Mr Chenu was employed by Qantas Airways operating in support of the Defence Force in Vietnam, he was not a member of the Defence Force, and neither he nor his employer were “allotted for duty” or determined to have rendered “warlike service” in accordance with the various provisions of the Act. Accordingly, Mr Chenu does not meet the criteria for “qualifying service” as defined in section 7A of the Act, and hence he is not eligible for the Gold Card as defined in section 85 of the Act.
31. The decision under review is therefore affirmed.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON AO
Signed: L Bonouvrie
AssociateDate/s of Hearing 1 April 2003 (Telephone Directions Hearing)
Date of Decision 23 May 2003
Advocate for the Applicant Self-represented
Advocate for the Respondent Mr Stephen Modder
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