Cmielewski and Repatriation Commission - [2006] AATA 1063

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 1063
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/170

VETERANS' APPEALS DIVISION )

Re ALEKSANDER CMIELEWSKI

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President D G Jarvis
Date11 December 2006
PlaceAdelaide

Decision The tribunal sets aside the decision under review and in place of that decision decides that the applicant has rendered qualifying service during the periods when he was a member of the National Armed Forces of Poland and of the Holy Cross Brigade.

D G Jarvis
(Signed)
Deputy President

20. The expression “allied veteran” is defined in subsection 5C(1) as follows:
“allied veteran means a person:
(a)who has been appointed or enlisted as a member of the defence force established by an allied country; and
(b)who has rendered continuous full-time service as such a member during a period of hostilities;
but does not include a person who has served at any time:
(c)in the forces of a country that was, at that time, at war with Australia, or in forces engaged in supporting or assisting the forces of such a country; or
(d)in forces that were, at that time, engaged in war-like operations against the Naval, Military or Air Forces of Australia.”

21.     The expression “defence force established by an allied country” is also defined in subsection 5C(1) as follows:
“defence force established by an allied country means:
(a)       the regular naval, military or air forces; and
(b)       the nursing or auxiliary services of the regular naval, military or air forces; and
(c)       the women’s branch of the regular naval, military or air forces;
raised by an allied country and operated by the country with regular military-like lines of command, that is to say, raised and operated in such a manner that the members of those forces and services:
(d)       were formally appointed to, or enlisted in, those forces or services; and
(e)were required to wear uniforms or insignia distinguishing them as members of those forces or services; and

(f) were required to carry arms openly; and
(g) were subject to the rules and conventions of warfare.”

22. The same expression “defence force established by an allied country” is also defined separately in subsection 5C(3) in relation to any period during which there was a government-in-exile in relation to an allied country. It is this definition, rather than the definition referred to in the preceding paragraph, that is relevant to the present application, because Mr Cmielewski’s application relates to his service while the Polish Government was in exile. Subsection 5C(3) provides as follows:
“(3)In relation to any period during which there was a government-in-exile in relation to an allied country, defence force established by an allied country includes:
(a)the regular naval, military or air forces; and
(b)the nursing or auxiliary services of the regular naval, military or air forces; and
(c)the women’s branch of the regular naval, military or air forces;

raised by that government-in-exile…

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.

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Details

Case: [2006] AATA 1063
Decision Date: 11 December 2006

CaseChat Overview and Summary

The applicant, Cmielewski, challenged a decision by the Repatriation Commission regarding his eligibility for veterans' entitlements under Australian law. The crux of the dispute centred on whether the periods during which Cmielewski served in two underground forces in Poland during World War II constituted 'qualifying service' for the purposes of the Veterans’ Entitlements Act 1986. Specifically, the forces in question were the National Armed Forces (NSZ) and the Holy Cross Brigade. The case was heard in the Federal Court of Australia.

The court was required to determine several key legal issues. These included whether the NSZ and the Holy Cross Brigade qualified as 'defence forces established by an allied country' and what constituted 'establishing' such a force. It was also necessary to clarify the meaning of 'allied veteran' and 'defence force established by an allied country' within the statutory context. The interpretation of these terms would ultimately determine if Cmielewski's service was eligible for the benefits provided under the relevant legislation.

In delivering its judgment, the court considered various authorities and statutory provisions. It was held that both the NSZ and the Holy Cross Brigade were indeed defence forces established by the Polish government-in-exile, which qualified as an allied country under the relevant Acts. The term 'established' was interpreted in a broad sense, encompassing forces created or endorsed by the government-in-exile, even if they operated underground. Consequently, the court found that Cmielewski had rendered qualifying service during his membership in these forces. The earlier decision by the Repatriation Commission was set aside, and the tribunal was directed to find that Cmielewski had indeed rendered qualifying service.

The final orders of the court directed the tribunal to set aside the decision under review and to instead decide that Cmielewski had rendered qualifying service during the periods when he was a member of the National Armed Forces of Poland and of the Holy Cross Brigade.

Orders

Orders of the court

The tribunal sets aside the decision under review and in place of that decision decides that the applicant has rendered qualifying service during the periods when he was a member of the National Armed Forces of Poland and of the Holy Cross Brigade.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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VETERANS' APPEALS DIVISION		)
Re		ALEKSANDER CMIELEWSKI