Comben and Repatriation Commission
[2002] AATA 504
•25 June 2002
DECISION AND REASONS FOR DECISION [2002] AATA 504
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/205
VETERANS' APPEALS DIVISION )
Re RENEE COMBEN
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO, Member
Date25 June 2002
PlaceSydney
Decision The decision under review is affirmed.
[SGD] Rear Admiral A R Horton AO
Member
CATCHWORDS
VETERANS' AFFAIRS – eligibility for Repatriation Pharmaceutical Benefits Card - service in Women's Auxiliary Air Force 1944 – 1947 – service in Palestine and Egypt - employment as civilian by British Army prior to, and after, military service – whether incurred danger from hostile forces – whether eligible for campaign medals – whether Applicant rendered qualifying service
Veterans' Entitlements Act 1986 – sections 5B(1), 5C(1), 5G(1AA), 7A, 93M, 120(4)
Repatriation Commission v Thompson (1988) 44 FCR 20
REASONS FOR DECISION
25 June 2002 Rear Admiral A R Horton AO, Member
This is an application for review of a decision dated 29 November 2001 by a delegate of the Repatriation Commission ("the Respondent"), and affirmed by review under section 57A of the Veterans' Entitlements Act 1986 ("the Act") on 4 February 2002, that Renee Comben ("the Applicant") did not render qualifying service for the purposes of section 7A of the Act, and hence is not eligible for a Repatriation Pharmaceutical Benefits Card ("the RPBC") under section 93M of the Act. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 12 February 2002.
At the hearing before the Tribunal on 11 June 2002, 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 documents:
EXHIBIT DOCUMENT
Exhibit R1 Supplementary T documents pages 57 –75 forwarded under Department of Veterans' Affairs letter of 10 April 2002
Exhibit A1 Comments by the Applicant, undated, in respect of Exhibit R1
Exhibit R2 Extract of a report by the Committee on the Grant of Honours Decorations and Medals (UK) 1946
ISSUES BEFORE THE TRIBUNALThe Applicant (Mrs Renee Comben (nee Arwas) applied for the RPBC on 19 October 2001, based on service in the Women's Auxiliary Air Force (the "WAAF") in 1944 – 1947. Eligibility for this benefit is established pursuant to section 93M of the Act, which relevantly states:
"Who is eligible?
(1)A Commonwealth veteran, an allied veteran or an allied mariner is eligible for a pharmaceutical benefits card under this Part if the veteran or mariner:
(a) is 70 years of age or older; and
(b)has rendered qualifying service during the period covered by paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1); and
(c)has been an Australian resident for a continuous period of at least 10 years."
Pursuant to section 5C(1) of the Act, a Commonwealth veteran is defined as:
"… a person who rendered continuous full-time service as a member of :
(a) …
(b) the nursing or auxiliary services of the naval, military or air forces; or
(c) the women's branch of the naval, military or air forces;of a Commonwealth country during a period of hostilities."
Qualifying service is defined in section 7A of the Act, which states relevantly:
"(1) For the purposes of part III and VA and sections 85 and 118V, a person has rendered qualifying service:…
(a) …
(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) …
(2) campaign medal, in relation to service during the period of World War 2 from its commencement to and including 29 October 1945, means:
(a) any of the following medals:
(i) 1939-1945 Star
(ii) …
(iii) …
(iv) Africa Star;
…(b)any other medal declared by the regulations to be a campaign medal in relation to service during that period."
Section 5B(1) defines the period of hostilities and states, relevantly:
"(1) ….
(b) World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); or
…"
Residency is defined in section 5G(1AA) of the Act, which states relevantly:
"An Australian resident is a person who:
(a) resides in Australia: and(b) is one of the following:
(i) an Australian citizen
(ii) …"
The Respondent concedes that the Applicant is a Commonwealth veteran as defined in section 5C(1) of the Act, her service being with the Women's Auxiliary Air Force, and that such service was rendered during a period of hostilities as defined in section 5B(1) of the Act. The Applicant meets the age criteria as defined in section 93M of the Act, and is an Australian resident vide section 5G(1AA)(a) and (b)(i) of the Act.
The issue to be determined in this application is whether the Applicant rendered qualifying service pursuant to section 93M (1)(b) of the Act. The relevant standard of proof is that of reasonable satisfaction, that is, on the balance of probabilities, pursuant to section 120(4) of the Act.
FACTS AND EVIDENCEThe Applicant was born a British subject in Alexandria, Egypt, in 1921, of an English father and a French mother, her family having arrived in that country from the United Kingdom in 1914. The family subsequently moved to the British Mandated Territory of Palestine where the Applicant was educated. She was employed by the British Army in Jerusalem as a civilian clerk (stenographer) from 12 July 1943 until 19 February 1944. On 28 March 1944, she enlisted in the Women's Auxiliary Air Force Middle East (Statement of Service at T3), her mustering being that of Clerk General Duties. After about one month's initial training, she was posted to Egypt, initially to an aircraft repair depot at Helwan located near Cairo, and then into Cairo itself. She gave evidence that her role in the latter stages of her service was in education and vocational training in the rank of sergeant. She was discharged on termination of engagement on 16 January 1947.
On completion of her Air Force service, the Applicant returned to her previous civilian employment in Jerusalem with the British Army at headquarters East Palestine Sub District, remaining in this employment until evacuated to the United Kingdom with British forces in May 1948. She subsequently took up civilian employ with the National Coal Board. She married Mr George Comben in July 1949 and they arrived in Australia in 1978.
In evidence to the Tribunal, Mrs Comben stated that she had neither heard nor seen any hostile acts from enemy activity during her period of Air Force service in either Jerusalem or Egypt. In response to questions from the Respondent, she stated that at the time she was not aware that German and Italian forces in North Africa had been defeated well to the west of Cairo prior to her arrival in Egypt in 1944. She drew the attention of the Tribunal to the fact that she had received both the War Medal 1939-1945 (as confirmed in the Statement of Service at T3) and the Defence Medal, as evidence of war service.
The Applicant recounted the circumstances of the rise of the nationalist movement in Egypt after the war, wherein there was civil unrest and demonstrations demanding that British forces leave the country. She spoke of this period of unrest and disturbance, and gave evidence of an occasion where she and others were locked in their offices in Cairo for three days, whilst under threat by Egyptian demonstrators. She thought this was in 1946 or 1947. She conceded that to her knowledge, these demonstrations were not the result of any axis acts or initiatives.
In a record of evidence attributed to the Applicant at T11, dated 17 December 2001, reference is made to the Applicant being "sent to Palestine in 1947, she was chased by a group of Arabs as she returned to the British Office. Many people were killed outside this office. After this incident, Mrs Comben received a special escort to transfer her to and from work. The office was Headquarters, East Palestine sub district.'" No further evidence was given to the Tribunal in respect of this matter.
In summarising her views, the Applicant drew on her wartime experience in the WAAF, her award of the War and Defence medals, her interpretation of the criteria for eligibility for the RPBC as described in a departmental facts sheet dated 14 March 2002 (Exhibit R1, p60), and her understanding that others with similar experience were in receipt of the benefit. She attributed part of the problem in her eligibility being accepted to the failure by the Respondent to record a separate service number to that of her husband. In respect of the latter, and to clarify the basis of a fortnightly pension payment recorded to the Applicant on a Veteran Community Details Report attached at Exhibit R1, the Tribunal briefly adjourned in order for the Respondent to obtain clarifying information. Such information confirmed that the Applicant was in receipt of a fortnightly spouse pension resulting from her husband's British service pension. In respect of the issue of the service number, this appears to have no relevance to the matter under consideration, which is whether qualifying service has been rendered in order to establish eligibility for the RPBC.
The Respondent submitted that the Applicant could not meet the "incurred danger" test, given that the North African campaign ended some ten months prior to the Applicant's enlistment. Whilst her service was undoubtedly beneficial to the allied war effort, there was no evidence that she had incurred danger from any hostile forces. The Respondent submitted that the civil unrest in Egypt was not relevant to the issue of qualifying service. It resulted from the nationalist actions of members of the Egyptian community; if such actions occurred after 1945, as suggested by the Applicant, they were outside the period of hostilities, but in any event they were not relevant, Egypt being an ally of the allied powers.
The Respondent further submitted that the criteria in section 7A(1)(b)(ii) of the Act in respect of campaign medals was not applicable to the Applicant, as no such medals had been awarded, nor was there any evidence of eligibility.
ANALYSIS OF EVIDENCE AND FINDINGSAs conceded by the Respondent at the outset, the Applicant is a Commonwealth veteran and rendered service "during a period of hostilities" as defined in section 5B(1) of the Act. The issue is whether the Applicant rendered "qualifying service" as relevantly defined in section 7A of the Act, noting that "qualifying service" in respect of Commonwealth veterans is defined as:
"(1) For the purpose of part III and VA …
(a) …(b)if, during the 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) …."
Thus there are two basis by which the Applicant in this matter might meet the qualifying service criteria, the common denominator being that for the purposes of the legislation, and as a point of fact, the Applicant was a member of a British defence force, and hence Britain is 'that country' as referred to in the legislation, notwithstanding that she enlisted in Palestine. The first basis is that of incurring danger from hostile forces of the enemy outside the United Kingdom, the second that of service within the United Kingdom, in respect of which eligibility for, or award of a campaign medal would need to be established.
The Full Federal Court considered the implications of "incurred danger" in Repatriation Commission v Thompson (1988) 44 FCR 20, wherein their Honours stated at 23 – 24:
"The words 'incurred danger' therefore 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 Applicant enlisted in the WAAF in March 1944, and was posted to Egypt some four weeks later. She remained in that area until her discharge in January 1947. In the book "The Six Years War A Concise History of Australia in the 1939-45 War" (Extracted at Exhibit R1), the historian Gavin Long records that the axis forces in North Africa surrendered on 13 May 1943, some ten months before the Applicant enlisted. This cessation of hostilities on the African sub-continent is effectively confirmed in the extant conditions for the award of the Africa Star, wherein the UK Committee on the Grant of Honours Decorations and Medals represented to the then Government in June 1946 (Exhibit R2) that the award of the Africa Star be from the entry of Italy into the war up to the date of cessation of operations against the enemy in North Africa on 12 May 1943. Thus in the period of service by the Applicant in Egypt until the cessation of hostilities in October 1945, there is no evidence of enemy activity, nor on her evidence did the Applicant experience any such activity.
The Tribunal must agree with the submission by the Respondent that the matter of civil unrest by members of the Egyptian community in the period 1945 to 1947, but most likely in the period 1946 to 1947 on the evidence of the Applicant, does not constitute incurred danger from hostile forces. The Tribunal so finds. The Tribunal accepts that the experience of the Applicant in Egypt may well have been frightening to the Applicant but the Tribunal finds that the experience of the Applicant did not relate to hostile forces, Egypt not being part of the axis forces. The Tribunal is bound to follow the definition in section 7A(1)(b)(i) in that danger must be incurred from "hostile forces of the enemy" and the objective test for "incurred danger" as laid down in Repatriation Commission v Thompson (supra). The Applicant also does not meet the criteria for qualifying service in terms of "period of hostilities" as defined in section 5(B)(1) of the Act as the experience of the Applicant under consideration was, on the evidence before the Tribunal, more likely than not outside the defined time frame in section 5(B)(1) of the Act. The Tribunal also finds in respect of the "record of evidence" (T11) referred to in paragraph 14 that there is no evidence that what did occur related to hostile forces.
The Applicant therefore fails to meet the first basis (section 7A(1)(b)(i)) of the Act, in that danger from hostile forces was not incurred.
The Applicant submitted that she satisfies the second basis (section 7(A)(1)(b)(ii)) in that she was awarded the War Medal 1939-45 and the Defence Medal for her wartime service in the WAAF. The Tribunal finds that neither of the Applicant's medals are defined as "campaign medals" pursuant to section 7(A)(2) of the Act. The criteria for the award of the former is :
"All persons serving full time in the Armed forces for 28 days between 3 September 1939 and 2 September 1945"
and for the latter:
"3 years service in the United Kingdom between 3 September 1939 and 2 September 1945, or 6 months overseas in a non-operational area subject to aerial attack."
Suffice that neither medal awarded to the Applicant is identified under legislation as being relevant to the eligibility for qualifying service, and they are either implicit or specific, respectively in not requiring operational service, which is a criteria applied to the 1939-45 Star and the Africa Star and other campaign medals pursuant to section 7A of the Act. The Tribunal recognises the Applicant's contribution to the war effort but is bound to follow the legislation and find that the medals received by the Applicant are not "campaign medals" and thus the Applicant fails to meet the second basis for "qualifying service". The Tribunal recognises the view of the Applicant on this issue of medals, but is bound to follow the legislation.
The Tribunal therefore must find that whilst the Applicant served her country in the Women's Auxiliary Air Force during the period of hostilities pursuant to section 5B(1)(b) of the Act from February 1944, there is no evidence against the required standard of proof vide section 120(4) of the Act, of reasonable satisfaction, that she either incurred danger from hostile forces of the enemy or has eligibility for or was awarded a relevant campaign medal. In respect of the latter issue, the Tribunal is of the opinion, as referred to earlier in paragraph 19, that a campaign medal, if awarded, would only have relevance to the Applicant had she served in the United Kingdom, or "that country" as referred to in the relevant legislation, section 7(A)(1)(b)(ii). As there is no evidence of eligibility for a campaign medal, this matter is not considered further.
The Tribunal therefore finds that the Applicant does not meet the criteria for "qualifying service" as defined in section 7A of the Act, and hence the Applicant is not eligible for the Repatriation Pharmaceutical Benefits Card, the criteria for which is defined in section 93M of the Act.
DECISIONThe decision under review must therefore be affirmed.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO, Member
Signed: H. Sim
..........................................................................
AssociateDate of Hearing 11 June 2002
Date of Decision 25 June 2002
Representrative for the Applicant Self Represented
Advocate for the Respondent Mr J Marsh
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