Cunnington and Repatriation Commission
[2003] AATA 355
•17 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 355
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/49
VETERANS' APPEALS DIVISION ) Re ROGER CUNNINGTON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President
Brigadier R D F Lloyd, MemberDate17 April 2003
PlacePerth
Decision The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the following direction:
· if the applicant was permanently incapacitated for work in accordance with a determination under s37AA of the Veterans’ Entitlements Act 1986 (“the Act”) as at 18 October 2001, he has been eligible for an invalidity service pension under s37(1) of the Act, and such pension has been payable to him, as from that date;
· otherwise the applicant has been eligible for an age service pension under s36(1) of the Act, and such pension has been payable to him, as from 24 February 2002.
.........(sgd S D Hotop).......................
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – service pension – applicant enlisted in Royal Naval Reserve (RNR) in 1963 – applicant applied to Royal Australian Navy (RAN) to carry out 3 months sea training – RAN Naval Board posted applicant to HMAS Sydney for 3 months training commencing on 20 November 1967 – applicant served full-time on board HMAS Sydney from 20 November 1967 to 19 February 1968 – HMAS Sydney allotted for duty in operational area during that period – whether applicant eligible for service pension – whether applicant a veteran – whether applicant a member of Defence Force – whether applicant rendered operational service – whether applicant rendered eligible war service – whether applicant rendered continuous full-time service in operational area as member of unit of Defence Force allotted for duty in that area – whether applicant rendered qualifying service
Veterans’ Entitlements Act 1986 ss 5B(2), 5C(1), 5R(1), 6C(1), 7(1), 7A(1), 36(1), 37(1), Sched 2
Defence Act 1903 s 30
Instrument signed by the Minister for Defence Industry, Science and Personnel, on behalf of the Minister for Defence, under s 5B(2)(c) of the Veterans’ Entitlements Act 1986, dated 23 December 1997
Continuous full-time service determination made by the Minister for Veterans’ Affairs under s 5R(1)(b) of the Veterans’ Entitlements Act 1986, dated 27 August 1998
REASONS FOR DECISION
17 April 2003 Associate Professor S D Hotop, Deputy President
Brigadier R D F Lloyd, MemberIntroduction
1. Roger Cunnington (“the applicant”) has applied to the Tribunal for review of a decision of a Senior Delegate of the Repatriation Commission (“the respondent”) dated 23 January 2002, which affirmed a decision of a delegate of the respondent dated 18 December 2001, that the applicant was not eligible for a service pension under the Veterans’ Entitlements Act 1986 (“the VE Act”).
2. At the hearing the applicant was represented by the Hon Kevin Prince, Solicitor, and the respondent was represented by Mr C Ponnuthurai, an advocate employed by the Department of Veterans’ Affairs. The Tribunal had before it the statement and documents lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and the following documentary exhibits tendered in evidence by the parties:
· Statement of Evidence of the applicant, dated 18 December 2002 (A1);
· Determination made by the Minister for Defence Industry, Science and Personnel, on behalf of the Minister for Defence, under s5B(2)(c) of the VE Act, dated 23 December 1997 (A2);
· letter dated 20 November 2002 from the Navy Medals Section, Directorate of Honours and Awards, Department of Defence to the applicant (A3);
· letter (and enclosures) dated May 2002 from the Naval Manning Agency, HM Naval Base Portsmouth, United Kingdom to the applicant (A4);
· “Continuous full-time service determination” made by the Minister for Veterans’ Affairs under s5R(1)(b) of the VE Act, dated 27 August 1998 (R1); and
· extracts from Jeffrey Grey, Up Top: The Royal Australian Navy and Southeast Asian Conflicts 1955-1972 (Allen & Unwin, in association with the Australian War Memorial, 1998) (R2).
The applicant gave oral evidence. There were no other witnesses.
The Factual Background
3. The relevant background facts which are not in dispute, and as found by the Tribunal on the basis of the T documents and Exhibits, are as follows.
4. The applicant, who was born on 24 February 1942, enlisted in the Royal Naval Reserve (“RNR”) in Portsmouth, United Kingdom in 1963, rising to the rank of Lieutenant in 1966. (T4, p6)
5. In December 1966 the applicant, who was then residing in Australia, applied to the Royal Australian Navy (“RAN”) to carry out 3 months sea training (in order to fulfil his RNR obligations) with the RAN. The RAN referred the applicant’s application to The Admiral Commanding Reserves, London for approval. Such approval was granted in March 1967. (Exhibit A4)
6. On 26 October 1967 the Naval Board, RAN posted the applicant to HMAS Sydney for 3 months training commencing on 20 November 1967. (T5, p9)
7. The applicant served in a full-time capacity on board HMAS Sydney from 20 November 1967 to 19 February 1968. (Exhibit A4)
8. The applicant was discharged from the RNR in 1974. (T7, p 21)
9. On 18 October 2001 the applicant lodged with the Department of Veterans’ Affairs a “Claim for Service Pension by a Veteran or Mariner” form, dated 15 October 2001. (T6) In connection with that claim the applicant provided to the Department relevant details of his service, namely, that he left Australia, first, on 10 December 1967 and returned on 15 January 1968, and second, on 16 January 1968 and returned on 19 February 1968, and that during those periods he served on HMAS Sydney in South Vietnam in January and February 1968. (T7)
10. On 18 December 2001 a delegate of the respondent decided that the applicant was not eligible for a service pension as he was “not a Commonwealth veteran as defined in section 5C of the Veterans’ Entitlements Act 1986”. (T10)
11. On 23 January 2002 a Senior Delegate of the respondent affirmed the abovementioned decision on the ground that the applicant “does not meet the eligibility criteria set out in sections 5C and 7A of the VE [Act]”. (T2)
The Applicant’s Case
12. A Statement of Evidence of the applicant, dated 18 December 2002, was tendered in evidence (Exhibit A1), and its contents (as amended) were verified by the applicant. The contents of that (amended) Statement of Evidence are as follows:
“1. I was born on 24 February 1942 at Bristol in the United Kingdom and am presently aged 60 years.
2. I am unemployed and in receipt of New Start Allowance.
3. This statement is made in support of my application to the Administrative Appeals Tribunal, Veterans’ Appeals Division, Number W2002/49 for review of a decision made by the Repatriation Commission and pursuant to a direction of the Tribunal that I file a statement of my evidence.
4. I was educated at schools in Bristol including Bristol Grammar School to the age of 15 when I entered HMS Conway.
5. That then was a merchant navy cadet school situated in Anglesey in North Wales and I attended that school from 1957-1959.
6.As a result of the education and training I received at HMS Conway when I then applied for jobs in the merchant marine United Kingdom I was accepted and had to serve a 3 year apprenticeship at sea, not 4 years which would have been the case if I had not had the prior training at HMS Conway.
7. My first job was with Alfred Holt & Co. of Liverpool, more commonly known as the Blue Funnel Line.
8. When I completed my apprenticeship and passed my Second Mates Certificate I then applied to join the Royal Naval Reserve.
9. I continued to work in the Merchant Navy while serving with the Royal Naval Reserve.
10. My obligation with the Royal Naval Reserve was to do a 5-month probationary training course at various places in and around the Royal Navy establishments at Portsmouth in the United Kingdom. This involved me being trained in a number of departments including gunnery, minesweeping, anti-submarine warfare and other Royal Navy war related training.
11. The obligation as a member of the Royal Naval Reserve thereafter was 3 months of sea training every two years.
12. During my work for the Blue Funnel Line I made 4 trips to Australia over a period of 6 years. I liked Australia and wanted to move to Australia to live and work. I made contact with BHP Pty Co Ltd and was offered a job if I migrated to Australia.
13. In about June or July 1966 I saw the Marine Superintendent of BHP and was offered the job so I applied to migrate and was accepted as an assisted migrant in October 1966. BHP paid my way to Australia. I joined BHP and served on their ships.
14. Between 1966 and 1968 I was employed in Australian registered vessels of BHP. In 1967 I had to perform my training obligation as a member of the Royal Naval Reserve.
15. Because I was then in Australia and could not return to the United Kingdom to do this I applied to the Admiral commanding the Royal Naval Reserve in the United Kingdom for permission to do my training with the Royal Australian Navy. This was approved by the Naval Authorities in Britain and in Australia and I received from the Australian Navy office in Canberra a letter which read in part as follows:
‘The Naval Board hereby posts you to HMAS Sydney additional for 3 months training to date 20 November 1967 and directs that you repair to your duty’.
This letter was signed by direction of the Naval Board. During the period that I was to serve with the Royal Australian Navy I was paid by the Royal Australian Navy at Australian rates of pay and I paid taxes to the Australian Taxation Office on that pay.
16. I was not serving with the Royal Australian Navy on exchange or transfer when I was posted to duty by the Australian Naval Board on HMAS Sydney.
17. I served on HMAS Sydney from November 1967 to February 1968 working as a member of the ship’s company keeping bridge watch, keeping watches generally, assisting the navigator at sea, keeping gangway watches and assisting with the load and discharge of Army equipment in port.
18. During this period of service I went on two voyages to Vietnam.
19. On the final run of HMAS Sydney into Vung Tau when I was on board the Sydney, Naval Command ordered a destroyer escort to accompany HMAS Sydney and so the frigate HMAS Stuart based at Singapore was the defensive escort.
20. In the China Sea the anti-submarine helicopters of HMAS Sydney were deployed almost constantly searching the waters ahead and to each side for dangers including mines.
21. The arrival of HMAS Sydney into Vung Tau was at dawn to enable the final approach to be made under the cover of darkness and for the final six hours of passage to Vung Tau the ship’s company was closed up at action stations wearing antiflash apparel and all other standard precautions.
22. At Vung Tau HMAS Sydney anchored about one nautical mile from shore within range of artillery and mortar fire and the ship’s divers made frequent safety checks of the underwater hull.
23. As a crew we were able to observe American aircraft attacking enemy positions immediately in-shore while the Army contingent with all its equipment was flown off HMAS Sydney by helicopter. When we had completed this task HMAS Sydney and her destroyer escort sailed as soon as possible and again the first 6 hours of the passage was closed up at action stations.
24. By a written instrument signed by the Honourable Bronwyn Bishop then Minister for Defence Industry, Science and Personnel dated 23 December 1997 in respect of the Veterans’ Entitlements Act 1986 it was stated that HMAS Sydney had been allotted for duty in an operational area during the 2 voyages that I participated in from Australia to Vung Tau.
25. Consequently I served as a member of the ship’s company and the instrument I have from the Naval Board indicates that to be the case.
26. I believe that the Royal Australian Navy deemed the China Sea legs of the voyages to and from Vung Tau to be in dangerous waters and I was a member of the ship’s company of HMAS Sydney during those times.
27. I am an Australian citizen having been made a citizen in May 1974 and I have held an Australian Passport since 1981.
28. In 1968 I left BHP and returned to the United Kingdom to do a 3-year degree course with what was then called the Plymouth College of Technology, now Plymouth University.
29. This was a Bachelor of Science degree in nautical studies and was a form of study that was not available in Australia at the time.
30. When I had completed that course I returned to Australia.
31. While I was in the United Kingdom doing this higher qualification and study, I did further sea training with the Royal Naval Reserve on a minesweeper for a period of 3 months.
32. I returned to Australia at the end of 1972 and then joined the Australian National Line at its head office in Melbourne. My qualification from Plymouth College of Technology enabled me to seek this position.
33. I worked with the Australian National Line until 1978 when I was at that time the Assistant Manager for bulk trade.
34. I then joined the Shell Company in a marketing position and subsequently in recruitment. I left Shell in 1984 and it was at about that time that I was diagnosed as an epileptic. I had some grand mal seizures, which could subsequently be controlled by medication, and I now have what is known as petty mal events from time to time.
35. I have settled in Albany and as part of my regime to handle my illness I need a regular lifestyle free from stress.
36. I have been encouraged by members of the RSL to make application for Defence Service Benefits and so I have done so. The Repatriation Commission has rejected my application and consequently I have appealed to the Administrative Appeals Tribunal.
37. In September 2001 again with the encouragement and assistance from RSL members, I applied for service awards. By a letter dated 20 November 2002 the navy medal section of the Directorate of Honours and Awards of the Department of Defence has advised me that examination of my service records revealed that I am eligible for the award of the Australian Active Service Medal (AASM 1945-1975) with clasp ‘Vietnam’ and the Vietnam Logistic and Support Medal because I was a member of a ship operating in support of the Australian Armed Forces for one day or more in the area of operations of Vietnam between the period of 29 May 1964 to 27 January 1973.
38. I am also informed by the same letter a Returned from Active Service Badge (RASB) is also awarded for this service.
39. Recommendations for these awards for the AASM Clasp ‘VIETNAM’ and VLSM will be submitted to the Governor-General for approval and subject to that approval the award will be engraved and sent to me.
40. According to the directory of what is known as list 1 of Officers of the Royal Naval Reserve, I and one other person during the period of the Vietnam conflict worked for Australian companies. As far as I am aware the other person a Mr C.M.G. Adams did not perform any of his sea-time service with the Royal Australian Navy and so it would seem that I am the only person in this position.”
13. The applicant’s oral evidence did not add significantly to the above Statement of Evidence. He also tendered in evidence Exhibits A2-A4, referred to in paragraph 2 above.
The Respondent’s Case
14. The respondent tendered in evidence Exhibits R1 and R2, referred to in paragraph 2 above.
The Legislation
15. Service pensions are the subject of Part III of the VE Act. The conditions of eligibility for an “age service pension” are prescribed by s 36(1) of the VE Act as follows:
“36(1)Subject to subsection (4), a person is eligible for an age service pension if the person:
(a)is a veteran; and
(b) has rendered qualifying service; and
(c) has reached pension age.
Note 1A: For veteran see subsection 5C(1).
Note 1: For qualifying service see section 7A.
Note2: For pension age see section 5QA.”
The conditions of eligibility for an “invalidity service pension” are prescribed by s 37(1) of the VE Act as follows:
“37(1)Subject to subsection (6), a person is eligible for an invalidity service pension if the person:
(a) is a veteran; and
(b) has rendered qualifying service; and
(c) is permanently incapacitated for work in accordance with a determination under section 37AA.
Note 1: For veteran see subsection 5C(1).
Note 2: For qualifying service see section 7A.”
16. The word “veteran” is defined in s 5C(1) of the VE Act to mean, relevantly, “a person…who is, because of section 7, taken to have rendered eligible war service”. Section 7(1)(a) of the VE Act provides:
“7(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; …”.
Section 6C(1) of the VE Act provides:
“6C(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.”
17. The meaning of the expression “qualifying service” is the subject of s7A of the VE Act. Section 7A(1) sets out, for the purposes of Part III of the VE Act, the various circumstances in which a person has rendered qualifying service, including (relevantly):
“(a) if the person has, as a member of the Defence Force:
(i) ….; or
(ii) …; or
(iii)subject to subsection (1A), 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
…”.
Amongst the “operational areas” described in column 1 of Schedule 2 to the VE Act is “Vietnam (Southern Zone)” (item 4), and the period specified in column 2 of that Schedule opposite thereto is “The period from and including 31 July 1962 to and including 11 January 1973”.
18. Section 5C(1) of the VE Act contains definitions of the following relevant words and phrases:
“member of a unit of the Defence Force means:
(a) a member of the Defence Force; or
(b) another person who is:
(i) a member of the unit; or
(ii) attached to the unit; or
(iii) appointed for continuous full-time service with the unit
Note: see also subsection 5R(1).”
“member of the Defence Force includes a person appointed for continuous full-time service with a unit of the Defence Force.”
“unit of the Defence Force means a body, contingent or detachment of the Defence Force.”
“Defence Force has the same meaning as in the Defence Act 1903.”
“continuous full-time service means:
(a) in relation to a member of the Defence Force:
(i)service in the Naval Forces of the Commonwealth of the kind known as continuous full-time naval service; or
(ii)service in the Military forces of the Commonwealth of the kind known as continuous full-time military service; or
(iii)service in the Air Force of the Commonwealth of the kind known as continuous full-time air force service; or
(b)in relation to a member of the naval, military or air forces of a Commonwealth country or an allied country – service in those forces of a kind similar to a kind of service referred to in subparagraph (a)(i), (ii) or (iii).
Note:see also subsection 5R(1).”
Section 30 of the Defence Act 1903 provides:
“The Defence Force consists of 3 arms, namely, the Australian Navy, the Australian Army and the Australian Air Force.”
Section 5B(2) of the VE Act relevantly provides:
“5B(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) ….; or
(b) …; or
(c)to a person, or unit of the Defence Force, that is, by written instrument signed by the Minister for Defence, taken to have been allotted for duty in an operational area described in item 4 or 8 in Schedule 2 (in column 1).”
Ministerial Determinations
19. By instrument, dated 23 December 1997, signed by the Minister for Defence Industry, Science and Personnel, on behalf of the Minister for Defence, under 5B(2)(c) of the VE Act it was determined that, inter alia, HMAS Sydney (a “unit of the Defence Force”) is “taken to have been allotted for duty in the operational areas described in items 4 and 8 in column 1 of Schedule 2 to the [VE] Act” during numerous specified periods including, relevantly, 20 December 1967 to 3 January 1968 (inclusive) and 17 January 1968 to 16 February 1968 (inclusive). The “operational area” described in item 4 in column 1 of Schedule 2 to the VE Act is “Vietnam (Southern Zone)”. (Exhibit A2)
20. On 27 August 1998 the Minister for Veterans’ Affairs made the following “Continuous full-time service determination” under s5R(1)(b) of the VE Act:
“I, Bruce Scott, Minister for Veterans’ Affairs, under paragraph 5R(1)(b) of the Veterans’ Entitlements Act 1986 (the Act), determine that the Act applies to, and in relation to, any member of the Defence Force who, while not rendering continuous full-time service, was rendering service:
(a)as a member who was, or as a member of a unit of the Defence Force that was, allotted for duty, or taken to have been allotted for duty, in an operational area described in item 4 or 8 of Schedule 2 to the Act at any time during the period from and including 31 July 1962 to and including 11 January 1973; or
(b)as a member of a unit or the Defence Force that was attached to the Far East Strategic Reserve at any time during the period from and including 2 July 1955 to and including 27 May 1963;
as if the member was rendering continuous full-time service.”
Consideration and findings
Is the applicant a “veteran”?
21. The answer to that question ultimately depends, by reason of the definition of the word “veteran” in s5C(1) of the VE Act, on the answer to another question, namely: is the applicant, because of s7 of the VE Act, taken to have rendered “eligible war service”? It is common ground that the only relevant period of service of the applicant is the period of 3 months from 20 November 1967 to 19 February 1968 which he served on board HMAS Sydney.
22. By s7(1)(a) of the VE Act, “a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service”. The next question which arises is, therefore, whether the applicant was rendering “operational service” on board HMAS Sydney.
23. By s6C(1) of the VE Act, “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”.. The following relevant questions arise:
· was the applicant a “member of the Defence Force”?
· did he render “continuous full-time service in an operational area as…a member of a unit of the Defence Force that was allotted for duty in that area”?
Was the applicant a “member of the Defence Force”?
24. The phrase “member of the Defence Force” is defined in s5C(1) of the VE Act to include “a person appointed for continuous full-time service with a unit of the Defence Force”.. That definition is, in terms, an inclusive one and does not purport to define exhaustively the persons, or classes of persons, who may properly be regarded as members of the Defence Force for the purposes of the VE Act. As regards the present case, HMAS Sydney was a “unit of the Defence Force”, as defined in s 5C(1) of the VE Act (see also the Ministerial Determination, referred to in paragraph 19 above, which included HMAS Sydney in a list of “units of the Defence Force” within the meaning of the VE Act), and the applicant was, on 26 October 1967, posted by the Naval Board, RAN to HMAS Sydney for 3 months training commencing on 20 November 1967 (see paragraph 6 above).
25. In the Tribunal’s opinion the applicant may properly be regarded as a “member of the Defence Force” for the duration of his period of service on board HMAS Sydney from 20 November 1967 to 19 February 1968 on the basis that he had been appointed for continuous full-time service for the duration of that period with that unit of the Defence Force, and the Tribunal so finds.
Did the applicant render “continuous full-time service in an operational area as…a member of a unit of the Defence Force that was allotted for duty in that area”?
26. By the abovementioned Ministerial Determination of 23 December 1997 (see paragraphs 19 and 24 above) it was determined under s5B(2)(c) of the VE Act that HMAS Sydney was to be taken to have been allotted for duty in Vietnam (Southern Zone) (an “operational area” for the purposes of the VE Act) during the periods from 20 December 1967 to 3 January 1968 (inclusive) and from 17 January 1968 to 16 February 1968 (inclusive). The Tribunal notes, furthermore, that, by reason of the Ministerial “Continuous full-time service determination” made under s5R(1)(b) of the VE Act on 27 August 1998 (see paragraph 20 above), the VE Act applies to any member of the Defence Force who, while not rendering continuous full-time service, was rendering service as a member of a unit of the Defence Force that was taken to have been allotted for duty in Vietnam (Southern Zone) at any time during the period from 31 July 1962 to 11 January 1973, “as if the member was rendering continuous full-time service”.
27. On the basis of the abovementioned Ministerial Determinations the Tribunal finds that the applicant, during his period of service on board HMAS Sydney from 20 November 1967 to 19 February 1968, did render “continuous full-time service in an operational area as…a member of a unit of the Defence Force that was allotted for duty in that area”, for the purposes of s6C(1) of the VE Act.
Findings
28. The Tribunal finds, therefore, in accordance with s6C(1) of the VE Act, that the applicant is to be taken to have been rendering “operational service” in an operational area, namely, Vietnam (Southern Zone), while he was rendering continuous full-time service on board HMAS Sydney during the periods that HMAS Sydney is taken to have been allotted for duty in that operational area, namely, from 20 December 1967 to 3 January 1968 (inclusive) and from 17 January 1968 to 16 February 1968 (inclusive). In accordance with s7(1)(a) of the VE Act, the Tribunal also finds that the applicant is to be taken to have been rendering “eligible war service” during those abovementioned periods. It follows, therefore, that the applicant is a “veteran”, as defined in s5C(1) of the VE Act, and the Tribunal so finds.
Has the applicant rendered “qualifying service”?
29. It follows from the abovementioned findings that the applicant has, in accordance with s7A(1)(a)(iii) of the VE Act, rendered “qualifying service” in that he, as a member of the Defence Force, rendered service outside Australia in an “area described in column 1 of Schedule 2” (namely, Vietnam (Southern Zone)) “during the period specified in column 2 of that Schedule opposite to that description” (namely, the period from and including 31 July 1962 to and including 11 January 1973), as a member of a unit of the Defence Force (namely, HMAS Sydney) that was allotted for duty in that area (see the Ministerial Determination made under s5B(2)(c) of the VE Act on 23 December 1997, referred to in paragraph 19 above).
30. Accordingly, the Tribunal finds that the applicant has rendered “qualifying service” within the meaning of s7A of the VE Act and for the purposes of the VE Act.
Conclusion on Applicant’s Eligibility for Service Pension
Age service pension
31. Having found that the applicant is a “veteran” and has rendered “qualifying service”, the Tribunal concludes that he became eligible for an age service pension under s36(1) of the VE Act when he reached “pension age” (as defined in s5QA of the VE Act) – namely, when he turned 60 years. It is common ground that the applicant turned 60 years on 24 February 2002. The applicant has, therefore, been eligible for an age service pension under s36(1) of the VE Act since 24 February 2002.
Invalidity Service Pension
32. The Tribunal notes that, in the service pension claim form that the applicant lodged with the Department of Veterans’ Affairs on 18 October 2001, he indicated that his claim was based on invalidity. (T6, p12) An essential condition of eligibility for an invalidity service pension is, in addition to the conditions that the claimant is a “veteran” and has rendered “qualifying service”, that the claimant is “permanently incapacitated for work in accordance with a determination under section 37AA”: see s37(1)(c) of the VE Act.
33. No evidence was presented to the Tribunal regarding the applicant’s lack of capacity for work or the terms of a determination (if any) under s37AA of the VE Act. The Tribunal is, therefore, unable to make a determination regarding the applicant’s eligibility for an invalidity service pension. The Tribunal notes, however, that if the condition specified in para (c) of s37(1) of the VE Act was fulfilled at the time when the applicant lodged his claim (namely, 18 October 2001), he would have been eligible for an invalidity service pension, and that pension would have been payable to him, as from that date.
Decision
34. For the above reasons the Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the following direction:
· if the applicant was permanently incapacitated for work in accordance with a determination under s37AA of the VE Act as at 18 October 2001, he has been eligible for an invalidity service pension under s37(1) of the VE Act, and such pension has been payable to him, as from that date;
· otherwise the applicant has been eligible for an age service pension under s36(1) of the VE Act, and such pension has been payable to him, as from 24 February 2002.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President
Brigadier R D F Lloyd, MemberSigned: .........(sgd V Wong).......................................
AssociateDate/s of Hearing 16 January 2003
Date of Decision 17 April 2003
Counsel for the Applicant The Hon Kevin Prince
Counsel for the Respondent Mr C Ponnuthurai
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