Durbin and Repatriation Commission - [2002] AATA 898

DECISION AND REASONS FOR DECISION [2002] AATA 898

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1590

VETERANS' APPEALS DIVISION          )
           Re      IRENE DURBIN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M Griffin, Member

Date8 October 2002
PlaceSydney

Decision The decision under review is affirmed.

……………………………….
Mr M Griffin
Member
CATCHWORDS
VETERANS' AFFAIRS – compensation payment – claim as partner of deceased veteran interned by Japanese forces in Changi camp during WWII – whether Applicant was "partner" of the veteran immediately before the veteran's death

Compensation (Japanese Internment) Act 2001 – section 4

REASONS FOR DECISION

8 October 2002 Mr M Griffin, Member

the application

This matter involves an application for review of a decision by a delegate of the Repatriation Commission ("the Respondent") refusing a claim for payment under the Compensation (Japanese Internment) Act 2001 ("the Act"). The Applicant is Mrs Durbin. Her claim was lodged on 28 August 2001. The delegate's decision was made on 24 September 2001 (T2). The application for review was lodged with the AAT on 18 October 2001.
background
The late Mr Samuel George John Boyd (Army No.NX53219) was interned by the Japanese forces in Changi camp during World War II. The Applicant married the late Mr Boyd on 30 May 1940. The couple was divorced on 10 May 1971. Mr Boyd died on 14 March 1993. The Applicant re-married in 1978.
On 25 May 2001 the Act took effect, providing for compensation payments to eligible persons including the partners of deceased veterans who had been interned by the Japanese forces during the Second World War. In August of 2001 Mrs Durbin made an application for compensation which was refused and which is now the subject of this application for review.
the hearing
The application was heard by this Tribunal on 18 July 2002. The Applicant was not able to attend the hearing. She was represented by Mr Tony Latimore, a RSL advocate. The Respondent was represented by Mr Nigel Bunn, a departmental advocate.
There were tendered into evidence the documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1 – T3, pp1-18) ("the T-documents"), together with Exhibit R1 being the Respondent's Statement of Facts and Contentions and Exhibit A1 being the Applicant's Statement of Facts and Contentions.
issues and legislation
The central issue in this application is whether the Applicant is eligible for compensation payment as a partner of a deceased veteran. Section 4 of the Act relevantly provides as follows:
"Section 4 Eligibility for compensation payment
Partner of deceased veteran
(1) A person is eligible for a compensation payment in respect of a deceased veteran if the following conditions are satisfied:
(a) the person was alive at the beginning of 1 January 2001;
(b) the veteran died before 1 January 2001;
(c) the person was a partner of the veteran immediately before the veteran's death;
(d) the veteran was interned by Japanese military forces at any time during the designated war period."
It is not in dispute that the deceased veteran was interned by Japanese military forces during WWII, that the veteran died before 1 January 2001 and that the Applicant was alive at 1 January 2001. The Applicant having satisfied the criteria under section 4(1)(a), (b) and (d), the issue which remains is whether the Applicant was a partner of the veteran immediately before the veteran's death.
submissions
Mr Latimore, for the Applicant, drew the Tribunal's attention to a letter from the Applicant's daughter Ms Boyd dated 23 August 2001, at pages 10-11 of the T-documents. In this letter Ms Boyd vividly describes her parents' marital relationship, the history of substance abuse and psychiatric disability which her father suffered from for many years and the negative impact this had on the marriage, the family in general and her mother in particular. Both Ms Boyd and Mr Latimore submitted that these disabilities were the direct consequences of Mr Boyd's internment during the war and that this caused the breakdown of the marriage. It is further submitted that but for the effects of the internment on Mr Boyd, the marriage would have survived and Mrs Durbin would be eligible for compensation. It was not suggested that the Applicant and Mr Boyd lived in a marriage-like (de facto) relationship at any time after their divorce.
Mr Bunn, for the Respondent, noted the valued service by Mr Boyd for his country, the horrific circumstances of his internment and the negative effects of this on his family. However, he pointed to the specific eligibility criteria set out under section 4(1) of the Act and the absence of any discretion available to the Tribunal to vary or depart from those criteria. It was contended that in order to receive compensation payment under the Act in respect of the death of a veteran, a person must have been the partner of the veteran immediately before the veteran's death (section 4(1)(c) of the Act). Mr Bunn submitted that the Applicant's circumstances did not come within the specified eligibility criteria, in that the Applicant was divorced from her former husband in 1971, some 22 years prior to his death, and there is neither claim nor evidence that the Applicant was living in a marriage-like relationship with the veteran immediately before his death. As such, it was submitted that the Applicant cannot be eligible for compensation payment pursuant to section 4(1) of the Act.
findings of fact and reasons
The Tribunal has considered the relevant legislation, the documentary evidence and the submissions by Mr Latimore on behalf of the Applicant. The Tribunal notes and endorses the Respondent's recognition of the exemplary service in the defence of his country by the late Mr Boyd. The Tribunal particularly notes and accepts without reservation the evidence of Ms Boyd, the Applicant's daughter, in her letter describing the history of her parent's marriage and the effects of Mr Boyd's internment on the marriage and the family. The Tribunal has considerable sympathy for the difficulties the Applicant experienced in coping with Mr Boyd's disabilities, whilst caring for and raising a young family.
This is an application for review of a decision to reject a "Claim for $25,000 Ex-gratia Payment by a Surviving Spouse". The legislation providing for these compensation payments was introduced in 2001 and pursuant to that legislation certain criteria must be met to establish eligibility for such payments. One of those criteria for a person claiming as the partner of a deceased veteran is that the person was a partner of the deceased veteran immediately before the veteran's death (section 4(1)(c) of the Act). The Applicant, Mrs Durbin, claims payment because of her previous marriage to Mr Boyd who had been interned in Changi by the Japanese. She claims that the effects of the internment on Mr Boyd resulted in the breakdown of their marriage and but for this, the marriage would have survived and she would have been eligible for compensation. The Tribunal has considerable sympathy for the Applicant in these circumstances but it is not open to the Tribunal to vary or depart from the specified eligibility criteria as set out under section 4 of the Act.
The Tribunal is satisfied, and it is not in dispute, that the late Mr Boyd was interned in Changi by the Japanese forces during WWII. The Tribunal is also satisfied that the Applicant had been married to Mr Boyd but was divorced from him in 1971 and re-married in 1978. It was not suggested that the Applicant and Mr Boyd lived in a marriage-like (de facto) relationship at any time after their divorce. Therefore, the Tribunal finds that the Applicant was not a partner of the deceased veteran immediately before the veteran's death and as such does not satisfy the criteria under section 4(1) of the Act.
In finding that the Applicant's personal circumstances do not fall within the specific eligibility criteria of the legislation and that the Tribunal has no discretion to vary or depart from any of these criteria, the Tribunal concludes that, consequently, the Applicant is not eligible to receive a compensation payment under the Act.
Accordingly, the decision under review is affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Griffin, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  18 July 2002
Date of Decision  8 October 2002
Advocate for the Applicant      Mr Latimore
Advocate for the Respondent Mr Bunn