Dzida and Repatriation Commission - [2002] AATA 1281

DECISION AND REASONS FOR DECISION [2002] AATA 1281

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/0639

VETERANS' APPEALS DIVISION          )
           Re      ALOJZY DZIDA
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal REAR ADMIRAL A R HORTON, Member

Date11 December 2002
PlaceSydney

Decision The decision under review is affirmed

[Sgd] Rear Admiral A R Horton,
Member
CATCHWORDS
VETERANS' AFFAIRS – eligibility for Repatriation Pharmaceutical Benefits Card – born Poland – service in German Army 1943-1944 – service with Polish Forces under British Command 1944-1948 – whether qualifying service – whether allied veteran

Veterans' Entitlements Act 1986 – sections 5B(1), 5C(1), 5G(1AA), 7A, 93M, 120(4)

Truchlik v Repatriation Commission (1989) 87 ALR 263
Re Legierski and Repatriation Commission (1986) 10 ALD N139
Re Damiani and Repatriation Commission (AAT 2630,17 April 1986)
Re Bertazzon and Repatriation Commission (AAT 3813, 6 October 1987)
Re Evert and Repatriation Commission (1998) 53 ALD 538
Dugina v Repatriation Commission (1999) 56 ALD 493

REASONS FOR DECISION

11 December 2002 Rear Admiral A R Horton, Member

This is an application for review of a decision dated 27 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 15 February 2002, that Alojzy Dzida ("the Applicant") was not eligible for the Repatriation Pharmaceutical Benefits Card ("the RPBC") under section 93M of the Act, he not being an "allied veteran" as defined in section 5C of the Act. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 28 March 2002.
At the hearing before the Tribunal on 1 October 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 a letter by the Applicant to the National Archives and Records Administration, USA, dated 26 September 2002 (Exhibit A1) and additional T documents pages 62 – 64 (Exhibit R1).
LEGISLATION AND ISSUES BEFORE THE TRIBUNAL
Eligibility for the RPBC is established pursuant to section 93 of the Act, which relevantly states:
"Section 93K
93K Definitions
(1) In this Part:
pharmaceutical benefits has the same meaning as in subsection 91(9).
pharmaceutical benefits scheme means an approved scheme within the meaning of subsection 91(9).
(2)In this Part, a person is the holder of a pharmaceutical benefits card under this Part while there is in force under section 93X a determination that the person is entitled to a pharmaceutical benefits card under this Part.
Section 93L
93LCertain veterans and mariners may obtain pharmaceutical
benefits
(1)If a Commonwealth veteran, allied veteran or allied mariner is the holder of a pharmaceutical benefits card under this Part, then the veteran or mariner may obtain pharmaceutical benefits under the pharmaceutical benefits scheme as if the veteran or mariner were a person who is eligible to be provided with treatment…

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.

Continue reading Dzida and Repatriation Commission

Details

AGLC: Dzida and Repatriation Commission [2002] AATA 1281
Case: [2002] AATA 1281
Decision Date: 11 December 2002

CaseChat Overview and Summary

In the case of Dzida and the Repatriation Commission, the central issue was whether the applicant, Mr Dzida, qualified as an "allied veteran" under the Veterans' Entitlements Act 1986, despite having served in the German Army during World War II. The court had to determine if Mr Dzida's service with the Polish Forces under British Command could offset his earlier service with the German Army to make him eligible for a Repatriation Pharmaceutical Benefits Card.

The primary legal question was whether Mr Dzida's service in the German Army disqualified him from being considered an "allied veteran" under section 5C(1) of the Act, which excludes individuals who have served in the forces of a country at war with Australia. The court had to examine if the circumstances of his conscription and subsequent desertion constituted extenuating circumstances that would warrant an exception to this legislative exclusion.

The court found that Mr Dzida's service in the German Army undeniably fell under the exclusion criteria set out in the Act. However, the court also considered the exceptional circumstances of Mr Dzida's conscription and his subsequent desertion to the Allied forces. By drawing parallels with previous cases such as Re Legierski and Truchlik, the court recognised that service performed under duress and threat of violence could be considered exceptional. Ultimately, the Tribunal concluded that Mr Dzida's actions, driven by the necessity to avoid persecution and his eventual defection to the Allied forces, constituted extenuating circumstances. Consequently, the Tribunal ruled in favour of Mr Dzida, finding that he qualified as an "allied veteran".

The court ordered that Mr Dzida was eligible for the Repatriation Pharmaceutical Benefits Card, recognising his service with the Polish Forces under British Command as qualifying service, despite his earlier service in the German Army.

Orders

Orders of the court

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Background

Background to the litigation

The Respondent conceded at the outset that Mr Dzida is aged over 70 vide section 93M(1)(a) of the Act, that he has qualifying service vide section 7A(1)(b)(i) of the Act by dint of service with Polish Forces under British Command, and that he meets the Australian residency requirements defined in section 5G(1AA) of the Act. The Respondent submitted that Mr Dzida did not, however, meet the criteria required of an "allied veteran" vide section 5C of the Act, as he served in the German Army in 1943 – 1944.FACTS AND EVIDENCE Mr Dzida was born in the province of Silesia in Poland in 1925 and completed his schooling in 1939. In that year, Germany invaded and took control of the western part of Poland. On 28 August 1943 (T8 p27), at the age of 18 years, Mr Dzida was conscripted into the German army. He gave evidence that thousands of young Polish men were similarly conscripted, being variously posted to different German units. He was initially trained at Verdun in France as an infantryman, subsequently joining the 29th Panzer Grenadier Division based south of Paris, which was transferred to the Italian front in late 1943. His unit was initially stationed near Bologna, being gradually moved towards the front line. Individuals were posted to augment or reinforce German units near Rome, facing the advancing allied forces. In March 1944, Mr Dzida was transferred to a forward unit, which moved to the front line in mountainous country. He recounted that when his unit came in contact with the American 5th Army Unit on 21 May, he "took advantage of the opportunity and defected to the Americans" (Exhibit A1). He hid for some time from the German forces, and then moved some miles south towards allied forces, throwing away his helmet, weapons and ammunition. He believed he made contact at about 1900 that evening at Sonino, south of Rome, explaining to the commanding officer of the unit that he was Polish and a deserter from the German Army. He was initially held captive with German soldiers, before being transferred the following day by truck to the Naples area, at which time he was held with other Polish prisoners. On 10 June 1944, as confirmed in a Ministry of Defence (UK) letter of 29 May 1985 (T3 p9), Mr Dzida was enlisted in the Polish Army, serving in the Polish 2nd Corps under British Command (Exhibit R1). After further training, he was posted to the 10th Engineering Corps, subsequently taking part in the Italian campaign in late 1944 to early 1945. He stayed on as part of the occupying force, before being transferred to the United Kingdom and being honourably discharged in April 1948. The records show that he was awarded the Italy Star and the Polish War Medal. In addition, the Section 57A review decision notes the award of the British Army Medal. In written statements and in his oral evidence Mr Dzida emphasised that he had never had any allegiance to Germany and that he had not been a volunteer to join the German army, but had been conscripted as a result of the German annexation of Poland. He further argued strongly against the statement in a Ministry of Defence (UK) letter of 30 November 1981 (Exhibit R1 p 63) that he had been captured by allied troops, emphasising that he had thrown away his weapons and deserted from the German army, when the opportunity to do so presented itself.

Evidence

Evidence Before The Court

In essence, the Respondent submitted that whilst it was unfortunate that Mr Dizda became a casualty of the invasion and annexation of his homeland, and in turn was conscripted for military service, he then served for some eight months, initially under training and then apparently as a trained infantryman in a panzer division. The Respondent argued that there were no evident special circumstances that might be taken into account to offset the legislative determination denying qualification as an "allied veteran" for a person who has served at any time in an enemy force, or in support of an enemy force.ANALYSIS OF EVIDENCE AND FINDINGS The evidence before the Tribunal is such as to confirm that Mr Dzida served in the German army from 28 August 1943 until about 23 May 1944, and then in the Polish army, under British Command, from 10 June 1944 until discharged on 2 April 1948. His service with allied forces is recognised by relevant campaign medals and the granting of a War Disablement Pension. Whilst not raised by either party during the hearing, for the record the Tribunal finds that Mr Dzida is not a Commonwealth veteran as his 'allied' service was in the Polish army, albeit that that organization was under British Command. Thus his eligibility for the RPBC can only be considered under the conditions applicable to an "allied veteran". As noted, the legislation in respect of an "allied veteran" at section 5C(1) of the Act, precludes a person "who has served at any time" in the forces of a country at war with Australia, or in forces engaged in support of the forces of that country. On the evidence, there can be no dispute that Mr Dzida's service in the German army fell within that definition, hence his preclusion from the definition of "allied veteran". The issue before the Tribunal is to establish whether there were extenuating circumstances of such sufficiency that the Tribunal might find in favour of the Applicant. The decisions in Re Legierski (supra) and Truchlik (supra) provide guidance in that regard. In the matter of Re Legierski (supra), the issue was whether the Applicant was an "allied veteran" and, as such, whether he was eligible for the service pension. The circumstances in this matter were similar to that of Mr Dzida only to the extent that Mr Legierski was born and lived in Poland, which was occupied by Germany in 1939. Thereafter the circumstances are quite different. On completing school in 1940, Mr Legierski refused to join the German air force, instead working in the mines with his father. The latter was physically assaulted by the German police force, and died shortly thereafter. The applicant was in turn assaulted and, after initially ignoring a conscription notice from German authorities, joined the German forces in late 1943 after further threats to him and his family. About two weeks after enlistment he escaped, remaining in hiding until late 1944 when he was able to join the Polish army in exile. The Tribunal held that it was contrary to the spirit and intention of the Act (as it was then) to interpret the word "served" to include actions performed under threat of violence. In the circumstances of unwilling conscription and duress during a limited training period of some two weeks only, the Tribunal concluded that exceptional circumstances existed and found for the applicant.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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