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 under Part V.
Note 1:For the meanings of Commonwealth veteran, allied veteran and allied mariner, see subsection 5C(1).
Note 2:Apart from enabling the obtaining of pharmaceutical benefits, subsection 93L(1) has the effect of applying provisions of Part V such as section 93 (Recovery of costs of treatment), section 93B (False statements relating to treatment) and section 93C (Knowingly making false statements relating to treatment) to the veteran or mariner in respect of pharmaceutical benefits provided to the veteran or mariner.
(2)Nothing in this section entitles a Commonwealth veteran, allied veteran or allied mariner to be provided with a form of treatment, other than pharmaceutical benefits, under Part V.
Section 93M
93M     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 a 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.
(2)       If:
(a)a Commonwealth veteran, allied veteran or allied mariner has been an Australian resident during more than one period; and
(b)the longer or longest of those periods is less than 10 years but is not less than 5 years; and
(c)       the aggregate of those periods is more than 10 years;
then, in the application of paragraph (1)(c) to the veteran, the period of 10 years specified in that paragraph is to be reduced by a period equal to the period by which the aggregate is more than 10 years.
Section 93X
93X     Entitlement determination
The Commission must determine that a person is entitled to a pharmaceutical benefits card under this Part if the Commission is satisfied that the person is eligible for the card."
Section 5C(1) of the Act defines an "allied veteran" as 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"

and defines a "Commonwealth veteran" as a person who has rendered continuous full time service as a member of:

"(a)     the naval, military or air forces; or
(b)       …
(c)       …
of a Commonwealth country during a period of hostilities"

Qualifying service is defined in section 7A of the Act and, as may be relevant, is defined as:
"(1)For the purposes of Parts 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)        …"

Section 5B(1) defines the period of hostilities and states, relevantly:
"(1)     …
(a)       …
(b)World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); or
(c)       …"

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.
The Respondent submitted that it was well recognised that Mr Dzida served in the Polish Army as part of the allied forces during the period of hostilities. Indeed his service is recognised by the award of campaign medals and the fact that he is in receipt of a UK War Disablement Pension. Nonetheless, the legislation in respect of his service as an "allied veteran", as defined in section 5C(1) of the Act, is quite specific in excluding those who served in the forces of a country that was, at the time, at war with Australia or was assisting forces at war with Australia.
The Respondent further acknowledged that whilst Mr Dzida was young at the time of conscription, and the annexation of his country by Germany resulted in his military service for that country, the legislation makes no provision for such a situation. The Respondent referred the Tribunal to a number of authorities relevant to the definition of "allied veteran", submitting that only two cases (Truchlik v Repatriation Commission (1989) 87 ALR 263 and Re Legierski and Repatriation Commission (1986) 10 ALD N139) found in favour of the applicant on the basis that extreme circumstances existed so as to overcome the presumption of disqualification implicit in section 5C of the Act. In the remainder, (Dugina v Repatriation Commission (1999) 56 ALD 493, Re Damiani and Repatriation Commission (AAT 2630, 17 April 1986), Re Bertazzon and Repatriation Commission (AAT 3813, 6 October 1987) and Re Evertand Repatriation Commission (1998) 53 ALD 538), no such "extreme circumstances" were identified, and the relevant adjudicators found for the respondent. The Respondent in the present matter submitted that extreme circumstances had to be established, but that they could not be realised on the evidence before the Tribunal.
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.
In Truchlik (supra), the Full Court allowed an appeal from a decision of the Tribunal that had affirmed an earlier decision, namely that Mr Truchlik was not an "allied veteran" and hence did not qualify for a service pension. Mr Truchlik was the son of a leader of the Slovakian Resistance movement. On the advice of his father, he joined the Slovakian Army, which operated in support of the Axis powers. When called up, his intention was to train as a radio operator and work on behalf of the resistance movement. In doing so, he avoided taking any oath of allegiance. He was assigned to a unit headed by a member of the resistance movement, and was thus able to clandestinely work for the resistance.
The Full Court concluded that the military service of Mr Truchlik did not meet certain elements of the definition of "allied veteran". Davies J opined that the word "served" and the words "served in" "are ordinary words in the English language and ought not to be given any special, technical meaning…" He went on to say that "[s]ervice in the armed forces is service whether it be voluntary or pursuant to conscription. But to say that is not to say that the word "served" has the technical meaning of "enrolled". … Service is not performed by mere enrolment to serve. It involves the carrying out of the duties of the office or function." Davies J concluded that the Tribunal incorrectly substituted the test of "enrolled" for the test of "served", and in that sense found that Mr Truchlik had served in the Resistance Movement rather than the Slovakian Army in which he was enrolled.
Sheppard and Foster JJ accorded with this view. In reaching that position, the Full Court considered that the view taken by the Tribunal in Re Bertazzon (supra), wherein the Senior Member formed the opinion that enrolment, whether by conscription or enlistment, was synonymous with service, was incorrect. The Full Court allowed the appeal in Truchlik (supra) and directed that the original order be set aside as the appellant was qualified for a pension under the Act.
The remaining authorities cited by the Respondent (see paragraph 13) unanimously reached the conclusion that extreme circumstances, sufficient to militate against the "enemy force" exclusion clause in the definition of "allied veteran", did not exist in relation to the applicants in those cases. Re Damiani (supra) and Re Bertazzon (supra), in 1986 and 1987 respectively, were similar in facts to the present case, in that both men had served in the Italian Army during the period that that country was allied with Germany. Re Damiani (supra) addressed the issue as to whether service had to involve war-like operations, the conclusion being that this was not required under the wording of the legislation. Also held irrelevant was the fact of whether service was as a volunteer or by conscription, an opinion shared by the Tribunal in Re Bertazzon (supra). The conclusion that war-like operations (assuming that that expression refers to actual combat or a combat scenario) are not an essential component of "service" is relevant to the matter before this Tribunal, and is to the benefit of Mr Dzida.
In both Re Damiani (supra) and Re Bertazzon (supra), service was held to mean simply employment or engagement as a member of the armed forces, a definition at odds with the more recent decision by the Full Court in Truchlik (supra). Suffice that in that respect, those authorities provide no guidance to this Tribunal. Of relevance, however, is that the Tribunal in Re Bertazzon (supra) specifically required the extreme kind of service as illustrated in Re Legierski (supra) to be evident in the consideration of its common definition of "service" and "employment", in respect of special circumstances that warranted any relief from the exclusion clause in the definition of "allied veteran". Both Re Damiani (supra) and Re Bertazzon (supra) affirmed the decision that the applicants in those cases were not "allied veterans".
Re Evert (supra) and Dugina (supra) are more recent decisions in respect of the matter of eligibility as an "allied veteran". In the former, the applicant, of Polish nationality, had served in the French Foreign Legion from 1938 to 1943. Prior to June 1940, and after November 1942, the Legion was engaged in hostilities against Germany. In the intervening period, the Tribunal described the Legion as "an armed force of Vichy France and Vichy France supported the Germans". Drawing on Truchlik (supra), the Tribunal found that Mr Evert did "serve" and was "engaged", and, as no special circumstances existed, concluded that he was not an "allied veteran" within the meaning of the Act.

Finally, the Tribunal draws on the Federal Court decision by Goldberg J in the matter of Dugina (supra). Mr Dugina, an Italian national, was conscripted into the Italian army in September 1942. He served in various units until the armistice with the allied forces in late 1943. The applicant claimed that as a conscript he had not "served" and that his duties in the Italian army, described as cleaning barracks and the like, were such that he could fall within Full Court reasoning in Truchlik (supra). The Tribunal rejected these arguments, finding that Mr Dugina did not meet the legislative requirements in the Act to fulfil the definition of an "allied veteran". The Court agreed with the application by the Tribunal of the observation, noted earlier, of Davies J in Truchlik (supra) that "[s]ervice in the armed forces is service whether it be voluntary or pursuant to conscription" and also with the conclusion that "service" extended to activities in a supporting role, including the cleaning of barracks. The Court further concurred that "serving as a member of an army in wartime is not confined to direct or close association with combat". The Court dismissed the appeal.
The Tribunal takes due account of the reasonings and decisions in these authorities when considering the circumstances of Mr Dizda. The Applicant, a Polish national, was conscripted into the German army. It is fair to say that he had no option but to accept that situation, and he observed that many Polish citizens were in similar situations. There was no suggestion that he had been threatened, or would have been placed under severe duress unless he reported to the German authorities, nor was there any evidence before the Tribunal that his family had been threatened should he not acquiesce to that demand.
Mr Dizda subsequently undertook initial and weapon training in France and in due course was posted to the 29 Panzer Grenadier Division as an infantryman. His unit subsequently moved to, and within, Italy and, in March 1944, he transferred to a forward unit at the front, remaining with this unit until the commencement of a major allied offensive in May. That is a history of some nine months "enlistment" in an enemy force and, from the nature of the units to which he was posted and the training he undertook, the Tribunal is reasonably satisfied that he met the "service" requirement as outlined by the Full Court in Truchlik (supra), carrying out the appropriate duties and responsibilities relevant to his duties in the German army. There is no suggestion that he played a subversive or alternate role such as might be relevant to a resistance movement. In making that finding, the Tribunal accepts that such a role may not have been feasible in his circumstances.
The Tribunal accepts the evidence from Mr Dzida that he deserted the German army when the opportunity to do so arose, throwing away his weapon and equipment. The Tribunal also accepts that in the eyes of the allied unit to whom he gave himself up, he was surrendering and hence was a prisoner of war, albeit that that situation lasted but a short period. But his desertion from the German army cannot, of itself, be considered an "extreme circumstance" to overturn his history of service in the German army. And as already noted, there are no other extenuating circumstances. Conscription is not a reason to negate the definitions of enlistment and service.

28.The Applicant's undoubted and admirable contribution to the allied cause by his subsequent service in the Polish army proves insufficient to counter the strict exclusion clause in the definition of "allied veteran" in section 5C(1) of the Act. Service in the Polish army meets the definition found in sections 5C(1)(a) and (b). Mr Dzida's service in the German army was such as to fit the exclusion definitions in sections 5C(1)(c) and (d). The Tribunal therefore must find that Mr Dzida does not meet the criteria for an "allied veteran" as defined in section 5C(1) of the Act, and accordingly he cannot be found eligible for the Repatriation Pharmaceutical Benefits Card as defined in section 93M of the Act.
29.The decision under review is affirmed.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton, Member
Signed:         L Bonouvrie
  Associate
Date of Hearing  1 October 2002
Date of Decision  11 December 2002
Representative for the Applicant              Self-represented
Representative for the Respondent        Mr J Marsh