Farmer and Repatriation Commission

[2001] AATA 428

DECISION AND REASONS FOR DECISION [2001] AATA 428

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q97/273

VETERANS' APPEALS  DIVISION       )      
           Re      JOHN FARMER     
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Deputy President DP Breen, Presidential Member      

Date18 May 2001

PlaceBrisbane

Decision      The Tribunal affirms the decision under review which means that Mr Farmer does not have qualifying service pursuant to Section 7A of the Veterans' Entitlements Act 1986.          

(Sgd)          DP BREEN
  PRESIDENTIAL MEMBER
CATCHWORDS
VETERANS' AFFAIRS – eligible service – validity of service records – date of enlistment – actual danger from hostile forces.
Veterans' Entitlements Act 1986 ss 7A
Hawkins v Repatriation Commission AAT Decision No. 11772 delivered 10 February 1997

REASONS FOR DECISION

18 May 2001           Deputy President DP Breen, Presidential Member                  

1. This was an appeal against a decision of the Repatriation Commission dated 26 August 1996 which determined that the applicant had not rendered qualifying service to enable him to be eligible for a Gold Card.  That determination was affirmed by a Review Officer of the Commission on 5 February 1997.

2. The applicant, Mr Farmer, represented himself in this matter.  The respondent Commission was represented by Mr J Stoner, Departmental Advocate.  The matter was heard by me in Mackay on 10 December 1997 and was adjourned to allow the respondent to further investigate the applicant's records.  Due to inaction by both parties, the matter remained in abeyance until November 2000 when a Directions Hearing was held.  At this stage it was decided that the matter should resume with the respondent to tender some extra service documents.  The applicant elected not to attend the later hearing and to allow submissions to be made in his absence.  The matter resumed for hearing on 18 May 2001 in Brisbane.

3. Oral evidence was taken from Mr Farmer in Mackay and, at the later resumed hearing, the Tribunal had a transcript of that evidence before it.  The following documents were also taken into evidence:

• Exhibit 1            "T" Documents

• Exhibit 2            Extract from Discharge Certificate

• Exhibit 3            Application for Tools Assistance lodged by applicant

• Exhibit 4            Letter dated 13.10.86 from Central Army Records Office   attaching a Mobilisation Attestation Form signed by applicant

• Exhibit 5            Attestation Form for Special Services signed by applicant

• Exhibit 6            Applicant's Statutory Declaration dated 14.3.97

• Exhibit 7            Newspaper Extract

• Exhibit 8            Service and Casualty Form of Veteran NX204766

• Exhibit 9            Service and Casualty Form of Veteran NX204768

• Exhibit 10          Branch Medical File of Applicant

• Exhibit 11          Bundle of Documents from the Respondent containing copies

  of other exhibits.

• Exhibit 12          Applicant's Pay Records.

1. The Tribunal gave a decision with brief oral reasons at the end of the hearing.  In view of the fact that Mr Farmer was not at the hearing I now provide written reasons for that decision.

2. It was Mr Farmer's contention that he joined the Army on 12 October 1942 at the age of 16 years.  He said that he was serving at Cowra in August 1944 during the breakout of Japanese prisoners from the detention centre near that town.  He said that he was not on duty the day of the breakout but assisted in the round-up of the prisoners in the hours and days following.  Mr Farmer also said that he served in Japan at Kure and that the situation there was very tense.

3. The applicant's Service and Casualty Form records that the applicant enlisted at Paddington on 12 October 1944.  Exhibit 2, the Discharge Certificate, records that the date of enlistment was 12 October 1944.  Exhibit 3, which is an application by the applicant in 1948 for assistance with gaining tools of trade as a part of his repatriation, records that his date of enlistment was 12 October 1944.  Exhibit 4 contains information from the Central Army Records Office which indicates that the applicant enlisted on 12 October 1944.  They also contain a Mobilisation Attestation Form which was signed by the applicant in 1944.  That form states that the enlistment date was 12 October 1944 and that there has been no previous service by the applicant in any branch of the armed services.

4. Exhibit 5 was an Attestation Form for Special Services.  It listed the applicant's enlistment date as 12 October 1944 and the place of enlistment as Paddington.  This form was signed by the applicant.  Exhibits 8 and 9 were the Service and Casualty Forms for the two soldiers who were given the service numbers above and below that of Mr Farmer.  Both servicemen were enlisted in Paddington on 12 October 1944.  Finally, Exhibit 12 was the pay records of Mr Farmer.  The record and date of enlistment as 12 October 1944 and the first entry covers the pay period 12 October 1944 to 2 November 1944.

5. The Tribunal does not doubt that there were many young Australian men who were keen to fight in the war and lied about their ages so that they could join the armed forces.  The Tribunal has also observed, over many years of hearing veterans' cases, that the standard of the records kept by the armed forces have been extremely high.  Although on occasions an individual document may go missing in a file, the Tribunal has never come across an instance where a large section of a person's file has gone missing.  Also, there will usually be documents in another Department within the Army which support the fact that a particular document has gone missing or that a person was serving at a particular place at a particular time.

6. The Tribunal is satisfied that the official documents correctly record the applicant's date of enlistment.  This finding is reinforced by that fact that all of these records are kept by different sections of the Army for different purposes and they are mutually corroborative.  Added to that, one of the documents is in Mr Farmer's hand and two others are signed by him.  Those three documents are all fairly contemporaneous documents in that they were completed between 1944 and 1948.  It is the Tribunal's view that they more accurately reflect the veteran's service than does his statutory declaration in 1997 (Exhibit 6) and his evidence to the Tribunal in that same year.

7. Although in accepting the historical records the Tribunal rejects the evidence of Mr Farmer, the Tribunal does not make a finding that Mr Farmer in any way intended to deceive or defraud the Department.  It has been many years since these events, and time often clouds the memory.  The fact that Mr Farmer has on occasions confused his date of discharge, sometimes saying it was in 1947 and other times in 1948, further suggests that this may be the case here.  The Tribunal also accepts that, while it has found that Mr Farmer is incorrect in his recollection of events, it does not doubt that Mr Farmer is firmly of the view that he enlisted in 1942 and, in fact, that he completely believes that to be true.  The Tribunal's findings are to the contrary of that belief.

8. Given the Tribunal's finding that Mr Farmer did not enlist until October 1944, he could not have been involved in the round-up at Cowra in 1944. Mr Farmer left Australia on HMAS Westralia on 25 May 1946 and landed in Kure on 20 June 1946. This was after the cessation of hostilities in that area. Therefore, he could not have been in actual danger from the hostile forces during his time there. Therefore, there is no evidence before the Tribunal to show that the applicant satisfies Section 7A of the Veterans' Entitlements Act 1986 and, as such, does not have qualifying service.

9. As a final point, there are two matters which the Tribunal feels it should address to assist in Mr Farmer's understanding of the law in this area.  Even if, by some uncanny chance, there is a lost file which indicates Mr Farmer served from 1942 to 1944, and the Tribunal very much doubts this to be the case, there is only a very slim chance that this would give Mr Farmer qualifying service.  The decision of Senior Member Muller in the case of Hawkins v Repatriation Commission, AAT Decision 11772 delivered 10 February 1997, gives an authoritative account of the Cowra breakout.  As described in that decision, the round-up of those prisoners was, for the most part, very peaceful.  As such, Mr Farmer would have difficulty showing that he was in fact in danger from these hostile forces.  A further point is that Mr Farmer has been in possession of a Gold Card since 1998.  As such, the main aim of this application has been achieved through other provisions of the Act.

10. For the above reasons, the Tribunal affirms the decision under review which means that Mr Farmer does not have qualifying service pursuant to Section 7A of the Veterans' Entitlements Act 1986.

    I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

    Signed:         Emma Oettinger
      Associate

    Date/s of Hearing  10.12.97, 18.5.01
    Date of Decision  18.5.01
    Rep. for the Applicant              Applicant represented himself on 10.12.97
    Counsel for the Respondent    Mr J Stoner, Departmental Advocate