Fenner and Repatriation Commission
[2000] AATA 658
•4 August 2000
DECISION AND REASONS FOR DECISION [2000] AATA 658
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2000/0242
VETERANS' APPEALS DIVISION )
Re LLOYD FENNER
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J. Handley, Senior Member
Dr C. Re, Member
Date4 August 2000
PlaceMelbourne
Decision The decision under review is affirmed.
…Sgd. Mr J. Handley …
Senior Member
VETERANS' ENTITLEMENTS: Gold Card Application; applicant a merchant mariner; whether "incurred danger"; decision affirmed.
Veterans' Entitlements Act 1986 s7A(1)(g), s85(4)A
REASONS FOR DECISION
4 August 2000 Mr J. Handley, Senior Member
Dr C. Re, Member
The applicant applies to review a decision of the Veteran's Review Board made on 2 February 2000. Mr Fenner then applied for a "Gold Card" pursuant to s85(4)A of the Veterans' Entitlements Act 1986. The respondent denied the application on the basis that Mr Fenner did not render "qualifying service".
Qualifying service under the Act must have occurred during a "period of hostilities" which, for the purposes of the present application, was within the period 3 September 1939 until 29 October 1945.
At all relevant times Mr Fenner was a member of the Merchant Navy and by reason of a recent amendment to the Act (sub-section 7A(1)(g)), Australian mariners are entitled to a Gold Card if they can demonstrate qualifying service.
The respondent denied liability for the provision of a Gold Card by reference to records obtained from the Australian Marine Safety Authority with respect to the service of Mr Fenner as a merchant mariner. Those records indicated that he was a member of the crew of the vessel Dumosa between 13 September 1945 and 29 October 1945. The records also disclose that he was a member of the crew of the vessel Nairawa between 19 November 1945 and 24 November 1945 and a member of the crew of the vessel Eira between 10 September 1946 and 25 September 1946. For the purposes of this application, the only relevant voyages occurred whilst he was a member of the crew of the vessel Dumosa because of the expiration of the "period of hostilities" as defined by the Act on 29 October 1945.
It was the case of the respondent that the applicant did not "incur danger" during the period of hostilities. This qualification is important because in order to qualify for a Gold Card under s85(4A), a person must have incurred danger from "hostile forces of the enemy" during the period of hostilities.
The words "incurred danger" have been defined by the full Federal Court in Repatriation Commission v Thomson 1988 82 ALR 352 where at 356 the Court recorded:
"incurred danger" therefore provide an objective not a subjective test. A serviceman incurs danger when he encounters danger, is in risk, or is endangered. He incurs danger from hostile forces when he is at risk or in peril of harm from hostile forces. A serviceman does not incur danger by merely perceiving or fearing that he may be in danger. The words "incur danger" do not encompass a situation where there is mere liability to danger that is to say that there is mere risk of danger. Danger is not incurred unless the serviceman is exposed, at risk of, or in peril of harm or injury."
The respondent annexed to its statement of facts and contentions a number of extracts from various texts and historical data which, in summary, indicate that Japanese submarines withdrew from the Australian east coast in July 1943 and the last of the surviving Japanese submarines had returned to port in Japan in August 1945. German submarine operations around the Australian coast ceased in February 1945 and surrendered in May 1945. Accordingly it was the respondent's case that despite Mr Fenner having been engaged on the SS Dumosa during a period of hostilities he did not incur danger by reference to the above data.
Mr Fenner disputed the service records.
He submitted that he was a member of the vessel Dumosa in 1943 and then for a period of about six months. He said he was initially engaged as a trimmer but after a period of six months of service qualified as a fireman. He said he would have had to have served for at least six months to qualify as a fireman. He said he was notified upon enlistment that there were Japanese submarines on the Australian east coast which concerned him because the Dumosa travelled between Melbourne and Newcastle. He said he was concerned because he principally worked in the lower decks of the ship and would have been exposed to danger in the event of a submarine attack.
Mr Fenner has no records of his service, nor does he know of other service persons who could assist in identifying the dates of service. He said he was relying on memory when he asserted that his membership of the crew of Dumosa was in 1943.
We asked him to recall as best he could his service on the above vessels. He recalled that he was engaged on the vessel Dumosa for about six months in 1943. After discharge he obtained a position on the vessel Eira for about four months and when he was discharged from that vessel he said after approximately one week he obtained a position on the vessel Nairawa for about one month.
The above chronology differs from the records. Mr Fenner recalled that he was engaged on the vessel Eira shortly after his discharge from Dumosa. The records do not indicate this. Additionally, on his own recollection, having served for six months in 1943 he would have been discharged from Nairawa some time in 1944. This is not only inconsistent with the records provided by the respondent but is inconsistent with a letter that he wrote to the Tribunal in June 2000 where he indicated that he was a fireman on the vessel Nairawa ending on 9 September 1945.
Conclusion and Reasons for DecisionIn all of the circumstances we are satisfied as a probability that the period of service of Mr Fenner as a merchant mariner is consistent with the records provided by the respondent. The entries in those records would have been recorded at or about each period of service. We cannot be confident, with the greatest respect to Mr Fenner, that his recollection some 55 years later is accurate.
Additionally, whilst we accept that the service on the vessel Dumosa was in September and October 1945 (within a "period of hostilities") we are not satisfied that Mr Fenner would have then "incurred danger".
In the circumstances the decision under review is affirmed.
I certify that the fifteen (15) preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed: Linda Nemeth ............................................
SecretaryDate of Hearing 26 July 2000
Date of Decision
Counsel for the Applicant
Solicitor for the Applicant
Counsel for the Respondent
Solicitor for the Respondent
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