Ferrier and Repatriation Commission
[2000] AATA 185
•10 March 2000
DECISION AND REASONS FOR DECISION [2000] AATA 185
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V1999/579
VETERANS' APPEALS DIVISION )
Re ROGER JOHN FERRIER
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr A. Argent, Member
Date10 March 2000
PlaceMelbourne
Decision The decision of the of the Repatriation Commission is affirmed.
(Sgnd) A. Argent
Member
CATCHWORDS
VETERANS' AFFAIRS - qualifying service -- whether incurred danger -- eligibility for Gold Card – decision affirmed
Veterans' Entitlements Act 1986 - section 7A, ss 85(4A)
Repatriation Commission v Walter Harold Thompson (1988) 82 ALR 352
REASONS FOR DECISION
10 March 2000 Mr A. Argent, Member
Background
This is an appeal by Mr Roger John Ferrier ("the veteran") against a decision of a senior delegate of the Repatriation Commission ("the Commission") dated 7 May 1999.
That decision affirmed a previous decision of the Commission dated 21 October 1998 which determined the veteran had not rendered qualifying service during the period of hostilities of World War Two and thus was not entitled to a Gold Card.
The period of hostilities of World War Two is from 3 September 1939 to 29 October 1945.
Qualifying service is defined at section 7A of the Veterans' entitlements Act 1986 ("the Act"). Part of this section reads:
"Qualifying service
7A.(1) … a person has rendered qualifying service:if the person has, as a member of the Defence Force:
rendered service, during a period of hostilities . . . at sea, in the field or in the air in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when the person incurred danger from hostile forces of the enemy in that area or on that aircraft or ship; or"
Section 85(4A) of the Act specifies that a veteran, an Australian mariner, is eligible to be provided with treatment, that is, entitled to a Gold Card, if the veteran is aged 70 or over and has rendered qualifying service during World War Two.
IssueThe issue before the Tribunal is whether the veteran rendered qualifying service during World War Two.
The EvidenceThe Tribunal had before it the documents ("the T documents") lodged by the Commission pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and a report by an historian, Mr R Piper.
The veteran presented his own case and the Commission was represented by Mr R Douglass, an advocate with the Department of Veterans' Affairs.
The veteran was born on 24 February 1927 and is over the age of 70.
He joined the SS Thedens, a coal-burning Dutch vessel of 2071 tons gross, as second radio officer, in Adelaide on 6 August 1945. The period under review is therefore 6 August 1945 to 29 October 1945, the end of hostilities.
During this period SS Thedens sailed Adelaide to Brisbane, where she picked up troops, - Bowen – Darwin – Koepang (West Timor) – Batavia (now Jakarta, Java).
Mr Ferrier said, in his evidence, SS Thedens was his first ship. On the voyage a mine was sighted off the Cape York Peninsula and other mines sighted during the voyage Darwin – Koepang – Batavia. Despite his efforts, which included writing to a veterans' organisation in Amsterdam, he was unable to obtain a copy of Theden's log. He believes the log would have shown where the mines were sighted.
He states the presence of these mines was dangerous and that he incurred danger.
The written evidence of Mr Piper, the historian, is that only four Allied vessels were sunk and one damaged by mines in Australian waters during World War II. These occurrences were between November 1940 and March 1941. Records show no enemy mines were laid in the Great Barrier Reef. An Allied minefield was laid in the Reef to protect our ports.
In regard to Koepang, the records indicate when the Royal Australian Navy arrived outside the harbour on the morning of 11 September 1945 arrangements were made with the Japanese about their minefields and the convoy entered harbour about two hours later without incident. SS Thedens arrived 18 days later.
FindingsThe standard of proof in this case is on the balance of probabilities, that is, on the balance of probabilities, did the veteran incur danger from the hostile forces of the enemy between 6 August to 29 October 1945 during his voyage as second radio officer in SS Thedens.
The meaning of "incurred danger" is defined by the Full Court of the Federal Court in Repatriation Commission v Thompson (1988) 82 ALR 352. Their Honours said:
"The words "incurred danger" provide an objective, not a subjective, test. A serviceman incurs danger when he encounters danger, is in danger 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 a fearing that he may be in danger. The words "incurred danger" do not encompass a situation where there is a mere liability to danger, that is to say, that there is a mere risk of danger. Danger is not incurred unless the serviceman is exposed, at risk of or in peril of harm or injury."
The Tribunal has no doubt that mines were sighted by the crew of SS Thedens and/or the master was informed of the possibility of mines. However, it is more than likely the mine sighted during the Barrier Reef passage was an Allied mine and, in any event, it did not explode and there was no damage to SS Thedens.
Other mines sighted were probably those of the enemy. Again, none of these were detonated and there was no damage to SS Thedens or injury to the crew on her voyage Adelaide to Batavia.
Therefore, the Tribunal finds the veteran, an Australian mariner, incurred no danger from the hostile forces of the enemy and consequently is not entitled to the issue of a Gold Card.
DecisionThe decision of the Repatriation Commission is affirmed.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A. Argent, Member
Signed: Grace A Carney
Personal Assistant to Senior Member DwyerDate/s of Hearing 3 March 2000
Date of Decision 10 March 2000
Counsel for the Applicant Nil
Solicitor for the Applicant Self Represented
Counsel for the Respondent Nil
Solicitor for the Respondent Nil
Departmental Advocate Mr R Douglass
0
1
0