Fuller and Repatriation Commission (Veterans' entitlements) - [2023] AATA 260

Fuller and Repatriation Commission (Veterans' entitlements) [2023] AATA 260 (24 February 2023)
Division:VETERANS' APPEALS DIVISION
File Number: 2022/0030
Re:Paul Fuller
APPLICANT

AndRepatriation Commission
RESPONDENT

Decision
Tribunal:Deputy President J Sosso
Date:24 February 2023
Place:Brisbane

The decision under review is affirmed.
.............................[SGD]................................
Deputy President J Sosso
Catchwords
VETERANS’ ENTITLEMENTS – eligibility for veteran gold card – whether the veteran rendered qualifying service – instrument of allotment – amended instrument – whether the veteran rendered warlike service – operational area – whether the veteran was allotted for duty – decision under review affirmed
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Defence Act 1903 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
SUBORDINATE LEGISALTION

Veterans’ Entitlements (Allotment for Duty) Amendment Instrument 2015

Cases
Sykes and Repatriation Commission [2012] AATA 276
Savage and Repatriation Commission [1997] AATA 451
Repatriation Commission v Hawkins (1993) 45 FCR 205
Goble and Repatriation Commission (1992) 29 ALD 259
Kirk and Repatriation Commission [2006] AATA 469

Secondary Materials
Report of the Review of Veterans’ Entitlements 2003

REASONS FOR DECISION
Deputy President J Sosso
24 February 2023
INTRODUCTION

Mr Paul Fuller (the veteran) seeks a review of a decision of the Repatriation Commission (the Respondent) dated 8 October 2021 that he had not rendered qualifying service as defined in s 7A(1)(a) of the Veterans’ Entitlements Act 1986 (Cth) (the Act) – T1 pp. 1 -3, T1.1 pp. 4 – 16.
Mr Fuller was born in 1942 and enlisted in the Royal Australian Air Force (RAAF) on 29 August 1963.. He was discharged from the RAAF on 5 February 1985 with the rank of Flight Lieutenant – T3 p. 19, T4.1 p. 44.
It is not disputed that the veteran was a member of a crew flying a Lockheed Neptune P2E aircraft from Richmond RAAF Base in New South Wales to various overseas destinations as part of Operation Sea Imp, in the period 19 May 1966 until 8 June 1966 – T4.1 p. 44.
Operation Sea Imp was a SEATO exercise which took place in May 1966 – Sykes and Repatriation Commission [2012] AATA 276 (Sykes) at [15].
It would appear that after departing Richmond, the crew flew to Port Moresby, Guam, Sangley Point in the Philippines, Butterworth in Malaysia and then returned to Australia – T1.1 p. 5.
A number of members of the crew of the aircraft were recognised as having rendered qualifying service. The veteran, likewise, has sought to have his service on this operation recognised as qualifying service as defined in s 7A(1)(a) of the Act.
Documentation presented to the Tribunal indicates that in June 1965 a temporary detachment was formed from Lockheed P2 Neptune aircraft of 10 and 11 Squadrons RAAF which operated out of United States Naval Air Base at Sangley Point. The detachment flew a number of sorties in support of HMAS Sydney as she made her first voyage to Vietnam.
In December 1997 the relevant Minister, by Instrument, determined that aircrew members of the RAAF Detachment Sangley Point…

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.

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Details

Case: [2023] AATA 260
Decision Date: 24 February 2023

CaseChat Overview and Summary

This matter concerned an application by a veteran for eligibility for a veteran gold card, with the dispute centering on whether the veteran had rendered qualifying service. The decision was made by Deputy President Sosso P.

The legal issue before the Tribunal was whether the veteran had been allotted for duty in one or more of the operational areas specified in Schedule 2 to the relevant Act during the prescribed time periods. This required determining whether the conditions for being "allotted for duty" under section 5B(2) of the Act were met, which involved both the issuance of a written instrument by the Defence Force and actual service within a designated operational area.

The Tribunal considered the requirements of section 5B(2), noting that an instrument of allotment could include various official Defence Force directives. It was established that allotment for duty in a prescribed operational area does not necessitate the rendering of any particular type of service, but rather is a matter of geographic and temporal presence. Furthermore, the Act does not stipulate a minimum period of service within an operational area, with prior decisions indicating that even short periods can be sufficient. The Tribunal specifically addressed an amendment to the relevant Instrument in 2015, which narrowed the scope of coverage to aircrew members of Australian Air Force Detachment Sangley Point who served on Operation Trimdon between 2 June and 13 June 1965.

The Tribunal concluded that the veteran's only recourse was of a policy nature, suggesting submissions to the Minister responsible for the administration of the Act. The decision under review was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The only remedy open to the veteran is of a policy nature. The making of the Instrument in 1997 and its subsequent amendment in 2015 arose out of policy considerations. The veteran’s only practical avenue for relief is to make submissions to the Minister responsible for the administration of the Act. If the veteran avails himself of this course of action, he can provide the Minister with a copy of this Determination.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The key issue for determination by the Tribunal is whether the veteran was allotted for duty to one or more of the areas outlined in Schedule 2 to the Act during the relevant prescribed time periods.CONSIDERATION As discussed above, the Tribunal in Sykes found that the Instrument covered persons who had participated in Exercise Sea Imp because the Instrument was open ended and specifically was not limited in time to Operation Trimdon in May to June 1965. Before turning to the Instrument as it is now drafted, it is important to first deal with the requirements of being allotted for duty pursuant to s 5B(2). In order for the veteran to meet the allotment requirements in the Act, two elements must be met:(a)the person or unit must be allotted for duty by written instrument issued by the Defence Force; and(b)actual service while allotted in one or more of the operational areas described in Schedule 2. The requirements of being allotted for duty are specific and straightforward. First, the instrument of allotment was stated in the Explanatory Notes to the 1990 amending legislation as “a reference to Military Board Instructions, Australian Army Orders, Commonwealth Navy Orders, Australian Navy Orders and Written Instruments of the Royal Australian Airforce”. Accordingly, it was determined in Savage and Repatriation Commission [1997] AATA 451 that the commanding officer of HMAS Voyager did not have the authority to allot for duty as mandated by s 5B(2). Second, allotment for duty in a prescribed operational area in the prescribed time period does not require the rendering of any particular service. The requirement is geographic and temporal and does not impose the further requirement of inquiring into the nature of the service rendered by a veteran – Repatriation Commission v Hawkins (1993) 45 FCR 205. Third, the Act does not mandate a minimum time period for service in an operational area. In Goble and Repatriation Commission (1992) 29 ALD 259, service on the HMAS Sydney in an operational area for four days over a two month period was sufficient for the particular circumstances of that matter. In Kirk and Repatriation Commission [2006] AATA 469, the veteran was in a designated operational area for three days. The Tribunal observed (at [8]):“The fact that he was present for 3 days only is immaterial.” On 15 September 2015 the then Assistant Minister for Defence signed the Veterans’ Entitlements (Allotment for Duty) Amendment Instrument 2015. The Instrument was made under s 5B(2)(c) of the Act. Critically, Schedule B was amended by omitting “Aircrew members of Australian Airforce Detachment Sangley Point” and substituted with “Aircrew members of Australian Air Force Detachment Sangley Point who served on Operation Trimdon between 2 June and 13 June 1965.” The effect of the amending Instrument is to limit coverage to aircrew members of Australian Air Force Detachment Sangley Point on Operation Trimdon between 2 June 1965 and 13 June 1965.