Gard and Repatriation Commission

[2002] AATA 1167

DECISION AND REASONS FOR DECISION [2002] AATA 1167

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/353

VETERANS' APPEALS DIVISION          )          
           Re      VICTOR WILLIAM GARD            
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr I R Way, Member         

Date15 November 2002 

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.      
  ..................(Sgd).......................
  I R Way
  Member
CATCHWORDS
VETERANS' AFFAIRS – entitlement – qualifying service – whether applicant has rendered qualifying service - whether applicant incurred danger from hostile forces of the enemy

Veterans' Entitlements Act 1986

Repatriation Commission v Thompson (1988) 82 ALR 352
Willcocks v Repatriation Commission (1992) 28 ALD 646

REASONS FOR DECISION

15 November 2002           Mr I R Way, Member   

1. This is an application by Victor William Gard ("the applicant") for review of a decision of a delegate of the Repatriation Commission dated 23 January 2002, affirming a decision of the Commission made on 14 September 2001 that the applicant did not have qualifying service as defined in section 7A of the Veterans' Entitlements Act 1986 ("the Act").

2. At the hearing the Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1 to T6).  Mr DJ McAninly, Advocate appeared for the respondent. Mr Gard was self represented and gave oral evidence. 
   Issues

3. The principal issue in this matter is whether or not Mr Gard rendered qualifying service as defined in section 7A of the Act and in particular whether he incurred danger from hostile forces of the enemy.
   Legislative Framework

4. Section 7A(1)(a)(i) of the Act provides as follows:

   "(1) For the purposes of Parts III and VA and sections 85 and 118V, a person has rendered qualifying service:

   (a)     if the person has, as a member of the Defence Force:

   (i)rendered service, during a period of hostilities specified in paragraph (a) or (b) of the definition of  period of hostilities in subsection 5B (1), 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"

1. Pursuant to section 120(4) of the Act, the Tribunal has determined this matter to its reasonable satisfaction, or in other words on the balance of probabilities.

2. The Tribunal is also mindful that section 119 of the Act provides as follows:

   "(1)    In considering, hearing or determining, and in making a decision in relation to:

   (a)a claim or application;

   (b)a review, under Division 16 of Part IIIB, of a decision of the Commission with respect to a pension or qualifying service;

   (ba)a review, under Division 16 of Part IIIB, of a decision of the Commission under Part IIIAB (pension bonus); or

   (c)a review, under section 31, of a decision of the Commission with respect to a pension under Part II or IV or an attendant allowance under section 98;

   (d)the suspension or cancellation, under…