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 subsection 31 (6), of a pension under Part II or IV or an attendant allowance under section 98, the decrease in the rate of such a pension or allowance under that subsection or the increase in the rate of such a pension or allowance under subsection 31(8);

   (da)a review, under Division 7 of Part IVA, of a decision of the Commission with respect to an advance payment of an amount of pension;

   (e)the suspension, cancellation or variation of a pension; or

   (ee)a review, under subsection 115(1), of a decision of the Commission in respect of an application for an allowance or benefit specified in that subsection;"

Applicant's Evidence and Submissions

1. Mr Gard was born on 25 November 1925 and is now 76 years of age.  He enlisted in the Royal Australian Airforce on 18 December 1943.  He was discharged on 24 September 1945.  He served as a wireless operator (air) with the rank of Flight Sergeant.  His various postings in the RAAF included initial training wireless, air gunner school training and service with 1 Operational Training Unit (1 OTU) at East Sale.  He did not serve outside of Australia. 

2. In his application to the Tribunal for review dated 22 April 2002 he said (T1/C):

   "This is a claim to the Tribunal for reconsideration of my application for a Gold Card.
   The fact sheets are just rubbish, have you actually ever read them?
   The letter from Veterans Affairs said I served at an Officer Training Unit – actually OTU means Operational Training Unit, a totally dangerous place and I reckon I qualify.
   What has age to do with it?  I am 76 years old 85(4A) A.  If the veteran is 70 or over.
   What gets to me is the fact that the RAAF sent me to East Sale, I volunteered to go anywhere and once or twice interviewed the CO and asked to be posted to a war zone, so I could at least go to RSL with my three brothers!
   I have a video on an ex CO of 1 OTU and he said he went to 133 funerals in his time at East Sale.
   The hostile enemy caused the necessary training outfits.
   I consider the whole thing DESCRIMINATION (sic).

1. In his application for a Gold Card, dated July 2001, the applicant said:

   "I am  applying for a Gold Card, although under the present unfair rules for getting one.
   I volunteered as soon as I turned 18 years and became a Flight-Sergeant Wireless Operator (air) etc and spent most of the flying time at 1 OTU EAST SALE, a most dangerous place.  I am not sure of the numbers killed there but there was a lot!
   In the time I spent there made 114 flights where pilots converted to Beauforts.  Every flight was a real test, every conceivable problem to test the trainee.  Beside the training there was a lot of aircraft malfunctions to say the least.
   The flights went everywhere in the area, out to sea and each one very dangerous.
   I and many others are descriminated (sic) against we were sent where the RAAF decided."

1. Further, in a letter to the Department of Veterans' Affairs dated 20 September 2001, Mr Gard stated:

   "Reference my application for Gold Card I don't know why I bothered as the 'people' who have no idea of what went on in WWII I volunteered to go anywhere!
   Where I did my flying as a Wireless of A.G. in flights converted to BEAUFORT BOMBERS.  During these conversion trips every conceivable thing that could possibly happen were were (sic) gone through, and a lot happened without even trying.
   Far more service personnel were killed at East Sale than were killed in operating squadrons in Pacific area.  From memory 60 to 80 were killed at East Sale in my two stints there including my room mate!
   Saw a video of interview with ex-station commander, he said 133 were killed in his time there.  Must have been 200 or more . 'TRAINING'
   Something is wrong somewhere.
   I worked with a man who as a private in army, went to some island ran a generator for a couple of weeks then came back a returned soldier."

1. In his oral evidence the applicant reinforced the point that he felt discriminated against in that he had willingly served his country and done everything asked of him.  Furthermore, that he incurred danger on many occasions albeit not directly from any enemy action.  In answer to questions from the Tribunal the applicant said he had never had an encounter with the enemy. 
   Respondent's Submission

2. It was submitted for the respondent that the applicant failed to meet the requirement of section 7A(1)(a)(i) of the Act that he did not incur danger from hostile forces of the enemy.
   Consideration

3. To have qualifying service pursuant to section 7A(1)(a)(i) of the Act, the applicant must satisfy four criteria, namely that he was a member of the Defence Force; that he served in a period of hostilities as defined in sub-section 5B(1) of the Act; that he undertook, at sea in the field or in the air, naval, military or aerial operations against the enemy; and that he incurred danger from hostile forces of the enemy.

4. There is no dispute between the parties and the Tribunal accepts that the veteran did not serve outside Australia; that he served in a number of bases in Australia; that during his service he undertook a large number of flights in Australia and the adjacent seas. The Tribunal finds that the applicant was a member of the Defence Forces defined in sub-section 5C of the Act and that he did serve in a period of hostilities as defined in sub-section 5B(1) of the Act.

5. Turning then to the principal issue in this matter, namely whether the applicant incurred danger from hostile forces of the enemy.  In Repatriation Commission v Thompson (1988) 82 ALR 352 the Full Federal Court said (at 355):

   "In approaching the statutory provision, it is necessary to keep in mind that the words used are words of ordinary parlance and are used in their ordinary sense.  No word in section 36(a)(i) is ambiguous, no ambiguity arises from the order in which the words are used and no ambiguity arises from the context in which the provision is found.  The words require no jurisdiction extrapolation.  They mean what they say, no more and no less and they should be so read."

1. The Court went on to say (at 356):

   "The words 'incurred danger' therefore provide an objective, not a subjective test.  The serviceman incurs danger when 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 or fearing that he may be in danger.  The words 'incurred danger' do not encompass the situation where there is a mere liability to danger, that is to say there is a mere risk of danger.  Danger is not incurred unless the serviceman is exposed, at risk or in peril of harm or injury."

2. The words "incurred danger" therefore provide an objective not a subjective test.  On the material before it, the Tribunal is not satisfied that the veteran was at any time during his service at actual risk of physical or mental harm as a direct result of the activities of hostile forces of the enemy.  The Tribunal therefore finds that the applicant does not satisfy the criteria relating to "incurring danger".  In so doing, the Tribunal notes that during his service at 1 OTU Mr Gard did incur danger, albeit not as a result of any encounter with the enemy.

3. For the sake of completeness, the Tribunal has also considered whether or not the applicant rendered service at sea, in the field or in the air, in naval, military or aerial operations against the enemy.

4. In Willcocks v Repatriation Commission (1992) 28 ALD 646, Cooper J said (at 652-653):

   "In consequence it is not a correct approach to widen the category of service under s 36(1)(a)(i) to include activities reasonably incidental to military operations as themselves being military operations.  Whether or not an activity falls within the section will depend upon determining in a practical way whether or not the conduct or the activity was an integral part of naval, military or aerial operations against the enemy.
   The phrase 'naval, military or aerial operations against the enemy' is to be read as a whole.  It includes two elements.  The first is that there must be some operation which is naval, military or aerial in character.  The second is that the requisite operation must be against the enemy.  Both elements must be satisfied for the service to constitute 'qualifying service' within the meaning of s 36(1) of the VE Act.
   Having regard to the concession by counsel for the respondent that the applicant had, as a member of the defence force, rendered service during a specified period of hostilities in the field in military operations, it is only necessary to address the question what is the ordinary unambiguous meaning of 'against' in the context of the phrase 'military….operations against the enemy'.
   …
   … [I]n my view the word 'against' in the phrase 'military operations against the enemy' is used in the sense of 'in hostility or active opposition to'.  This is the common meaning and general usage of the word 'against' in such a context.  The section requires service, inter alia, in military operations against the enemy, in the sense of operations in hostility or opposition to the enemy.
   The Full Court decision in Arenfeld does not support the applicant's contention that mere 'contact with' the enemy is sufficient.  In that case, it was held that the expression 'actual combat against the enemy' would include conduct which answered the description of integral participation in an activity directly intended for an encounter with the enemy, whether offensive or defensive in character.  In my view the phrase 'an encounter with the enemy' does not mean mere contact with the enemy.  It refers to a hostile offensive or defensive encounter or exchange with the enemy."

1. The Tribunal, after consideration of all of the material before it, is satisfied that the applicant's war time activities did not involve any hostile offensive or defensive exchange with the enemy that would comply with the commonly understood meaning of the provision "naval, military or aerial operations" against the enemy. 

2. It follows for the reasons given above that the Tribunal affirms the decision under review.

   I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member

   Signed:         Denise Burton
     Administrative Assistant

   Date of Hearing  16 October 2002
   Date of Decision  15 November 2002

   The Applicant Appeared in Person
   For the Respondent                 Mr McAninly