Gilgen and Repatriation Commission - [2005] AATA 856

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 856
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/37

VETERANS' APPEALS DIVISION )

Re ROBERT NEVILLE GILGEN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr JG Short (Member)
Date2 September 2005
PlaceAdelaide

Decision
The Tribunal sets aside the decision under review, and in substitution therefore determines that Mr Gilgen has satisfied the requirements of s7A(1)(a)(i) of the Veterans’ Entitlements Act 1986 with effect from 18 June 2004.

..............................................
JG SHORT
(Member)

CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Gold Card – applicant rendered qualifying service having “incurred danger” from hostile forces of the enemy – decision set aside
Veterans’ Entitlements Act 1986 ss 7A, 85, 120
Re Gilgen and Repatriation Commission [2000] AATA 447
Re Gilgen and Repatriation Commission [2001] AATA 1048
Re Tiplady and Repatriation Commission (AAT 3694, 7 August 1987)
Repatriation Commission v Thompson (1988) 82 ALR 352
Repatriation Commission v Mitchell [2002] FCA 1177
Repatriation Commission v Robertson [2004] FCA 173
REASONS FOR DECISION

2 September 2005   Mr JG Short (Member)

1.      Mr Gilgen served as a wireless operator in and around the Torres Strait Islands, including service on Horn Island, from 11 May 1943 until 18 December 1945.   Unfortunately, the Repatriation Commission continued to advise Mr Gilgen, as late as 29 July 2004, that his service records were unable to support his claim to have served in this area. This led to a great deal of frustration being experienced by Mr Gilgen.
2.      Mr Gilgen’s frustration was compounded when he discovered that applications lodged by two other veterans seeking a determination that those veterans had qualifying service, and made in respect of shorter periods of service in the Torres Strait Islands, had been successful. Mr Gilgen referred the cases of Re Tiplady and Repatriation Commission (AAT 3694, 7 August 1987) and Repatriation Commission v Mitchell [2002] FCA 1177. Mr Gilgen lodged his third application to determine qualifying service by a veteran or mariner on 18 June 2004.
3.      The evidence tendered by the respondent (the Commission) included the T documents, which included a report of Military Historian, Mr Robert Piper, dated 2 August 1999 [T29/103-126]. The evidence also included a more recent report from Mr Piper dated 26 April 2005 [Exhibit R3] and the letter of referral from the Department of Veterans’ Affairs to Mr Piper dated 4 April 2005 [Exhibit R2].
4.      Mr Gilgen noted that Mr Piper’s second report differed from the first in that Mr Piper now advised that Mr Gilgen’s evidence of travel to and around the Torres Strait Islands, including service on Horn Island, and at Higgins Field, had now been confirmed. At page 2 of his most recent report Mr Piper refers to his discovery of records confirming the accuracy of the evidence Mr Gilgen had been providing for some years. He stated “… The results were quite amazing, confirmed Mr Gilgen’s May 1944 movement claim and revealed that Air Force Office had overlooked a POR entry…

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.

Continue reading Gilgen and Repatriation Commission

Details

AGLC: Gilgen and Repatriation Commission [2005] AATA 856
Case: [2005] AATA 856
Decision Date: 2 September 2005

CaseChat Overview and Summary

The matter of Gilgen and the Repatriation Commission was before the Administrative Appeals Tribunal, where the central issue was whether Mr Gilgen, a veteran, was eligible for a Gold Card under the Veterans' Entitlements Act 1986. The Gold Card provides for additional benefits for veterans who served in specific circumstances, such as incurring danger from hostile forces. The Tribunal was tasked with reviewing the Commission's decision to deny Mr Gilgen the Gold Card and determining if the denial was legally sound.

The legal issues the court needed to decide were primarily whether Mr Gilgen had indeed served in conditions that qualified him for the Gold Card and if the Repatriation Commission's decision to deny him the benefits was correct. The Tribunal had to consider the definitions and criteria set forth in sections 7A, 85, and 120 of the Act, as well as relevant case law such as Re Tiplady and Repatriation Commission and Repatriation Commission v Thompson. The core of the dispute hinged on interpreting the phrase "incurred danger" from hostile forces of the enemy and whether Mr Gilgen's service met this criterion.

In its reasoning, the Tribunal found that the evidence presented by Mr Gilgen sufficiently demonstrated that he had served in circumstances where he was exposed to danger from hostile forces. The Tribunal considered the testimonies and documents provided, finding them to convincingly support Mr Gilgen's claim. The Tribunal also reviewed the relevant case law, concluding that the Commission's decision did not align with the statutory provisions and judicial interpretations. Consequently, the Tribunal set aside the Commission's decision and determined that Mr Gilgen met the eligibility requirements for the Gold Card, effective from 18 June 2004.

The Tribunal's final order was to set aside the decision of the Repatriation Commission and to determine that Mr Gilgen satisfied the requirements of section 7A(1)(a)(i) of the Veterans' Entitlements Act 1986, thereby granting him the Gold Card with retroactive effect from 18 June 2004. This decision provided Mr Gilgen with the benefits associated with the Gold Card, recognising his service under dangerous conditions from hostile forces.

Orders

Orders of the court

The Tribunal sets aside the decision under review, and in substitution therefore determines that Mr Gilgen has satisfied the requirements of s7A(1)(a)(i) of the Veterans’ Entitlements Act 1986 with effect from 18 June 2004.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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VETERANS' APPEALS DIVISION		)
Re		ROBERT NEVILLE GILGEN