Gilgen and Repatriation Commission - [2001] AATA 1048

DECISION AND ORAL REASONS FOR DECISION [2001] AATA 1048

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/229

VETERANS' APPEALS DIVISION       )
           Re      ROBERT NEVILLE GILGEN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date17 December 2001
PlaceAdelaide

Decision      For the reasons given orally at the hearing of this matter, the Tribunal affirms the decision under review.
  (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Gold Card – whether applicant rendered qualifying service – whether applicant "incurred danger" from hostile forces of the enemy
Veterans' Entitlements Act 1986 sections 7A, 85, 120
Re Tiplady and Repatriation Commission (AAT 3694, 7 August 1987)
Re Buckingham and Repatriation Commission (AAT 8258, 18 September 1992)
Repatriation Commission v Thompson (1988) 82 ALR 352

ORAL REASONS FOR DECISION

17 December 2001 Senior Member WJF Purcell

This is an application for review of a decision of a delegate of the Repatriation Commission (the Commission) dated 29 March 2001, affirmed by a senior delegate on 20 June 2001, that the veteran had not rendered "qualifying service" in accordance with section 7A of the Veterans' Entitlements Act 1986 (the Act), and was not eligible therefore for the issue of a Gold Card.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with exhibits tendered by the applicant, who appeared on his own behalf and gave oral evidence. Mr Doube represented the Commission, which called Mr R Piper, Military Aviation Researcher, who gave evidence by way of telephone link up.
The applicant is 76 years old and served in the Royal Australian Air Force (RAAF) during World War II from 11 May 1943 until 2 April 1946. He did not serve outside Australia, but his service constituted service during a period of hostilities.
On 16 March 2001 the applicant lodged an application for the Commission to determine whether he had qualifying service and on 29 March 2001 a delegate determined that the applicant's service did not constitute qualifying service as defined in section 7A(1)(a) of the Act, which provides:
"(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
(ii)rendered service after 29 October 1945 in respect of which the person has been awarded, or has become eligible to be awarded, the Naval General Service Medal~ or~ the General Service Medal (Army and Royal Air Force) with the…

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 [2001] AATA 1048
Case: [2001] AATA 1048
Decision Date: 17 December 2001

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal (AAT) is an appeal by Robert Neville Gilgen against the Repatriation Commission's decision to deny him a Gold Card under the Veterans' Entitlements Act 1986 (VEA). The issue at hand is whether Mr Gilgen rendered "qualifying service" as defined in section 7A of the VEA, which requires him to have incurred danger from hostile forces of the enemy during a period of hostilities. The case hinges on whether Mr Gilgen's service, which included a voyage from Townsville to Thursday Island in May 1944 and subsequent service in the Torres Strait and at Higgins Field, constituted qualifying service.

The AAT considered the applicant's evidence and submissions, along with the historical context provided by Mr R Piper, the Military Aviation Researcher. Mr Gilgen claimed that his service in the Torres Strait and his voyage on the SS Thedens presented real dangers from hostile forces, including the threat of Japanese submarines and mines. However, the Commission and Mr Piper argued that by May 1944, the Japanese had withdrawn all their submarines from the eastern coast of Australia and no enemy activity had occurred in the Torres Strait since June 1943. Historical records and expert evidence supported the conclusion that there was no real danger from hostile forces during the applicant's service.

Following the reasoning in Repatriation Commission v Thompson (1988) 82 ALR 352, the AAT determined that "incurring danger" from hostile forces of the enemy requires more than a mere perception or fear of danger; it necessitates actual exposure to risk or peril of harm. The AAT found that while Mr Gilgen may have perceived danger during his voyage and service, there was no actual danger present. Consequently, the Tribunal affirmed the Commission's decision that Mr Gilgen did not render qualifying service.

The final orders of the Tribunal are that the decision of the Repatriation Commission dated 29 March 2001, affirmed by a senior delegate on 20 June 2001, is affirmed. Mr Gilgen's application for a Gold Card is denied.

Orders