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   

1. 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.

2. 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.

3. 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.

4. 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 Minesweeping 1945-51 Clasp, the Bomb-Mine Clearance 1945-53 Clasp, the Bomb and Mine Clearance 1945-49 Clasp or the Bomb and Mine Clearance 1945-56 Clasp; or

   (iii)rendered service outside Australia in an area described in column 1 of Schedule 2 during the period specified in column 2 of that Schedule opposite to that description, as a member of a unit of the Defence Force that was allotted for duty, or as a person who was allotted for duty, in that area; or

   (iv)      rendered warlike service; or

   …"

The standard of proof is that of reasonable satisfaction, in accordance with section 120(4) of the Act.

1. The delegate considered that, on the information provided, the applicant served in Australia in the Thursday Island, Horn Island and Higgins Field areas.  He did not, however, render qualifying service.  The applicant applied for review of the determination and on 20 June 2001 a senior delegate affirmed the decision and stated in part:

   "…
   I note from the File Mr Gilgen's service records show that he served with the Royal Australian Air Force from 11 May 1943 to 2 April 1946, and that he served at various locations within Australia.  The service documents also indicate that Mr Gilgen did not serve for a continuous period of at least 3 months in that part of Northern Territory that is north of parallel 14.5 degrees south latitude between 19 February 1942 and 12 November 1943, when it was subject to enemy air raids, nor did he serve outside Australia.
   Mr Gilgen's service records also show that he was at Cairns until 19 January 1944 and then was posted to Higgins Field.  Mr Gilgen however disputes this fact and contends that after his service at Cairns, he was posted to a radar station at Karumba.  He embarked by ship from Townsville to Karumba, but the posting was cancelled and Mr Gilgen was instead taken by motor launch to Thursday Island and then later onto Horn Island.
   Further enquiries were made to the RAAF in order to confirm Mr Gilgen's movements after he left Cairns.  The RAAF re-examined their records but were unable to support Mr Gilgen's claims.  While this does not disprove Mr Gilgen's claims, when examining whether he has rendered qualifying service, I need to consider the actual period when Mr Gilgen claimed to be present in the Torres Strait Islands and the north eastern coastal waters of Australia.
   Mr Gilgen was posted at Cairns until 19 January 1944, and it was after this posting that he claimed to embark on a voyage around the coastal waters of Australia.  The relevant period when service in the Torres Strait Islands and the north eastern coastal waters of Australia is accepted as being qualifying service, is between 3 September 1939 and 16 September 1943.  These dates relate to when enemy raids occurred in this area.
   As Mr Gilgen was not in this area until after 16 September 1943, and in the absence of any evidence of any other events in which he was exposed to any real physical danger or where his life was at peril, I find that Mr Gilgen did not incur danger from hostile forces of the enemy. Therefore, it follows that he has not rendered qualifying service as defined in the VEA.
    …" [T2/5-6]

2. Subsequently the applicant provided further information and it is not in dispute now, that he departed Townsville on a Dutch freighter, SS Thedens, on 7 May 1944.  The freighter travelled via Bowen and Cairns, arriving at Thursday Island on 10 May 1944 at 2.35 am.  In his preliminary statement (Exhibit A1), the applicant outlined the details of the journey as follows:

   "…
   7/5/44 – depart Townsville 0350
   10/5/44 – arrive Torres Strait 0235
   Disembark by rope scaffold into launch and taken to Thursday Island.  After two days taken by crash boat to Red Island Point on mainland and then to Higgins Field.
   On boarding SS Thedens at Townsville on 6/5/44, we were addressed by a crew member:

   1.        We are to remain on deck except for meals and toilet needs.

   2.        No smoking at night or below deck.

   3.        Issued with life jackets to be worn at all times.

   4.Ship was carrying fuel and general supplies and would be sailing in open waters outside the reef.

   5.Ship sailed directly east from Townsville for some hours before heading north.  It would pass through Magnetic Passage into the Coral Sea and the SWP area."

He said in evidence that the freighter travelled beyond the Barrier Reef.  The journey itself was uneventful, but the vessel was fitted with PVs on 5 March 1943 for protection from mines.  It was a lone ship, with no escort.  There were thousands of Japanese mines in the area and the journey into the Coral Sea has been accepted in other cases as rendering qualifying service.

1. In relation to his service in the Torres Strait and Higgins Field Air Base on the mainland, the applicant said in evidence that apart from air raid sirens going off, and being obliged to move into slip trenches, there was no evidence of enemy aircraft flying over.  Again, in Exhibit A1 he stated:

   "… danger was incurred during my service based on the following:

   1.Service on Horn Island and Higgins Field as evidenced in the case of Tiplady and others.

   2.Service on launches and crash boats from Red Island Point from Higgins Field.

   3.Danger from mines in Northern Queensland and Torres Strait waters.

   4.Ship journey on SS Thedens in May 1944 from Townsville to Torres Strait travelling beyond the Barrier Reef into the Coral Sea of the SWP area.

   …"

He relies on the matters of Re Tiplady and Repatriation Commission (AAT 3694, 7 August 1987) and Re Buckingham and Repatriation Commission (AAT 8258, 18 September 1992).

1. The Commission concedes that the applicant undertook the sea voyage to Thursday Island in May 1944, but maintains that there is no evidence, nor is there any contention from the applicant, that this journey involved contact with hostile forces of the enemy.  The journey was undertaken uneventfully and successfully.  History records that during World War II no ship was ever sunk or damaged in coastal waters in the area from Townsville to Darwin.  History also records that by May 1944, when the applicant undertook his coastal waters voyage, the Japanese had withdrawn all its submarines from the eastern coast of Australia.  In March 1944 the Navy considered the threat to merchant shipping non-existent and withdrew convoy support.

2. The Commission submits also that while the applicant may have perceived that he was in danger from hostile forces of the enemy during this voyage, in fact there was no contact of any sort with the enemy and no actual danger was incurred.  By the time this voyage commenced history records that all enemy activity in that area had ceased months beforehand.  In relation to the applicant's service in the Torres Strait and at the RAAF Base at Higgins Field in the north of Cape York Peninsula, from May 1944, the last known enemy operation in this area occurred on 18 June 1943, some 11 months prior to the applicant's arrival in this area.

3. The Commission called Mr Piper who was the RAAF's historical officer for 12 years, within the Department of Defence, and has 25 years involvement with research in the Pacific war area.  He said in evidence that by May 1944 the battle had moved up to Hollandia/Papua New Guinea and the Philippines.  The Torres Strait area was a "backwater" after June 1943.  The last Japanese submarines withdrew to the Solomons in June 1943.  This, he said, was confirmed by allied and Japanese records.  In his report of 2 August 1999, Mr Piper stated, in part:

   "…
   Japanese submarine attacks around the Australian coast ceased in June 1943 with the departure of the I-174.  Thirty ships were sunk by their submarines in the seas around Australia during 1942-43 causing about 650 deaths, 200 estimated as being Australian merchant seamen.  Lieutenant Commander David Stevens, Director Naval Historic Studies at the Department of Defence in Canberra, wrote an authoritative study on this subject titled "I-174: The last Japanese submarine off Australia" which appeared in the Journal of the Australian War Memorial No. 22, April 1993.  LTCDR Stevens' second last paragraph in his paper is significant with the following statement:
   With the departure of I-174 the Japanese campaign off Australia effectively came to an end.  Though I-177 and I-180 were despatched in mid June for further action in the region their deployment coincided with a renewed Allied offensive against the central Solomon Islands.  When they had all but reached their operating area the two submarines were ordered to return north to augment the Japanese forces despatched to New Georgia.  The Japanese were never again able to spare submarines to operate off eastern Australia and the coast once more became a relative backwater." [T19/42-43]

4. Mr Piper referred in evidence to "The Royal Australian Navy in World War II" edited by David Stevens, which reads in part, at page 97:

   "In February 1944 the continued absence of enemy submarines in Australian waters led to the suspension of convoys south of Townsville.  The abolition of Townsville-New Guinea Convoys followed in March, though the convoy system continued to be observed in northern New Guinea waters until late 1944.
   With Australia now seen as a strategic backwater, the majority of naval forces were moved north closer to the scene of operations.  Nevertheless, both surface and air patrols were maintained at selected points, and striking forces were held in readiness.  This was a wise precaution for in September intelligence reports indicated the possibility of German submarines operating in the Freemantle area."

5. Mr Piper said in evidence also that the allies laid mines at the entrance of the Barrier Reef to create safe shipping for its vessels along the coast.  The applicant referred him to Exhibit A2, which contains a report from Mr JC Date, a Naval Historian, in which he states:

   "(Z) 550In August, 1944 a start was made on the clearance of the defensive mines in the various passages of the Great Barrier Reef with the HMAS Kalgoorlie (Lt.Peel) and Pirie (Lt.Thompson) restoring and taking on water and fuel at Thursday Island.  A total of 491 mines were swept."

6. In another letter tendered by the applicant dated 11 December 1988 (Exhibit A2/4), Mr Straczek, Senior Naval Historical Officer, stated in part:

   "I refer to your letter of 1 December 1998 concerning the SS THEDENS.
   Enclosed are copies of the movement cards for the THEDENS for 1944.  The whole period has been highlighted for ease of reference.  The movement cards show that the THEDENS undertook three voyages from Townsville to Thursday Island in 1944, in January, May and December.  These have also been highlighted.
   HMAS BUNGAREE laid minefields in the various passages of the Great Barrier Reef, a defensive barrier to deter enemy forces from entering the reef.  These defensive minefields were effective in ensuring that the reef was a safe shipping channel.  Details of the minefields are enclosed.  There were no Japanese or German mines laid in Queensland waters.  Two Japanese minefields laid in the Torres Strait in 1942 were respectively 88 and 106 miles west of Thursday Island.
   …"

7. Mr Piper said in evidence that the SS Thedens (as with any other shipping) would have sailed up the eastern coast of Thursday Island, not the western; and that in view of the depletion of the Japanese forces, and the last air raid on Darwin occurring on 12 November 1943, there were no mines and no shipping in the Torres Strait area by the time the applicant arrived in that area.  He concluded his report as follows:

   "Response to Specific Question
   Likelihood of the contention of the applicant and whether the applicant was in danger from hostile forces (on a vessel from Townsville to Horn Island, at Horn Island and Higginsfield in 1944-45).
   Based on the aforementioned World War II records and historic details covering both the navy, army and air force (from Australian, American and Japanese sources) it can be deduced that the Horn Island, Thursday Island and Higginsfield areas were quite safe from hostile forces from July 1943 onwards.  This similarly applies to the Townsville to Horn Island shipping routes.
   Japanese submarines had withdrawn from the area, air raids had ceased and no ships were being damaged or sunk by mines." [T19/44]

I accept Mr Piper's evidence.

1. The applicant relies, in particular, upon Re Tiplady and Repatriation Commission (AAT 3694, 7 August 1987), a decision of this Tribunal wherein a RAAF veteran with a similar service history of a voyage from Townsville to Thursday Island and service on Horn Island and Higgins Field, Cape York, satisfied the Tribunal that he rendered qualifying service.  Subsequently, however, the case of Repatriation Commission v Thompson (1988) 82 ALR 352 was decided on 24 June 1988. In the course of its judgement the Full Court of the Federal Court said at page 356:

   "…
   The words 'incurred danger' therefore provide an objective, not a subjective, test.  A servicemen incurs danger when he 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 a situation where there is mere liability to danger, that is to say, that 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.
   The danger incurred must of course be more than a merely fanciful danger or a danger so minimal that the rule of de minimis applies.  But to say that is not to give a flavour to the word.  Rather it is to use it in its ordinary sense.
   …"

This is the authority that I must follow.

1. I have examined the whole of the evidence carefully and in detail and have taken into account the parties' submissions.  I am reasonably satisfied on the evidence that, although the applicant may have had a perception of danger during the course of the voyage to Thursday Island in May 1944, he did not "incur danger from hostile forces of the enemy".  He was not exposed, at risk or in peril of harm or injuries.

2. For these reasons the Tribunal affirms the decision under review.

   I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

   Signed:         .....................................................................................
     Associate

   Date/s of Hearing  17 December 2001
   Date of Decision  17 December 2001
   Counsel for the Applicant        In person
   Solicitor for the Applicant         -
   Counsel for the Respondent    Mr G Doube
   Solicitor for the Respondent    DVA