Gilgen and Repatriation Commission - [2000] AATA 447

DECISION AND REASONS FOR DECISION [2000] AATA 447

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/48

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

DECISION

Tribunal Senior Member W.H. Eyre

Date7 June 2000
PlaceAdelaide

Decision      The Tribunal affirms the decision under review.
  (Signed)
  W.H. EYRE
  (Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – Veterans' entitlements - Gold Card – whether applicant rendered qualifying service – decision affirmed
Veterans' Entitlements Act 1986 ss. 5B, 7A, 85, 120
Repatriation Commission v Thompson (1988) 82 ALR 352
Smith v Repatriation Commission (1987) 74 ALR 537
Hinkins and Repatriation Commission [1999] AATA 666

REASONS FOR DECISION

7 June 2000 Senior Member W.H. Eyre

This is an application for review of a decision of a delegate of the respondent made on 2 September 1998, affirmed by a senior delegate of the respondent on 9 March 1999, that the applicant had not rendered "qualifying service" and therefore was not eligible for the issue of a Gold Card.
The Tribunal has before it the T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and the documents tendered at the hearing, namely Exhibit A1 comprising Mr Gilgen's statement dated 31 March 2000 with attachments; Exhibit R1 being the respondent's statement of facts, issues and contentions dated 12 October 1999; and Exhibit R2 being a statement from Robert Piper, military historian, dated 2 August 1999 with annexures A-D. Mr Gilgen represented himself at the hearing. The respondent was represented by Mr Greg Doube.
On the day following the hearing, Mr Gilgen lodged a further three page statement he wished the Tribunal to consider. The Tribunal gave leave for this to be put before it and invited the respondent to make comment. The respondent's written submission in response, dated 25 April 2000, is also before the Tribunal as is Mr Gilgen's reply dated 14 May 2000.
legislation
For a veteran to qualify for a Gold Card, section 85(4A) of the Veterans' Entitlements Act 1986 (the Act) requires that, amongst other things, "… the veteran has rendered qualifying service during the period covered by paragraph (b) of the definition of period of hostilities in subsection 5B(1); …". Paragraph (b) of sub-section 5B(1) of the Act defines "period of hostilities", for the purposes of the present application, as "World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); …".
Section 7A(1)(a)(i) of the Act provides that a person has rendered qualifying service if the person has:
"rendered service, during a period of hostilities … 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; …" (Tribunal's emphasis)
The issue before the Tribunal is confined to whether Mr Gilgen rendered qualifying service, in particular whether he "incurred…

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 [2000] AATA 447
Case: [2000] AATA 447
Decision Date: 7 June 2000

CaseChat Overview and Summary

Gilgen sought a review of a decision by the Repatriation Commission regarding his eligibility for a Gold Card under the Veterans' Entitlements Act 1986. The core dispute was whether Gilgen's service qualified him for the Gold Card, which is contingent on having served in circumstances where there was a risk from hostile forces. The case was heard and determined by the Administrative Appeals Tribunal (AAT).

The legal issues before the court involved the interpretation of section 7A(1)(a)(i) of the Act, which defines the conditions under which a person is considered to have incurred danger from hostile forces. The court had to determine if Gilgen's service met the criteria set out in the Act. Additionally, the court considered relevant precedents, such as Repatriation Commission v Thompson and Smith v Repatriation Commission, to understand how similar cases had been adjudicated.

The AAT found that, based on the evidence presented, Gilgen had not incurred danger from hostile forces in the manner required by section 7A(1)(a)(i) of the Act. The Tribunal concluded that the Repatriation Commission's decision was correctly made, and thus affirmed the decision under review. The Tribunal's reasoning was influenced by the lack of sufficient evidence to establish the required level of danger and risk to Gilgen's service.

The final orders of the Tribunal were to affirm the decision of the Repatriation Commission, thereby denying Gilgen's application for a Gold Card. This decision was made on the basis that Gilgen did not meet the statutory criteria for incurring danger from hostile forces during his service.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ROBERT J

On the material before the Tribunal it cannot be said that Mr Gilgen incurred danger from hostile forces of the enemy within the meaning of section 7A(1)(a)(i) of the Act.decision Accordingly, for the reasons given above, the Tribunal affirms the decision under review.I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member W.H. EyreSigned: ..................................................................................... Personal AssistantDate/s of Hearing 17 April 2000 Date of Decision 7 June 2000Counsel for the Applicant In person Solicitor for the Applicant - Counsel for the Respondent Mr G. Doube Solicitor for the Respondent DVA

Ratio Decidendi

Legal Principle Established

Established by: ROBERT J

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