Gow and Repatriation Commission
[2000] AATA 637
•18 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 637
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1823
VETERANS' APPEALS DIVISION )
Re ALAN GOW
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date18 July 2000
PlaceNewcastle
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/1823
)
VETERANS' APPEALS DIVISION )
Re ALAN GOW
Applicant
AndREPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M.D. Allen
Date 18 July 2000
Place Newcastle
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS Gold Card application. Question of fact whether Applicant incurred danger from hostile forces of the enemy. No evidence to support that finding.
Veterans' Entitlements Act 1986 - subs7A(1), subs120(4) and subs120(6)
Repatriation Commission v Smith (M J) 15 FCR 327
Repatriation Commission v Thompson 82 ALR 352
Repatriation Commission v Kohn 87 ALR 511
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong
....................................................................................
Associate
Date of Hearing 18 July 2000
Date of Decision 18 July 2000Representative for Applicant Wing Commander Leeke
Advocate for Respondent Mr S Modder, Department of Veterans' AffairsDRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N99/1823
By SENIOR MEMBER ALLEN
ALAN GOW and repatriation department
NEWCASTLE, 18 JULY 2000MR ALLEN: In this matter the applicant, pursuant to a document received by the Tribunal ON 9 April 1999, seeks review of a previous determination, a Delegate of the Repatriation Commission, who on 8 September 1999 reviewed a prior decision and affirmed that decision, the decision affirmed being (1), to reject the applicant's claim for what is colloquially known as a Gold Card.
In order to obtain that benefit the applicant has to demonstrate, or the Tribunal has to find from the material put before it, that the veteran has rendered what is termed qualifying service. The term qualifying service is set forth in section 7A of the Veterans' Entitlements Act 1986. Any decision in this matter must be made pursuant to subsection 4 of section 120 of the Veterans' Entitlements Act to the Tribunal's reasonable satisfaction.
It was said by the Full Court of the Federal Court in Repatriation Commission and Smith (M J) 15 fcr 327that that term equates to the civil standard of proof, namely proof on the balance of probabilities. Subsection 6 of section 120 points our that there is no onus of proof on either party to these proceedings. Section 7A subsection (I) reads inter alia:
For the purposes of part 3 a person has rendered qualifying service 1) 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.
Now, in this matter it is beyond dispute that the applicant serviced as a member of the Royal Australian Air Force during the Second World War.
It is unfortunate for the applicant's personal circumstances that after undergoing training as an air gunner war had ceased prior to his being posted overseas. He stated in evidence today indeed that he was due to
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©Auscript Pty Ltd 2000go to Nadzab in New Guinea to join a squadron but the end of the hostilities terminated that prospective posting.
His claim today to have had qualifying service relates to his claim that he flew operational flights out of Sale in 1945. Exhibit R4 in these proceedings is a document which extracts the applicant's records from the RAAF record section of the Department of Defence. They read as follows:
A search of the personnel occurrence reports of the Air Gunnery School at West Sale show that he arrived on posting from 4 RAAF Postal Unit to undergo No 53A Air Gunners course with effect from 19 January 1945. He subsequently proceeded on posting to 2 Personnel Depot on 2 March 1945 following completion of the course. He again posted to the Air Gunnery School, West Sale from 3 Stores Depot on 26 June 1945 and successfully completed No 4 Air Gunnery Refresher course which was conducted from 8 July 1945 to 31 August 1945 conclusive.
It was stated by the applicant that during his time at the Air Gunnery School he was a member of the flight crew of Anson aircraft that proceeded out to sea – that is to say 200 miles out to sea and thence beyond the territorial limits of Australia and, although a purpose of those flights was to practise aerial gunnery, they were also operational flights in that there was light ammunition on board and part of their duties was to reconnoitre to ascertain if there were enemy vessels in the area and although he didn't deliberately say so, I take it that if those vessels were sighted, their duties were to engage them. However, he cannot say whether the Anson was carrying bombs or not.
It seems to me, therefore, that from that evidence as such that the applicant has and I am reasonably satisfied he was a member of the Defence Force at a time period of hostilities; that is to say, during the period of the Second World War and that he engaged in aerial operations against the enemy.
However, the question arises whether, following that, he incurred danger from hostile forces of the enemy. The terminology was examined by the Full Court of the Federal Court and in the case of Repatriation Commission v Thompson 82 ALR 352 at 356 the Court said:
The words "incurred danger" therefore provide an objective, not a subjective, test. A serviceman 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
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©Auscript Pty Ltd 2000merely 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 of or in peril of harm or injury.
In this matter I was also referred to a document which is a decision of the Repatriation Commission relating to what might constitute qualifying service. That document states that the Commission had decided on 10 September 1986 that:
A veteran will be deemed to have qualifying service in terms of subsection (36)(a)(1) of the Veterans' Entitlements Act if the veteran served outside Australia; that is outside the coastal waters of Australia in any area other than the West Pacific Area between 3 September 1939 and 5 May 1945 inclusive.
Suffice to say that subsection 36(a)(i) is not one of the sections of the Act I have to consider here and whatever may be the decision of the Repatriation Commission on that point. In this matter I have to decide the law as it stands in the Act as passed and on the decided case law. So, that particular decision cannot bind me in any way. It was also reasoned that if the applicant had, for example, been posted outside Australia and made his aerial reconnaissance flights back towards Australia, he may qualify. That may be so and I agree that the Veterans' Entitlements Act does contain anomalies.
So far as the brief flights outside Australia are concerned, whatever they may or may not qualify the applicant for in relation to operational service and having regard to the decision of Hill J in the case of Repatriation Commission v Kohn 87 ALR 511, it may be that they would not be regarded as operational service, being transitory only.
The fundamental point of distinction in this case is that subsection 7A(1) requires the applicant to have incurred danger from hostile forces of the enemy as was pointed out in Thompson's case supra; that is an objective test and on the material which is before me there is no evidence that at any time the applicant incurred danger from hostile forces of the enemy. The decision under review will therefore be affirmed.
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