Graham and Repatriation Commission

[2004] AATA 180

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 180

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V03/909

VETERANS' APPEALS  DIVISION		)
Re		ALISTAIR GRAHAM

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J Handley, Senior Member

Date24 February 2004

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(Sgd)  J Handley

Senior Member

VETERANS’ ENTITLEMENTS – claim for service pension – applicant a Member of British Army – service in Yemen – Radfan conflict – not engaged in a “period of hostilities” – did not serve in an “operational area” – decision affirmed

Veterans’ Entitlements Act 1986 (Cth) s 5B, s 5B(e), s 5C(b) , s 5Q(a), s 7A, s 36,

REASONS FOR DECISION

24 February 2004 Mr J Handley, Senior Member     

1.      The applicant applied to review a decision made by a delegate of the Repatriation Commission (“the respondent”) on 30 May 2003.  The decision then made was to reject a claim for service pension.

2.      The hearing of the application was convened in Ballarat on 10 February 2004.  The applicant appeared without representation.  Mr Robert Douglass appeared on behalf of the respondent.

3.      The circumstances giving rise to the application may be briefly described as follows.

4.      The applicant was a member of the British Army between 10 October 1963 and 11 November 1971.  He served in Yemen, between 23 May 1964 and 6 February 1965.

5.      The applicant said that Aden was a British protectorate at that time.  He said there was conflict in the district of Radfan which he said was located approximately 60 miles to the north of Aden.  In addition to the presence of British troops, there were also Australian troops present under the control of the British.  There were also British and Australian troops present as observers under the supervision of the United Nations.  The applicant said that the period of the Radfan conflict was between April 1964 and July 1964.  By reason of his presence at Radfan, he qualified for the General Service Medal and the Radfan Clasp.

6. Entitlement to service pension is found at Part III Division 1 of the Veterans’ Entitlements Act 1986 (“the Act”). Relevantly s 36 of the Act applies. It provides that a person is eligible for an aged service pension if the person is a “veteran”, and has rendered “qualifying service” and has reached “pension age”.  (For the purposes of this decision, the applicant was born on 26 April 1943 and is presently 60 years of age.  He has reached “pension age” as defined at s 5Q(a)).

7.      A “veteran” within the meaning of s 36 is defined at s 5C(b) of the Act (relevantly) as a person who is either a “Commonwealth veteran” or an “allied veteran” or an allied mariner”.  Only that part of the definition that applies to Commonwealth veterans is applicable in the present application.

8.      A “Commonwealth veteran” is defined at s 5C of the Act as “a person who rendered continuous full-time service as a member of . . . the naval, military or air forces . . . of a Commonwealth country during a period of hostilities”.

9.      For the purposes of this decision, it is not in dispute that the applicant rendered “continuous full-time service” as defined also at s 5C of the Act but the significant issue in dispute is the meaning to be given to the expression “period of hostilities”. That expression is defined at s 5B of the Act which for the purpose of this decision only concerns “war-like operations in operational areas from 31 July 1962 to 11 January 1973 (both included)” (refer s 5B(e) of the Act).

10. As may be seen by s 5B(e) of the Act, the applicable “period of hostilities” must have existed in an “operational area”.  An “operational area” is also defined at s 5B of the Act as “an area described in column 1 of Schedule 2 during the period specified in column 2 of Schedule 2 opposite to the description of the area in column 1.”. Accordingly Schedule 2 of the Act must be examined.

11.     Schedule 2 defines nine operational areas in column 1, identified by geographical locations.  Column 2 defines the periods of time giving rise to the operational areas against each of the nine geographical locations.

12.     In the nine described areas the conflict in Yemen, and more precisely at Radfan, is not found.  Additionally, or in the alternative, the periods within column 2 of Schedule 2 between 1960 and 1973 comprise Vietnam, Malaya, Borneo, Malaysia, Brunei, Singapore and Cambodia.

13.     It follows therefore that the applicant was not engaged in a period of “war-like operations in operational areas” whilst he was a member of the British Forces in Yemen.

14.     Accordingly the applicant is not a “veteran” within the meaning of s 36 of the Act.

15.     In so far as he must additionally have “rendered qualifying service” (which is not strictly necessary to decide because all of the sub-sections of s 36 of the Act must be satisfied), the applicant must have also satisfied the provisions of s 7A of the Act which is applicable to Part III of the Act. Whilst s 7A of the Act contains a number of sub-sections, the provisions which would otherwise apply to the applicant do not assist because those sub-sections are preceded by the qualification of “service during a period of hostilities”.

16.     As may be seen by the analysis earlier in these reasons the applicant cannot establish that he was engaged during “a period of hostilities”.

17.     It appears from reading the documents lodged by the applicant and from his submissions heard in Ballarat, that he held a belief of entitlement to service pension by reason of the presence of Australian troops during this conflict and by reason of medals being awarded to both him and Australian troops.

18. As may be seen from the above, those features are not relevant to determine eligibility under the Act to service pension.

19.     As may be seen by the limitation upon periods of service falling within the ambit of “period of hostilities”, Australian troops who may have been injured or served in Radfan would have no entitlement, under the Act, to any form of benefit or compensation.

20.     In all of the circumstances the decision under review is affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J Handley, Senior Member

Signed:         Holly Weston
  Associate

Date/s of Hearing  10 February 2004
Date of Decision  24 February 2004
Solicitor for the Applicant          Self
Departmental Advocate            Mr R Douglass