Harvey and Repatriation Commission - [2002] AATA 490

DECISION AND REASONS FOR DECISION [2002] AATA 490

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/914

VETERANS' APPEALS   DIVISION     )
           Re      WINIFRED HARVEY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr B J McCabe

Date21 June 2002
PlaceBrisbane

Decision      The decision under review is affirmed.
  .................(Sgd)........................
  B J McCabe
  Member
CATCHWORDS
VETERANS' AFFAIRS – compensation – whether applicant eligible for compensation under the Compensation (Japanese Internment) Act 2001 – whether veteran had been interned

Compensation (Japanese Internment) Act 2001

REASONS FOR DECISION

21 June 2002 Mr B J McCabe

Introduction

Mrs Winifred Harvey is the widow of the late Frederick Leo Kennedy. She has sought review of a decision by the respondent to deny her a compensation payment under the Compensation (Japanese Internment) Act 2001. The Act provides for a $25,000 payment to the widowed partners of civilians and military personnel interned by the Japanese military forces during World War II. The Repatriation Commission said it was unable to be satisfied that Mr Kennedy had been interned.
The Facts
Mrs Harvey gave evidence before the Tribunal. She was supported by her daughter. The Tribunal also had before it the s 37 documents which contained a death certificate, a marriage certificate and correspondence in relation to the claim. The Tribunal was also furnished with some historical accounts of the fall of Singapore that were apparently down-loaded from the internet.
The applicant married Frederick Kennedy in Melbourne on 6 September 1941. Mr Kennedy was a merchant employed with a firm in Singapore. He returned to Singapore shortly after his marriage to resume his work. His new wife remained in Melbourne. She had limited contact with him in the following months. She says she only received one letter. Given that Japanese forces were at large in the Pacific at the time, that is unsurprising. Communications must have been difficult.
Mrs Harvey was aware that Mr Kennedy volunteered for training and service with the RAAF in Singapore. He remained at work as a merchant; it seems his volunteer work was on a part-time or reserve basis. Mrs Harvey suggested that Mr Kennedy led a comfortable lifestyle in Singapore. Military service by members of the expatriate community appears to have had a strong social dimension. But she insisted that his service was real, and that it would have been formalised. Mrs Harvey said that her husband had been trained as an observer. There are no records of him serving in the RAAF.
Japanese forces invaded the Malay Peninsula in December 1941. British, Indian and Australian troops withdrew to the naval base on the island of Singapore in the face of a seasoned and aggressive foe. By January 1942, Singapore was under siege: the Japanese navy controlled the seas, and Japanese troops controlled the land approaches to the island. But there was some hope the island could hold out. The base was heavily fortified, particularly from the sea. There were plenty of troops to defend it from attack.
The Japanese forces were able to overcome the defences through a combination of bluff, skill and poor generalship from the allied commanders. Panic ensued on the island. There were rumours of atrocities occurring at the hands of the advancing troops. The authorities began to evacuate civilians and others, such as hospital staff. There was panic and a great deal of confusion.
The British military authorities surrendered on 15 February 1942. Many individuals were interned by the Japanese forces. They were kept in appalling conditions in camps and other facilities. Large numbers of the prisoners died, and the survivors (and their families) were often scarred and traumatised by their experiences. That is why the Act was introduced.
Mrs Harvey is unsure what happened to her husband. It appears he was evacuated from Singapore in the days before the surrender. That assumption is supported by a death certificate issued in 1947 by the Singaporean authorities. It asserts Mr Kennedy "died at sea in or around Sumatra on or after 13th day of February 1942 as the result of Evacuation from Sumatra."
Ms Shearer, for the respondent, conceded the cause of death listed on the certificate was not necessarily based on specific information. It would have been impossible to establish the fate of every individual in light of the destruction and confusion.
Mrs Harvey remarried after the war, in 1947. Her new husband was a veteran who had been interned by the Japanese forces. He was friendly with Sister Vivian Bullwinkle, an Australian nurse. Sister Bullwinkle is a well-known figure. She had been evacuated from Singapore but was captured and narrowly escaped death in a massacre of her fellow nurses by the Japanese soldiers. Mrs Harvey asked Sister Bullwinkle in the late 1940s or early 1950s if she had come across Mr Kennedy.
The applicant says Sister Bullwinkle agreed that she had in fact come across Mr Kennedy. According to the respondent, Sister Bullwinkle was sitting on a beach of Sumatra with her fellow nurses. They had been captured and awaited their fate. She noticed a group of Australian servicemen. They were very dirty. Apparently Mr Kennedy was in that group. The applicant suggested that Mr Kennedy must have identified himself to Sister Bullwinkle during their brief meeting and told her he was from Melbourne. The servicemen were marched away by Japanese soldiers shortly after. They were murdered.
There is no evidence to suggest Sister Bullwinkle knew Mr Kennedy prior to the encounter on the beach. Mrs Harvey had to describe him, and she showed Sister Bullwinkle a wedding photograph. The applicant says Sister Bullwinkle positively identified her husband from the description and photograph, but said that the men in the troop on the beach were in a very dirty and dishevelled state.
Sister Bullwinkle died in 2000.
The Legislation
Section 3 of the Act defines the word "interned" as:
"(a) confined in a camp, building, prison or other place (including a vehicle); or
(b) restricted to residing within specified limits."
The definition is a very wide one. It would presumably cover a person who was held captive for a very short period of time, such as members of the group of servicemen that Sister Bullwinkle described being marched off under guard by Japanese troops in Sumatra.
A person (in this case, Mrs Harvey) is eligible to receive compensation in the circumstances set out in s 4. The particular rules governing claims by a person in respect of a partner who was a deceased veteran are set out in s 4(1). Where a person in Mrs Harvey's position claims with respect to an internee who was a civilian, the applicable rules are set out in s 4(3).
The respondent was unable to locate any records of Mr Kennedy's service, so it assumed he was a civilian and that s 4(3) applied. That is appropriate, but it makes no difference in this case. Both sub-sections include a requirement that the individual was interned.
Section 4(3) provides:
"(3) A person is eligible for a compensation payment in respect of a deceased civilian if the following conditions are satisfied:
(a) the person was alive at the beginning of 1 January 2001;
(b) the civilian died before 1 January 2001;
(c) the person was a partner of the civilian immediately before the civilian's death;
(d) the civilian was interned by Japanese military forces at any time during the designated war period;
(e) the civilian was domiciled in Australia immediately before the commencement of that internment."

The legislation does not create a presumption of internment. It is necessary for the decision-maker to be satisfied in each case that the individual in respect of whom the claim is made was in fact interned within the meaning of the Act. The respondent says the appropriate standard is one of reasonable satisfaction.
Is there Sufficient Evidence to Establish that Mr Kennedy was Interned?
It is accepted that Mr Kennedy was in Singapore prior to its surrender. Everything else is unclear. The only evidence that he was captured comes from the account of Sister Bullwinkle that was recounted by the applicant. Sister Bullwinkle spoke with the applicant over fifty years ago, some five or more years after what was, at best, a fleeting meeting with Mr Kennedy. I understand Sister Bullwinkle did not know Mr Kennedy, and had no particular reason to remember him from all the other individuals whom she met or treated. He would have been dirty and in distress. It is difficult to accept that Sister Bullwinkle could provide a reliable identification in the circumstances.
The applicant said that Sister Bullwinkle was an impressive woman whose report could be relied upon. I have no doubts as to her integrity but she died several years ago and it is impossible to explore her account before the Tribunal. More evidence is required to support the applicant's account before it can be accepted that Mr Kennedy was interned.
Conclusion
We do not know what happened to Mr Kennedy. It is unlikely we will ever know. I appreciate Mrs Harvey is burdened by the uncertainty. It is possible that he was captured and that he died in captivity. But the account of Sister Bullwinkle that was relayed by the applicant must be treated with caution in the circumstances. I cannot be satisfied that he was interned. The decision of the respondent is affirmed.

certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member
Signed: Denise Burton
Administrative Assistant

Date of Hearing  31 May 2002
Date of Decision  21 June 2002
The Applicant Appeared in Person
Solicitor for the Respondent    Ms L Shearer, Departmental Advocate