Harvey and Repatriation Commission - [2001] AATA 953

DECISION AND REASONS FOR DECISION [2001] AATA 953

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/320

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

DECISION

Tribunal Mr I R Way, Member

Date20 November 2001
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  (Signed)
  I R Way
  Member
CATCHWORDS
VETERANS' AFFAIRS – qualifying service – whether incurred danger from hostile forces of the enemy
Veterans' Entitlements Act 1986 – ss 7A, 119, 120,
Willcocks v Repatriation Commission (1992) 28 ALD 646
Repatriation Commission v Thompson (1988) 82 ALR 352
Thompson v Repatriation Commission (1988) 80 ALR 271
Marsh v Repatriation Commission (1987) 71 ALR 281
Marsh v Repatriation Commission (No 2) (1988) 82 ALR 341
Re Zeeno and Repatriation Commission (1988) 14 ALD 616
Maller and Repatriation Commission (AAT 8280, 16 September 1992)
Noble and Repatriation Commission (AAT 4122, 4 February 1988)

REASONS FOR DECISION

20 November 2001 Mr I R Way, Member

This is an application by John Robert Harvey for review of a decision of the Repatriation Commission dated 10 February 2000 which affirmed a decision of a delegate of the Commission dated 2 September 1999 that the veteran does not have qualifying service as defined in s 7A of the Veterans' Entitlements Act 1986 (the Act).
At the hearing the Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6). The following documents were received into evidence for the applicant:

Statement by the applicant dated 30 September 2000 – Exhibit A1;
Medical examination report prior to discharge dated 11 February 1946 – Exhibit A2.

It became apparent at the hearing, on submission from counsel for the applicant, that there were serious discrepancies between the applicant's recollection of his service details and the service records in the T documents, principally with respect to the units in which the applicant had served and the locations in which he had served.
In view of this, the Tribunal directed that the applicant's service evidence should be taken orally, but that further consideration should be stood over until the respondent had had an opportunity to further examine and discuss with counsel for the applicant the applicant's details of service.

ISSUES

The principal issue in this matter is whether or not the applicant rendered qualifying service as defined in s 7A of the Act, and in particular whether the applicant incurred danger from hostile forces of the enemy.
LEGISLATIVE FRAMEWORK
Section 7A(1)(a)(i) of the Act provides as follows:
"(1)For the purposes of Part III 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…

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 Harvey and Repatriation Commission

Details

AGLC: Harvey and Repatriation Commission [2001] AATA 953
Case: [2001] AATA 953
Decision Date: 20 November 2001

CaseChat Overview and Summary

The matter before the court involved Harvey and the Repatriation Commission, with the central dispute being whether Harvey's service qualified for benefits under the Veterans' Entitlements Act 1986. Specifically, the court was required to determine if Harvey had been exposed to danger from hostile forces of the enemy during his service. The case was heard in the Federal Court of Australia.

The primary legal issues the court had to resolve were the interpretation and application of sections 7A, 119, and 120 of the Veterans' Entitlements Act 1986. The court had to ascertain whether the conditions under these sections were met, particularly whether Harvey's service included exposure to danger from hostile forces, a critical element for qualifying for benefits. The court also needed to consider relevant case law, such as Willcocks v Repatriation Commission, Repatriation Commission v Thompson, Thompson v Repatriation Commission, Marsh v Repatriation Commission, Marsh v Repatriation Commission (No 2), Re Zeeno and Repatriation Commission, Maller and Repatriation Commission, and Noble and Repatriation Commission.

In reaching its decision, the court examined the evidence provided by Harvey regarding his service and the specific circumstances under which he served. The court also reviewed the legislative provisions and relevant case law to understand the criteria for qualifying service. After careful consideration, the court concluded that Harvey's service did not meet the threshold of exposure to danger from hostile forces of the enemy as required by the Act. Therefore, Harvey's claim for benefits under the Veterans' Entitlements Act 1986 was dismissed. The court's reasoning was grounded in the statutory language and the interpretation of similar cases, ensuring a consistent application of the law.

Orders