Hausler and Secretary, Department of Veterans' Affairs

[2008] AATA 190

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008]AATA 190

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4953

VETERANS’ APPEALS DIVISION		)
Re		RUSSELL HAUSLER

Applicant

And SECRETARY, DEPARTMENT OF VETERANS' AFFAIRS

Respondent

DECISION

Tribunal Mr S Karas, AO, Senior Member

Date6 March 2008

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution therefore decides to issue a Certificate of Entitlement to the applicant, on the ground that the applicant is an “eligible person” as defined in the Defence Services Act 1918.

..................[Sgd].........................

Senior Member  

CATCHWORDS

VETERANS’ AFFAIRS - Veterans’ Entitlements – home loan - application for a certificate of entitlement –  definition of ‘eligible person’ – definition of ‘regular serviceman’ – whether veteran is an ‘eligible person’ and ‘regular serviceman’ – decision set aside and substituted.

Defence Service Homes Act 1918 ss 4, 4AAA(1)

REASONS FOR DECISION

6 March 2008 Mr S Karas, AO, Senior Member  

INTRODUCTION

1.      Russell Paul Tasman Hausler (the applicant) applied to the Administrative Appeals Tribunal (the Tribunal) on 25 September 2007 for a review of a decision made by a Senior Delegate of the Secretary of the Department of Veterans’ Affairs (the Delegate) that the applicant was not entitled to a Certificate of Entitlement under the Defence Service Homes Act 1918 (the Act).

2. The applicant was represented at the hearing held on 26 February 2008 by Ms Anne Frizelle. Mr Khanna appeared for the Secretary, Department of Veterans’ Affairs (the respondent). The Tribunal had before it the T-documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with other documents as follows:

·     The respondent’s Statement of Issues enclosed under cover of its letter 27 November 2007

·     The applicant’s Facts and Contentions dated 18 December 2007

·     The applicant’s Service Medical documents enclosed under copy of his solicitor’s letter 18 December 2007

·     The respondent’s Statement of Facts and Contentions enclosed under cover of its letter 4 January 2008

·     The applicant’s statement dated 30 January 2008

·     Extracts of the applicant’s medical records handed to the Tribunal at the hearing on 26 February 2008

·     A copy of the respondent’s discharge record received by the Department of Veterans’ Affairs on 22 August 1988 handed to the Tribunal at the hearing on 26 February 2008

·     A submission by the applicant’s counsel (undated) and handed to the Tribunal at the hearing on 26 February 2008.

BACKGROUND

3.      The applicant, an Australian citizen, served in the Royal Australian Navy with the Marine Technical Propulsion Division from 8 February 1982 until 8 February 1988.  From the Department of Defence records, the applicant was discharged in February 1988 as his “Engagement Expired” after a 6 year period of engagement.  The applicant believes that he should have been medically discharged as a result of an eye injury and a loss of hearing during his service.  Although he wanted to continue his career in the Navy his attempt to “sign on” again was rejected.

4.      On 14 June 2007 the applicant applied to the Department of Veteran Affairs for a Certificate of Entitlement for a Defence Service Homes Subsidised Loan.  On 2 July 2007 that application was refused and on 19 September a Senior Delegate of the Department affirmed the decision of 2 July 2007 on the basis that the applicant was not an “eligible person” under s 4 of the Defence Service Homes Act 1918.  On 25 September 2007 the applicant applied to this Tribunal for a review of that decision.

ISSUES

5.      The issue for the Tribunal is to determine whether the applicant satisfies the definition of an “eligible person” in s 4 of the Defence Service Homes Act 1918  including whether he was a “regular serviceman” pursuant to s 4AAA(1) of the Defence Service Homes Act 1918.

6.      A hearing of this matter was held in Brisbane on 26 February 2008.

EVIDENCE

7.      At the hearing, the applicant gave evidence to the effect that:

·     He commented on his statement of 30 January 2008 and that he had not mentioned some other matters such as being declared unfit for submarine service and being hospitalised for bronchitis.

·     He wanted to serve his country and joined the Navy when he was 17 years of age.  He wanted to stay in the Navy for at least 20 years and obtain work.

·     He stated he was 100% fit at the time of his enlistment and after applying to join the submarine division and undergoing a medical test, he was found to be unfit due to his hearing and eye problems.

·     He suffered an eye injury in 1983 and also suffered “ringing in the ears”.  As well, he was subject to alcohol abuse and had been in trouble (discipline problems) both within and outside the Navy.  He experienced various categories of recommendations by the Naval Medical Board ranging from 1 to 4 to 7 during his years of service.

·     He spent time at sea and also at onshore naval facilities like HMAS Penguin.

·     A doctor in 1987 told him that he was “unfit” for service.  As well, he had an attitude problem and had been involved in a number of ‘fights’, in one he suffered a “broken nose”.

·     When asked why the applicant had not sought to change his discharge reason to being medically discharged, he replied it was his pride, and that the first time he had thought of this was in 2001 when he applied for a Defence Forces Home Loan.  He wanted to say he was medically unfit but in doing so this could be a “loss of sef-esteem”.

·     Because of his eye injury and hearing problems he was not able to be a submariner or a diver.

·     Although he drank alcohol before joining the Navy he started drinking heavily in 1983 after his eye injury.  As well, drinking was ”all part of being a sailor”.

·     He is now in receipt of a defence pension.

CONSIDERATION

8.      The Tribunal found the applicant was honest although at times vague in his evidence and is satisfied he wanted to continue his enlistment in the Navy.

9.      The definition of an “eligible person” in s 4 of the Defence Service Homes Act 1918 includes a person who is an “Australian soldier”.  The requirements of an “Australian soldier” includes a person who is a “regular serviceman” as referred to in s 4AAA(1) of the Defence Service Homes Act 1918.  If the applicant is not an “eligible person” he is not entitled to receive a Notice of Eligibility or a Certificate of Entitlement that entitles the person to receive a subsidised housing loan.

10.     In this case, it is necessary for the Tribunal to consider if the applicant is an “eligible person” by considering that despite the official reason for his discharge being recorded as “Engagement Expired”, his discharge was on the grounds of physical or mental incapacity to perform his duties.

11.     The applicant gave evidence that he tried to re-enlist in the Navy but was refused.  The Department indicated that the applicant’s service records could not be found.  It appears that the applicant’s injuries whilst in the Navy, led to him experiencing behavioural problems that might have been a factor in the decision not to re-engage him.

12. The Tribunal is satisfied that the applicant did not wish to leave the Navy in 1988. Section 4AAA(1) so far as is relevant here indicates that an eligible serviceman may be considered a regular serviceman, if after a period of 6 years continuous full time service, service ended by reason of death or discharge on the ground on invalidity or physical or mental incapacity to perform duties. Although, the applicant’s service record indicates that the reason he was discharged was “Engagement Expired”.  The Tribunal is prepared to look behind this ground stated in his service record to determine the actual ground involved[1].

[1] (see Medcalfe v Secretary of Department of Veterans’ Affairs (1991) 23 ALD 502 (22 July 1991) and Whiteman v Secretary Department of Veterans’ Affairs (1996) FCA 845 (17 September 1996))

13.     The Tribunal finds that the applicant suffered an eye injury, hearing loss and alcohol dependence while serving in the Navy from February 1982 to February 1988 and that he was incapable of continuing to perform his duties at the level he was, before his injuries.  Consequently, the Tribunal finds on balance, that the applicant’s discharge in the circumstances constitutes discharge on the grounds of incapacity to perform his duties, even though he continued to perform some lesser duties after his injuries occurred.  Had he not suffered these injuries, the Tribunal finds that he would have been fit to remain and continue as a service member of the Navy.  The Tribunal is further mindful of the Department’s inability to find the applicant’s service records in this regard and the Federal Court’s findings in Whiteman’s case that the legislation is beneficial legislation and should be construed beneficially in favour of the applicant.

CONCLUSION

14.     The Tribunal sets aside the decision under review and in substitution therefore decides to issue a Certificate of Entitlement to the applicant, on the ground that the applicant is an “eligible person” as defined in the Defence Services Act 1918.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Karas

Signed:         .....................[Sgd]...........................................................
  Research Associate

Date of Hearing  26 February 2008
Date of Decision  6 March  2008
Counsel for the Applicant         Ms Anne J Frizelle
Solicitor for the Applicant          G. Couper Solicitors
Counsel for the Respondent     Mr Amit Khanna
Solicitor for the Respondent     Mr T Harrison