Helmer and Repatriation Commission
[2000] AATA 401
•23 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 401
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A99/380
General Administrative DIVISION )
Re ROBERT BOLESLAW HELMER
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr Peter Bayne, Senior Member
Date23 May 2000
PlaceCanberra
Decision The Tribunal affirms the decision under review.
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CATCHWORDS
REPATRIATION – Allied veteran - qualifying service under section 7A(1)(c) of the Veterans' Entitlements Act 1986 – whether incurred danger from hostile forces
Legislation
Veterans' Entitlements Act 1986, s 7(1)(c)
Authorities
Repatriation Commission v Thompson (1998) 44 FCR 20
REASONS FOR DECISION
23 May 2000
Mr Peter Bayne, Senior Member
This is an application to review a decision of a Service Pension Review Officer ("the SPRO") of the respondent, made on 3 September 1999 (T 17), that the applicant had not rendered qualifying service under section 7A(1)(c) of the Veterans' Entitlements Act 1986 ("the Act"). It affirmed a primary decision to the same effect (see T 11).
It was conceded that the applicant was an Allied veteran as defined in section 5C(1) of the Act, he having enlisted in the Polish Army in 1942.
At the hearing, the Tribunal had before it the documents ("T documents") lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and a number of documentary exhibits. It should be noted that these Reasons were written without the benefit of access to a transcript of the hearing.
The applicant gave evidence and presented his own case. I acknowledge his candour and honesty in the manner in which he gave evidence. He sought in no respect to embroider his evidence with detail that could not have been challenged.
relevant lawIn terms of the relevant law, I need note only the provisions of section 7(1)(c)e of the Act:
For the purposes of Part III and sections 85 and 118V, a person has rendered qualifying service:
(c) if the person is an allied veteran who, during a period of hostilities, has, as a member of the defence force established by an allied country, rendered, in connection with a war, or war-like operations, in which the Naval, Military or Air Forces of Australia were engaged, service in an area within or outside the country in which the person enlisted in those forces, being service in respect of which the person incurred danger from hostile forces of the enemy
The relevant period of hostilities is from 3 September 1939 until 29 October 1945; section 5B(1) of the Act).
A similar statutory provision was considered by the Full Court of the Federal Court in Repatriation Commission v Thompson (1998) 44 FCR 20. The Court said (at 22-23):
the words used are words of ordinary parlance and are used in their ordinary sense. No word in [the provision] is ambiguous, no ambiguity arises from the order in which the words are used and no ambiguity arises from the context in which the provision is found. The words require no juristic extrapolation. They mean what they say, no more and no less, and they should be so read.
…
In applying such a provision, therefore, it is desirable to eschew the use of adverbs and adjectives, that is to say, not to read into the provision words which are not there. In referring to the word "danger", Administrative Appeals Tribunals have used adjectives such as "real", "actual" and "substantial". But the word "danger" stands for itself. If a serviceman incurs danger from hostile enemy forces, that circumstance is sufficient to satisfy the statutory requirement. It is indeed the specified requirement. No adjective can enlighten that concept. When applying the word "incurred", some Administrative Appeals Tribunals have used the expression "reasonable expectation". But, again, the word "incurred" is an ordinary word of the English language. It has a dictionary meaning and is used in that sense. Other words should not be substituted for it.
That is not to say that a decision of the Administrative Appeals Tribunal will be in error if an adjective or adverb is used. Such words can enhance reasons if used appropriately. However, statutory provisions which use unambiguous words in their ordinary meaning ought not to be applied by substituting other terms for the terms which the statutory provision itself uses.
The Shorter Oxford Dictionary gives the following modern sense of the word "danger":-
"Liability or exposure to harm or injury; risk, peril."
The Macquarie Dictionary gives an identical definition save that a semi colon is inserted between the words "risk" and "peril". Those definitions set out the modern use of the word which is the sense in which it is used in [the provision].
The Shorter Oxford Dictionary gives these relevant meanings of the word "incur" in its transitive sense.
"II. 1. To run into; to come upon, meet with ...
2. To run or fall into (some consequence, usu. undesirable); to bring upon oneself ..."
…
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 merely 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.
The danger incurred must of course be more than a merely fanciful danger or a danger so minimal that the rule of de minimis applies. But to say that is not to give a flavour to the word. Rather it is to use it in its ordinary sense.
Having regard to this "juristic extrapolation" of the words of the provision, the critical question to ask is whether, in the areas in which he had served, Mr Helmer incurred danger from hostile forces of the enemy in the sense that he was exposed, at risk of or in peril of harm or injury.
considerationThe applicant was born in Poland in 1928. With his family, he was evacuated to a labour camp near the Artic circle in the USSR in 1940. After the USSR-German pact (the Ribbentrop Agreement) collapsed), the applicant was permitted by the Russians to move to the Russian border with Afghanistan. On crossing over, he was inducted into the Polish army. He then took about a week to travel to Palestine, then a British mandate. He spent the period of hostilities in a Polish Army School near Haifa. The Ministry of Defence of the United Kingdom has confirmed that this school was under British command in Palestine.
I accept that after the cessation of the relevant period of hostilities, the applicant did incur danger in Palestine in consequence of his military service. He told the Tribunal that he was close to the King David Hotel when it was blown up by depending on one's point of view) Jewish terrorists or freedom fighters. This period of service may give rise to some claim against the UK government. It is, however, irrelevant to this application for review.
The statement of reasons filed under section 37 of he Administrative Appeals Tribunal Act 1975 briefly reviews the historical record in relation to the proximity of Palestine to action by "hostile enemy forces" during the period of hostilities. It asserts that such activities were hundreds of kilometres away, and, furthermore, there were no Axis guerilla activities in Palestine. These assertions were not challenged, accord with my understanding of the historical record, and are supported by some of the material in the T documents.
The applicant did not assert that he was ever in danger while in Palestine in the period of hostilities. The only conclusion open on the facts is that Mr Helmer never incurred danger from hostile forces of the enemy in the sense that he was exposed, at risk of or in peril of harm or injury.
I did explore with the applicant whether he was in any danger during transit between Afghanistan and Palestine. He was quite frank in saying that he was not.
The applicant's submissions, as gathered from material in the T documents and submissions at the hearing, canvassed a number of matters.
That he was in war zone. Whether, for any purpose, it is relevant to consider this question, it is not relevant to the issue here. Nor is the fact that he was regarded as eligible for resettlement by the UK government.
That the Prime Minister had assured Polish veterans that they were entitled to benefits under the Act. The government now concedes that the applicant was an Allied veteran as defined in section 5C(1) of the Act. But the extent of his benefits under the Act must be assessed in terms of the precise terms of the relevant provisions of that Act.
That soldiers of the Australian Imperial Forces were in Palestine, the applicant having come across them playing two-up. It appears, however, that these troops were in the area for training purposes. (A document in the T documents (T documents page 78) suggests that their activities may have been more of a danger to local café proprietors and shop owners than to any enemy who may have strayed well off the path of war.)
That to his knowledge, other eligible servicemen are entitled to benefits notwithstanding that the only danger in which they were placed was that faced by tourists seeking a good time. Given the vagaries of the relevant definitions of eligible service in the Act, this may be so. But this does not assist the applicant.
That if the war had continued into 1946, he may have been sent to the front. This may be so, but does not assist in the resolution of the issue before the Tribunal.
The nub of the reasoning of the respondent is stated in its Statement of Facts and Contentions. It was conceded that the applicant was an Allied veteran as defined in section 5C(1) of the Act, he having enlisted in the Polish Army in 1942. It was, however, contended that "because the applicant did not incur danger from hostile forces of the enemy having been posted to Palestine which was beyond the field of operations for Allied and Axis forces at this time. Therefore the applicant was never in peril from hostile forces of the enemy".
This is the only finding open, and I affirm the decision under review.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Peter Bayne, Senior Member
Signed: .....................................................................................
AssociateDate/s of Hearing 14 April 2000
Date of Decision 23 May 2000
Counsel for the Applicant self
Representative for the Respondent Glen Wright
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