Hill and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 952

Hill and Repatriation Commission (Veterans’ entitlements) [2015] AATA 952 (10 December 2015)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2015/3255
Re	Gregory Hill
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Deputy President Dr P McDermott RFD
Date	10 December 2015
Place	Brisbane

The Tribunal affirms the decision under review.

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

Deputy President Dr P McDermott RFD

CATCHWORDS

VETERANS’ ENTITLEMENTS – qualifying service – whether service rendered by applicant was qualifying service – decision affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 7A, 36

Repatriation Act 1920-1974 (Cth) s 84

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

10 December 2015

INTRODUCTION

1. The applicant served in the Royal Australian Air Force (RAAF) between 26 June 1972 and 25 June 1978. On 16 June 2015 his application for a service pension was refused by a delegate of the respondent. The applicant now seeks review of that decision by this Tribunal.

   LEGISLATION

2. The eligibility of a veteran to receive service pension is provided for in section 36 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) which provides:

   36 Eligibility for age service pension

   (1)  Subject to subsection (4), a person is eligible for an age service pension if the person:

   (a)  is a veteran; and

   (b)  has rendered qualifying service; and

   (c)  has reached pension age.

   Note 1A: For veteran see subsection 5C(1).

   Note 1: For qualifying service see section 7A.

3. Section 7A of the Act sets out the circumstances in which the veteran can be regarded as having rendered “qualifying service”.

   CONSIDERATION

4. The applicant has stated that on 31 January 1975 he volunteered to serve in Darwin following Cyclone Tracey and that after he served for a period of 18 Months in Darwin he was posted to the RAAF in Edinburgh. Whilst serving at that base he was ordered to change the radar receiver/transmitter under the rear cabin floor whilst flying at 23,000 feet. The applicant stated that in his 6 years’ service in the Australian Defence Force he performed his duty without regard for his personal safety.

5. The respondent submits that it has no records which show that the applicant went to Darwin in 1975 but has accepted that the applicant had rendered the 18 months’ period of service in Darwin. In making this concession the respondent has acted quite properly because the Section Commander’s endorsement on the application form indicates that the section strength was adequate to cover the posting of one member of the mustering for an initial 6 month period. Having regard to this endorsement I regard it as entirely plausible that the applicant served in Darwin for an initial period of six months and that the period of service was extended by a further period of one year.

6. The applicant states that he volunteered to serve in Darwin because he then received an assurance that volunteers would be eligible for a service pension. At the time that he was given that assurance the eligibility conditions for a service pension required that a veteran, being a man, “has served in a theatre of war”,[1] so the assurance given to the applicant in 1975 was certainly not then accurate having regard to the legislation which was then in force.

   [1] Repatriation Act 1920-1974 (Cth) s 84(1)(a).

7. What I have to decide is the eligibility of the applicant for a service pension under the Veterans’ Entitlement Act 1986. The circumstances of the service of the applicant in Darwin are relied upon by the applicant together with the assurance that he claims was contained in a pamphlet which was provided to him. That service in Darwin does not come within the terms of the definition of “qualifying service” in s 7A of the Act. For the sake of completeness I have considered the service of the applicant with the RAAF in Darwin which has been outlined in the letters dated 29 June 2015 and 28 September 2015,[2] that service also does not come within that definition. I find that the applicant has not rendered “qualifying service” under the Act and is therefore not eligible for a service pension.

   [2] Exhibit A f 1; Exhibit B.

   DECISION

8. I affirm the decision under review.

I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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

Associate

Dated 10 December 2015

Date(s) of hearing	1 December 2015
Applicant	In person
Solicitors for the Respondent	Department of Veterans' Affairs