Holmes and Repatriation Commission

[2003] AATA 993

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 993

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/735

VETERANS' APPEALS DIVISION		)
Re		ALAN HOLMES

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr O Rinaudo, Member

Date3 October 2003 

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

(Sgd) O Rinaudo
  Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – eligibility – whether applicant has rendered qualifying service as defined in s 7A(1) of the Veterans’ Entitlements Act 1986 – whether applicant has rendered service during a period of hostilities

Veterans’ Entitlements Act 1986

Repatriation Commission v Thompson (1988) 82 ALR 356
Re Petersen and Repatriation Commission [2002] AATA 387
Re Meldrum and Repatriation Commission [1999] AATA 330
Wilcocks v Repatriation Commission (1992) 28 ALD 646

REASONS FOR DECISION

3 October 2003  Mr O Rinaudo, Member    

Decision Under Review

1. The applicant, Mr Alan Holmes, makes application for review of a decision of the Repatriation Commission dated 23 January 2002, which determined that the applicant did not render qualifying service as defined in subsection 7A(1) of the Veterans’ Entitlements Act 1986 (“the Act”).  This decision was affirmed by the Service Pension Review Officer on 18 June 2002.

Issues

2. The issue for the Tribunal in this case is whether Mr Holmes has qualifying service under the definition of subsection 7A(1) of the Act.

Evidence

3.      Mr Holmes attended and gave evidence to the Tribunal.  In addition to the evidence of Mr Holmes, the following exhibits were admitted into evidence.

§Exhibit 1             “T” Documents

§Exhibit 2             War Service Record

4.      Mr Holmes gave oral evidence to the Tribunal that he had travelled from Tasmania to Melbourne across Bass Strait on the open deck of a ship called Nairana..  This was on four occasions between 1943 and 1946.  Mr Holmes said that the ship had a naval gun on the deck and zigzagged across Bass Strait because of the danger from enemy submarines and mines.  Mr Holmes said that if it were not dangerous to cross Bass Strait why did ships like the Queen Mary, Aquitania and the Mauretani have to have naval escorts when travelling through Bass Strait. 

5.      He said that the Nairana was not escorted and was obsolete when World War II started.  He said that he considered that there was much more than a “mere danger when crossing Bass Strait” and gave evidence about a ship called the “Iron Crown” or “Iron King” (he did not know the actual name) which had been sunk by submarines in Bass Strait.  He said that there were mines in the area and that he had heard of a mine which had become loose from its moorings and had floated 800 miles away to Eddy Stone Point in north-eastern Tasmania. 

6.      He said that there was no more terrible weapon than a submarine and his fear was heightened because he could not swim.  Mr Holmes said that because of his financial position getting the pension would not mean much to him.  He said that getting a Gold Card was an issue for him.  He said he had been a qualified marksman in the Army and that being on the ship in such conditions was worse than man-to-man combat.  He said that he should have been accepted for a TPI pension.  He said that his wife had suffered as a result.  He was virtually deaf and could not communicate with his children.

7.      Mr Holmes said he had been employed by the Department of Agriculture for about 11 months before enlisting.  He provided a report from Dr JC Stewart dated 18 January 1984 referring to his sensori-neural deafness.  In the report Dr Stewart stated that his deafness was “now of such degree as to make the normal conduct of his duties virtually impossible”.

8.      In his written submission, Mr Holmes stated that he regarded himself as being on duty.  He said:

“You ask was he on duty?  Of course I was on duty.  Let me give this illustration, I was on leave in Melbourne and walked past where an Army truck was involved in an accident, goods all over the road and oil.  Two MP’s, one a Sergeant told me help clean the mess up.  I objected and produced my leave pass.  I was rudely told ‘Look soldier when in uniform you are on duty ALL the time now get to work’.  Surely you don’t think there was any fun with the sea sickness plus subs and mines.  On the first trip the whole regiment was moved from Tas., rifles, machine guns etc and we slept on the open decks – lovely.”

9.      Mr Holmes noted that he was aware of other veterans who had received the pension before 1986.  He says that if he had applied before 1986 he would have been successful like his “mates”..  He said his income back then would have excluded him but with low interest rates he may “scrape in”.

Legislation

10. The legislation relevant to this application is subsection 7A(1)(a)(i) of the Act. This sections states as follows:

“(1)For the purposes of Parts III and VA 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 war, at a time when the person incurred danger from hostile forces of the enemy in that area or on that aircraft or ship; or …”

11.     For the purposes of this application, the operative part of the section which must be satisfied before Mr Holmes qualifies for a pension are the words “rendered service” and “incurred danger”.

Consideration and Decision

12.     For the purposes of this application, the facts are shortly stated.  In effect, Mr Holmes states that he is entitled to a pension under the relevant section because he crossed Bass Strait on a ship and therefore incurred danger in accordance with the terms of the section.  This was between 1943 and 1946.  Some mention has been made by Mr Holmes of a period when he did day and night barge training with the US Navy in Moreton Bay.  However, Mr Holmes was not relying on this in respect of his application.  It appears clear from the evidence that there was no enemy presence either by way of submarines or mines in Moreton Bay during the relevant period so that Mr Holmes solely relies on his having crossed Bass Strait on the occasions referred to.

13.     When considering the test of “incurred danger” the test is objective and not subjective: see Repatriation Commission v Thompson (1988) 82 ALR 356. In that case it was noted that:

“A serviceman incurred danger from hostile forces when he or she was exposed, at risk of, or in the period of harm or injury from hostile forces.  A mere risk of or liability to danger or danger which was fanciful or minimal was not sufficient.”

14.     The respondent noted in its submission that Japanese submarine activities in Australian waters ceased in 1943 and referred the Tribunal to Re Petersen and Repatriation Commission [2002] AATA 387 (24 May 2002) at paragraph 12.

15.     For the benefit of the Tribunal the respondent also noted the evidence provided by Lt Col Bullen in Re Meldrum and Repatriation Commission [1999] AATA 330 where he stated in oral evidence:

“He noted that the Applicant’s allegation was inconsistent with Australian and Japanese records.  He said that the official records from both countries have been accessed by him and other historians.  He was very confident about the accuracy and completeness of the Japanese records which have been provided.  He noted that there was considerable Japanese submarine activity in the eastern Australian waters in April, May and June 1943, but the final attack was on 16 June 1943.  He said that because of the way the war was going Japan needed its submarines in other areas and was pulling them away from the Australian coast.  There were five or six on the Australian coast in May 1943, which returned to base after a few weeks.  Of the five here in May 1943, by the end of May only two remained and one was about to leave.  One left in June 1943.  On 16 June 1943 one ship was sunk and one badly damaged, and the submarine was then damaged itself and returned to Japan.  The fact that incidents continued to be reported after that time he considered to be understandable because of ‘nervousness’ at the time.  However all the sightings were unconfirmed.”

16.      The Tribunal is satisfied that based on this test the applicant, Mr Holmes, does not meet the test of “incurred danger” under the relevant section.

17.      When considering the issue of “rendered service”, regard must be had to the Federal Court authority of Wilcocks v Repatriation Commission (1992) 28 ALD 646 and particularly the comments of Cooper J that:

“The tribunal was essentially correct to construe ‘against’ to mean ‘in opposition to’ the enemy.  Although, for the reasons I have stated above, that opposition has the colour of hostility to it.”

18.     His Honour went on to say:

“The phrase ‘naval, military or aerial operations against the enemy’ is to be read as a whole.  It includes two elements.  The first is that there must be some operation which is naval, military or aerial in character..  The second is that the requisite operation must be against the enemy.  Both elements must be satisfied for the service to constitute ‘qualifying service’ within the meaning of s 36(1) of the VE Act.”

19.     The Tribunal accepts the submission by the respondent when discussing the applicant’s Bass Strait voyages from Burnie and Launceston to Melbourne and return that:

“At no stage during these journeys was the applicant actively engaged against the enemy nor was he partaking in naval military or aerial operations against the enemy.  He was being transported on ‘open decks’ from one location to another.”

20.     Accordingly, and in accordance with the authorities, the Tribunal does not consider that the applicant “rendered service” during the crossings of Bass Strait.  For the reasons stated, the decision under review is affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  1 April 2003 (at Bundaberg)
Date of Decision  3 October 2003
The Applicant appeared in person
For the Respondent                  Mr D McAninly, Departmental Advocate