Hong Hoang and Repatriation Commission
[2014] AATA 635
[2014] AATA 635
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/5818
Re
Hong Hoang
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal RM Creyke Senior Member
Date 3 September 2014 Place Canberra The decision under review is set aside and substituted.
.............................[sgd]...........................................
RM Creyke Senior Member
Catchwords
VETERANS AFFAIRS – whether applicant has qualifying service – whether applicant served with defence force of allied country during relevant time period – whether applicant incurred danger from hostile forces of the enemy.
Legislation
Veterans’ Entitlements Act 1986 (Cth) sections 5C, 5B, 7A, and 35B.
Cases
Repatriation Commission v Thompson (1988) 44 FCR 20 at 23.
Secondary Materials
REASONS FOR DECISION
RM Creyke Senior Member
Mr Hong Hoang, born 1954, has applied for a decision as to whether he has qualifying service, which may ultimately allow him to be eligible for a service pension. Mr Hoang was in South Vietnam during the Vietnam War and served with the South Vietnamese defence service. Mr Hoang is a resident of Australia, having successfully applied for refugee and humanitarian status in 1993.
On 18 February 2013, the Repatriation Commission decided he had not rendered qualifying service, a decision affirmed on review on 22 October 2013.
On 13 November 2013, Mr Hoang applied to the Tribunal for further review.
The matter was heard in Canberra on 5 August 2014. Mr Hoang was assisted by an interpreter in the Vietnamese language.
Legislation
The legislation is the Veterans’ Entitlements Act 1986 (Cth) (Act). Part III contains the criteria for eligibility for service pension. Relevant provisions are section 7A, 5C(1), 5B(1)(e), and s 35B.
Issues
The issue is whether Mr Hoang has qualifying service and accordingly is eligible for service pension. To be eligible Mr Hoang must establish that he served with the defence force of an allied country in a war in which Australia was engaged and during that service, incurred danger from hostile forces of the enemy.
Consideration
Section 7A of the Act provides that a person had rendered qualifying service for the purpose of eligibility for service pension:
7A(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.
‘Period of hostilities’ is defined in section 5B(1)(e) of the Act to mean ‘war-like operations in operational areas from 31 July 1962 to 11 January 1973 (both included)’.[1] There was no issue that this period covered the conflict in South Vietnam in which Australia and the defence forces of South Vietnam were engaged.
[1] Veterans’ Entitlements Act 1986 (Cth) (Act) s 5B(1)(e).
The expression ‘allied veteran’ is defined as someone ‘who has been appointed or enlisted as a member of the defence force established by an allied country and who has rendered continuous full-time service as such a member during a period of hostilities’.[2]
[2] Act s5C (a), (b), - definition of ‘allied veteran’.
An ‘allied country’ is defined to mean ‘any country (not being Australia or a Commonwealth country): … (b) the forces of which were, at the relevant time, engaged in an operational area against which the forces of the Commonwealth were engaged in that area’.[3]
[3] Act s 5C(1)(b) - definition of ‘allied country’.
There was no question that the South Vietnam defence forces were engaged in a conflict in which Australian forces were also engaged in an operational area in South Vietnam during the period 1962 to 1973.
Mr Hoang claims that he had relevant service in the Army of the Republic of Vietnam between October 1972 and the end of the Vietnam War in April 1975. In his application for refugee status Mr Hoang had stated in response to a question (No 25 on the form) that his highest level of education, had been at Le Bao Tinh high school for grades 6-12 which he attended between 1965 and 1972. He had then completed one year at the Phu Tho technical university between 1972 and 1973. Mr Hoang explained at the hearing that he had provided detailed information for the purposes of the immigration form but that another person had written the answers in English and in 1993 he had not been able to read the responses.
Based on this evidence the Repatriation Commission had rejected his application for qualifying service as Mr Hoang could not have been serving with the Army of the Republic of Vietnam on or before 11 January 1973.
At the Tribunal, Mr Hoang gave detailed evidence relating to his educational qualifications and when he enlisted in the defence forces of the Republic of Vietnam. The academic year in Vietnam runs from August/September to May. Mr Hoang’s evidence was that he did not complete year 12 of high school. Instead, in February 1972 he elected to sit in on lectures in a technician’s course in marine engineering at the Phu Tho technical university to decide whether he would enrol. The lectures continued till the end of the academic year in May 1972. He then enjoyed the university break until August 1972.
In August 1972 he was permitted to enrol. However, as he had only completed year 11 at high school he was entitled only to a level one high school diploma. As a consequence he could enrol only in the technician’s course, not for a bachelor degree. He commenced the course in August 1972.
In September 1972 he received a letter asking him to enlist in the Army. At that time, the conflict with North Vietnam had escalated and the government had issued a call-up for all those born in 1954. Accordingly he abandoned his technician’s course and enlisted in the Army on 26 October 1972 where he remained until 1975. As he had a level one diploma and had enrolled in a tertiary course his evidence was that he was an army officer cadet and graduated as an officer. Without his qualifications he would have graduated only as a soldier.
This evidence of Mr Hoang was corroborated by his elder brother, Mr Trong Bay Hoang in a statutory declaration dated 4 February 2014. His elder brother is also a resident of Australia. Another statutory declaration dated 21 January 2014 by a former neighbour in Saigon, Mr Anh Phan, now also living in Sydney, stated that Mr Phan had joined the ‘Airborne force’ in 1972 and then states ‘Mr Hong Trong Hoang enlisted and attended the basic military training at Quang Trung Training Centre’ and when on leave ‘we often met each other because we were neighbours’. He also confirmed that he saw Mr Hoang ‘wearing the uniform of the Army Force with the rank of “Warrant Officer”’.
Given the general call-up at that time, and the fact that Mr Phan said he and Mr Hoang met up when on leave, it may be inferred that his evidence implies that Mr Hoang enlisted in 1972, as Mr Phan had done, and hence their leaves coincided.
A report by Dr Jeffrey Grey for the Repatriation Commission concerning Mr Hoang’s history noted of the circumstances of his enlistment that ‘There is nothing inherently improbable or contradictory about this claim’ and then and currently the Phu Tho technical university (now Ho Chi Minh City University of Technology, part of the Vietnam National University) is ‘a logical place to study engineering’. He also noted, given Mr Hoang’s date of birth and the terms of the academic years, that ‘there is no necessary contradiction between his 1993 paperwork and his application and appeal paperwork dated 2012-13’.
Mr Hoang’s evidence was that he did his military training at the Quang Trung Centre. Dr Grey corroborated that there was a National Training centre at Quang Trung, established in 1955 and located ten miles northwest of Saigon. He said he was then trained at the Thu Doc Infantry School. Dr Grey also noted that Mr Hoang’s service number 74/146 878 was consistent with his history. As he said it ‘conforms to the system of “year of birth plus twenty” used to provide the prefix number’.
Dr Grey also confirmed that there was intense military manoeuvring leading up to the signing of the Paris Peace Accords of 27 January 1973. He noted that Mr Hoang was operating in South Vietnamese Military Region 3, which was a critical zone because it contained the capital, Saigon, the major financial and commercial centre of the country, together with most of the important operational, logistic and training bases for the armed forces. The area was also a major food producing region. As a consequence it was a ‘heavily contested’ region.
On the basis of this evidence, which was confirmed in detailed evidence to the Tribunal by Mr Hoang, corroborated by two others, and has been found by Dr Grey to have ‘nothing inherently improbable or contradictory’ about it, the Tribunal is satisfied that Mr Hoang did not complete his studies at the Phu Tho technical university. Instead he enlisted in the armed forces of the Republic of Vietnam on 26 October 1972. Accordingly Mr Hoang is an allied veteran who during a period of hostilities served with the defence forces of an allied country.
Incurred danger from hostile forces of the enemy
The final issue is whether Mr Hoang incurred danger from hostile forces of the enemy. The test for the existence of danger is objective. The Full Federal Court said in Repatriation Commission v Thompson (1988) 44 FCR 20:
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.[4]
[4] Repatriation Commission v Thompson (1988) 44 FCR 20 at 23.
Mr Hoang’s evidence was that as part of their training, cadets were exposed to operational situations. Cadets were armed and were warned that the operations to which they were exposed could be dangerous. Mr Hoang described the particular occasion on which he relies in a statement translated on 6 November 2012, as follows:
On 2-1-1973, my company was ordered to participate in the propaganda campaign relating to the Paris Peace Accords. My company was ordered to go to Phuoc Tuy Sector, Chau Thanh district, Hac Dich village.
The Spywar Section (5th Section) of the Sector ordered the platoon of our cadets to move from Duc Thanh district to Chau Pha area, Hac Dich village where we were ambushed by Viet Cong troops. A Reconnaissance force of the Sector who were on duty nearby, came to support and protect us so we could retreat back to the district.
In this battle, my platoon had 3 army officer cadets seriously injured by the Viet Cong’s mine and 7 others were mildly injured. Ten cadets were injured in total and taken to the Sector for treatment. This incident was very dangerous and luckily I escaped death.
In a further statement dated 4 February 2014, Mr Hoang said of his service at this time:
On 2-1-1973 I followed my company to Phuoc Tuy province. The 5th Section of the Spywar provided us small flags, leaflets which would be distributed to civilians. Yellow and red paint were also provided to my platoon. Each person had three (3) small flags and we had to paint flags on the roofs of civilians’ houses.
At that time each Army Officer cadet was allowed to carry one M16 and 200 bullets and we were warned that it was possible to be attacked by local communist guerrilla forces.
[The statement then cross-refers to the previous statement].
On 3-1-1973, my platoon waited for a provincial regional unit to clear the road. We were then transported by a Dodge (small truck) to villages for the Spywar activities with the protection of regional forces and police officers. We met village chiefs and police chiefs of villages in order to discuss the plan for the Spywar activities. My platoon was transported back to Duc Thanh district on the same day.
On 4-1-1973 my platoon was ordered to be on duty at villages. We had to take turn to sleep and guard. My platoon was ordered to carry out the campaign at this place for 3 months.
During the campaign, my platoon had to carry out our duties according to the plan of the province and the 5th section.
On 2-3-1973 my ‘Army Officer cadet company’ and I was ordered to come back to Quang Trung center.
Dr Grey reported of these events:
Mr Hoang’s description of events in which he participated in December 1972-1973 is perfectly consistent with this bigger picture [described by Dr Grey in the previous paragraph of his report]. It is not possible to precisely document the individual incidents which he describes from the sources available to us, but his account is both plausible and internally consistent.
At the hearing, Mr Hoang confirmed that in the early days of January 1973 as he said ‘Before the [Peace] Accords was signed in Paris, we have different troops, they wanted to keep areas that were the same, on that very day we were assigned to help protect that area, that’s why we got ambushed’.
The Tribunal notes that the quotation provided in the previous paragraph is not a verbatim account. It is also a translation of Mr Hoang’s response to a question put to him. The question was how sure was he that he had received an order to attend special operations on 2 January 1973 and been ambushed on the same day.
The Tribunal notes that despite the immigration form stating that Mr Hoang’s English is good, his answer quoted in paragraph [27] does not support that contention. The Tribunal notes that despite having been in Australia for close to 20 years, Mr Hoang’s English is still not proficient. At the Tribunal hearing Mr Hoang only responded to the Tribunal through an interpreter and gave no indication that he understood questions in English or could have responded to some questions asked in English. The inaccuracy in the immigration record on this issue also supports Mr Hoang’s claim that not everything in that form is correct.
The information in the quotation appears to correspond with the report of Dr Grey that prior to the Paris Peace Accords, both sides in the conflict were anxious to establish control of as many geographical areas as possible. Hence, despite the cease-fire, there was considerable skirmishing during the lead up to 27 January 1973. That context adds weight to Mr Hoang’s claim that despite being in training cadets were required to contribute operationally. His description of the Spywar activities in which he was involved is also consistent with the intensive indoctrination campaigns engaged in by both sides during the conflict.
Mr Hoang’s description of the events of 2 January 1972 was that on the way to the village to which they were assigned, they encountered a mine which exploded and injured 10 of his platoon. He said they were then ambushed and the Viet Cong opened fire on them and they returned the fire. They then concealed themselves in the adjacent forest. One of the platoon contacted the special forces who arrived surprisingly quickly, whereupon the Viet Cong withdrew. He said he had been scared, not least because they did not know the area.
When asked how he knew that the ambush was by the Viet Cong, Mr Hoang said because the mode of operations, namely, to lay a mine and then to attack was a well-known tactic of Viet Cong guerrillas. Mr Hoang said they had been trained to expect this form of attack but had not expected to encounter it so early in their training.
The Commission contended that Mr Hoang did not in fact enrol in the Army until 1973 when he had completed his course at the Phu Tho technical university. That view was based on the detailed information provided in the immigration form and the contention was that this detail should be preferred to the information Mr Hoang had subsequently provided.
The Tribunal does not accept these contentions. The immigration form was completed in 1993 over 20 years ago and was for a different purpose, namely, establishing eligibility for a refugee or humanitarian visa.
The Tribunal found Mr Hoang to be a credible witness. The detail he provided of his educational history and his enlistment in October 1972 is believable and, as Dr Grey has concluded, there was nothing inherently improbable or contradictory about the claim and it was consistent with the account of events in South Vietnam at that time, just prior to the Paris Peace Accords.
Although Dr Grey could not vouch for the occurrence of the events which is the basis of Mr Hoang’s claim that he incurred danger from hostile forces of the enemy, he noted that the story was both plausible and internally consistent. The Tribunal also finds that in the intense period of activity prior to the Paris Peace Accords on 27 January 1973, it was likely that both sides in the conflict were trying to establish control over as much geographical area as possible to strengthen their negotiating hand at the Accords. In those circumstances it was also likely that all available troops, including those under training, would take part in the indoctrination campaigns – the Spywar project - and might also encounter dangerous situations in areas controlled by the opposing army during that process.
The Tribunal accepts that this occurred in relation to Mr Hoang. He was ambushed by Viet Cong guerrillas, surrounded, and for a time, forced to hide and to return fire. Some of his platoon were injured. Objectively, he was at risk of, or in peril of, harm and incurred danger from hostile forces of the enemy. Accordingly he has qualifying service. That means the decision under review is set aside and Mr Hoang is entitled to apply for a pension under Part III of the Act.
I certify that the preceding 37 (thirty- seven) paragraphs are a true copy of the reasons for the decision herein of RM Creyke Senior Member. .....................[sgd]...................................................
Associate: S. Wardell
3 September 2014
Date of hearing 5 August 2014 Applicant In person Counsel for the Respondent Ken Rudge Solicitors for the Respondent Repatriation Commission
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