Infeld and Repatriation Commission - [2002] AATA 431

DECISION AND REASONS FOR DECISION [2002] AATA 431

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/96
VETERANS'      APPEALS     DIVISION
  Re:         ARTHUR OTTO INFELD
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       Mr A. Argent, Member
Date:             6 June 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) A. Argent
Member
VETERANS' AFFAIRS – Pharmaceutical Benefits Card - whether qualifying service - whether incurred danger from hostile forces
Veterans' Entitlements Act 1986 ss7A(1), 93M(1)
Repatriation Commission v Thompson (1988) 82 ALR 352

REASONS FOR DECISION

6 June 2002 Mr A. Argent, Member

This is an appeal by Mr Arthur Otto Infeld (the applicant) against a decision of a service pension review officer of the Repatriation Commission (the Commission) dated 10 January 2002.
That decision affirmed a previous decision of the Commission dated 12 December 2001, which determined the applicant had not rendered qualifying service during the period of hostilities of World War II, and thus was not eligible for a Repatriation Pharmaceutical Benefits Card under section 93M(1) of the Veterans' Entitlements Act 1986 ("the Act").
The period of hostilities of World War II is from 3 September 1939 to 29 October 1945.
"Qualifying service" is defined at section 7A(1) of the Act. Part of this section reads:
7A(1) … a person has rendered qualifying service:
…
(b)if, during a period of hostilities, the person has, as a member of the defence force established by a Commonwealth country, rendered, in connection with war or war-like operations in which the Naval, Military or Air Forces of Australia were engaged:
(i)service, in an area outside that country, at a time when the person incurred danger from hostile forces of the enemy in that area; or
(ii)service within that country, being service in respect of which the person has been awarded, or has become eligible to be awarded, a campaign medal; or
Section 95M(1) of the Act specifies that an applicant is eligible for a Repatriation Pharmaceutical Benefits Card if he is a Commonwealth veteran, aged 70 or over, has been an Australian resident for at least 10 years and has rendered qualifying service during World War II.
ISSUE
The sole issue before the Tribunal is whether the applicant rendered qualifying service during World War II as it is common ground Mr Infeld served in the British Army in Germany, 11 April 1946 to 6 January 19948 and is therefore a Commonwealth veteran, is aged over 70 and has lived in Australia more than 10 years.
THE EVIDENCE
Mr Infeld presented his own case by telephone and the Commission was represented by Mr R. Douglass, an advocate with the Department of Veterans' Affairs.
The Tribunal had before it:
(a)the documents lodged by the Commission pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"). Included in these documents is material given by the veteran; and
(b)excerpts from "World War Two – Chronological Atlas When, Where, How and Why" by Charles Messenger. (This publication states the German surrender was effective from one…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Infeld and Repatriation Commission

Details

AGLC: Infeld and Repatriation Commission [2002] AATA 431
Case: [2002] AATA 431
Decision Date: 6 June 2002

CaseChat Overview and Summary

The case of Infeld and Repatriation Commission involved the determination of whether Mr Infeld qualified for a Repatriation Pharmaceutical Benefits Card. Mr Infeld served in the British Army from 16 November 1944 to 23 March 1948, and his service in Germany from 11 April 1946 to 6 January 1948 was in question. The Tribunal had to ascertain whether Mr Infeld's service constituted qualifying service under the relevant legislation.

The legal issue before the Tribunal was whether Mr Infeld had incurred danger from hostile forces during his service in the British Army of Occupation of the Rhine. This required an objective assessment of whether Mr Infeld was exposed to the risk of harm or injury from enemy forces. The Tribunal examined the evidence provided by Mr Infeld and the documentary evidence presented by the Repatriation Commission.

The Tribunal concluded that Mr Infeld did not incur danger from hostile forces as the Germans had surrendered unconditionally on 9 May 1945, and Mr Infeld did not serve in Germany until April 1946, 11 months later. Additionally, there was no evidence or record of any hostile action against Mr Infeld during his service in the British Army of Occupation of the Rhine. As a result, the Tribunal determined that Mr Infeld did not render qualifying service and was not eligible for a Repatriation Pharmaceutical Benefits Card.

The decision of the Commission was affirmed, and the Tribunal's findings were certified as accurate. Mr Infeld was self-represented, and the Repatriation Commission was represented by Mr R. Douglass from the Advocacy Section of the Department of Veterans' Affairs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The sole issue before the Tribunal is whether the applicant rendered qualifying service during World War II as it is common ground Mr Infeld served in the British Army in Germany, 11 April 1946 to 6 January 19948 and is therefore a Commonwealth veteran, is aged over 70 and has lived in Australia more than 10 years.THE EVIDENCE Mr Infeld presented his own case by telephone and the Commission was represented by Mr R. Douglass, an advocate with the Department of Veterans' Affairs. The Tribunal had before it:(a)the documents lodged by the Commission pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"). Included in these documents is material given by the veteran; and(b)excerpts from "World War Two – Chronological Atlas When, Where, How and Why" by Charles Messenger. (This publication states the German surrender was effective from one minute past midnight, 9 May 1945.) Mr Infeld was born on 21 September 1926 and served in the British Army 16 November 1944 to 23 March 1948. From 11 April 1946 to 6 January 1948, he served in Germany in the British Army of Occupation of the Rhine (BAOR) as an interpreter. Mr Infeld said he was stationed in the Hamburg area and the German Nazis were still active and resented the presence of the occupation forces. He believed the environment was hostile. He added that he and his fellow servicemen were not fired upon and did not encounter enemy mines or hostile action. He mentioned he was in a troop carrying vehicle accident in which British soldiers were killed but it was an accident and did not involve hostile action. He also mentioned "doodlebugs" (that is V1 rockets) flew over close to him when he was in the United Kingdom (UK) but was not sure whether it was before or after he enlisted in the British Army. He further stated he was issued with the War Medal.FINDINGS The standard of proof in this case is on the balance of probabilities; that is, on the balance of probabilities did Mr Infeld incur danger from the hostile forces of the enemy during his service in the BAOR. "Incurred danger" is defined by the Full Court of the Federal Court in Repatriation Commission v Thompson (1988) 82 ALR 352. Their Honours said:…The words "incurred danger"… 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 Tribunal finds Mr Infeld did not incur danger from hostile forces of the enemy as:(a)the Germans surrendered unconditionally on 9 May 1945 and he did not serve in Germany until 11 months later, in April 1945; and(b)there is no record or evidence that there was any hostile action against Mr Infeld during his service in the BAOR.

Decision

Reasons for decision

The Tribunal therefore finds Mr Infeld did not render qualifying service in accordance with section 7A(1)(b) of the Act and accordingly, he is not eligible for a Repatriation Pharmaceutical Benefits Card.DECISION The decision of the Commission is affirmed.I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision of: Mr A. Argent, Member(sgd) Catherine Thomas ClerkDate of Hearing: 29 May 2002Date of Decision: 6 June 2002Solicitor for the applicant: Nil – self representedAdvocate for the respondent: Mr R. Douglass, Advocacy Section, Department of Veterans' Affairs

Ratio Decidendi

Legal Principle Established

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