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

1. 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.

2. 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").

3. The period of hostilities of World War II is from 3 September 1939 to 29 October 1945.

4. "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

5. 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

6. 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

7. 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.

8. 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.)

9. 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.

10. 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.

11. 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

12. 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.

13. "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.

14. 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.

15. In addition, concerning his close proximity to the V1 in the UK, the Tribunal finds Mr Infeld was not awarded a campaign star or any other medal declared by the regulations to be a campaign medal in relation to service his possible service at that time.

16. 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

17. 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
                  Clerk

    Date of Hearing:  29 May 2002
    Date of Decision:  6 June 2002
    Solicitor for the applicant:           Nil – self represented

    Advocate for the respondent:       Mr R. Douglass, Advocacy Section, Department of Veterans' Affairs