Jan Kozakiewicz and Repatriation Commission - [2015] AATA 203

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL             )
  )        No: 2013/4733
Veterans'      Appeals       Division             )

Re: Jan Kozakiewicz

Applicant

And: Repatriation Commission

Respondent
CORRIGENDUM
TRIBUNAL:   Deputy President F J Alpins
DATE:           1 April 2015
PLACE:        Melbourne

The Tribunal directs the Registrar, pursuant to s 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the written statement of reasons for its decision in this proceeding as follows:
1.In paragraph 1.
delete “a seniors health card” and replace with “treatment for any injury or disease” ...

2.In paragraph 3.
a.delete “for a seniors health card” and replace with “to be provided with treatment for any injury or disease” ...
b.after the words “under the Act also” add “relevantly” ...
c.delete “s 118V(1)(b)” and replace with “s 85(4A)(b)” ...

3.In paragraph 6.
delete “s 118V” and replace with “s 85”; and

4.In paragraph 17.
a.delete “118V” and replace with “85(4A) ” ...
b.delete “seniors health card” and replace with “ “Repatriation Health Card – For All Conditions” provided to a veteran eligible to be provided with treatment for any injury or disease” ” ...

[sgd]...................................................................
Deputy President

[2015] AATA 203

Division VETERANS' APPEALS DIVISION

File Number

2013/4733

Re

Jan Kozakiewicz

APPLICANT

And

Repatriation Commission

RESPONDENT

Decision

Tribunal
Deputy President F J Alpins

Date 1 April 2015

Place Melbourne
The decision under review is affirmed.

[sgd]........................................................................
Deputy President F J Alpins
VETERANS’ ENTITLEMENTS – eligibility for age service pension and treatment for any injury or disease – whether applicant “has rendered qualifying service” – s 7A of Veterans’ Entitlements Act 1986 (Cth) – whether applicant an allied veteran who rendered service during period of hostilities as member of defence force established by an allied country – whether service in respect of which incurred danger from hostile forces of the enemy – applicant claimed to have served during World War II in defence force of Polish government-in-exile under British command in Italian Campaign – whether Tribunal reasonably satisfied applicant has rendered such service
Legislation
Veterans’ Entitlements Act 1986 (Cth) ss 5B, 5C, 5R, 7A, 35B, 35H, 36, 57, 57B, 85, 119, 120, 175
Cases
Mason v Repatriation Commission [2000] FCA 1409
Price v Repatriation Commission (2003) 127 FCR 274
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
Deputy President F J Alpins
1 April 2015
Introduction
1. The issue before the Tribunal in this proceeding is whether the applicant, Mr Kozakiewicz “has rendered qualifying service” for the purposes of, and is thus eligible for an age service pension and a seniors health card pursuant to, the Veterans’ Entitlements Act 1986 (Cth) (the “Act”).
2. Mr Kozakiewicz claims that, during World War II, he served as an underage recruit in the Polish 3^rd Carpathian Division under the command of the British Eighth Army, in battles fought between the Allies and German forces during the Italian Campaign, in early 1945. It is…

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 Jan Kozakiewicz and Repatriation Commission

Details

AGLC: Jan Kozakiewicz and Repatriation Commission [2015] AATA 203
Case: [2015] AATA 203
Decision Date: 1 April 2015

CaseChat Overview and Summary

The applicant, Jan Kozakiewicz, sought a review of a decision made by the Repatriation Commission, which had determined that he was not eligible for an age service pension. The dispute centred on the interpretation of section 7A of the Veterans’ Entitlements Act 1986, specifically whether the applicant had rendered qualifying service as an allied veteran during a period of hostilities. The case was heard in the Federal Court of Australia.

The legal issues before the court were whether Mr Kozakiewicz was an allied veteran and whether the service he rendered was during a period of hostilities, exposing him to danger from hostile forces. The court had to consider if Mr Kozakiewicz had served during World War II in the defence force of the Polish government-in-exile under British command in the Italian Campaign, as claimed, and whether the Tribunal was reasonably satisfied that he had rendered such service. The court's task was to review the Tribunal's decision under the Administrative Decisions (Judicial Review) Act 1977.

The court examined the evidence presented to the Tribunal and the reasoning employed by the Tribunal in reaching its decision. The court found that the Tribunal had appropriately considered the evidence and had correctly applied the relevant legal principles. The Tribunal had reasonable grounds to conclude that Mr Kozakiewicz had not rendered qualifying service as he had not been a member of a defence force established by an allied country during a period of hostilities. The court affirmed the decision under review, holding that the Tribunal's decision was not flawed and that Mr Kozakiewicz was not eligible for the age service pension.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number	2013/4733
Re	Jan Kozakiewicz
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President F J Alpins
Date	1 April 2015
Place	Melbourne