Jan Kozakiewicz and Repatriation Commission
[2015] AATA 203
•1 April 2015
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 327REASONS 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 3rd 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 not in dispute that such service would constitute “qualifying service” for the purposes of the Act. The essential issue is a factual one – whether the Tribunal is satisfied according to the standard of proof prescribed by the Act that Mr Kozakiewicz has rendered such service.
Legislation
3. Section 36(1) of the Act relevantly provides that a person is eligible for an age service pension if the person is a “veteran”, “has rendered qualifying service” and has reached pension age. It is relevant to note that eligibility for a seniors health card under the Act also depends upon whether a person “has rendered qualifying service” (s 118V(1)(b)).
4. Section 35B(1) of the Act provides that “[a] veteran who wants to establish that he or she has rendered qualifying service must make a proper claim for a determination that he or she has rendered such service”. Section 35J provides that “[a] determination by the Commission that a veteran has rendered qualifying service is proof, for all purposes of this Act, that the veteran has rendered qualifying service”.
5. The expression “has rendered qualifying service” has meanings enumerated in s 7A of the Act. As I have said, it was not in dispute that the service that Mr Kozakiewicz claims to have rendered would constitute having rendered qualifying service within the terms of that provision, pursuant to s 7A(1)(c).
6. Section 7A(1)(c) provides that a person has rendered qualifying service for the purposes of Part III of the Act (which governs service pensions and contains s 36) and 118V:
“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”. (Emphasis added).
7. The terms “allied veteran”, “allied country” and “enemy” are each defined in s 5C(1). I note that, for the purposes of s 36(1), the term “veteran” is defined to include an allied veteran. The term “allied veteran” is defined conjunctively to mean:
“a person ... 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”. (Emphasis added).
8. The term “allied country” is relevantly defined, disjunctively, to mean “any country (not being Australia or a Commonwealth country) ... that was, at the relevant time, at war with the enemy ... or ... the forces of which were, at the relevant time, engaged in an operational area against forces against which the forces of the Commonwealth were engaged in that area”. The expression “period of hostilities” is defined in s 5B(1) relevantly to mean, with respect to World War II as the period from its commencement on 3 September 1939 to 29 October 1945 (inclusive).
9. The term “enemy” is relevantly defined, in relation to World War II, to mean the naval, military or air forces, or any part thereof, of a State at war with the Crown during that war.
10. The expression “defence force established by an allied country”, which, as I have indicated, appears in the definition of “allied veteran”, is also defined in s 5C(1) and given extended meanings in relation to an allied veteran (in s 5R(2)) and in relation to the defence force of a government-in-exile (in s 5C(3)), but it was ultimately unnecessary for the Tribunal to consider any of those definitions, given that, as indicated later in these reasons, the applicant did not press one of his initial contentions.
11. It was not in dispute that, as was stated in the expert report to which I refer later in these reasons, the Polish 3rd Carpathian Division was established by the Polish government-in-exile, being a government-in-exile in relation to an allied country. Consonantly, it was not in dispute that a person who rendered service in the Polish 3rd Carpathian Division otherwise satisfying s 7A(1)(c) of the Act had served in a “defence force established by an allied country” for the purposes of that provision and, thus, “has rendered qualifying service” for the purposes of s 7A.
12. I turn now to relevant provisions of the Act affecting review of the respondent’s decision.Section 119(1)(g) of the Act relevantly requires that the Tribunal, standing in the shoes of the respondent (see also s 119(2)), “act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities”. Section 119(1)(h) requires that the Tribunal:
“take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(2)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence happened during the service of the veteran ... was not reported to the appropriate authorities.”
13. Neither provision in s 119(1) to which I have referred, being procedural provisions, displaces the Tribunal’s obligation to act in accordance with law or to ignore relevant evidence before the Tribunal (Repatriation Commission v Bey (1997) 79 FCR 364 at 373-374). Nor does s 119 gainsay the entitlement of the Tribunal as the arbiter of fact to prefer certain evidence to other evidence before it to the extent of any inconsistency (Price v Repatriation Commission (2003) 127 FCR 274 at [26]-[29]). Furthermore, “the role of s 119 is not to invent evidence” or “to fills in gaps, where the evidence does not assist the applicant’s case” (Mason v Repatriation Commission [2000] FCA 1409 at [75]-[76]).
14. Section 120(4) of the Act requires that the Tribunal “decide the matter to its reasonable satisfaction”, which involves a civil standard of proof (Repatriation Commission v Smith (1987) 15 FCR 327). No onus of proof is imposed on the applicant or the respondent (see s 120(6)).
Procedural history
15. This matter has a rather unusual history, in chronological terms. Although Mr Kozakiewicz is relying upon events he claims to have occurred during the course of World War II, it was not until late 1993 that he applied for a service pension; that claim was rejected in early 1994.
16. Some eighteen years then passed. In May 2012, Mr Kozakiewicz made what amounted to an informal claim for a determination that he has rendered qualifying service. In September 2012, he made a proper claim for such a determination, pursuant to s 35B of the Act. The respondent decided that he has not rendered qualifying service (s 35H) and upon review by the respondent, that decision was affirmed (ss 57, 57B(1)). This is an application for review of the decision affirmed by the respondent (s 175(2) of the Act).
17. I note that, when the Tribunal asked Mr Kozakiewicz about why his pursuit of any entitlements he might have under the Act has been so desultory, particularly about the reason for the eighteen-year hiatus between his claim for a service pension being rejected and his making of a claim for a qualifying service determination, he said in effect that, as his health is now failing, he would like to have a “gold card”, which I have understood, given the nexus between ss 7A and 118V of the Act, to mean a seniors health card under the latter provision.
Evidence
18. Mr Kozakiewicz’s evidence consisted of a witness statement, a supplementary witness statement and oral evidence; he was cross-examined.
19. Mr Kozakiewicz was born in June 1930, in Denain, France. His precise date of birth is somewhat unclear – as far back as in 1948, and as recently as when he made his claim for a qualifying service determination in 2012, he has given in date of birth in various documents as being 8 June 1930. However, in oral evidence before the Tribunal, he stated that his true date of birth was in fact 24 June, not 8 June of that year. I return to this issue later in these reasons. It suffices to say at this point that Mr Kozakiewicz’s evidence as to the genesis of his “true” and “false” birth dates does not sit well with the fact that he has given his date of birth as being 8 June 1930 as late as in 2012.
20. In 1939, at the commencement of World War II, Mr Kozakiewicz lived with his parents in Plock, Poland. In his witness statement, Mr Kozakiewicz said that by 1943, he was an orphan, living alone in the family home in Plock. He said in that document and in oral evidence that, by that year, his father had died and his mother had been sent to a concentration camp, for resistance activities, where she died. However, in his supplementary witness statement, he said that his mother died in 1940 and that he then lived with his father, who was then sent to a concentration camp “for subversive activities”. I return to this apparent discrepancy later in these reasons.
21. When asked by the Tribunal why, in such circumstances, no other relative or family friend had come to live with him or taken him in, he said that his grandmother had abandoned him because she did not like his mother.
22. Mr Kozakiewicz gave evidence that he then, along with other boys, joined a band of Polish partisans engaging in sabotage activities in the forests surrounding the town of Augustow. He said they dug in explosives under the nearby railway line, so that the partisans could blow up German ammunition and supply trains. Mr Kozakiewicz gave a differing account of how he came to join the partisan group in his witness statement to that he gave in his supplementary witness statement. In the former, he said that the local Polish villagers gave him food to take to the partisans; in his supplementary witness statement and in oral evidence, he said that when he was left on his own in Plock, the Germans took him as a child labourer to the Lyk region, that he then escaped and was “adopted” by the partisan group.
23. It is convenient to note at this point that Mr Kozakiewicz initially contended that his partisan activities constituted “qualifying service” for the purpose of s 7A of the Act, but at the hearing that contention was not pressed.
24. In his witness statement, Mr Kozakiewicz said that, when the Germans became aware of their activities, he and other Polish teenagers crossed Eastern Europe into Yugoslavia. Mr Kozakiewicz said that there, with the help of Tito partisans, they were smuggled to Egypt, in the coal room of a fishing boat. In his witness statement, he said that occurred in late 1943; in his supplementary witness statement he said that it occurred in 1944. I note that in his supplementary witness statement he said that it was upon being taken as child labour for the second time to a German artillery unit in Austria that he managed to escape to Yugoslavia.
25. According to Mr Kozakiewicz, following his arrival in the Egyptian city of Ismailia, on the Suez Canal, he enlisted as a private in the Polish 3rd Carpathian Division, in its 1st Company Engineering Corps. His explanation of exactly how and why this transpired was not illuminating. As is explained in an expert’s report to which I refer later in these reasons, the 3rd Carpathian Division was formed in the Middle East during 1943 and became part of the Polish II Corps, which was established by the Polish government-in-exile and sent to Italy in 1944 to form part of the British Eighth Army, fighting with the Allies in the Italian Campaign against the German forces.
26. When asked by the Tribunal to describe the events leading from his arrival in the fishing boat to his enlistment, Mr Kozakiewicz’s initial response was that “a man from MI5” had approached him and invited him to join. When asked whether the man had actually introduced himself as being a MI5 agent (which seemed implausible), Mr Kozakiewicz then said that that was what he had taken the man to be. When asked by the Tribunal why he had enlisted, Mr Kozakiewicz gave differing responses. At one point he said that he was disoriented upon his arrival after the long trip in the fishing boat and had no particular plan in mind. At another point, he said that he was strongly motivated in his vengeful desire “to kill Germans”.
27. Although he could only have been 13 or 14 years old at the time, Mr Kozakiewicz gave evidence that he was told by the recruiting officer that he could “pass” as being older and that he should state his year of birth as being 1927 (rather than 1930), in order to enlist. Mr Kozakiewicz said that he successfully enlisted on that basis. I note however that in a questionnaire he completed in 1991, Mr Kozakiewicz gave his date of birth “for enlistment purposes” as being 8 June 1926.
28. Furthermore, in that questionnaire, he gave a different account of how, when and why he arrived in Ismailia. In that document, he said that British Intelligence assisted him in getting to Italy from Yugoslavia, and that the British authorities sent “us” to Ismailia for rest and recuperation for about a month, in January 1945. He said that he was then drafted into the 3rd Carpathian Division, in February 1945.
29. In a statement of evidence made by Mr Kozakiewicz in 1993, he said that he arrived in Ismailia in late 1944. While in his witness statement, supplementary witness statement and oral evidence he said in effect that he enlisted when he was in Egypt, in his statement made in 1993 he said that he could not recall whether he enlisted in Ismailia or Italy.
30. Mr Kozakiewicz gave evidence that his commanding officers were named Major Lech and Captain Stanislaw Czerwinski. Mr Kozakiewicz said that his unit’s duties consisted of helping to keep supply roads clear of German troops so the army could move along free from danger. Despite the fact that, on his evidence, he had barely reached his teenage years, Mr Kozakiewicz said that his duties consisted of driving a truck, and his co-driver for a time was a man called Henry Dolega.
31. Mr Kozakiewicz said that their unit took part in several engagements with German troops, alongside Canadian and British units, and that they were often fired upon by the Germans, particularly at Pescara and Ancona. He said that the final fighting took place in the Bologna region, shortly before the German capitulation in May 1945. In his witness statements, Mr Kozakiewicz said that many of his colleagues were killed or injured in those military engagements and that he was lucky to survive.
32. Mr Kozakiewicz gave evidence that, when the war ended, Captain Cerwinski asked him what his real age was. In his witness statement, Mr Kozakiewicz in effect said that he then disclosed that he was in fact younger than he had pretended to be when he enlisted.
33. However, in his supplementary witness statement and in oral evidence, he said that he told his commanding officer that he didn’t know his age, so Captain Cerwinski gave him his son’s date of birth, being 8 June 1930. In that witness statement, Mr Kozakiewicz said that he did not discover his real birth date until several years after the war, when he obtained his French birth certificate “showing my birth as 1930”. It is apparent from that phrase that he was referring to his year of birth, rather than a particular date in 1930.
34. It is somewhat difficult to understand, without further evidence in that regard, why he would not have known how old he was. It also undermines a critical premise underlying his evidence, which is that he knowingly enlisted as an underage recruit.
35. In his oral evidence, Mr Kozakiewicz said something else again. As I said, he then gave evidence, not reflected in any document before the Tribunal, that his real date of birth is 24 June 1930 and that his father, who was evidently alive on that version of events, had told him that was his real birth date after the war. As I have indicated, that makes it quite difficult to understand why, as late as 2012, when he made his claim for a qualifying service determination, Mr Kozakiewicz stated that his date of birth was 8 June 1930.
36. Mr Kozakiewicz’s evidence was that Captain Cerwinski then sent him “back to school”. It is important to note that it is at that point that his evidence starts to run somewhat parallel to contemporaneous documentary evidence I have ultimately preferred, although the chronological difference is significant. His oral evidence, reflected generally in his witness statements, was that he spent a period after the war ended attending cadet school in Italy for training as a motor mechanic, saying that he first attended cadet school in Casarano, Italy by the end of 1945 and then in Barletta, Italy in early 1946. He gave evidence that at some point he ran away to Barcelona, Spain. He then apparently returned to school in Barletta in late 1946.
37. One fact seems firmly established – that is that, by at February 1948 at the latest, Mr Kozakiewicz was in England. At that time and place, having reached the age of 17, he enlisted in the Polish Resettlement Corps, at Woodlands Park. He joined the 301 Basic Unit, with the rank of Boy. As I state later in these reasons, I infer from the evidence that Mr Kozakiewicz was in fact in Woodlands Park from 1946 onwards.
38. It is relevant to note that Mr Kozakiewicz’s military identification number in the Polish Resettlement Corps was 30058022. Significantly, in his statement of evidence made in 1993, Mr Kozakiewicz said that he was “sure that” that same number was his serial number on his enlistment in the 3rd Carpathian Division. When that discrepancy was put to him under cross-examination, Mr Kozakiewicz angrily insisted, without adducing any corroborating evidence in that regard, that he had in fact had two serial numbers, one for his enlistment in the 3rd Carpathian Division and one for his subsequent enlistment in the Polish Resettlement Corps. That evidence is not supported by any of the documentary evidence. Moreover, that confusion serves as one of number of examples of Mr Kozakiewicz’s tendency to conflate and confound events, as I explain later in these reasons.
39. Mr Kozakiewicz was discharged from the Polish Resettlement Corps a few months after his enlistment, in August 1948, for his emigration to Australia. He travelled to Tasmania on the “Strathnaver” with other Poles who had also been discharged from service.
40. It is convenient to note at this point other telling examples of Mr Kozakiewicz’s significant tendency to confuse events which were made apparent by his evidence. The Tribunal accepted into evidence copies of four photographs which were tendered by Mr Kozakiewicz on the basis that they served to corroborate his account of events. Three of those photographs are particularly significant. They were annotated on the basis that one had been taken in Woodlands Park, England (thus being presented as evidence of his service in the Polish Resettlement Corps), the next had been taken in Italy (thus being presented as evidence of his service in the 3rd Carpathian Division) and the third had also been taken in England. The first is a photograph of Mr Kozakiewicz in military uniform. The second is a photograph of him in the same uniform with a colleague. The third is a photograph of him in that same uniform with that same colleague.
41. In oral submissions, Mr Garsa, who appeared on behalf of Mr Kozakiewicz, informed the Tribunal that Mr Kozakiewicz no longer relied upon those documents in support of his case. Nevertheless, those photographs, and Mr Kozakiewicz’s oral evidence about them, remain part of the evidence before the Tribunal.
42. Upon examination, those three photos reveal so many points of similarity that the Tribunal concludes that they were taken in the same place and at around the same time, if not in the very same session on the same day. Based upon his evidence, the annotations and the photographs, the Tribunal concludes that each of them, including the photograph said to have been taken during his claimed service in Italy, was in fact taken during his service in the Polish Resettlement Corps, at Woodlands Park. That is confirmed by the fourth photograph, which shows him in the same uniform with other men, said to have been taken upon his arrival in Hobart, on what appears to be the deck of the “Strathnaver”.
43. It is also significant that, at another point in his oral evidence, Mr Kozakiewicz repeatedly referred to his service in the Polish Resettlement Corps as being service in the 3rd Carpathian Division. The Tribunal gave him the opportunity to correct that evidence, so as to avoid any misunderstanding, but he insistently maintained that position. Although Mr Kozakiewicz freely admitted to having a poor memory of events and when they occurred, which I have taken into account for the purposes of s 119 of the Act, that manifest error was of a different nature – it involved presenting service which was not in issue as being different service, the very occurrence of which was in issue. That evidence, like his evidence about and annotations of the photographs, also brought into question the veracity of other evidence he had given, particularly where there were apparent discrepancies in, and implausible aspects of, that evidence.
44. Given that Mr Kozakiewicz did not ultimately rely upon the photographs and his evidence about them, it follows that there was no evidence before the Tribunal corroborating Mr Kozakiewicz’s evidence. No other witnesses were called, although I have not considered that to be determinative. When asked by the Tribunal why he had no mementoes, or other physical evidence, of his claimed service in the 3rd Carpathian Division, Mr Kozakiewicz said that he had left all such items on the “Strathnaver” when he arrived in Tasmania and so such evidence was lost. I note that he has previously claimed to have been awarded the “Star of Italy” medal, but says that he no longer has it in his possession either, although whether that is for the same, or a different, reason is unclear.
45. Leaving aside such weaknesses in Mr Kozakiewicz’s evidence, and that fact that it was ultimately uncorroborated, the greater impediment to his claim lies in the fact that, just a few years after the conclusion of World War II, he gave a very different account of what he had been doing during the period he claims to have spent serving in the 3rd Carpathian Division. According to the statement he made at that time, he said that he had spent the period from 1944 to 1946 completing his elementary schooling in Barletta, Italy, apparently attending cadet school at that time.
46. In a Questionnaire for Polish Records completed a few days before his enlistment (dated 24 February 1948), written and completed in Mr Kozakiewicz’s native language and signed by him, he provided the following information.
47. He stated that he was born on 8 June 1930. Significantly, he also stated that his education included five elementary school years, first from 1936 to 1939 and then from 1944 to 1946, when he attended school in Barletta, Italy and obtained a certificate of completion. Accordingly, he stated that he left school in 1946.
48. He then included in that section of the form information about training he had received from 1946 to 1948 at Woodlands Park. He said that he had undertaken training as a car mechanic and had undertaken a car driving course during that period.
49. It is significant to note that the information in the form indicates that, by 1946, Mr Kozakiewicz already lived at Woodlands Park, although he did not enlist in the Polish Resettlement Corps until February 1948. I infer from the evidence that, despite arriving at Woodlands Park in 1946, he could not enlist prior to February 1948 given his youth. My conclusion that Mr Kozakiewicz was in England from 1946 is also supported by a form he completed in May 2012 which accompanied his informal claim for a qualifying service determination, in which he stated that he was in England from 1946 to 1948.
50. The particular significance of the fact that Mr Kozakiewicz was at Woodlands Park for about two years before he enlisted lies in the fact that it contradicts his claim to have served in the 3rd Carpathian Division – if he had done so, then the two year hiatus between his arrival at Woodlands Park and his enlistment in the Polish Resettlement Corps seems difficult to explain. It is far more logical when one considers the premise that he arrived there from cadet school in Barletta and was therefore understood not to have served in the Polish forces, which accords with the information he provided in 1948, describing his Polish military rank as “cadet” and therefore providing no military identification number.
51. With respect to his career, Mr Kozakiewicz stated in the form merely that he had been “[l]earning” and that his main occupation was “student”.
52. With respect to his military service, Mr Kozakiewicz stated that it had consisted first, from 1944 to 1946, of service as a “young swashbuckler” (as translated, but according to to the evidence before the Tribunal meaning “cadet”) at “young swashbuckler camp” (which was given as his unit and I have consonantly taken to mean “cadet camp”), where his function was “learning”. That was followed by service at the same rank in “workshop camp” (given as his unit) from 1946 to 1948, where his function was described as “on the course”. Then he listed his current enlistment in the 301 Basic Unit, again giving his rank as “young swashbuckler”, as from 1948, describing himself as having “no function”.
53. Similarly, at the beginning of the form, Mr Kozakiewicz described his Polish military rank as being “young swashbuckler”, that is to say, “cadet”, accordingly not providing any Polish military identification number. That contradicts his oral evidence that he had a different military I.D. number before that given to him on his enlistment in the Polish Resettlement Corps. In the form, he gave his British I.D. number as being 30058022.
54. I note that the answer to the section of the form concerning the date of conscription to the Polish Armed Forces under British command was cut off in the copy tendered in evidence before the Tribunal. Nevertheless, Mr Kozakiewicz made no mention in any of the balance of the form, particularly in the sections concerning prior military service, of his having served in the 3rd Carpathian Division.
55. In the next section of the form, headed “other information”, in answer to the question of which countries he had stayed in for more than one year, Mr Kozakiewicz said that he have been in France from 1930 to 1935 and that he had been in Italy from 1944 to 1946.
56. It is also relevant to note that in that form, in the “notes” section for the provision of any other information the recruit considered to be important, he requested that his father be notified, presumably either of his whereabouts or his enlistment. He gave his father’s place of residence as Plock. When asked in oral evidence why he would have asked that his father be notified, given that he believed him to be dead (and on one version of his evidence he was), Mr Kozakiewicz said that he didn’t know his father was alive until later in 1948, so he could only explain what was written there as his having “made it up”.As I have indicated, Mr Kozakiewicz gave oral evidence that he his father contacted him after the war. He said that his father advised him not to return to Poland, and that he did not see him again until 1965.
57. Also in evidence before the Tribunal was a form called an “Army Form B271 (Polish)”, signed by Mr Kozakiewicz three days later, on 27 February 1948, being the very date of his enlistment in the Polish Resettlement Corps. His military I.D. number was stamped on that document as being 30058022. In answer to the questions in that form put to recruits before enlistment, Mr Kozakiewicz again said that his date of birth was 8 June 1930. He answered questions as to whether he now or had ever given military service negatively and said positively that he “truly stated the whole, if any, of [his] previous service”.
58. I note that it was stated in that form that wilfully false answers to any of those questions would make a recruit liable to two years’ imprisonment with hard labour. The certificate of the attesting officer at the bottom of the form to be signed by that officer required that he or she certify that the recruit be warned of such consequences of false answers and that the attesting officer certify that he or she had taken care to ensure that the recruit understood the questions.
59. However, I note that it is rather difficult to understand the context in which the questions were posed, as they appear on their face to be asking about current or prior service in the British forces as such, rather than in the Polish forces, despite the fact that it the form is specified to be directed to Polish recruits. In the absence of evidence on the point, it is difficult to accord much weight to those responses, at least in isolation – other evidence in more compelling.
60. For example, Mr Kozakiewicz’s military history sheet merely noted his period of service in the Polish Resettlement Corps. Similarly, his discharge form said that his former service was “nil”.
61. In his oral evidence, Mr Kozakiewicz repudiated the content of those documents, most of all the questionnaire he completed in February 1948, although he relied upon mere stridency in doing so, rather than evidence of any substance. His general disavowal of their content does not alter my conclusion that he provided that information at that time, particularly given the lack of any evidence corroborating his oral evidence. Nor does his evidence that he paid little attention to the forms alter my conclusion – the information provided was specific in nature and so the form necessarily required a certain amount of attention. I also do not accept that he has any recollection now as to how much attention he paid in filling out the forms in 1948, particularly given that, on his own evidence, his memory and powers of recollection are now poor. It was apparent at the hearing that he had forgotten about the existence of the forms and the information he had provided in them.
62. The respondent relied upon two letters from the United Kingdom’s Ministry of Defence, one sent to the respondent in December 1993 and one sent in August last year. Both letters confirm that the only service records held in respect of Mr Kozakiewicz were for his service in the Polish Resettlement Corps, from 27 February to 6 August 1948.
63. In those letters, reference was made to Mr Kozakiewicz’s date of birth (8 June 1930) and it was then stated, in largely identical terms, that “[d]ue to his extreme youth”, he could not have enlisted in the Polish Forces under British command or participated in any campaign during World War II. It was also pointed out that even his enlistment with the Polish Resettlement Corps occurred when he was still only 17 years of age. Accordingly, it was said that there was therefore no question of his being entitled to any medals and campaign stars for a conflict in which he did not take part.
64. It seems too sweeping a generalisation to preclude any possibility that an under-age recruit could have enlisted in the armed forces under British command during World War II. It is predicated on the assumption that no recruits lied about their age in order to enlist. I return to this point shortly when I address the report of Dr John McCarthy, upon which the respondent relied.
65. I note also that the second letter is so similar in its content to the first that it raises a real question as to whether it involved consideration of the matter beyond reading the first letter. The copies of contemporaneous records attached to the first letter, being the documents prepared in 1948 to which I have referred, are of far more probative value with respect to the question of whether Mr Kozakiewicz served in any military forces prior to his enlistment in the Polish Resettlement Corps.
66. I note that in a letter from the United Kingdom’s Ministry of Defence to the Returned Services League (in Victoria) sent in 1991, it was confirmed from the army service record file for Mr Kozakiewicz, amongst other things, that he had lived in Italy from 1944 to 1946. Whether that information was derived from the answers to the questionnaire to which I have referred is not clear.
67. The respondent also relied upon a copy of a letter it received last year in which the director of the Polish Central Military Archive stated that no materials had been found with respect to a Mr Jan Kozakiewicz born in 1930. However, I accept the submission made by Mr Garsa on the applicant’s behalf that that letter has little probative value given that it is predicated on the assumption that Mr Kozakiewicz did or would have been able to enlist to serve in World War II with that year of birth. It would have been more helpful for the search to be conducted with a wider field of inquiry in terms of his birth year.
68. Records from the Kresy-Siberia Virtual Museum (which is maintained on a website), upon which the respondent relied, indicate that two men bearing the same name as the applicant served in the 3rd Carpathian Rifle Division, but I infer from accompanying materials from that website and from the “Polish War Graves” website that neither of those people are the applicant.
69. As I have indicated, the respondent relied upon a report prepared by Dr John McCarthy, who is apparently a military historian. It is worth noting that at the conclusion of his report Dr McCarthy qualified his comments by saying that some sections of the report “are more speculative than desirable” and noted that he had prepared his report in the absence of any records which might be available in Polish archives.
70. Dr McCarthy noted that there “is a certain discrepancy in the various narratives Mr Kozakiewicz has provided”. By way of example, he noted that in Mr Kozakiewicz’s letter by which he sought internal review of the respondent’s decision that he had not rendered qualifying service, he said that “I was lucky not to be wounded or killed as many of my comrades were”. However, in a statement of evidence he gave to the respondent later that year (in 2013), he said that “I received a slight wound to my right leg by a German artillery shell” while fighting during early 1945.
71. Dr McCarthy said that it “has proven impossible to either confirm or deny the claim that the applicant was taken to Germany to work as a forced labourer sometime in 1941-2”
72. He explained that the Polish 3rd Carpathian Division was formed in the Middle East during 1943. It became part of the Polish II Corps, which was established by the Polish government-in-exile. The Polish II Corps was sent to Italy in 1944 to become part of the British Eighth Army, then commanded by General Oliver Leese.
73. Dr McCarthy also noted that the Italian campaign which Polish forces participated during 1944-1945 was a “somewhat forgotten episode of the Second World War overshadowed by the June 1944 invasion of Normandy and the consequent fighting in Western Europe”. He explained that, although an armistice was reached between the Allies and Italy in September 1943, the fighting in Italy was not over. Polish forces suffered severe casualties fighting the Germans in the Italian campaign, including in Pescara, Ancona and Bologna (the applicant having said that he was involved in military engagements in those places).
74. As I have indicated, Dr McCarthy considered the statements in the letters sent by the United Kingdom’s Ministry of Defence that it was not possible that Mr Kozakiewicz joined the Polish forces under British command or participated in any campaign during World War II to amount to mere assertions, noting that it was a matter of historical record that under-age and over-age recruits had fought in World War II, by falsifying their age. By way of example, he said that it had been calculated that there had been some 200,000 under-age enlistments in the American armed forces during World War II which remained undiscovered during that period. I do not consider it to be either helpful or necessary in this case to speculate about the likelihood that the applicant was able to successfully “pass” for being a young man at the age of 13 or 14.
75. I note that Dr McCarthy said, with respect to the names offered by Mr Kozakiewicz in his account of his claimed service in the 3rd Carpathian Division, that the Kresy-Siberia Virtual Museum had the names “Czerwirski” and “Bronislav Doelga”, in its records.
CONSIDERATION
76. I am not satisfied, according to the standard prescribed by s 120 of the Act, that Mr Kozakiewicz has rendered qualifying service for the purposes of s 7A of the Act. Relevantly, I am not satisfied that he is an “allied veteran who, during a period of hostilities, has, as a member of the defence force established by an allied country” (particularly in this case such a country’s government-in-exile) has “rendered ... service ... in respect of which the person incurred danger from hostile forces of the enemy” for the purposes of s 7A(1)(c) of the Act.
77. Put simply, I am not reasonably satisfied that Mr Kozakiewicz was enlisted in the 3rd Carpathian Division during World War II nor that he engaged in the battles he claims to have engaged in during its Italian Campaign and thus “incurred” the requisite “danger”. I have considered the requirements of s 119, but they do not alter my conclusion.
78. In summary, in determining whether Mr Kozakiewicz has in fact rendered qualifying service within the terms of s 7A of the Act, I prefer the contemporaneous documentary evidence. I consider the documents prepared in 1948, based upon information provided by the applicant, to be considerably more probative with respect to the issue before the Tribunal than his evidence given now. That is even more so given the flaws in Mr Kozakiewicz’s evidence to which I have referred.
79. That evidence establishes that, during the time that Mr Kozakiewicz claims to have been serving in battles fought in Italy by the 3rd Carpathian Division, in the closing months of World War II, he was in fact attending cadet school in Barletta, Italy.
80. There is no evidence corroborating Mr Kozakiewicz’s evidence that he served in the 3rd Carpathian Division, although that in itself is not determinative. More to the point, there is evidence to the contrary. Furthermore, as I have indicated, Mr Kozakiewicz’s evidence contained inconsistent and implausible aspects and involved a manifest confounding of events extending well beyond the bounds of allowances which are required to be made by operation of s 119 of the Act, as construed in the cases to which I have referred.
81. As I have indicated, Mr Kozakiewicz had no cogent explanation of the information he provided in 1948 which might assist his case. Mr Garsa submitted on his behalf that it was simply inconceivable that he could have attended school in Italy in 1944. That was an assertion unsupported by any proper evidence. However, more to the point, it is predicated on the assumption that Mr Kozakiewicz was attending civilian school at that time, which is quite a different thing to cadet school, which was for youths training to join the military. In any event, the best evidence before the Tribunal is that he was in fact attending cadet school – that was obviously not considered to be inconceivable by the British military in 1948. He enlisted in the Polish Resettlement Corps on that very basis.
82. It is convenient to make an observation at this point. In his supplementary witness statement Mr Kozakiewicz said that he “was re-enlisted [in the Polish Resettlement Corps] to be entitled to discharge as a former Polish soldier”. If he had in fact served in the Polish 3rd Carpathian Division, in the absence of evidence to the contrary it would seem as a matter of logic that he was already entitled to such discharge. That statement is far more logical if one considers it according to the premise that he was in fact adverting to his reason for enlisting for the first time, in the context that he had not in fact previously served in the Polish forces, given his youth. In any event, given that consideration admittedly involves an element of impermissible speculation, I have not taken it into account in my consideration.
83. Mr Garsa, made impassioned submissions that, if the Tribunal did not find in Mr Kozakiewicz’s favour, it necessarily followed that it was finding that Mr Kozakiewicz is a “consummate liar”. I do not accept that submission. The issue is not whether the Tribunal considers that the applicant is telling the truth or lying, that is to say, knowingly giving false evidence. The issue is, rather, whether the Tribunal is reasonably satisfied, according to the standard of proof prescribed by s 120 of the Act, that Mr Kozakiewicz did what he says that he did. Of course, it remains possible that he did have the experiences that he says that he had, but that is not enough to meet the standard of proof required. Neither is the mere fact that Mr Kozakiewicz has given such evidence.
84. There are various reasons why a person might say that they have had a certain experience they have not in fact had, without being what is ordinarily understood to be a liar, even when they are purporting to recount seminal events in their life. It is not necessary nor, in my view, appropriate for me to address such reasons for the purpose of reviewing the respondent’s decision. The Tribunal’s task is to ascertain whether the prescribed standard of proof is met by the evidence before it.
85. Difficulties arise in this case given the considerable flaws in Mr Kozakiewicz’s evidence and given that it is uncorroborated. However, as I have indicated, I consider that the greatest impediment to Mr Kozakiewicz’s claim lies in the fact that the Tribunal has before it contemporaneous documentary evidence, predating Mr Kozakiewicz’s evidence by over 65 years, which directly contradicts his evidence.
86. Neither the terms of s 119 of the Act, nor the fact that the Act is beneficial legislation, obviate the need for the Tribunal to address the statutory question before it according to the standard of proof prescribed in s 120.
CONCLUSION
87. For the above reasons, the Tribunal will affirm the decision under review.
I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President F J Alpins. [sgd]..................................................................
Associate
Dated 1 April 2015
Dates of hearing 27 October & 22 December 2014 Advocate for the Applicant Mr A Garsa Advocate for the Respondent Mr K Rudge, Department of Veterans’ Affairs, Review Section
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