Janke-Walker and Repatriation Commission
[2005] AATA 1
•4 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/151
GENERAL ADMINISTRATIVE DIVISION )
Re COLIN GEORGE JANKE-WALKER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr SC Fisher, Member Date 4 January 2005
Place Brisbane
Decision The Tribunal affirms the decision under review. ...................[Sgd].............................
SC Fisher
Member
CATCHWORDS
VETERANS’ AFFAIRS – entitlements – whether applicant incurred danger from hostile forces of the enemy – whether applicant qualifies for Gold Card – decision affirmed.
Veterans’ Entitlements Act 1986 s 7, 57,85, 119, 199, 174-176
Secretary, Department of Social Security v Murphy, Federal Court, 29 June 1998, 809/98 Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248; 74 ALD 21
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598; 4 ALD 198
Re Maller and Repatriation Commission (1992) (AAT 8280, 16 September 1992)
Repatriation Commission v Thompson (1988) 44 FCR 20; 15 ALD 501REASONS FOR DECISION
4 January 2005
Mr SC Fisher, Member Introduction and background
1. Mr Colin George Janke-Walker (the Applicant) served in the RAAF during World War II under the name “Colin George Walker”. On 10 July 2002, the Applicant lodged an application for a Gold Card with the Repatriation Commission (the Respondent). The Respondent refused the application by determination made on 24 July 2002 on the basis that the Applicant had not rendered qualifying service. The Applicant sought internal review of the 24 July 2002 decision on 16 September 2002. On 10 December 2002 a senior delegate of the Respondent affirmed the 22 July 2002 decision of the Respondent in response to a request for review under section 57 of the Veterans’ Entitlements Act 1986 (Cth). The Applicant appealed to this Tribunal on 24 February 2003.
Jurisdiction
2. This appeal is governed by the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The Tribunal has jurisdiction in this appeal by virtue of sections 174 - 176 of the Act. In these Reasons for Decision, references to statutory provisions are to provisions of the Act unless the context indicates otherwise.
The Decision under Review
3. The decision under review is a decision made by the Respondent on 24 July 2002 (as affirmed by a senior delegate of the Respondent on 10 December 2002) to refuse the Applicant a Gold Card on the basis that the Applicant did not render “qualifying service” within the meaning of section 7A of the Act.
The Role of the Tribunal
4. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy, Federal Court, 29 June 1998, 809/98. The Tribunal is guided by the norm that it should reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601.
The Material Before the Tribunal
5.The following documentary evidence was before the Tribunal:
Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2Unsigned statement of Mr Janke-Walker dated 2 July 2004.
Exhibit 3Statement of Mr Janke-Walker enclosing a letter dated 12 January 2004 from Mr G Neil Johnson.
Exhibit 4Signed but undated statement of Mr Janke-Walker enclosing service information.
Exhibit 5Unsigned statement of Mr Brian Ford dated 17 September 2004.
Exhibit 6Letter from Mr Neil Johnson dated 12 January 2004.
Exhibit 7Extracts from Truscott: the Diary of Australia’s Secret Wartime Kimberley Airbase 1943 – 1946 (John & Carol Beasy).
Exhibit 8Statement from Associate Professor Terry (TJ) Gygar dated 22 April 2003.
Exhibit 9Undated letter from Norm Trewgrove RFD (Ft Lt RAAF Retired)
Exhibit 10Letter from Department of the Veterans’ Affairs dated 25 September 1998 enclosing an Application for Gold Card from Mr Janke-Walker.
Exhibit 11Extracts from Truscott: the Diary of Australia’s Secret Wartime Kimberley Airbase 1943 – 1946 (John & Carol Beasy).
Exhibit 12RAAF personnel file of Mr Janke-Walker.
Exhibit 13Report dated 8 January 2004 by Mr Robert Piper, Military Aviation Research Services.
6. The Applicant was represented by Ms Carter-Nicoll of counsel. Ms Carter-Nicoll was instructed by Sciaccas Lawyers & Consultants. The Applicant’s counsel provided an outline of submissions to the Tribunal after the hearing concluded. Exhibits 1 – 9 were lodged on behalf of the Applicant.
7. The Respondent lodged documents T1 to T6 under section 37 of the Administrative Appeals Tribunal Act 1975. These documents were taken into evidence as Exhibit 1. Exhibits 10 – 13 were lodged on behalf of the Respondent.
8. The Respondent was represented by Mr Anton Harris, a departmental advocate. The Respondent’s advocate provided a Statement of Facts and Contentions and an outline of submissions to the Tribunal.
9. The Tribunal considered carefully all of the documentary and oral evidence before it.
Issue
10. The issue in this appeal is whether the Applicant qualifies for a Gold Card because he satisfies the requirements of section 85(4A) of the Act.
Evidence
11. The Applicant gave oral evidence in person. None of the other persons who provided statements in support of the Applicant’s case were called to give evidence.
12. The Respondent called Mr Robert Kendall Piper, military historian, Military Aviation Research Services, who gave evidence by telephone.
Evidence of the Applicant
13. The evidence-in-chief of the Applicant to the Tribunal can be summarised as follows:
A.The Applicant summarised his service history.
B.The Applicant said that he was first mustered as a cook’s assistant.
C.The Applicant said that he was asked to serve on the Liberator as a waist gunner because he was of small stature and that the commanding pilot had asked him to serve in that capacity.
D.The Applicant said that while Truscott itself was not bombed while he was there, them are some occasions where action stations were sounded and anti-aircraft guns were fired.
E.In response to a question from counsel “And did anyone fire back at the aircraft?”, the Applicant responded “Oh, I can tell you, they were fair dinkum”.
14.In his two written statements (Exhibits 2 and 4), the salient points of the evidence of the Applicant are to the following effect:
A.The Applicant said that he was not given a logbook when he was asked to fly missions on board the Liberators.
B.Other airmen have acknowledged that it was official condoned practice to use ground staff as replacement air gunners.
C.The Applicant said that he flew on Liberators with another serviceman by the name of Watson (given name unknown). The Applicant said that he has been unable to trace further details of this man.
D.The Applicant said that he flew bombing raids over Java, chasing Japanese ships.
E.The Applicant said that he was attacked by the enemy during these raids and one aircraft was lost, which had to ditch in the water near Truscott.
F.The Applicant said that the circumstances of war meant that the Air Force did things in the field (such as using non-specified personnel) that were not necessarily sanctioned officially.
15.The summary of the cross-examination of the Applicant is as follows:
A.The Applicant said the first time that he was asked to fly on a Liberator was after Christmas 1944, probably January 1945, when he was “shanghaied” into these aircraft.
B.The Applicant said that he had contact with pilots and aircrew because he had contact with them in the mess and that a Liberator pilot approached him directly to see if he could fly missions for them.
C.The Applicant said that he was given instructions on operating guns when he went on board the Liberator.
D.The Applicant said that he flew about six missions on the Liberator that were in the nature of attack missions. The Applicant said that the missions were of different times in length, and the longest he could recall was about a 10 hour mission.
E.The Applicant said that when he made his Gold Card application in 1998, it was by inadvertence that he did not answer “yes” to the question whether he had qualifying service as a result of service outside Australia. The Applicant said that he did not have professional help when he completed that application, and so he did not answer questions properly.
F.The Applicant said that just after he enlisted, he was given weapons training on Lewis guns. The Applicant said that he was not given formal training on aircraft gunnery.
16.In response to questions from the Tribunal:
A.The Applicant said that he was not paid any extra money for flying operations.
B.The Applicant said that he did not keep a diary of his war experiences.
Other evidence for the Applicant
17. The Tribunal considered Exhibits 5, 6, 8 and 9. The thrust of these Exhibits was that they contain statements by persons who were not called as witnesses by the Applicant but who assert that it was Air Force practice to use ground staff as air gunners or otherwise to serve on aircraft in other capacities.
18. The statement of 17 September 2004 from Mr Brian Ford (Exhibit 5) contains polemical assertions about DVA administrative practices. Mr Ford does assert that he flew three missions at the end of World War II (VE day is mentioned) over Japanese controlled areas (Macassar was named) when in fact he was trained for radar operations on the ground.
19. The statement of 12 January 2004 from Mr G Neil Johnson (Exhibit 6) asserts that he was aware that there were occasions when ground staff personnel were taken on operational missions as substitute crewmembers.
20. The statement of Associate Professor TJ Gygar, RFD, LLB(Hons), Barrister states that while he was serving in the 161 Independent Reconnaissance Flight, 1st Army Aviation Regiment, Nui Dat, South Vietnam from June 1970 to July 1971, in the capacity of Unit Administration Officer (Adjutant), he flew sorties in that war theatre.
Evidence for the Respondent
21. The evidence-in-chief of Mr Robert Kendall Piper, military historian, Military Aviation Research Services, can be summarised in its salient points as follows:
A.Mr Piper said that 58 Operational Base Unit (58 OBU) had no operational authority over squadrons that were staged through the base.
B.Mr Piper said that he spoke to ex-servicemen who operated out of Truscott in Liberators, consulted official records of Squadrons 12, 21, 23, 24 and 25, the Beasy book, and concluded from this research that he could not find any evidence of non-aircrew going on operational air missions. In the case of the Applicant, Mr Piper said that he could not find any evidence (particularly from personal occurrence reports of 58 OBU) that indicated he had flown on operational missions.
22. During cross-examination, it was put to Mr Piper using pp 164 and 190 of the Truscott book by John and Margaret Beasy (excerpts of which were in evidence as Exhibits 7 and 11) that there was an unauthorised passenger in a Liberator that crashed near the airbase (which was the second Liberator crash). Mr Piper’s response was that the unauthorised passenger was never proved, and that an additional identity disc that had been found may have been left on the plane, as occasionally happened. Mr Piper did concede that there was an unauthorised passenger on the other Liberator which crashed. Mr Piper said that he was only aware from all of the research he had undertaken as a military historian of two instances of unauthorised passengers on aircraft. Mr Piper said that after hostilities ended, occasionally ground crew did fly on missions where those aircraft dropped surrender leaflets.
23. The gist of the report from Writeway Research Service dated 11 November 2002 prepared by Air Commodore MJ Brennan (Retired) which forms part of the T Documents (Exhibit 1) is to the effect that the Applicant’s name did not appear in crew lists for Liberator operations as gleaned from Operations Records Books. The only record of the Applicant gleaned from Personnel Occurrence Reports for 58 OBU mentions his posting to the unit and his posting away from the unit. There were no entries located in relation to the Applicant concerning his attachment, or secondment, to any Liberator squadron, the Applicant undertaking any gunnery training, any award of the air gunner’s badge or any payment of crew pay.
Discussion of the evidence
24. At several times during cross-examination, the Applicant said that he could not recall specific details of matters put to him by the Respondent’s advocate. The Tribunal formed the view, based upon its observations of the Applicant as he gave evidence, that the Applicant’s memory was not very reliable and that when he was pressed with specific matters during cross-examination that sought to test the veracity of his evidence and his capacity to recall critical events, his response was to gloss over these questions with evasive or non-specific answers. The Tribunal accepted that the Applicant subjectively believes he flew Liberator missions and that he did his best to give the truth as he recalled it in the course of giving his evidence. The Tribunal formed the impression that the memory of the Applicant was not very reliable, and this is understandable given the passage of time since the relevant events (60 years).
25. The evidence before the Tribunal is that on only two occasions is there a record of unauthorised personnel on operational missions. The evidence of the Mr Ford is that he took part in surrender flight missions, and while the date of these missions is not clearly stated, Mr Ford’s statement does say that it was “near the end after E Day” (which the Tribunal took to mean VE Day).
26. The evidence of Messrs Ford and Johnson and Associate Professor TJ Gygar was not tested forensically before the Tribunal, and so this evidence is of lesser weight and value to the Tribunal than if it had been. The same observation applies to the Writeway Research Service report dated 11 November 2002 which forms part of the T-documents (Exhibit 1). Taken at its face value, Mr Ford’s statement (Exhibit 5) contains evidence where he deposes to personal involvement in what might be termed non-official flight operations involving missions over Japanese controlled areas to the north of Australia. The Tribunal notes that these flights took place after the time that the Applicant was posted away from Truscott and after the end of the timing of hostilities in the European theatre of war and before the cessation of hostilities against the Japanese. Mr Johnson’s statement (Exhibit 6) does not contain evidence that deposes to his personal involvement in non-official flight operations, but merely documents hearsay evidence of his awareness of such occurrences without reference to particular times or occasions. Associate Professor TJ Gygar’s evidence deals with another theatre of war, and it is of less probative value accordingly. The Tribunal was less inclined to attribute any significant weight to the evidence of Mr Johnson and Associate Professor TJ Gygar. Mr Ford’s evidence is of more value in that respect.
Applicant’s Submissions
27. The Applicant submitted that there was evidence before the Tribunal by which it could conclude that ground staff were seconded to fly missions with operational aircraft. The Applicant submitted further that the evidence of unauthorised personnel participating in sorties during the Vietnam conflict provided further evidence that this was an established practice. The absence of any reference to the Applicant flying operationally could be explained by the fact that in the field, departures from established practices did take place that would not necessarily be documented. The Tribunal took this submission to mean an appeal to section 119(1)(h) of the Act. Counsel for the Applicant urged the Tribunal to find that the Applicant had rendered operational service within the scheme of sections 7A and 85(4A) of the Act and so was entitled to a Gold Card.
Respondent’s Submissions
28. The nub of the submissions of the Respondent was directed to the evidence in this case and the contention of Respondent that this Tribunal should find as a fact that the Applicant did not fly on operational bombing missions against the Japanese.
29. The Respondent contended that Liberators were state-of-the-art aircraft in its day, and that the RAAF crewed this type of aircraft systematically with specialist personnel performing highly specialised tasks. It was unlikely that aircraft commanders would use unauthorised personnel because flight captains would be required to record details of people flying on their aircraft. No evidence was adduced that pointed to this contention.
30. The documentary evidence did not point to the Applicant having received appropriate training to equip him for a role on board Liberators. Section 119 of the Act could not be used by the Applicant to assert that the absence of any reference to the supposed service of the Applicant on Liberators is in fact positive evidence that this incident occurred.
31. Official records did not record any evidence or factors pointing towards the Applicant having flown operational missions.
Findings of Fact
32. Based upon the evidence before it, the Tribunal makes the following findings of fact:
A.Mr Colin George Janke-Walker was born on 9 September 1923 and was 81 years of age at the date of hearing.
B.Mr Janke-Walker enlisted in the RAAF on 14 May 1943 and was discharged on 28 February 1946.
C.Mr Janke-Walker was posted to 58 Operational Base Unit, Truscott, Western Australia (58 OBU) on 10 August 1944.
D.Mr Janke-Walker left 58 OBU on 23 May 1945 when he was posted to the Telecommunications Unit, Birdum.
E.Mr Janke-Walker did fly six times on board a Liberator during his service at 58 OBU.
F.On 10 July 2002, Mr Janke-Walker lodged an application for a Gold Card with the Repatriation Commission.
Summary of The Legislative Scheme
33. The entitlement of any veteran to a Gold Card is governed by the Act. In this appeal, sections 7A and 85 govern the Applicant’s entitlement to a Gold Card. Relevant excerpts from these provisions are contained below and were the provisions that were the subject of argument. For its part, the Tribunal is satisfied that no other provisions were applicable in the circumstances of this appeal.
“7A Qualifying service
(1)For the purposes of Parts III and VA and sections 85 and 118V, a person has rendered qualifying service:
(a) if the person has, as a member of the Defence Force:
(i)rendered service, during a period of hostilities specified in paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1), at sea, in the field or in the air in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when the person incurred danger from hostile forces of the enemy in that area or on that aircraft or ship; or
…..
85 Veterans eligible to be provided with treatment
85(4A) A veteran is eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act, if:
(a) the veteran is 70 or over; and
(b)the veteran has rendered qualifying service during the period covered by paragraph (b) of the definition of period of hostilities in subsection 5B(1); and
(c) either:
(i)the Department has notified the veteran in writing that he or she is or will be eligible for such treatment; or
(ii)the veteran has notified the Department in writing that he or she seeks eligibility for such treatment.”
Tribunal’s reasons
34. Section 85 contains the eligibility criteria for a Gold Card. Section 85(4A)(b) refers to a veteran having rendered “qualifying service”. In turn, this invokes section 7A(1)(a)(i), which then sweeps up section 5B(1). In this case, there is no dispute that the Applicant is aged 70 or over (he was 81 years of age at the date of the hearing), and that he rendered service during a period of hostilities specified in paragraph (a) or (b) of the definition of period of hostilities in section 5B(1). An area of debate between the parties is whether this qualifying service coincided with “a time when the [Applicant] incurred danger from hostile forces of the enemy in that area or on that aircraft or ship” within section 7A(1)(a)(i). The Applicant’s contention was that he did so. The way the Respondent joined issue with this contention was to dispute the Applicant’s assertion that he flew operationally.
35. It is necessary for the Tribunal to find, on the balance of probabilities, that the Applicant incurred danger from hostile forces of the enemy in a relevant theatre of war (or an “area”) or on an aircraft or a ship. The only evidence in this case that points to whether the Applicant incurred danger from hostile forces of the enemy in or around Truscott is first, his contention that Truscott was under attack from Japanese aircraft and secondly, his contention that he was fired upon when he was on board a Liberator.
36. The Tribunal considered the Applicant’s assertion that Truscott was under attack from Japanese aircraft. The Tribunal is satisfied, based on the evidence of Mr Piper, that Truscott was never attacked by Japanese aircraft, and so the first contention can be put one side as not established in fact. The Tribunal considered the decision of this Tribunal in Re Maller and Repatriation Commission (1992) AAT 8280; 16 September 1992. This case involved a dogfight on 24 July 1944 between an armed Japanese reconnaissance aircraft and some RAAF Spitfires approximately 4 – 5 miles above the spot on the ground where men were working stacking high octane aviation fuel in munitions and fuel dumps hidden in the bush away from the base. The Tribunal found that the Applicant satisfy the “incurred danger” test. The Tribunal notes that this event took place on 24 July 1944 before the Applicant was posted to Truscott on 10 August 1944, and so Re Maller is accordingly distinguishable.
37. What of the Applicant’s second contention? In this case, the best evidence that the Applicant actually flew on board a Liberator is his own evidence. The evidence of the other persons who provided statements was not tested in cross-examination and the Tribunal finds this evidence to be of little weight and in some cases (such as that provided by Mr Trewgove) to be of little relevance. It is not inconceivable that the circumstances of the Applicant fall into that exceptional category of case where he was “shanghaied” (to use his own word) into service on board a Liberator. The cross-examination of the Applicant did not shake his conviction that he flew on board a Liberator as a gunner. The Tribunal was prepared to find that the Applicant did in fact fly on board a Liberator, as there is some evidence, albeit slender, of unauthorised personnel flying on operational missions.
38. This then leads to the next stage of the case, which is whether the Applicant satisfies the “incurred danger” test within section 7A(1)(a)(i). In Repatriation Commission v Thompson (1988) 44 FCR 20; 9 AAR 203, the Full Court of the Federal Court cited what has become the most persuasive test for “incurred danger” within section 7A(1)(a)(i) where the Court discounted the subjective test and reinforced an objective test of this phrase:
“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. A serviceman does not incur danger by merely perceiving or fearing that he may be in danger.”
39. The Court also elaborated on the statutory requirement for “incurred danger” in these terms:
“The danger incurred must of course be more than a merely fanciful danger or a danger so minimal that the rule of de minimus applies” (at [13]).
“If a serviceman incurs danger from hostile enemy forces, that circumstance is sufficient to satisfy the statutory requirement “(82 ALR 352 at 355).
“Danger is not incurred unless the serviceman is exposed, at risk of or in peril of harm or injury” (82 ALR 352 at 356).
“[Danger] must arise as a direct result of the activities of hostile forces of the enemy… there must be established an actual risk of physical or mental harm” (82 ALR 352 at 356-57).
40. As to the second contention noted earlier, the main evidence before the Tribunal that was supportive of it came from this exchange between the Applicant and his counsel during the evidence-in-chief of the Applicant. In response to a question from counsel “And did anyone fire back at the aircraft?”, the Applicant responded “Oh, I can tell you, they were fair dinkum” (transcript page 13). There was no elaboration in either the evidence-in-chief or the re-examination of the Applicant as to the precise circumstances of being fired upon, whether it came from enemy aircraft, ground anti-aircraft installations or ship-based anti-aircraft installations, or even if the enemy firing was close to or far away from the Liberator. In cross-examination, the Applicant’s answers to questions about his flight experiences and the extent of pre-flight and in-flight air gunnery instruction provided were vague and non-specific. In cross-examination, the Applicant did not repeat his assertion he had been fired upon by the enemy.
41. The contention of being fired upon by the enemy is vague and non-specific and is not supported by other evidence that gives colour to this contention. To respond that the enemy was “fair dinkum” does not assist the Tribunal to any significant extent in its task of applying the statutory criterion whether the Applicant incurred danger. There is no evidence before the Tribunal that the Applicant experienced an actual risk of physical or mental harm. The Tribunal made an allowance for the down-to-earth approach and demeanour of the Applicant, and that this may have shaped the way he gave evidence, but on its own this does not constitute specific evidence of the contention. The evidence of the Applicant on the ultimate fact in issue is unreliable. On reviewing the entire body of evidence before it, the Tribunal is not satisfied that there is sufficient probative evidence that the Applicant incurred danger from hostile forces of the enemy in the air.
42. The Tribunal noted that it gained only marginal assistance from the operation of section 119(1)(h) of the Act in connection with the uncorroborated contention that the Applicant flew on board a Liberator.
Tribunal’s Conclusion
43. In this appeal, the correct and preferable decision of the Tribunal is, based upon the evidence before it, that the Applicant did not incur danger from hostile forces of the enemy within the meaning of section 7A(1)(a)(i). Accordingly, the Applicant is not qualified for a Gold Card within section 85(4A)(b).
Tribunal’s Order
44.The Tribunal decides to affirm the decision under review.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr SC Fisher, Member
Signed: Denise Burton
Administrative AssistantDate/s of Hearing 13 October 2004
Date of Decision 4 January 2005
Counsel for the Applicant Ms B Carter-Nicoll
Solicitor for the Applicant Sciaccas' Lawyers and Consultants
For the Respondent Mr A Harris, Departmental Advocate
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