Kirk and Repatriation Commission - [2001] AATA 676

DECISION AND REASONS FOR DECISION [2001] AATA 676

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2001/25

VETERANS' APPEALS DIVISION       )
           Re      ROBERT PETER KIRK
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date27 July 2001
PlaceHobart

Decision      The decision under review is affirmed.
  [Sgd B W Davis]
  Part-Time Member
CATCHWORDS
Veterans' Entitlements – qualifying service – service pension – determinations – RAAF – Thailand – Malaysia - Mohr Report.
Legislation
Veterans' Entitlements Act 1986 and Amendments ss. 5B, 5C and 7A
Veterans Affairs Legislation Amendment (Budget Measures) Act 2000

REASONS FOR DECISION

27 July 2001 Associate Professor B W Davis AM (Part-time Member)
The Application

The applicant, Robert Peter Kirk, seeks review of a decision made by a senior delegate of the Repatriation Commission on 20 February 2001, affirming the decision of a delegate of the Repatriation Commission of 31 January 2001, which found that the applicant had not rendered qualifying service within the meaning of s.7A of the Veterans' Entitlements Act 1986 ("the Act").
Background
Robert Peter Kirk was born on 5 July 1945 and joined the Royal Australian Air Force (RAAF), on 4 February 1963, being classified as Clerk "A" in rank. His service included an attachment to Base Squadron, Ubon, Thailand from 28 February to 28 August 1964. On return to Australia he transited through Butterworth Base in Malaysia from 28 August to 30 August 1964 for debriefing. He was discharged from service on 21 March 1967, his conduct being classified as very good, but rated as medically unfit for service. He subsequently submitted an application for qualifying service on 24 January 2001, but this was rejected by the Repatriation Commission on grounds that the periods of overseas service were not in a warlike situation for the purposes of sub-section 5C(1) of the Act.
It should be noted that the Veterans' Affairs Legislation Amendment (Budget Measures) Act 2000 extended eligibility for qualifying service at Ubon only to those who served there from 26 June 1965 to 31 August 1968, a period after Mr Kirk's period of attachment. The legislative authority was in the form of an Instrument ("Determination of Warlike Service") issued by Mr Bruce Scott, Minister for Veterans' Affairs, for and on behalf of the Minister for Defence whereby service rendered as a member of the Defence Force in North East Thailand (including Ubon) at any time between 25 June 1965 to and including 31 August 1968 while part of a specified unit, is warlike service for the purposes of subsection 5C(1) of the Act. Among the units listed in the Instrument is Base Squadron, Ubon, RAAF.
In making this amendment, the Commonwealth Parliament agreed with recommendations of the Mohr Report "Review of Service Entitlement Anomalies in Respect of South-East Asia 1955 – 1975". Service from 26 June 1965 to 31 August 1968 would be regarded as warlike service and so attract eligibility for qualifying service. The period from 31 May 1962 to 25 June 1965 was not recommended as satisfying any of the criteria for qualifying service.
Following rejection of Mr Kirk's application for qualifying service by the Repatriation Commission in January and February 2001, he engaged in considerable correspondence with a range of parties, including the office of the Minister, the Commission and the media, pointing out the strategic and personal threats service in South East Asia entailed and expressing dissatisfaction with the way he had been treated. He filed an application for review of decision with this Tribunal on 27 February 2001.
Evidence
At the hearing conducted on 17 July 2001, Mr Kirk represented himself, the respondent was represented by Mr M Castle. Prior to the hearing, the applicant had supplied a video to the Tribunal and respondent, dealing with a number of cases (other than his own) where there had allegedly been victimisation and cover-ups of various incidents. The applicant did not address this material during the hearing or request its inclusion in proceedings.
Mr Kirk was sworn and gave evidence, indicating his disagreement with the Mohr Report's selection of particular dates as qualifying service. He noted many discrepancies in dates provided in the "T" documents and argued this could induce a feeling of conspiracy to deny him justice. He considered that irrespective of service at Ubon, where he was required to engage in guard duties as well as clerical work, the period spent flying back to Butterworth Base in Malaysia and being debriefed there induced fear, since he regarded it as being a war zone, given security arrangements and his belief many strategic threats and hostilities existed in South East Asia. In his view even a few days at Butterworth constituted qualifying service and he considered the Repatriation Commission and the Tribunal should recognise this.
Under cross-examination by Mr Castle he admitted no untoward incident or disturbance had occurred at Butterworth, he had been confined to the base, which was a secure unit. He was specifically asked whether he had been posted or allotted to Butterworth, but responded he was only in transit.
He then queried Mr Castle as to why there were so many errors in documents, the latter replied that the Repatriation Commission had limited staff relative to workload and Mr Kirk had corresponded with a range of people, not all of whom would be familiar with the case. The queries were principally about dates, most errors could readily be shown to arise from typographical mistakes.
Analysis
Mr Kirk appeared to genuinely believe he had served his country well while overseas in South East Asian nations where hostilities could arise at any time. He argued he had not subsequently been treated appropriately, but documents and correspondence before the Tribunal make it clear the Repatriation Commission, Office of the Minister for Veterans' Affairs and others have been at pains to explain legislative provisions and policy, reasons for decisions made and background information which might assist in his own decision-making. In this sense he has received natural justice.
Given the Mohr Report and its subsequent outcome, the Veterans' Affairs Legislation Amendment (Budget Measures) Act 2000, it is evident that his period of service at Ubon between 28 February and 28 August 1964 does not involve a war-like situation and cannot be recognised as "qualifying service" for the purposes of s.7A of the Act.
Mr Kirk also relied upon a claim of fear of flying to Butterworth Base and having to remain there for two days of debriefing in what he perceived to be a possible war zone. But for this claim to succeed his circumstances must meet the test prescribed in s.5B of the Act, namely to have been assigned or allotted to serve in an operational area specifically designated by the Australian government as hostile or in a war-like state. Such allotment must be by written instrument signed by the Vice Chief of the Defence Force or the Minister for Defence or the Minister for Defence Support and relate to a specified period of hostilities. On his own admission Mr Kirk was not in danger during his brief period at Butterworth, nor was he allotted there, but merely in transit. His circumstances thus fail the s.5B test.
The decision under review is affirmed.
I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  17 July 2001
Date of Decision  27 July 2001
Counsel for the Applicant        Mr Kirk appeared on own behalf
Solicitor for the Applicant
Counsel for the Respondent    Mr M Castle
Solicitor for the Respondent    Department of Veterans' Affairs