Kuffel and Repatriation Commission - [2001] AATA 860

DECISION AND REASONS FOR DECISION [2001] AATA 860

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1586

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Mr B Kuffel
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Dr J D Campbell

Date15 October 2001
PlaceSydney

Decision      The decision under review is affirmed
  [Sgd] JD Campbell
  Member
CATCHWORDS
Veteran's Entitlement - Allied Veteran - Incurred Danger - Period of hostilities - Hostile Forces of the enemy.

Veterans' Entitlements Act 1986, ss 5C, 7A.
Marsh v Repatriation Commission (1987) 71 ALR 281
Marsh v Repatriation Commission (1987) 82 ALR 341
Repatriation Commission v Thompson (1988) 82 ALR 352
Nolan v Repatriation Commission (1999) 56 ALD 217

REASONS FOR DECISION

Dr J D Campbell

In this matter, Mr B Kuffel ("the Applicant") seeks a review of the decision of a delegate of the Repatriation Commission ("the Respondent") dated 26 July 2000 which determined that the Applicant was an allied veteran for the purpose of sections 5C and 7A of the Veterans' Entitlements Act 1986, but did not have qualifying service in accordance with section 7A, as he did not incur danger from hostile forces of the enemy during the period of hostilities which ended on 29 October 1945. This decision had waived an earlier decision made by the Respondent, dated 4 May 2000, which determined that the Applicant was not an allied veteran and did not have qualifying service under the Veteran's Entitlements Act 1986.
A hearing was held before the Tribunal on 5 June 2001 at which the Applicant was represented by Mr Sherlock, an advocate from the Veterans' Advocacy Service. The Respondent was represented by Mr Marsh, an advocate from the Department of Veterans' Affairs. The Applicant presented oral evidence to the Tribunal.
The following written material was placed into evidence before the Tribunal.
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975    T1–T4, pp1-35
Statement of Applicant dated 2 February 2001 Exhibit A1
Report by Mr O'Keefe dated 24 March 2001     Exhibit R1
Extract from Explanatory Memorandum Veterans' Entitlements Bill 1985     Exhibit R2

Issues

The relevant issue in this matter is whether the Applicant has rendered qualifying service pursuant to section 7A(1)(c) of the Veterans' Entitlements Act 1986.
Legislation
The relevant legislation is this matter is the Veterans' Entitlements Act 1986 ('the Act') and in particular sections 5C, 7A, 120(4).
Background
The Applicant lodged qualifying service details with the Respondent on 6 March 2000, and again in the appropriate form lodged on 22 March 2000 and in a clarifying letter dated 18 May 2000 in which the Applicant provided the following details:

He was born 25 September 1925, Goszyn, Poland;
He worked as a foreign labourer in Germany from 19 November 1942 to 8 May 1945 (T11, p31);
He enlisted in the Polish Labour Company on 10 September 1945 at Kieferthal, West Germany Training Centre, and remained there until 1 October 1947;
He undertook further service as a driver from 1 October 1947 to 3 June 1949 in Siege, Belgium, and from 3 June 1949 to 16 February 1950 in France;
He was promoted to Pfc on 22 January 1948 and to Cpl on 5 February 1948 (T3, p12);
He was discharged on 16 February 1950 with reason for discharge being emigration to Australia (T3, p12);
The Polish Labour Service Company and individual members thereof were subject to the military law of the United States Army and all uniform regulations under S.O.P. 80 Hq EUCOM dated 26 May 1946 (T3, p14);
The Applicant was formally enlisted, swore on oath, signed enlistment papers, wore military uniforms, carried weapons openly, was subject to a regular military line of command and did not aid or assist any force at war with Australia (T6, p23);
His main duties included fuel transportation, guard duties and the transport of deceased American troops to Antwerp for on forwarding and burial in America (T7, p24); and
Photographs of the Applicant in uniform were included (T8).

In a minute dated 4 May 2000, it is recorded by a delegate of the Respondent that the Applicant stated that he:

Did not encounter any enemy action troops; and
Did not incur danger from the enemy, although he was in dangerous territory (T7,p25).

Applicant's Evidence

In a statement dated 2 February 2002 the Applicant detailed an incident which occurred some two weeks after the enlistment in September 1945.
"In September 1945, about two weeks after I joined US forces, the unit of which I was a member was fired upon when we were guarding an ammunition dump during night time in Mannheim about fifteen kilometres from Kieferthal West where I was stationed. The ammunition dump, which backed on to the Rhine, was about twice the size of Brookvale Oval. About fifteen members of the unit were involved in guarding the dump, about half in guard towers and the rest patrolling the perimeter. I was in a guard tower. The firing lasted for about ten minutes. Nobody was injured. I fired back but into the air. I did not fire at the ground for fear of injuring one of my colleagues. I was trying to frighten the attackers away. I do not know who the attackers were. It was dark; we could not see them; and they escaped without capture. In our discussions afterwards, we assumed they were saboteurs or a small unit still resisting. I am not sure how close the bullets came to me." (Exhibit A1)
In evidence before the Tribunal the Applicant confirmed the events as described in the previous paragraph. The Applicant also indicated the limited amount of training, including weapons training, he had received at the time of the incident. The Applicant explained to the Tribunal that following the unconditional surrender of Axis Forces in Europe on 8 May 1945, he had spend four months in a displaced persons camp, and when the opportunity presented, he was eager to join because he did not like to sit around.
The Tribunal also notes the Applicant's search for his records from the National Archives and Records Services and their response dated 6 January 1983, in which they indicate that they were unable to locate such records and that it may have been destroyed in a fire on 12 July 1973 (T3, p11).
In a report by Mr Brendan O'Keefe, consulting historian, dated 24 March 2001, Mr O'Keefe details the use and composition of labour service companies by the US Army in Europe in 1945 and thereafter, and in general terms details circumstances which are not incongruent with those outlined by the Applicant in terms of general (as opposed to particular) issues. Mr O'Keefe also detailed some evidence of hostile and violent acts following the surrender in May 1945 - with a resistance ring being broken up in Weimar in September 1945, the existence of German anti-Nazi resistance members in the northern summer of 1945 who were intent on the violent de-Nazification of Germany, some violent incidents involving former German soldiers and individual American soldiers concerning the latters fraternising with German women, and hostile incidents involving gangs of German bandits.
Submissions
The Applicant contends that his service with the Polish Labour Service Company as part of the US Army satisfies the criteria nominated within section 5C(1) of the Act and that his forced labour activities for the Germans between 1942 and the unconditional surrender of the Axis Forces in Europe in May 1945 are not activities involving him in being a member of an armed service at war with Australia. In essence the Applicant states that he satisfies all the criteria for being an allied veteran as defined by section 5C of the Act.
The Applicant also contends that he satisfies section 7A(1)(c) of the Act in that he incurred danger while serving at Mannheim in late September 1945.
The Respondent
The Respondent contends that there is no corroboration that the Applicant's service with the Polish Labour Service Company commenced prior to 1 October 1947, and that there is no corroborative evidence that the incident at Mannheim occurred or that the Applicant came under fire.
Further, the Respondent contends that if indeed the Applicant came under fire, any danger thereby incurred did not result from action by hostile forces of the enemy, nor did it occur in connection with war-like operations in which the armed forces of Australia were engaged, and as such the Applicant does not meet the definitional requirements contained with section 7A of the Act for qualifying service.
In summary, the Respondent contends that the Applicant was not an allied veteran nor did he incur danger from hostile forces of the enemy.
Consideration and Findings
In this matter and pursuant to section 119(1) of the Act, the Tribunal is obliged to take into account the fact that the Applicant has experienced difficulties in securing his personal record from the American National Archives and Records Service. It would appear that it may well have been destroyed by fire.
Further in accordance with subsection 120(4) of the Act the standard of proof in this matter is the standard of reasonable satisfaction, that is, the balance of probabilities.
The Tribunal notes that pursuant to section 5B of the Act the period of hostilities for World War II is defined as the period from 3 September 1939 until 29 October 1945 inclusive. The Tribunal also notes that the unconditional surrender of the Axis Forces occurred on 8 May 1945.
Statutory Framework
The Tribunal notes the following statutory framework, within which this matter is to be considered:
"5C   Eligibility related definitions
(1)       In this Act, unless the contrary intention appears:
allied veteran means a person:
(a)who has been appointed or enlisted as a member of the defence force established by an allied country; and
(b)who has rendered continuous full-time service as such a member during a period of hostilities;
but does not include a person who has served at any time:
(c)in the forces of a country that was, at that time, at war with Australia, or in forces engaged in supporting or assisting the forces of such a country; or
(d)in forces that were, at that time, engaged in war-like operations against the Naval, Military or Air Forces of Australia.
…
7A      Qualifying service
(1)       For the purposes of Part III, a person has rendered qualifying service:
…
(c)       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;
…"
In considering all the evidence before it, and having noted the difficulties experienced by the Applicant in attempting to obtain his personal record from the American National Archives and Records Service, the Tribunal is satisfied on the balance of probabilities that the Applicant was an enlisted member of the US Army, and that he had rendered continuous full time service from 10 September 1945 to 16 February 1950, with that part of the service to 29 October 1945 being during a period of hostilities. The Tribunal finds that the Applicant does satisfy section 5C(1) of the Act, in that there is no evidence to suggest that the Applicant's activities in Germany from 1942 to 1945 were other than those of "forced labour". Accordingly the Tribunal concludes that the Applicant was an allied veteran, the combined criteria as nominated by O'Loughlin J in Nolan v Repatriation Commission (1999) 56 ALD 217 having been considered and found by the Tribunal to be satisfied.
In turning to the issue of incurred danger from "hostile forces of the enemy", nominated in section 7A(1)(c) of the Act, the Tribunal notes the following cases:

In Marsh v Repatriation Commission (1987) 71 ALR 281 at p 284, Burchett J stated:
"…the definition refers to "operations against the enemy" and "danger from hostile forces of the enemy". These are plainly practical concepts. That they are so enfaced by the words "operations" and "hostile". The latter work would add nothing to the meaning of the phrase in which it appears if it were to be understood in the sense that the forces belonged to a power with which a state of war exists. It seems to me it is clearly used rather in the sense, in which the word can be used…"engaged in hostilities."
In Repatriation Commission v Thompson (1988) 82 ALR 352 the Full Federal Court cited the test for incurred danger.
"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. A serviceman does not incur danger by merely perceiving or feeling that he may be in danger."
Further the Full Federal Court in Repatriation Commission v Thompson (supra) held that there must be actual danger and that liability to danger is not sufficient.
"Danger is not incurred unless the serviceman is exposed, at risk of, or in peril of harm or injury
…
"Danger" must arise as a direct result of the activities of hostile forces of the enemy." (at p356)

In turning to the facts as outlined by the Applicant in this matter, the Tribunal notes that there had been unconditional surrender of the Axis Forces in Europe from 8 May 1945, but that hostilities as defined by the Act continued to exist until 29 October 1945 inclusive, thereby covering the incident of late September 1945. The Tribunal further notes the activities of the Applicant at the time (guarding a large ammunition dump with others), his location (guard tower), the incident (firing for about ten minutes), his reaction (fired his weapon into the air to frighten the attackers away and not wanting to kill his colleagues), his description of the attackers (unable to identify) and the end result (no guards injured and all attackers escaped).
In analysing this information and adding that guards (including the Applicant) were at the time only two weeks into their training program as recruits, albeit that they had experienced many years of war, the Tribunal makes the following findings:
(a) the Applicant encountered danger in this episode as he was at risk or in peril of harm from unidentified persons, and in the Tribunal's view from friendly fire in view of the early phase of training and limited exposure to weapons training at the time of the incident; and
(b) the identify of the attackers remains unknown, nor is there any evidence or material before the Tribunal which points to or permits the Tribunal to draw an inference that the attackers were members of hostile forces of the enemy. There is simply nothing in the evidence to suggest that any danger in this incident was due to enemy force, with the Tribunal not even being able to infer that the attackers may have been ex-members of the German Armed Forces, let alone being members of the armed forces of the enemy carrying out an activity, consistent with it being an act undertaken by hostile forces of the enemy.
The Tribunal therefore concludes on the balance of the probabilities that the Applicant did not incur danger from hostile forces of the enemy in that while there is objective evidence of "incurred danger", there is apart from supposition by the Applicant no material before the Tribunal which would allow a conclusion on the balance of probabilities that the incurred danger arose from an act undertaken by hostile forces of the enemy.
As a consequence the Tribunal finds that the Applicant does not satisfy the requirements nominated in section 7A(1)(c) of the Act and accordingly has not rendered qualifying service.
Determination
The Tribunal determines that the decision under review be affirmed.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell
Signed:         .....................................................................................
  Associate
Date/s of Hearing  5 June 2001
Date of Decision  15 October 2001
Solicitor for the Applicant         Mr R Sherlock
Solicitor for the Respondent    Mr J Marsh