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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kuffel and Repatriation Commission

Details

AGLC: Kuffel and Repatriation Commission [2001] AATA 860
Case: [2001] AATA 860
Decision Date: 15 October 2001

CaseChat Overview and Summary

The case of Kuffel and Repatriation Commission involved the Applicant, who sought to claim veteran's entitlements under the Veterans' Entitlements Act 1986. The Applicant alleged that he was a member of the US Army during World War II and that he was involved in an incident where his unit was fired upon while guarding an ammunition dump in September 1945. The Repatriation Commission contested the Applicant's eligibility for veteran's entitlements on the grounds that he was not an allied veteran and had not incurred danger from hostile forces of the enemy. The dispute was heard and determined by the Administrative Appeals Tribunal (AAT).

The primary legal issues for the Tribunal to decide were whether the Applicant was an "allied veteran" within the meaning of section 5C of the Act and whether he had incurred danger from hostile forces of the enemy during a period of hostilities. These issues hinged on the interpretation of statutory definitions and the weight of evidence provided by the Applicant regarding his service and the incident in question.

The Tribunal considered the statutory definitions and the evidence provided. It noted the difficulties the Applicant faced in obtaining his personal records from the American National Archives and Records Service, which may have been destroyed in a fire. The Tribunal concluded that the Applicant was an enlisted member of the US Army and had rendered continuous full-time service from 10 September 1945 to 16 February 1950, with part of this service occurring during a period of hostilities. The Tribunal found that the Applicant satisfied the criteria of an allied veteran, as he had not engaged in activities contrary to the definition, and that he had incurred danger from hostile forces during his service. The Tribunal applied the standard of proof as reasonable satisfaction, and found in favour of the Applicant on both issues.

As a result of its findings, the Tribunal determined that the Applicant was eligible for veteran's entitlements under the Act. The Repatriation Commission's objections were dismissed, and the Applicant's claim for entitlements was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.