Lam and Repatriation Commission - [2001] AATA 163

DECISION AND REASONS FOR DECISION [2001] AATA 163

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/772

VETERANS' APPEALS DIVISION )

Re Van Dung LAM
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr J D Campbell, Member Rear Admiral A R Horton, AO, RAN (Rtd) Member

Date5 March 2001
PlaceSydney

Decision The Tribunal sets aside the decision of the Repatriation Commission dated 6 May 1998, and in substitution determines that Van Dung Lam has rendered qualifying service in accordance with s7A and Schedule 2 of the Veterans' Entitlements Act 1986 ("the Act") and that he is an allied veteran as defined by s5C(1) of the Act.

..............................................
M T Lewis
Presiding Member
CATCHWORDS
VETERAN'S AFFAIRS – service pension – whether rendered qualifying service - whether allied Veteran – whether Veteran served in the Army of the Republic of South Vietnam between 31 July 1962 and 11 January 1973 – whether Veteran born in 1950 or 1956 – whether reasonably satisfied Veteran born in 1950

Veterans' Entitlements Act 1986 – ss 5B(e), 5C(1), 7A, 120(4), Schedule 2

Macedonian Teachers Association of Victoria Inc v Human Rights & Equal Opportunity Commission & Anor (1998) 91 FCR 8
Repatriation Commission v Smith (MJ) (1987) 15 FCR 327

REASONS FOR DECISION

Mrs M T Lewis, Senior Member Dr J D Campbell, Member Rear Admiral A R Horton, AO, RAN (Rtd) Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 6 May 1998 pursuant to s175 of the Veterans' Entitlements Act 1986 ("the Act") that determined that Van Dung Lam ("the Applicant") had not rendered qualifying service in accordance with Schedule 2 of the Act and therefore he was not an allied veteran as defined by s5C(1) of the Act.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). The following documents were tendered as evidence on behalf of the Applicant –

Statement of the Applicant dated 3 February 2000 (exhibit A)
Original Letter of Authority to Travel to Australia for the Applicant (exhibit B)
Original Letter of Authority to Travel to Australia for the Applicant's wife and daughter (exhibit C)
Statement of Can Le-Dang dated 20 February 2000 (exhibit D)
Statement of Nguyen The Sung dated 25 January 2000 (exhibit E)
Statement of Trinh Thi Phung dated 25 January 2000 (exhibit F)
Statement of Glenda Lam dated 3 February 2000 (exhibit G)
Statement of Caroline Veldhuizen dated 16 March 2000 (exhibit H)
Clinical records of Dr S K Law, consultant psychiatrist (exhibit J)
Report of Dr H Pope, general medical practitioner, dated 26 August 2000 (exhibit K)
Statement of Doan Ba Cang dated 28 July 2000 (exhibit L).

The following documents were tendered as evidence on behalf of the Respondent –

Photograph of Applicant with Prime Minister of Vietnam (exhibit 1)
Medical report of Dr R D Lewin, psychiatrist, dated 19 April 1999 (exhibit 2) and clinical records (exhibit 5)
Minute from Simon Aungle, Project Officer, Income Support Section, Department of Veterans' Affairs, dated 25 March 1998 (exhibit 3)
Minute from Paul Davis, Department of Veterans' Affairs, dated 11 March 1998 (exhibit 4)
Documentary video film entitled The Vietnam War: a descent Into Hell (exhibit 6).

Oral evidence was given with the assistance of a Vietnamese interpreter by the Applicant, Nguyen The Sung, Trinh Thi Phung and Thi Tu Lam. Oral evidence was given without an interpreter by Glenda Lam, Can Le-Dang, Doan Ba Cang and Dr Shiu Kwong Law.
background
The Applicant made an application to the Respondent on 12 August 1996 to determine whether he had qualifying service. He was accepted as an "allied veteran" on 13 September 1996. He subsequently lodged an application for service pension on 26 September 1996, on grounds of permanent incapacity. On 6 December 1996, a delegate of the Respondent determined that the Applicant and his wife be paid service pension with effect from 26 September 1996 on the grounds that the Applicant was permanently incapacitated.
A review was undertaken by the Respondent subsequently to examine the Applicant's continuing eligibility for service pension after having discovered inconsistencies in the documentation provided by the Applicant regarding his proof of identity. On 6 May 1998, a delegate of the Respondent determined that the Applicant was not an "allied veteran" for the purposes of meeting the definition of "qualifying service" in s5C(1) of the Act. The determination made on 6 December 1996 was revoked and the Applicant's and his wife' s pensions were cancelled from 26 September 1996.
legislation
The provisions for "qualifying service" in s7A of the Act, insofar as relevant, state -
(1) For the purposes of Part III and sections 85 and 118V, a person has rendered qualifying service:
(a) , (b) ...
(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.
Section 5C of the Act provides the definition of "allied veteran" -
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.
Section 5B(1)(e) of the Act defines "period of hostilities" viz. -
(1) In this Act, unless the contrary intention appears;
period of hostilities means:
(a) – (d) …
(e) the period of hostilities in respect of war-like operations in operational areas from 31 July 1962 to 11 January 1973 (both included).
The operational areas pertinent to sections 5B, and 7A(1)(c) are provided in Schedule 2 of the Act. The operational area in issue, and defined by Schedule 2, is Vietnam (Southern Zone), during the period 31 July 1962 to 11 January 1973.
The standard of proof to be applied in this matter, pursuant to s120(4) of the Act, requires the Tribunal to determine the matter to its reasonable satisfaction.
issues to be determined
The only issue for the Tribunal to determine in these proceedings is whether the Applicant is an "allied veteran" pursuant to s5C(1) of the Act. That issue was confined further, by agreement between the parties at the hearing, to a factual determination of the Applicant's date of birth and its consequential effects.
It is the Applicant's case that his date of birth is 1 January 1950, that he reached the minimum age of 18 years to enlist in the forces of the Republic of South Vietnam in April 1968, and that he remained in the army until 1974. This date of birth would allow the Applicant's service to fit within the time required in Schedule 2 to the Act.
It is the Respondent's case that the Applicant's date of birth is 1 January 1956, the effect being that he would not fulfil the time requirements in the Act and therefore he did not render qualifying service. The parties agreed that the minimum age for enlistment in the armed forces of South Vietnam was 18 years. The parties agreed that there was no issue regarding the Applicant's medical eligibility to receive service pension.
evidence
Applicant
In a written statement dated 3 February 2000 (exhibit A) the Applicant stated he was born in 1950 in Vietnam, that he joined the South Vietnamese Army at the age of 18 years, and that he undertook the following Army duties -
In 1968 I underwent basic training in the Army for three months and then I was sent to serve at Kien Thanh. I remained serving at that post until 1975. One of my duties was to ensure that a bridge over the Rach Soi river was kept secure. A friend, and fellow soldier, Nguyen The Sung was injured at that time.
However my main duty as a soldier was to act as a bodyguard to high ranking army officers and other officials, such as Prime Minister Khiem. I first acted as a security officer for Khiem when he was an army officer around 1970. I actively engaged the enemy in combat in 1969, when my troop was ambushed in a field, and in 1970, or 1971, when our convoy was again ambushed.
In his oral evidence he said he was conscripted at the age of 18 years sometime after April in 1968. In response to specific questions from the Tribunal the Applicant provided the following detail about his service, seemingly without faltering. He undertook three months training in Cheldoc and thereafter was placed in 4 Corp at Keetun sub-station. His commander was Major Ling Vul Dang. He said Lieutenant Colonel Van Ng was his province chief. Other areas in which he served included Yuk Tong village, Mung Tong village, Min Long, Tuk Ow, Tuk Rang and Sok Soi, depending on what tasks were assigned to him by Major Ti, his "boss". It was the Applicant's task to drive Major Ti around those areas.
The Applicant said at one point in his evidence that the only injury he sustained while in the Army was to his right knee and left leg. He said that the left leg injury was not sustained "during battle". It required surgery. At another point in his evidence he admitted that he suffered shrapnel wounds also, but said he had no operation for those injuries. However at another point in his evidence he said that he had suffered several other injuries. He agreed that he told Dr Lewin that he had a number of different operations. His evidence about the extent and occurrence of his injuries was quite confused, and he appeared unmotivated to give full details to the Tribunal.
The Applicant identified himself in a photograph with Prime Minister Khiem (exhibit 1). He said the photograph was taken about 1974. He also said when he was a security guard he was not required to wear a uniform.
The Applicant's evidence was that he married in 1974 and left the Army on 30 April 1975 after having served for 7 years. After that he went to a re-education camp at Ting Tung and then to a hard labour camp at Tuk Ow for two months. After being released from that camp, he returned home and worked as a labourer.
The Applicant said that two years later he and his family went to Thailand as refugees, but in his written statement (exhibit A) he indicated that this was in 1979. He said that upon arrival he was interviewed by a camp official, at which time the Applicant advised that his year of birth was 1956 and that he had only been in the Army for a very short period in 1974. The Applicant said that he used 1956 as his year of birth because he wanted to conceal his identity. He said he was in knowledge of particular facts that if revealed would have placed his safety in real jeopardy. Essentially he said he feared reprisals from former soldiers and also from the communist informers and sympathisers in the refugee camp. The Applicant provided details of this issue in his evidence, and in the circumstances the Tribunal agreed to his request to make an Order pursuant to s35 of the AAT Act prohibiting the disclosure of that evidence.
In his oral evidence the Applicant said he recalled carrying some documentation relating to proof of his identity when he arrived at the refugee camp. He said these were "fake documents" used with the intention of concealing his identity for the reasons explained above.
The Tribunal notes that in the Applicant's interview with Mr Davis of the Department of Veterans' Affairs held on 11 March 1998 (exhibit 4) he said that the 1956 date was provided on the photocopied Letter of Authority because he was confused and in shock when he was in the refugee camp, and that he tried to keep the date of birth consistent with the date on his Immigration and Refugee Statement. At that interview, on further questioning, he then said he was unable to remember.
The UNHCR Registration Form that the Tribunal understands was used by UN officials when interviewing potential applicants to travel to Australia (T31, p74) records the Applicant's birth year as 1956. The Applicant said in his oral evidence that he did not fill out that form; rather, the details were completed by an interpreter.
The Applicant's evidence to the Tribunal was that his assertion to the UN officials that he was born in 1956 was corrected by two events that occurred when he was in Bangkok before he came to Australia. The first is that he submitted his photograph for the purpose of a Letter of Authority for Travel to Australia (exhibit B), which was subsequently attached to the original Letter of Authority. He said that when viewed in strong light, his true date of birth, that being 1 January 1950, was recorded on the back of the photograph, in his own handwriting. The Applicant said that until 25 January 2000 he forgot he had signed the back of the photograph. He also said that he did not know the birth date was written on it when he showed the original Letter of Authority to the Respondent when an officer of the Department of Veterans' Affairs requested to see it. He said that when he applied to the Respondent for a service pension he gave the correct information with respect to his year of birth and military service details.
The second event was that when Mr Le-Dang, who was working as an interpreter with the Australian Embassy in Bangkok at the time, handed the Applicant the original Letter of Authority (which indicated his birth date as 1 January 1956) in about June 1979, the Applicant advised him that the wrong birth date was written on that original letter. He alleged that he said to Mr Le-Dang, "my year of birth is wrong", and Mr Le-Dang told him, "It will take a long time to correct it in Thailand. Travel to Australia and have it corrected later", which the Applicant did. The Applicant said that although the date of birth cannot be read on the face of the original Letter of Authority (exhibit B), he did not intentionally alter the document in any way; rather, the document had worn badly with the passage of time. The Tribunal notes that in the Applicant's interview with Mr Davis when he was asked the same question, he was unable to explain the reason for this (exhibit 4). In his oral evidence to the Tribunal, the Applicant said the Letter of Authority was first given to him by Mr Le-Dang when he was in Thailand.
The Tribunal notes that the Applicant's application for a mortgage loan dated July 1994 states that his year of birth is 1956 (T33). In cross-examination, the Applicant explained that because of his limited ability to read and write English, his daughter Glenda completed that form. He also said that at the time of lodging that application, the only document in his possession that showed his date of birth was the original Letter of Authority to come to Australia bearing the 1956 date.
The Applicant's Certificate of Australian Citizenship (T32, p83) also records his date of birth as 1956. He recalled obtaining it in about 1980, but was unable to recall whether he had it when he completed his loan application. Again the Applicant explained that he had no other personal documents which showed his date of birth at that time.
The Applicant first obtained a driver's licence in 1980. His current driver's licence indicates 1950 as his year of birth (T38, p89). He explained that in 1995 he tried to correct his date of birth on the Letter of Authority in order to obtain a new Certificate of Citizenship from the Immigration Department. He then took his new Certificate of Citizenship to apply for his current driver's licence. In his interview with Mr Davis (exhibit 4) the Applicant said that he had the date of birth changed on his Certificate of Australian Citizenship by attending the Department of Immigration with the "leader of this refugee group" to make a statement.
The Applicant said he asked his relatives in Vietnam to send him his documents, and his Birth Certificate and Marriage Certificate was posted to him some five to seven years after coming to Australia. In his interview with Mr Davis (exhibit 4), who assumed that the Applicant had kept his Marriage Certificate in his possession ever since his marriage, he was unable to explain how he was able to produce it at that time and not previously. The Marriage Certificate shows his date of birth as 1950 (T22). The birth certificates of two of his children show that in 1992 he was aged 37 years, and in 1982 he was 27 years (T20 and T21), indicating that his year of birth was 1956.
In cross-examination the Applicant explained that the only documents that he had at the time he sent for his Marriage Certificate were his "old documents" that he had when he came to Australia. The Tribunal interprets this to mean the Letter of Authority and then later the Certificate of Citizenship. On the basis of these documents he obtained a Driver's Licence, and about 1995 he had his date of birth changed on his Driver's Licence to 1950, using his amended Certificate of Citizenship for this purpose. He also said that the information on his daughter's birth certificate was provided by his wife in accordance with documents he had at the time, indicating his birth year of 1956. The Tribunal notes that this evidence is contrary to that at T20, T21 and T22. The Tribunal also notes that the Applicant himself was the informant in respect of his youngest child's Birth Certificate provided on 24 August 1992. In his interview with Mr Davis (exhibit 4) the Tribunal notes that the Applicant said he did not understand the documents and he used the age he gave because it was on all his other documents.
The Applicant said that he did not bring his Birth Certificate with him when he arrived in Australia but his relatives sent it to him sometime later. However he said that at present he cannot find it and is unable to obtain another copy because he no longer has any relatives living in Vietnam, nor is able to ask the authorities in his Province for another copy because of the communist regime.
The Applicant does not consider himself to have a drinking problem. He said he drinks only occasionally at parties, weddings and other social functions with friends. He ceased drinking when he started taking medication. However the Tribunal notes Dr Lewin's report dated 19 April, 1999 (exhibit 2), in which the following was recorded -
I questioned Mr Lam in detail about the use of alcohol. He reported that he drinks every day and that he often gets drunk. I calculated that he drinks twenty standard drinks a day and that there are many binges where he drinks a great deal more. He told me "we drink until we do not know…". Mr Lam reported that he drinks " all the time". He reported that there were frequent episodes of blackouts that occur at times when he drinks more heavily. He told me that he meets with former comrades in arms and drinks with them. Mr Lam has repeatedly disgraced himself when drinking and he told that he is aggressive and much more belligerent when drunk. Assaults upon his family occur at these times.
He told me that there have been no periods of sobriety lasting more than two days. He noted "when I am drunk, I forget". When he attempts to withdraw he experiences tremor nausea and diarrhoea. He reports a history of haematemasis and melena as well as swelling in the legs. He has been repeatedly advised to cease drinking by his wife, family members, Dr Pope and his treating psychiatrist.

That account is inconsistent with the Applicant's oral evidence to the Tribunal. The Applicant explained that he never told Dr Lewin that he had a problem with alcohol and that he often got drunk in Australia, but rather that he drank occasionally with his friends, but he used to drink a lot when he was in the Army. He said that the interpreter did not arrive at the examination until one hour after it had commenced, by which time the examination was almost over. He recalled the interpreter was Doan Ba Cang. The Applicant said he told Dr Law that when he first arrived in Australia nine years ago he drank heavily and Dr Law advised him to cut down his habit. The Tribunal notes the report of Dr Law dated 13 September 1996 (T16, p54) where it was stated that the Applicant consumed an average of five bottles of beer every day. The Applicant said that assertion made by Dr Law was incorrect, and that he did not tell him that he drank every day, but rather that on one recent occasion he "had about four to five bottles of twist top". He said that he only meant "sometimes".

The Applicant said he does not work now. He used to be an electrician and a process worker. Although he has no official qualifications as an electrician, he said he used these occupations when completing his documentation to get a Letter of Authority to Travel to Australia. His first job in Australia was as a general labourer with a friend in a refrigeration business.
In respect of the interview conducted between Mr Aungle of the Department of Veterans' Affairs and the Applicant on 11 March 1998, the Applicant said in his oral evidence that an interpreter was present throughout the interview with Mr Aungle and Mr Davis (exhibit 4).
Thi Tu Lam
Mrs Lam is the wife of the Applicant in these proceedings. She did not provide a written statement but gave oral evidence. She married the Applicant in 1974, but first met him in 1972, at which time she said he was in the armed forces of South Vietnam. She was aged 17, and she said the Applicant is 5 years older than her. For the two years before they married they dated and saw each other every week. On most of those occasions he appeared in uniform, although there were occasions when he would pick her up while wearing civilian clothes. She was never aware of the Applicant going to work in civilian clothes. She said at that time he drank alcohol but not "a lot". She did not know what duties he undertook.
Mrs Lam said she received her Letter of Authority to Travel to Australia (exhibit C) at the refugee camp in Bangkok. She also identified the photographs on that letter as her own and her daughter and that they were taken when she came to Bangkok. She said the Applicant's photograph was taken at the same time as these. She was not aware that there was handwriting on the back of the Applicant's photograph (exhibit B) and did not know whether her photograph had any writing on the back. Mrs Lam explained that when she and her family left Vietnam, all the documents in her possession, including wedding photographs, were stolen. She said they took as many personal papers as they could, but she was unable to recall specifically which documents they were, nor was she able to remember whether they had left some papers in Vietnam. She was unaware that the Applicant made arrangements for documents to be sent to them from Vietnam after they came to Australia.
Mrs Lam also said that when she married the Applicant his appearance was similar to that as it appeared in exhibit 1.
Mrs Lam does not consider the Applicant has an alcohol problem. She noted that he drinks occasionally at weddings, parties and in other social situations. She has never known him to be aggressive or belligerent on those occasions. She did say, however, that the Applicant has assaulted members of the family, but not when he was drinking. She said the Applicant has never had a problem vomiting blood, but that he has had a problem with respect to passing blood from his bowels for a number of years, for which he saw a doctor who advised him that he needed to take medication.
Glenda Lam
Ms Lam is the daughter of the Applicant. In her statement dated 3 February 2000 (exhibit G) she said that in 1996 the Applicant asked her to prepare an application form for qualifying service. She wrote the Applicant's date of birth on that form as 1 January 1950 which she obtained from his Certificate of Australian Citizenship. In her statement she explained that the Applicant's Letter of Authority for Travel to Australia (exhibit B) was "badly worn and marked". She said that when she examined that document in August 1996 she was unable to read his date of birth and the place of birth was incomplete. She retyped his date and place of birth on a piece of paper using her computer at home and then placed this on a photocopy of the Applicant's original Letter of Authority. She then made an additional photocopy of the document so that the date and place of birth could be clearly seen on the final copy. Ms Lam said the Applicant was unaware that she had prepared an amended Letter of Authority because she did not tell him.
With respect to the claim form for service pension (T10, p39), Ms Lam said she filled in the details, except for the names, without any instructions from the Applicant. However, she said that she read the document to him, including the declaration.
The Tribunal notes that in her statement (exhibit G) Ms Lam said that on 25 January 2000 she also looked at the photograph on the Letter of Authority in a strong light and noticed for the first time the handwriting of the Applicant on the back of that photograph.
Trinh Thi Phung
In her statement dated 25 January 2000 (exhibit F), Ms Phung said she has known the Applicant since she was aged 12 years. The Applicant's family lived approximately 500 metres from her family until she married in 1967 after having left school in the same year. She was in primary school when she first met the Applicant. He went to the same secondary school as she did and he was in the same class as her sister who was 3 or 4 years younger than Ms Phung. She recalled the Applicant joined the army but was unable to remember the exact year. However she noted that her sister was working at the time. On return visits to her family between the time that her sister left school and commenced working she recalled seeing the Applicant in military uniform. In oral evidence she was uncertain as to the first time she ever recalled seeing him in uniform. However it was before she was married (in 1967) and before the communists came into power in Vietnam. Her contact with the Applicant was limited after her marriage as she moved away from her family. At present, she sees the Applicant only occasionally. In her oral evidence Ms Phung thought that both the Applicant and her sister continued at school to about the same age as she did, but she was unable to give any definite indication that this was the case.
Can Le-Dang
Mr Le-Dang prepared a statement dated 20 February 2000 (exhibit D). He was born in Vietnam and worked there as an English teacher. In March 1979 he went to Thailand as a refugee and after two months in the refugee camp he obtained employment as an interpreter with the Australian Embassy in Bangkok where he remained working until November 1979. His duties involved travelling to the refugee camp as an interpreter with an officer of the Australian Immigration Department when Vietnamese applicants were interviewed. At the Embassy his duties involved preparing Letters of Authority to Travel to Australia from Embassy records and the United Nations document (p74) for those who had been accepted as refugees. Mr Le-Dang explained that potential applicants were then called to a holding camp in Bangkok in order to obtain the authority to depart to Australia.
Mr Le-Dang noted in his statement (exhibit D) that he handled all these letters and spoke to all the applicants once they arrived in Bangkok. He requested that they obtain photographs of themselves to be attached to the letters. He was responsible for obtaining all the signatures for those documents. He stated that the person's name was always written on the back of each photograph but he could not recall whether the date of birth was also written. However, when he examined this Applicant's Letter of Authority (exhibit B) and held a strong light to the face of the form, he said he could read on the back of the photograph that the date of birth had also been included, and then recalled that it was normal practice to include the date of birth as well as the name on the back of the photograph. He said he saw the words in Vietnamese "sinh ngay" (which translate to 'date of birth') and the numbers "1.1.50" written on the back of the Applicant's photograph.
In his oral evidence Mr Le-Dang said that he spent only about one or two minutes interpreting for the Applicant in the two days he was interpreting at the refugee camp. He said that he was required to interpret for about 50 families. Mr Le-Dang admitted that he did not know the Applicant at that stage. He said that the Applicant approached him after the interview to complain that his date of birth recorded on the Letter of Authority was not correct. Mr Le-Dang said he advised the Applicant that this was a minor matter and that having it rectified at that time would only delay his departure to Australia. The next time he saw the Applicant, was in Bangkok some two weeks later at the holding camp about 3 or 4 times in a period of a week. He said the Applicant was in the group of some 25 to 50 refugees to whom he spoke. He did not speak with the Applicant alone.
Mr Le-Dang was confident that although he had seen the Applicant for only a short time he remembered him "well" because of the conversation about his incorrect date of birth. After their respective arrivals in Australia Mr Le-Dang first met the Applicant again in about 1980 at a refugee hostel in Cabramatta that he attended "as a bilingual information instructor" to teach refugees. At this time the Applicant introduced himself as the person who had the wrong date of birth on his Letter of Authority. Since then he has met the Applicant a few times socially, and about July 1998 he recalled meeting the Applicant in the street. When he was told thenof the Applicant's present difficulty with the Respondent about his date of birth Mr Le-Dang introduced him to a solicitor who was well known to him, to assist him. The Tribunal notes that on the Form 1 for application for review by this Tribunal (T1), in addition to the telephone number and address of the Applicant, the telephone number of "Mr Cam – friend of Mr Lam" was added to the form. Mr Le-Dang was asked by the Tribunal how often he had seen the Applicant since coming to Australia. He replied:
Well, not often because I had nothing to do with him, apart from his complaint and then I have no business with him. I only met him occasionally, that is all.
In his statement, Mr Le-Dang certified that the Letter of Authority with the year of birth as 1956 (T31, p78) was a copy of the office copy of the Applicant's letter of authority which was kept on file at the Embassy in Bangkok.
In oral evidence, Mr Le-Dang said that the UNHCR form at T31, p74 would have been used by the Immigration Officer at the refugee camp when interviewing potential applicants at the refugee camp. Mr Le-Dang said that no attempt was made during the interview to verify the identity of the person, and that the only questions asked related to the person's education standard, English speaking ability and work capacity. He said age was not a significant factor. He said that the Immigration Officer was interested only in the name and they assumed that the date of birth given was the correct date of birth.
Mr Le-Dang said he was unable to correct the year of birth on the letter of authority because it had already been signed by the Australian official. Mr Le-Dang said that he was advised by the Applicant that the incorrect year of birth was recorded on the Letter of Authority prior to it being completed. Mr Le-Dang, in his written statement (exhibit D), said it was his duty to prepare Letters of Authority to Travel to Australia and that he worked with a "Thai national" who was also an employee of the Embassy when doing this. However, in his oral evidence he said that the "Thai national" prepared the Applicant's letter in this case and that he (Mr Le-Dang) did not notice the discrepancy. In this case he said he did not check the date of birth on the back of the photograph.
Mr Le-Dang identified exhibit 1 as the Applicant and the former Vietnamese Prime Minister. He presumed that the photograph was taken "earlier" than the photograph of the Applicant taken in the refugee camp in Thailand.
Nguyen The Sung
In a statement dated 25 January 2000 (exhibit E), Mr Nguyen said that after undertaking military training in early 1973 at the age of 21 years, his first military posting in South Vietnam was Kien Thanh, where he initially met the Applicant. He was exempted from enlisting in the Army until 1973 because he was studying. His duty was to serve as a sentry in the rank of a private soldier. The function of his unit was to provide security and protect the bridge over the Rach Soi river against mining by the Viet Cong.
In his statement (exhibit E) he said that he served with the Applicant for about 5 months in 1973 and they became friends. In oral evidence he said they met "coincidentally" on various occasions after work and drank beer together. He understood that the Applicant had served in the region for the previous two years, but they were in different units. Mr Nguyen said that when they first met he thought the Applicant was older than him by a year or two. Through his conversations with other soldiers he became aware that there had been fighting in that region during the period the Applicant had been there but the Applicant rarely if ever discussed his previous army service or any conflicts in which he had been involved. He understood the Applicant's duties involved working as an aid or assistant for higher officials and he recalled on one occasion the Applicant said to him, " I am favoured by higher ranking officers and if you need any help you should let me know".
In oral evidence he said that when he saw the Applicant early in 1973 the Applicant was in uniform. He understood from the Applicant that he was deployed as a bodyguard for VIPs. In October/November 1973 Mr Nguyen was injured when the bridge was destroyed by a mine.
Mr Nguyen identified the people in exhibit 1 as the Applicant and "Khiem", a "very important person". He had not seen the photograph before and suggested that it was probably taken after he met the Applicant, or just before he met him. He noted that the Applicant appeared to be younger in the photograph than when he knew him, when he was a little thinner and his hair was shorter. Mr Nguyen also made similar remarks with respect to the photograph at exhibit B. He said "he was darker and his hair was much shorter and he appeared to be older" when he met him, compared with the photograph.
Mr Nguyen said that he did not see the Applicant again until 1995 at a wedding. On that occasion he asked the Applicant whether he had worked in Kien Thanh. Since then he has met the Applicant only three or four times when Mr Nguyen and his family went shopping in 1999.
In his statement (exhibit E) Mr Nguyen noted that he never saw the Applicant drink heavily or become drunk. On one occasion in 1999 he asked the Applicant to join him for a drink, at which time the Applicant replied "I have quit smoking and drinking", and since that time the Applicant has refused similar invitations with similar responses.
Doan Ba Cang
Mr Cang provided a written statement dated 28 July 2000 (exhibit L) that was amended when he gave his oral evidence at the hearing. In his statement he said that from 1954 until the time of his arrival in Australia in 1974 he worked for the Vietnamese Government as a public servant in the Ministry of Foreign Affairs. Usually he had overseas postings, but after having spent a year in Saigon in the Prime Minister's Office in 1967/68 he returned to Vietnam briefly in the early 1970's. He said he recalled seeing the Applicant on many occasions during that visit. He said the Applicant served as a bodyguard to Prime Minister Khiem and was dressed in military uniform. Mr Cang said that he also travelled regularly to and from Vietnam in the early 1970's and on those occasions he often saw the Applicant during his duties as bodyguard.
Mr Cang said he did not see the Applicant from that time until early in 1999 when the Applicant attended a consultation with Dr Lewin in April 1999 and Mr Cang was present as an interpreter. He said that the Applicant said to him when he saw him "You are uncle Cang?" and showed him a photograph of himself with Prime Minister Khiem. Mr Cang said he then recalled having seen the Applicant previously in Vietnam. He also noted that the term "uncle", used as it was by the Applicant, was merely a gesture of respect to him as an older person whom the Applicant knew.
In cross-examination Mr Cang commented on seeing the photograph of the Applicant with Prime Minister Khiem (exhibit 1) that the Prime Minister appeared to have aged compared with when he knew him in 1970. Mr Cang also noted that Prime Minister Khiem has visited Australia in 1988 and perhaps also in the mid 1990s, and he was aware that the Prime Minister had the practice of visiting his former staff when he was in Australia.
Dr Shiu Kwong Law
Dr Law said that he has been the Applicant's treating psychiatrist since August 1996, having been referred by Dr Pope. The Tribunal notes that all records of the Applicant's date of birth recorded by Dr Law were 1 January 1950 (exhibit J). Dr Law obtained a history on 28 August 1996 (T15) that the Applicant drank up to ten bottles of beer every day in an attempt to calm himself. He had arguments with his wife over trivial matters and felt sorry afterwards. It was noted that he was an anxious and depressed man, who became more apprehensive and dejected on giving an account of his war and re-education camp experiences.
Dr Law's clinical notes dated 7 July 1999 (exhibit J) showed that the Applicant said he was trying to cut down on his drinking. He was drinking 5 beers a day, but previously had been consuming 8 or 9. In another entry dated 1 March 2000 it was recorded that the Applicant had cut down his drinking a lot, especially lately. It was noted that he was worried about "legal appeal outcome". He was dejected and anxious about the hearing, and was counselled.
In his oral evidence Dr Law said that he had never seen the Applicant intoxicated. He understood that he had been consuming large quantities of alcohol from about 1993, that he had difficulty sleeping and so he took alcohol to help him to sleep, and when he had fights with his family he felt distressed and then took alcohol. At one point in his evidence Dr Law said he was not aware of any difficulty with the Applicant's memory but at a later point he referred to the Applicant's forgetfulness.
In cross-examination Dr Law said he understood that the Applicant had been injured by shrapnel arising from two incidents, resulting in scars on his lower limbs. Dr Law was not aware that the Applicant had been a bodyguard for Prime Minister Khiem. He understood that the Applicant suffered from bad dreams, some of which related to his time in the army, but Dr Law was not aware of the details of the dreams. He noted that the Applicant was in the army from 1968 to 1975. He also commented that some people who had not been in the army had nonetheless been detained and tortured because of their political views.
Dr Law understood that the Applicant was in the Vietnam re-education camp for about 1½ years, where he was beaten and put in a pool of water. He considered that the Applicant suffered from post traumatic stress disorder arising from his service in the army and his torture in the re-education camp.
Dr Pope

Dr Pope provided a report dated 26 July 2000 (exhibit K) in which he noted the Applicant's date of birth as 1 January 1950, and that he had attended Dr Pope's surgery since 2 September 1996. He had no record of the Applicant having any significant alcohol consumption problem. On 28 March 2000 he diagnosed "agitation, PTSD/depression".
Dr Lewin
The Respondent arranged for the Applicant to see Dr Lewin, psychiatrist, who provided a report dated 19 April 1999 (exhibit 2). He noted that the first hour of the interview was conducted with the Applicant on his own and the balance (45 minutes) with the assistance of a professional interpreter.
Dr Lewin noted the history of the Applicant's nightmares, but doubted the reliability of that history because the Applicant described them as representing exact scenes of what had happened to him rather than being highly symbolic and representational in quality.
Dr Lewin obtained a history to the effect that the Applicant drinks every day and often gets drunk. Dr Lewin calculated that the Applicant drank 20 standard drinks a day, and that he had many "binges" where he drank a great deal more. He reported frequent episodes of blackouts when he drank more heavily. He said he drank with his former comrades in arms. He became much more belligerent when drunk, and assaults upon his family occurred at those times. He had no periods of sobriety lasting more than two days. He experienced tremor, nausea and diarrhoea when he attempted to withdraw from alcohol. He reported haematemasis and melena, and swelling in his legs. Dr Lewin recorded -
He has been repeatedly advised to cease drinking by his wife, family members, Dr. Pope and the treating psychiatrist.
Mr Lam acknowledges that he has a significant drinking problem.
He has attended Alcoholics Anonymous and was referred to a clinic for detoxication. He stayed only one day before leaving because he craved alcohol.
Dr Lewin obtained a history that the Applicant had undergone surgery on a number of occasions in Vietnam following wounds he received in combat, and that he had "internal fixations in his left leg secondary to such an injury". Dr Lewin said the Applicant told him he served in a front line military unit, mainly in combat duties.
Dr Lewin noted that the Applicant suffered from intermittent depressive and anxiety symptoms that could reasonably be explained on the basis of his serious drinking problem. He considered the Applicant did not have any memory problem. He opined that there were a number of features suggesting "a degree of dissimulation", and that there were contrived elements of the history indicating the need to corroborate aspects of the history. He did not consider the Applicant suffered from post traumatic stress disorder, and said his presentation could be explained entirely on the basis of alcoholism.
other documentary evidence
The Tribunal notes from the UNHCR form (T31, p74-77), which shows the Applicant's year of birth as 1956, that the years of birth of the Applicant's father and mother were given respectively as 1930 and 1934 . On the basis of that information and if the Applicant was born on 1 January 1950, his father was probably 19 years old and his mother was 15 years when he was born. Additionally, it is noted that his siblings years of birth were 1960, 1964, 1970 and 1973 respectively.
It is also noted in that document that the Applicant had "45 days in re-education camp (from May 7 to …[indecipherable])". In the final paragraph it was noted –
After leaving school spent three months in the army (June – September) then broke his leg in an accident & became refrigerator serviceman.
When in army had had …..(indecipherable). 76/508.41g. Cousin in USA since last year. No other relatives abroad.

submissions

It was submitted for the Applicant that the cause of his incapacity is not at issue and that his incapacity does not have to arise from his qualifying service. The only issue is whether the Tribunal can be reasonably satisfied that the Applicant has had qualifying service. To do this he had to be exposed to danger during the course of hostilities. The conflict is between the Applicant's evidence that he enlisted in 1968 and served for a number of years, and the documentary evidence in the UNHCR document that he enlisted for some three months after leaving school in 1974. If the latter is true then it is unlikely he would have been exposed to hostilities. In effect, it was conceded for the Applicant that if he did not enlist until 1974 then there was no evidence that he could have had qualifying service.
It was submitted for the Applicant that the evidence of witnesses "from all walks of life who knew the Applicant at relevant times in Vietnam" is testimony of his involvement in the army over several years and at times that shows he must have been born in 1950. Additionally, the Applicant relies on the evidence about the circumstances under which he obtained his travel documents in Bangkok in 1979, and that he wrote his date of birth on the back of his photograph, a fact that has remained intact and forgotten until recently. It was submitted that there has been significant corroboration of the Applicant's evidence provided in the course of the Respondent's investigations.
It was submitted, in effect, that despite certain discrepancies in the evidence that might go to credibility, those issues are not determinative of the Applicant's correct date of birth. The question for the Tribunal is whether there is incontrovertible evidence that must necessarily persuade the Tribunal in favour of the Applicant, despite any adverse findings on credibility.
It was submitted for the Applicant that the origin of the 1956 date of birth came from the time the Applicant arrived in Thailand and spoke to UN officials, when he wanted to conceal his identity. In turn, on the evidence of Mr Le-Dang, the Australian officials merely used the UN records. When the Applicant received his Letter of Authority in 1979, bearing the birth date 1956, he had no knowledge that that date would exclude him from receipt of service pension later. However, even in 1979, he was concerned that 1956 was not his true date of birth, and he raised it with Mr Le-Dang. It was submitted that this was incontrovertible evidence that his true date of birth was 1950 and he had no reason to pretend otherwise at that time.
It was submitted that Glenda Lam's evidence about changing the date on the Letter of Authority without the Applicant's knowledge was consistent with his response to Mr Aungle, a Departmental officer (exhibit 4), that he could not explain the change of date on the form.
It was submitted for the Respondent that, relying on the decision of the Federal Court in Repatriation Commission v Smith (MJ) (1987) 15 FCR 327, the Tribunal must determine this matter according to s120(4) of the Act, that is, to its reasonable satisfaction. The Tribunal was also referred to the decision of the Federal Court in Macedonian Teachers Association of Victoria Inc v Human Rights & Equal Opportunity Commission & Anor (1998) 91 FCR 8 at 42 that relied on the following principle in Briginshaw v Briginshaw (1938) 60 CLR 336 (Dixon J at 361-2)–
… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency....

It was submitted for the Respondent that there was no suggestion of "grave moral delinquency" in this matter. However, the Tribunal must be satisfied that the course of conduct of the Applicant satisfies the proposition put to us.

It was submitted that the evidence of Mr Le-Dang about the circumstances of the Applicant in Thailand when the 1956 date of birth was used, must be considered against the 1956 date of birth given for the Applicant on the birth certificates of his two children born in Australia. It was submitted that the Tribunal cannot be reasonably satisfied merely on the basis that there are documents before the Tribunal that support the proposition that the Applicant was born in 1950. Since 1979 when the Applicant came to Australia it has been open to him to correct the error in his date of birth, and he has not done so.
It was submitted for the Respondent, on the evidence of Dr Law, that it should not be presumed that in order to have been sent to a re-education camp one must have served in the military. It was conceded, however, that if the Applicant was born in 1956 he would have been conscripted to the army for a period of two years when he was aged 18 years, that is, he would have been conscripted in 1974.
consideration of evidence and findings of fact
In the decision in Smith (supra) the Federal Court interpreted that s120(4) must have been intended to introduce the standard of proof required in civil litigation. There is a distinction of substance to be drawn between probabilities on the one hand and mere possibilities on the other. The Tribunal also notes the necessity to follow the Federal Court decision in Macedonian Teachers Association (supra) insofar as it applies to the application of the reasonable satisfaction test in s120(4) of the Act.
The Tribunal's overall reaction to much of the evidence in this matter is that, when taken as a whole, it contributes to a web of lies and deception, to the point where the truth is difficult to discern. The Tribunal is acutely aware that the Applicant is of a different culture from mainstream Australia and that he lived in South Vietnam at a time when his country was at war against a communist regime. Within this context, and having heard all the evidence, the Tribunal finds that the Applicant was not a reliable witness and little weight can be given to his evidence without corroboration. It would be naïve, however, to accept the part of his evidence that is corroborated, without looking at the reliability of the corroborative evidence. The Tribunal is concerned that some of the lay witnesses are unlikely to be independent. For example, the Tribunal is concerned that Mr Le-Dang has become the Applicant's friend and advocate, and notes that his evidence was discursive and he presented as a thinly veiled proponent of the Applicant's cause. In addition, the evidence of the Applicant's wife and daughter is also likely to be partisan, and on a number of points it is inconsistent with other evidence. Moreover, the evidence of Ms Phung is quite confusing. On the one hand she said she left school in 1967, and that her younger sister, who was in the same class as the Applicant at school, was three or four years younger than her, yet she recalled seeing the Applicant in military uniform before she married in 1967. No weight can be given to her evidence. The Tribunal has taken these factors into account in making its decision.
If the Applicant's evidence about the nature of his war service is true, then one can understand that at the end of the war the Applicant feared for his life if the communist regime became aware of his war activities. On his evidence he spent two months in the re-education camp, during which time he was tortured. When he returned home he moved from place to place to conceal his identity, including faking qualifications as an electrician. Ultimately he and his wife and young child escaped by boat to Thailand in February 1979. His evidence was that he took fake documents with him to Thailand in order to conceal his identity, because he was still in fear of his life.
The UNHCR form (T31, p74-77), when put in the context of the Applicant's evidence, was completed by an interpreter, presumably with information provided by the Applicant, who was at that stage, on his evidence, still in fear of his life. There is no evidence before the Tribunal to clarify whether the information included on that form about the dates of birth of his parents and siblings was true. On its face it would suggest that his mother was probably aged 15 when he was born, if indeed his date of birth was 1950, and there was then a ten year gap between him and his next sibling. That evidence was not tested, however, and so the Tribunal cannot place much reliance on it, especially if, as was the Applicant's evidence, he was giving false information in order to conceal his identity.
The Tribunal notes the evidence about the photographs attached to the Letters of Authority. There is no doubt that there are names and dates of birth written on the backs of the photographs of the Applicant, his wife and his young daughter. It is not possible for the Tribunal to discern the date of birth written on the Applicant's photograph, nor to see whether it has been amended. The Tribunal notes, however, that there is a slight irregularity around the borders of the stamp that covers the photograph, indicating the possibility that the photograph has been removed and replaced. The Tribunal would assume, however, that if the Applicant was to maintain his deception in the refugee camp, then he would have given the 1956 date of birth for his photograph, in order to be consistent with the other information he was providing. The Tribunal is not reasonably satisfied, on the Applicant's evidence and that of Mr Le-Dang, that the Applicant raised the issue of his incorrect birth date at the time his Letter of Authority and refugee papers were being processed. Again, it would be logical for him to have maintained his deception at least until he arrived in Australia. The evidence about this issue was unconvincing, but the Tribunal's decision does not turn on this point.
It is difficult to know from the evidence how or when the date of birth on the Applicant's Letter of Authority was changed. Glenda Lam claimed that she made the change without consultation or knowledge of the Applicant. As this amended document was provided together with the Applicant's claim for service pension in August 1996, when Ms Lam was aged only 13 years, the Tribunal is not reasonably satisfied that Ms Lam masterminded and made the changes. The Tribunal also notes the incomplete obliteration of the Applicant's date of birth on the original of his Letter of Authority while other detail on the document is reasonably intact. It is likely that this is part of the Applicant's attempt to correct the deception that he started many years ago in Vietnam when he was trying to conceal his identity because of fear for his life.
The evidence most strongly in the Applicant's favour is an official translation of his Marriage Certificate (T22) and a document in Vietnamese at (T35) that appears to be a copy of the original Marriage Certificate. It is apparent on its face that T35 contains the names of the Applicant and his wife, as well as their dates of birth and the date of their marriage. The Applicant's birth date on that document is "01 01 1950". The translation was undertaken in Sydney on 26 August 1996 from the original document by a qualified translator. It shows the Applicant's date of birth as "1-1-1950" and his occupation as "Military Serviceman". The date of his marriage was 16 February 1974, and the certificate was issued on 26 August 1974. The Applicant was apparently unable to explain to Mr Aungle, a Departmental officer (exhibit 4), why he was able to retain his Marriage Certificate when he held no other personal documents from Vietnam. However, his evidence at the hearing was that some years after he came to Australia he had asked his relatives in Vietnam to post to him any documents belonging to him and his Marriage Certificate was provided at that time. The Tribunal also notes that the interview by Mr Aungle had to be terminated because the Applicant was "visibly upset and confused and was unable to answer questions". This raises the question about the reliability of that evidence.
The Tribunal notes that at about the time the Marriage Certificate was translated the Applicant also had his date of birth amended on his Certificate of Citizenship and on his Driver's Licence.
The gruesome experiences alleged by the Applicant that occurred on service and his later torture in the re-education camp are factors involved in his present psychopathology for which he has had ongoing psychiatric treatment since 1996. The Tribunal notes Dr Lewin's scepticism about the Applicant's dreams about these events. It is not clear from Dr Lewin's report what parts of the history he obtained from the Applicant without the interpreter. It is possible, and indeed likely, that the limitations of language alone could explain this aspect of Dr Lewin's history. With or without an interpreter, whether the scenes in dreams are "highly symbolic and representational" or "exact" is a very subtle distinction to be made, and the Tribunal places little reliance on this evidence.
The evidence about the Applicant's alcohol intake is peripheral in this matter, apart from going to the credit of various witnesses. It is possible, and understandable, that his wife was attempting to protect the Applicant's reputation when she denied he had a drinking problem. The evidence of Mr Nguyen supports a finding that in the last few years the Applicant has made significant attempts to cease drinking. Probably the evidence of Dr Law about the Applicant's drinking is most reliable. The history he has is that the Applicant drank alcohol because of his sleeping problems and after he had altercations with members of his family. The drinking history obtained by Dr Lewin is extreme, and the Tribunal questions whether Dr Lewin had the benefit of an interpreter to obtain that part of the history. Even if it represents an attempt by the Applicant to overstate his problems if he perceived that to be in his best interests, it has no bearing on the fundamental issue before the Tribunal – the year of his birth.
It is difficult to know why the Applicant produced the photograph of himself and Prime Minister Khiem (exhibit 1) as evidence in support of his army service. Even if the Applicant served in the army, as he said he did, and even if he had served during that period as a bodyguard of the Prime Minister, that photograph merely supports a proposition that the Applicant knew the Prime Minister well enough to be photographed together. Despite some evidence to the contrary, the Tribunal is reasonably satisfied that this photograph records the Applicant and the Prime Minister to be of an age significantly older than each of them were during the Vietnam war. The Tribunal leans to the view, as suggested by Mr Cang, that the photograph was taken some time in the 1980s or 1990s during a visit to Australia by Prime Minister Khiem. Whether or not the Applicant was the bodyguard of the Prime Minister is not central to his case. However, it is of assistance to him, at least insofar as Mr Cang's evidence is then corroborative of having met the Applicant in the early 1970's on numerous occasions when they were both performing their respective duties involving Prime Minister Khiem. Additionally, Mr Nguyen understood that the Applicant had worked as an aid for higher officials, which is also consistent with the Applicant having worked as a bodyguard for Prime Minister Khiem during the war.

On the basis of the interpretation made in paragraphs 80 to 90 of these reasons for decision, the Tribunal is reasonably satisfied that the Applicant was born on 1 January 1950, that he served in the army of South Vietnam from 1968 until 1974, and that he was in danger from hostile forces of the enemy. In coming to this decision the Tribunal has taken care not to be overly influenced by the Applicant's lack of credibility, or the apparent unreliability of other evidence, but to seek the probable correct analysis of an extremely complex factual situation. The Tribunal's task would have been much easier had the Applicant not attempted further deception in order to attempt to correct his earlier deception. At the same time, however, we can understand how and why this has happened.
The Tribunal sets aside the decision under review, and in substitution determines that the Applicant has rendered qualifying service in accordance with Schedule 2 of the Act and that he is an allied veteran as defined by s5C(1) of the Act.

I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member, Dr J D Campbell, Member, and Rear Admiral A R Horton, AO, RAN (Rtd), Member.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  29 February, 1 March, 28 July 2000
Date of Decision  5 March 2001
Counsel for the Applicant        Mr Wilson
Solicitor for the Applicant         John Allanson & Associates
Counsel for the Respondent    n/a
Solicitor for the Respondent    Mr Wallis, Department of Veterans' Affairs