Lambert and Repatriation Commission - [2002] AATA 1269

DECISION AND REASONS FOR DECISION [2002] AATA 1269

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/404

VETERANS' APPEALS DIVISION          )
           Re      WILLIAM HENRY RUDOLPH LAMBERT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date9 December 2002
PlaceAdelaide

Decision      The Tribunal affirms the decision under review.
  (signed)
  J.A. KIOSOGLOUS
  Senior Member
CATCHWORDS
VETERAN'S AFFAIRS – civilian interned in Java by Japanese during World War II – whether domiciled in Australia at relevant time – meaning of domicile – residency – family connection to Australia – intention to live in Australia – applicant not domiciled in Australia
Compensation (Japanese Internment) Act 2001 – s4(2)(a),(b),(c)
Veterans' Entitlements Act 1986 – s119(1)
Brabender v Brabender [1949] VLR 69
Bradford v Bradford [1943] SASR 123
Re Chan and Repatriation Commission [2002] AATA 742

REASONS FOR DECISION

9 December 2002 Senior Member J.A. Kiosoglous MBE

This is an application by Mr William Henry Rudolph Lambert (the applicant) for review of a decision of a delegate of the Repatriation Commission (the respondent) dated 11 October 2001 (T2) rejecting a claim that the applicant was eligible for compensation payment under the Compensation (Japanese Interment) Act 2001 ("the Act"), on the basis that he was not domiciled in Australia before his internment.
The Tribunal received into evidence the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (T1-T4), together with twelve exhibits, ten lodged by the applicant (Exhibits A1-A10), and two lodged by the respondent (Exhibits R1-R2). In addition the Tribunal heard evidence from the applicant, who represented himself. The respondent was represented by Mr G. Doube, a departmental advocate.
In issue before the Tribunal is whether or not the applicant was domiciled in Australia immediately before the commencement of his internment by the Japanese military forces during World War II.
Background
The applicant was born on 30 July 1928 in Sourabaya, Java, Dutch East Indies, which is now Indonesia. From the time of his birth until 1945 he resided in the former Dutch East Indies. He was interned by the Japanese military forces from September 1942 to August 1945, that is from the age of 14 years to 17 years.
The applicant's father was born in Java but received his schooling in Australia. On completion of his schooling he resided in South East Asia from about 1924 until after his own internment during the Second World War.
On 15 August 2001, the applicant lodged a claim seeking compensation payment of $25,000 under the Act (T3/15) and contending that he was a civilian who had been interned by the Japanese for a period between September 1942 and August 1945, and who was immediately before that internment deemed to be domiciled in Australia.
The claim was rejected by a delegate of the respondent on 11 October 2001 (T2) and on 24 October 2001 the applicant lodged an application with the Administrative Appeals Tribunal (T1). The matter proceeded to a hearing before this Tribunal by way of written and oral submissions.
Legislation
Subsection 4(2) of the Act, as far as it is relevant for the purposes of this review, provides:
"4.Eligibility for compensation payment
….
Civilian (in own right)
(2) A person is eligible for a compensation payment in the person's own right as a civilian if the following conditions are satisfied:
(a)the person was alive at the beginning of 1 January 2001;
(b)the person was interned by Japanese military forces at any time during the designated war period;
(c)the person was domiciled in Australia immediately before the commencement of that internment.
…."
It was agreed between the parties that the applicant satisfies the provisions of subsections 4(2)(a) and (b). What is not agreed to and is in dispute is whether or not the applicant satisfies the provisions of subsection 4(2)(c).
Applicant's Evidence
The applicant was born in Sourabaya, Java, Dutch East Indies on 30 July 1928. He stated that Sourabaya is a village on the island of Java and that both his parents were also born in Java. His father was born in Batavia, now known as Jakarta, and his mother in Sourabaya. The applicant stated that his father, William Eugene Lambert, was born on 23 December 1907 whilst his mother, Annie née Offermans, was born on 20 September 1911. He further stated that his paternal grandfather was born in Singapore and his paternal grandmother in Melbourne, Australia.
Mr Lambert stated that he had undertaken primary schooling and had just commenced his first year of secondary schooling in Java when the war broke out on 8 December 1941 and all lessons were stopped. He was thirteen years of age at the time and was living in Java with his parents and three brothers. He stated that the Japanese raided and took control of Java. It was about six months after this that he was interned, in about September 1942. By this time he was 14 years of age. He further stated that he was interned for around three years.
In the internment camp with him were his father and two of his brothers. The youngest brother was in another camp with his mother. He was 17 years of age at the time of his release from internment and together with his parents and brothers they were directed to Jakarta where the organisation which he said was called "Repatriation of Prisoners of War and Internees" ("RAPWI") determined where internees would go. He stated that the Americans were flown to Hawaii and the Britishers including the English, Australians, New Zealanders and Canadians were flown to Singapore. The applicant stated that he, with his family, was sent to Singapore.
The applicant stated that they were all put on the beaches at Changi in tents in the Australian section. From there the applicant stated they were repatriated to Melbourne via Fremantle. At that time the applicant's father had a sister living in Melbourne and a brother in Sydney. This brother was a member of the 2nd AIF. He further stated that on arrival in Melbourne they were located in the Red Cross recuperation centre at the Mornington Peninsula until soon after Christmas 1945 when they were taken to New South Wales to a place called St Mary's just out of Sydney. This was a clearing centre and the family were subsequently cleared back into civilian life.
The applicant stated that he and his brothers were cleared to attend schooling at Aquinas College in Perth. He stated that this was his father's old school as well as that of his father's brothers. He further stated that had war not broken out it was the intention for him and his brothers to be sent to Aquinas College. Attendance at this school was a family tradition. He attended this school for two years until he was nineteen years of age, after which he attended University in Perth.
In the meantime, whilst he and his brothers were at Aquinas College, his parents went to England so that his father could see the Sun Life Assurance Company who were his employers in Java prior to the war breaking out. He stated that his parents returned to Australia just prior to Christmas 1946. The applicant and his brothers joined them at the time in Melbourne where a family "get together" was held at Christmas at the father's sister's house. The Sun Life Assurance Company offered his father a position in Singapore rather than Java.
The applicant stated that his mother moved to Perth and rented a house for them all to be together except for his father, who went to Singapore to take up his position there. He stated that over the next three years his mother travelled to and from Singapore until his father finished work there. He further stated that in the meantime, together with his mother and siblings, they shifted to Adelaide to enable him and one of his brothers to attend the medical school. This was in 1949 and in October 1950 he got married. He also stated that he went on to study at Flinders University graduating with a Bachelor of Arts majoring in Philosophy, a "Bachelor of Arts Honours", and a "Bachelor of Theology". He also attended Adelaide University and graduated with a "Bachelor of Economics". There were four children from the marriage, two boys and two girls but sadly one of the sons, aged 18 years at the time, was lost as a result of an accident.
The applicant stated that he first returned to Java in 1984, when he took his wife to show her the place of his birth and where he grew up in his early years. Apart from that his only other return to Indonesia has been to go for holidays to Bali on two or three occasions.
Having given this factual account, which is not disputed by the respondent, the applicant in support of his case also explained in his oral evidence why he considers himself to have been domiciled in Australia at the relevant time pursuant to subsection 4(2) of the Act.
Mr Lambert emphasised that his family, including himself, was repatriated to Australia in 1945 straight after the war. He defined repatriation as being "restored or returned to your native land." He stated that the Japanese placed them in the British section because they were Australians and were kept there throughout their internment. He further stated that when they were taken to Singapore the British authorities had the family taken to the Australian compound at the beaches at Changi. He also stated that this compound was made up of all the Australians who were collected from the entire area of South-East Asia. He stated that there were no Englishmen there as the English, South Africans and New Zealanders each had their own compound. From the Australian compound they were processed at the end of August 1945 for repatriation and were put on the very first ship to leave Singapore for Australia and were taken to Melbourne via Fremantle.
Mr Lambert stated that he is claiming that, notwithstanding the fact that at the outbreak of war he had never set foot on Australian soil, he has by virtue of his family origin Australian domicile. Hence when war broke out he stated that he was interned and that he had at the time Australian domicile. In support of this he read an extract from Jowitt's Dictionary of English Law, second edition, at pages 649-650. He stated that domicile of origin is that which attaches to a person independently of his wealth and without reference to birth, residence or any other factor.
Mr Lambert stated in cross-examination that his paternal grandfather, although born in Singapore, was a British subject and his paternal grandmother an Australian, having been born in Australia. He further stated that his parents were registered with the British Consulate and so when he was born his father also registered him with the British Consulate in the Dutch East Indies. He also stated that his paternal grandmother was born in Australia to parents of Irish extraction who had married in Australia on 13 April 1857. He stated that his paternal grandfather was born in Singapore due to the fact that the paternal great-grandfather had gone to Singapore from England where he was a coach builder and taught the trade to the grandfather who also engaged in the coach building trade. He further stated that his grandmother who was born in Melbourne was visiting Singapore where she met his grandfather and they married in Singapore. His grandparents then moved from Singapore to Java where his grandfather became the manager for Java for the Singer Sewing Machine Company. They lived in Sourabaya, which Mr Lambert again stated was where he was born in 1928.
Mr Lambert stated that his father was sent to Aquinas College in Perth for schooling and after completion he returned to the Dutch East Indies. After some years of various employment his father obtained the job with the Sun Life Assurance Company. He agreed that he had been interned from September 1942 when aged 14 years until 15 August 1945. He further agreed that prior to his internment he had never been to Australia until his arrival in October 1945.
In cross-examination Mr Lambert reiterated that his paternal grandmother was born in Australia and his paternal grandfather was a British subject by birth and his domicile was the United Kingdom. He stated that his father although born in the Dutch East Indies was a British subject and that his mother who was born in the Netherlands became a British subject by virtue of her marriage. At the same time Mr Lambert stated that his paternal grandfather was a British subject and his paternal grandmother was born in Australia. When asked in cross-examination as to the difference in situations of his paternal grandmother and his mother he gave the explanation that these were not the same as his paternal grandmother was an Australian who was born in Australia and whose parents had married in Australia. In this instance he argues that through his paternal grandmother his father was domiciled in Australia and accordingly so is he. On the other hand he refutes the same argument about his own mother who was born in the Netherlands. He stated that in the Netherlands you are not considered to be "Dutch unless you are Dutch". He went on to state further that he was not Dutch and that he had been registered by his father and his mother with the British Consulate. When asked in cross-examination if he agreed that the relationship is a similar relationship between his children and his mother who was Dutch born, Mr Lambert stated "well, we are part of the same family, yes…. The same family, that is the relationship."
Respondent's Submissions
Mr Doube stated that in issue is whether Mr Lambert satisfies subsection 4(2)(c) of the Act, namely whether, as a civilian internee in his own right, he was domiciled in Australia before the commencement of his internment by Japanese military forces during World War II. This is one of three criteria that must be satisfied for compensation to be paid under the Act, and those criteria are cumulative. He submitted that the failure to satisfy any one of those criteria results in a failure of the application by either party. The applicant meets the requirements of the other two criteria.
Mr Doube submitted that the applicant was born in July 1928 in Sourabaya, Java, and that his father was a British citizen who was working in Sourabaya at the time. He further submitted that the applicant's mother was a former Dutch citizen whilst his father and paternal grandfather were British citizens who resided for many years in the Dutch East Indies. He also submitted that the applicant had never travelled to Australia prior to the end of World War II and that until that time he had resided since birth in the Dutch East Indies.
Mr Doube submitted that the applicant does now have a domicile of Australia and has had it since he came to Australia when the war ended in 1945. He further submitted that prior to that the applicant had never resided in Australia nor ever travelled in Australia. He submitted that at best the applicant's links with Australia were tenuous. The most relevant of such links was the fact that the applicant's father had siblings residing in Australia. However, notwithstanding this it was submitted that the residence of the father's siblings was in no way indicative of the applicant's domicile. It was submitted that at the time of coming to Australia the applicant was a minor and had the domicile of his father.
Mr Doube submitted that Mr Lambert's father had resided in the Dutch East Indies since 1924 – living and working there, marrying, building a family and a home – until war broke out and he and the family were interned by the Japanese. He submitted that at this point Mr Lambert was a minor, already in high school and whose domicile was that of his father. He also submitted that after the war his father continued to work for the same company, the Sun Life Assurance Company, not in Australia but in Singapore, where it had its office. He further submitted that it was only after that period that the applicant's father resided permanently in Australia. He submitted that the applicant himself did not reside in Singapore with his father but remained in Australia from the time of his arrival after the war in 1945 as a minor and continued to do so until reaching the then legal age of 21 years. Mr Doube submitted that at this point Mr Lambert's domicile of choice is clearly Australia. In his submissions Mr Doube also submitted that the respondent did not dispute that Mr Lambert's domicile changed to Australia once he arrived in Australia after the war had finished.
Mr Doube submitted that Mr Lambert, in support of his contention that he was an Australian domicile, gave evidence that it was his parents' intention to educate him in Australia. Mr Doube submitted that such education would have been for secondary schooling, and perhaps some tertiary studies afterwards. He further submitted that this was not evidence of an intention for the applicant to reside permanently as an Australian citizen. He submitted the importance of the applicant's father who had been educated in but never resided in Australia on a permanent basis until after the war had finished, and then not until many years later when he had finished his employment with an employer that had no office within Australia.
Mr Doube submitted that there was no abandonment of residence in the Dutch East Indies until after the war, and, in fact, not until after the revolution in Indonesia on or about 17 August 1945. He further submitted that the applicant is seeking for the Tribunal to acknowledge that the applicant had Australian domicile status on the basis of an intention to attend school in Australia.
Mr Doube submitted that the applicant's father at birth acquired the domicile of the grandfather. He again submitted that by the time the applicant's father was old enough to acquire the domicile of choice, such was not Australia. He supported this by referring to the actions of the applicant's father, who was born in the Dutch East Indies but received an education in Australia, after which he returned to the Dutch East Indies where he worked, married, built a home, and raised a family, remaining there until he, with the applicant and other members of the family, came to Australia at the end of the war.
Mr Doube submitted that the applicant's father, during the time he spent in Australia as a school boy, was also a minor and his domicile was that of his father (Mr Lambert's grandfather) who was based in the Dutch East Indies. Mr Doube submitted that, as a minor under the age of 21 years, the applicant's father was not free to establish a domicile of choice of his own. It was further submitted that later as an adult he lived and worked in the Dutch East Indies and as such did not establish a domicile in Australia prior to internment. It was submitted that on this basis the applicant had the domicile of his father at the time of and immediately prior to his internment.
Mr Doube submitted that the matter before the Tribunal is the issue of domicile and in particular domicile before internment and not immediately after internment. Mr Doube did not dispute that the first passport acquired by the applicant after his arrival in Australia in 1945 and living here and attending boarding school had recorded in it that his domicile was Australian. He further submitted that once the applicant came to Australia after the war and his family had chosen to set up home here that that then became their domicile of choice. He submitted that hence any passport issued after that time would clearly record the domicile as Australia but that such indication was not indicative that that was the domicile immediately before internment. Mr Doube submitted that the domicile of origin of Mr Lambert, being a minor at that time, changed with the domicile of his father, which did not change to be Australia until after the war.

In concluding, Mr Doube submitted that at the time immediately prior to his internment, the applicant had the domicile of his father. He further submitted that in making decisions under the Act, the respondent is required to weigh up the evidence and apply the civil standard of proof, that is the balance of probabilities, as modified by subsection 119(1) of the Veterans' Entitlements Act 1986. He also submitted that the key question that the Tribunal needs to answer is: how could Mr Lambert have attained domicile in Australia at the time that he was interned by Japanese Forces?
Applicant's Submissions
Mr Lambert in his submissions challenged the interpretation of domicile made by the respondent. He referred to Jowitt's Dictionary of English Law (second edition) at page 649 (Exhibit A6) which states:
"Domicile of origin is that which a child receives at his birth. Every person preserves his domicile of origin until he acquires another domicile, and on his abandoning or losing an acquired domicile, his domicile of origin revives."
In support of this Mr Lambert submitted that he was born overseas and came to Australia after the war but notwithstanding this his domicile is that of his father. He submitted that his father's domicile was Australia because his family, on his father's mother's side, goes back some 150 years, whilst in the applicant's case it goes back 200 years. He further submitted that on that basis his domicile is his father's domicile which is Australian.
Mr Lambert submitted that proof of this was that when he obtained his first passport he was still a junior and under the age of 21 years. In it he submitted is clearly stated: "Domicile, Australia" and that, he believed, must have been because of his father's passport. In both cases the passports were issued after the applicant's and his father's arrival in Australia after the war. Both passports indicated that they were British subjects by birth but recorded their domicile as being Australian.
Mr Lambert maintained that when taken to Singapore he was repatriated to Australia and not left to remain in Singapore, nor sent to Britain or any other country. He stated that the authorities were quite clear in their understanding as to his domicile and it was for this reason he was repatriated to the country of his origin, Australia. He was adamant that his father was domiciled in Australia by virtue of his father's mother being born in Australia. He submitted that the only explanation for their being repatriated to Australia was because this was their country of origin. He further submitted that the Government looked after him for a period over three months, after which he was ready to resume civilian life by going back to school.
In support of his strong belief that his domicile has been Australia at all times, Mr Lambert referred to the interpretation of domicile as set out in Jowitt's Dictionary of English Law (1977) (second edition) at page 649 (Exhibit A6) as follows:
"Domicile of origin is that which a child receives at his birth. Every person preserves his domicile of origin until he acquires another domicile, and on his abandoning or losing an acquired domicile, his domicile of origin revives."
In reference to the respondent's contention that the applicant's father's domicile was Java, Mr Lambert submitted that that was not correct. He stated that his father, despite being born there, was merely resident in Java and was there because he worked for the Sun Life Assurance Company of Canada, a Canadian Company. He did not accept that his father's residency, in connection with his work, changed his father's domicile; nor could he understand how he, himself, having been born in Java through no will of his own changed his domicile.
Mr Lambert submitted that had he not been interned he would have been in Australia attending the same school as attended previously by his father. He stated that he would have been sent to Australia for his education. He further submitted that notwithstanding that his father returned to Java, he himself would not have gone back and that he would have gone on to university. In fact the applicant on coming to Australia upon being repatriated went to school in Perth and then to university. He also subsequently met a "local girl" whom he married.
In concluding, Mr Lambert submitted that the relevant legislation, and in particular subsection 4(2) of the Act "is wrong. It is ultra vires. It can't be fulfilled. It is void." He submitted that the Act is void because subsection 4(2)(c) is impossible to achieve. In support of his contention that this is bad law and should not be considered Mr Lambert again referred to Jowitt's Dictionary of English Law (Exhibit A7) at page 1089 as follows:
"Lex non cogit ad impossibilia – The law does not compel the impossible."
Lex non debet deficere conquerentibus in justitia exhibenda – The law ought not to make default in dispensing justice to those who seek it."
"Lex non intendit aliquid impossibile – The law does not mean anything that is impossible."

And at page 1088:

"Lex injusta non est lex – Any interpretation of the law which makes the law work injustice is bad law."

Discussion and Findings

The Tribunal in considering its decision has taken the evidence as a whole into account including both the documentary and oral evidence as well as submissions. It is not disputed that Mr Lambert satisfies the provisions of subsections 4(2)(a) and (b) of the Act in that he was a person alive at the beginning of 1 January 2001 and that he was interned by Japanese military forces during the designated war period. The Tribunal is satisfied that such is the case and so finds.
However, as previously stated, in issue is whether or not the applicant satisfies subsection 4(2)(c) of the Act, namely, whether or not he had Australian domicile immediately before the commencement of his internment. It is maintained by the respondent that the applicant was not at the relevant time and within the meaning of he Act domiciled in Australia. The Hon. R.N.T Purvis QC, Deputy President, in Re Chan and Repatriation Commission [2002] AATA 742 stated, inter alia,
"17(a)….
(b) by making eligibility depend on an Australian domicile, the Act has adopted its own test for the meaning to be given to the word "Australia". Thus "domiciled in Australia" refers to being domiciled in a geographic area possessing a common government and unity of law, the law of Australia."
In considering domicile the Tribunal contrasts this with residency. A Person may acquire domicile in a country by intending to remain there indefinitely without establishing a permanent residence in any part of it (Brabender v Brabender [1949] VLR 69). However, the absence of a fixed abode may lead a court to infer there was no intention to remain indefinitely in that country (Bradford v Bradford [1943] SASR 123). Unlike domicile, residence does not have a fixed meaning. In the matter before the Tribunal in issue is whether or not at the time prior to internment the applicant had Australian domicile. The matter of residence is not applicable here as residency does not constitute a person having domicile.
In considering this matter the Tribunal looks at the contentions of the applicant. He submitted that his paternal grandmother was born in Melbourne, Australia, whilst his paternal grandfather, a British subject, was born in Singapore. For work-related reasons they moved to the Dutch East Indies where the applicant's father was born in Batavia, Java. The applicant's mother was also born in Java in the town of Sourabaya where the applicant was also born on 30 July 1928.
Halsbury's Laws of England (4th edition) at paragraph 685 provides:
"A legitimate child, born in wedlock to a living father receives the domicile of the father at the time of birth; an illegitimate child receives the domicile of the mother."

The evidence before this Tribunal as advocated by the applicant is that the Tribunal should in determining the applicant's domicile look at the birthplace of his paternal grandmother and not give any consideration to the domicile of the paternal grandfather. The Tribunal rejects this contention and follows the concept of domicile as stated in Halsbury's Laws of England. In so doing, the Tribunal notes that the applicant's own paternal grandfather on his own submissions at no time possessed Australian domicile. Hence the applicant's submission that he obtained Australian domicile through his paternal grandmother has no standing in law and therefore his submission must fail. The Tribunal is satisfied that the applicant's domicile, as it passes through his paternal grandfather, is not Australian. The applicant at all times sought to skew the evidence into whatever form was in his view favourable to him. The Tribunal noted his contention during cross-examination that his grandmother was an Australian and his paternal grandfather was a British subject and he explained that these were not the same. Yet because it did not suit him he refuted the same explanation in regard to his own mother who was considered to be Dutch. The applicant in his evidence and submissions was quite inconsistent and the Tribunal so finds.

Notwithstanding this, the Tribunal also addresses the various hypothetical contentions proposed by the applicant in pursuit of the $25,000 compensation. Without addressing all cases, the applicant stated that his paternal grandparents after marriage proceeded to the Dutch East Indies where his father was born. At a young age he was sent to undertake schooling in Perth, on completion of which he returned to Java. He later obtained employment with the Sun Life Assurance Company of Canada. The applicant's father, having been born in Java, attended schooling in Australia and then returned to Java upon completion of his schooling and became engaged in employment there. The applicant explained this as his father being forced to be there purely as a resident by virtue of his employment with a Canadian Company. At this point he also argued that he was a British subject on the basis that at that time all citizens of Australia were British subjects.
The applicant then explained that it was family tradition for him and his siblings to be educated in Perth, Australia, at the same school as his father. The applicant on his own evidence stated that he completed primary school in Java and was into his first year of secondary schooling there when his education was stopped as a result of the war. Very soon afterwards he and his family were interned until the end of the war, when they were repatriated to Australia as proof that the authorities were aware that they were domiciled in Australia. Apart from the applicant stating such there was no evidence presented by him to the Tribunal to corroborate this.
It was after being repatriated to Australia that, on the applicant's evidence, his parents resolved that he and his siblings be placed as boarders at Aquinas College, Perth. Soon after this his mother moved to Perth so that they could be together whilst his father resumed his position with the Sun Life Assurance Company but in Singapore rather than in Java. The applicant completed his schooling, went to university, married a "local girl" and obtained employment in Australia. The applicant contended, in support of his being domiciled in Australia, that it was intended, had not the war intervened, for him to undertake his schooling and university studies in Australia. He further contended that as a matter of course he would have married a local girl and settled in Australia. Such did not in fact happen, and in fact he arrived in Australia through being repatriated rather than through any hypothetical intent.
The Tribunal is satisfied that upon being repatriated to Australia and settling here the applicant satisfied the requirements for domicile. The Tribunal is further satisfied that because of this it was appropriate and correct for his Australian passport to indicate Australia as his place of domicile. However, it is clear that he acquired Australian domicile at that time. The Tribunal is satisfied that at no time prior to this did he possess Australian domicile and further that, in reference to the requirement of subsection 4(2)(c), he possessed no such domicile prior to his internment.
On the evidence before the Tribunal, there is no evidence to support the contention that the applicant would have come to Australia and subsequently settled here. The only possible evidence of the applicant coming to Australia for education purposes was in the fact that he father had done so. The family was established in Java and the father's employment was there. Had it not been for the War, the family's internment and repatriation to Australia, it is an equally reasonable hypothesis that the applicant may not have settled here. The Tribunal finds on the balance of probabilities that, based on the evidence before it, the domicile of the applicant in this case was Australia after his repatriation, but not immediately before the period of internment.
The Tribunal only briefly refers to the applicant's submission that subsection 4(2)(c) is bad law and as a result is ultra vires. The only evidence before the Tribunal is the "say so" of the applicant and it would appear that here, as in practically every situation, everything that does not favour the applicant is, in his view, wrong. The Tribunal rejects this line of argument of the applicant and is satisfied that the legislature ensured the legislation complied with its intention.
Decision
For the reasons outlined the Tribunal concludes that the third requirement to be satisfied pursuant to subsection 4(2)(c) of the Act is not satisfied and determines that the decision under review is affirmed.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:   (signed)
  John Howell, Associate
Date/s of Hearing  25 March 2002
Date of Decision  December 2002
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr G. Doube
Solicitor for the Respondent    Department of Veterans' Affairs