Lee and Repatriation - [2002] AATA 313

DECISION AND REASONS FOR DECISION [2002] AATA 313

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V01/977

VETERANS' APPEALS DIVISION       )
           Re      WILLIAM JACKSON LEE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr A. Argent, Member

Date6 May 2002
PlaceMelbourne

Decision      The Tribunal affirms the decision under review.
  (Sgd) Joan Dwyer
  Senior Member
VETERANS' AFFAIRS – qualifying service – whether allotted for duty – no written instrument allotting for duty – whether warlike service – decision affirmed
Veterans' Entitlements Act 1986 ss 5B (2)(a), 5C(1), 7A(1)(iii) and (iv),

Repatriation Commission v Doessel (1990) 95 ALR 704

Repatriation Commission v Davis (1990) 94 ALR 621

Re King (K) and Repatriation Commission (1995) 39 ALD 156

Re Buckham and Repatriation Commission (AAT 12735, 27 March 1988)

Re Graham (No1) and Repatriation Commission (AAT 479 , 2 July 1998)

Re Graham (No2) and Repatriation Commission [2000] AATA 337

Graham v Repatriation Commission [2001] FCA 422

Re Paterson and Repatriation Commission (AAT 840, 28 October 1998)

Re Smith and Repatriation Commission (AAT 640, 13 August 1998)

Re Gibbs and Repatriation Commission [1999] AATA 223

REASONS FOR DECISION

6 May 2002 Mrs Joan Dwyer, Senior Member Mr A. Argent, Member

This is an application under section 175(2) of the Veterans' Entitlements Act 1986 ("the Act") for review of a decision of the Repatriation Commission made 21 February 2001 which found that Mr Lee did not render qualifying service within the meaning of that term in s 7A(1)(iii) or (iv) of the Act (T documents p21). That decision was affirmed on 26 June 2001 (T documents pp3-6).
At the hearing Mr Horan represented Mr Lee on behalf of De Marchi and Associates. Mr Douglass, an advocate with Department of Veterans' Affairs appeared for the respondent. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing.
The sole issue in the matter is whether Mr Lee's service with the Australian Army from 20 April 1966 to 19 April 1970 (as set out in the T documents and exhibit R1) includes a period of qualifying service as defined in the Act. It is not in dispute that Mr Lee served in Malaya from 21 September 1967 to 7 February 1968 and again from 25 March 1968 to 20 August 1969 and that he served in Thailand from 8 February 1968 to 24 March 1968. The two relevant sub-paragraphs of s 7A(1) are (iii) and (iv). They provide that a person has rendered qualifying service if the person has, as a member of the Defence force:
(iii)rendered service outside Australia in an area described in column 1 of Schedule 2 during the period specified in column 2 of that Schedule opposite to that description, as a member of a unit of the Defence Force that was allotted for duty, or as a person who was allotted for duty, in that…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: Lee and Repatriation [2002] AATA 313
Case: [2002] AATA 313
Decision Date: 6 May 2002

CaseChat Overview and Summary

This case involves an application by William Jackson Lee seeking review of a decision made by the Repatriation Commission, which found that Mr Lee did not render qualifying service under the Veterans' Entitlements Act 1986. The Tribunal, consisting of Mrs Joan Dwyer, Senior Member, and Mr A. Argent, Member, was tasked with determining whether Mr Lee's service with the Australian Army from 20 April 1966 to 19 April 1970 qualified as specified in the Act. The Tribunal considered two sub-paragraphs of section 7A(1) of the Act, which define qualifying service as either service outside Australia in a specified area with a written allotment for duty or rendering warlike service.

The primary legal issue was whether Mr Lee's service in Malaya and Thailand met the statutory criteria for qualifying service. The Tribunal examined whether Mr Lee had been "allotted for duty" in the specified area and if his service constituted "warlike service" as defined in the Act. The Tribunal found that while Mr Lee served in areas specified in the Act, there was no written instrument attesting to his allotment for duty in those areas, as required by section 5B(2)(a). This conclusion was supported by previous Tribunal decisions and Federal Court rulings, which clarified that the term "allotted for duty" must be strictly interpreted as requiring a written instrument issued by the Defence Force.

Additionally, the Tribunal considered whether Mr Lee's service in Thailand qualified as "warlike service" under section 7A(1)(a)(iv). Although a determination by the Minister for Veterans' Affairs classified service in North East Thailand as warlike, it did not cover Mr Lee's specific operation, OPERATION RAMASOON. The Tribunal concluded that without a specific declaration by the Minister that Mr Lee's service was warlike, it could not find that he met the statutory requirements.

Based on these findings, the Tribunal affirmed the decision of the Repatriation Commission that Mr Lee did not render qualifying service as defined in the Act. The Tribunal emphasized its obligation to adhere to the statutory definitions and could not alter the terms of the legislation despite the apparent intent to be beneficial to Mr Lee. The Tribunal's decision was therefore to uphold the original determination of the Repatriation Commission.

Orders