Lobegeiger and Repatriation Commission

[2007] AATA 1593

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1593

ADMINISTRATIVE APPEALS TRIBUNAL      )

)       No Q2006/645 

VETERANS’ APPEAL DIVISION		)
Re		REGINALD LOBEGEIGER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date26 July 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

……………[sgd]……………………

RG Kenny

Member

CATCHWORDS

VETERANS’ AFFAIRS – Gold Card application for subsidised medical treatment – eligibility for treatment – assigned for service in Singapore with Royal Australian Air Force – no allotment for duty – no qualifying service rendered – decision under review affirmed

Veterans’ Entitlements Act 1986 (Cth) ss 5B, 5C, 7A, 85(4B), 120(4)

Repatriation Commission v Smith (1987) 15 FCR 327

REASONS FOR DECISION

26 July 2007 Mr RG Kenny, Member

Background

1. Reginald Lobegeiger (the applicant) served in the Royal Australian Air Force (RAAF) from 3 April 1950 until 2 June 1954. On 1 March 2006, he lodged an application for a Gold Card which would entitle him to subsidised medical treatment. On 31 March 2006, a delegate of the Repatriation Commission (the respondent) determined that Mr Lobegeiger did not meet the relevant qualifying criteria under s 85(4B) of the Veterans’ Entitlements Act 1986 (the Act) and rejected his application.  On 31 July 2006, that decision was affirmed by another delegate of the respondent and Mr Lobegeiger now seeks review of that decision by the Administrative Appeals Tribunal (the Tribunal).

Standard of Proof, Service and Legislation

2.      The standard of proof for determining matters relating to service is set out in s 120(4) of the Act.  This requires that such matters be determined to the Tribunal’s reasonable satisfaction.  This imports the civil standard of proof so that matters must be determined on the balance the probabilities: see Repatriation Commission v Smith (1987) 15 FCR 327 at 335.

3.      Mr Lobegeiger served in the RAAF as a radio operator.  His service included the period from 12 May 1951 until 21 June 1952 when he was based at RAF Tengah in Singapore and assigned to No 1 Bomber Squadron.  The respondent has recognised that this service comprises “operational service” under the Act and Mr Lobegeiger receives a disability pension for certain conditions which have been accepted as being related to that service. 

4. Section 85 of the Act lists the circumstances in which eligibility for the issue of a Gold Card for medical treatment arises. Relevant to Mr Lobegeiger’s case is s 85(4B) which reads:

85  Veterans eligible to be provided with treatment

(4B)     A veteran is eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act, if:

(a)the veteran is 70 or over; and

(b)the veteran has rendered qualifying service within the meaning of subparagraph 7A(1)(a)(ii), (iii) or (iv) or paragraph 7A(1)(b), (c) or (f); and

(c)either:

(i)the Department has notified the veteran in writing that he or she is or will be eligible for such treatment; or

(ii)the veteran has, by written document lodged at an office of the Department in Australia in accordance with section 5T, notified the Department that he or she seeks eligibility for such treatment.

5. No dispute arises in relation to paragraphs (a) or (c) of that provision. The respondent’s decision to reject Mr Lobegeiger’s present application was based on his failure to satisfy the terms of s 85(4B)(b) of the Act which relates to s 7A thereof. In so far as relevant to Mr Lobegeiger’s application, that provision reads:

7A  Qualifying service

(1)       For the purposes of section 85, a person has rendered qualifying service:

(a)if the person has, as a member of the Defence Force:

(i)      Rendered service, during a period of hostilities specified in paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1), at sea, in the field or in the air in naval, military or aerial operations against the enemy in an area, or aon an aircraft or ship of war, at a time when the person incurred danger from hostile forces of the enemy in that area or on that aircraft or ship; or

(ii)      rendered service after 29 October 1945 in respect of which the person has been awarded, or has become eligible to be awarded, the Naval General Service Medal or the General Service Medal (Army and Royal Air Force) with the Minesweeping 1945‑51 Clasp, the Bomb‑Mine Clearance 1945‑53 Clasp, the Bomb and Mine Clearance 1945‑49 Clasp or the Bomb and Mine Clearance 1945‑56 Clasp; or

(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 area; or

(iv)     rendered warlike service; …

(b)       if, during a period of hostilities, the person has, as a member of the defence force established by a Commonwealth country, rendered, in connection with war or war‑like operations in which the Naval, Military or Air Forces of Australia were engaged:

(i)        service, in an area outside that country, at a time when the person incurred danger from hostile forces of the enemy in that area; or

(ii)       service within that country, being service in respect of which the person has been awarded, or has become eligible to be awarded, a campaign medal; or

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 outside the country in which the person incurred danger from hostile forces of the enemy

Contentions

6.      Mr Lobegeiger was responsible for radio equipment on RAAF Lincoln bomber aircraft at Tengah.  He described four situations which he submitted should enable his service to be recognised as qualifying service under the Act.  The first of these occurred when 5 bombs, which were being loaded onto an aircraft, fell to the tarmac.  These were armed and, although they did not detonate, Mr Lobegeiger recognised the potential danger that he and other servicemen faced at that time.  The second situation occurred when Mr Lobegeiger was working on the radar of a Lincoln bomber aircraft when an engine cleaner sprayed fuel on an engine cowling which then burst into flames.  The third situation involved Mr Lobegeiger undertaking a road journey into Malaya to an RAF base in Johore to service radio equipment on a communications tower.  The trip was uneventful and he returned to Singapore after an absence of about 6 hours.  The fourth situation involved Mr Lobegeiger flying in a Lincoln bomber to RAF Butterworth in Malaya to service radio equipment on another RAAF Lincoln which had been forced to land there.  Again, the journey was uneventful and he returned to Singapore on the same day.

7.      Mr Thrupp, for the respondent, submitted that none of the situations nominated by Mr Lobegeiger was of a nature to meet the requirements of qualifying service under s 7A of the Act.  Mr Thrupp conceded that Mr Lobegeiger had been “assigned” for duty in Singapore and may well have travelled into Malaya as described.  However, Mr Thrupp submitted that Mr Lobegeiger was not a member of a unit of the Defence Force which was “allotted for duty” and was not, personally, the subject of an “allotment for duty” as referred to in the provision and that, therefore, he did not come within the terms of s 7A of the Act.  

Consideration

8.      Subparagraph 7A(1)(a)(ii) of the Act requires that Mr Lobegeiger have been awarded a particular type of medal for minesweeping or bomb and mine clearing.  It is not disputed and I am satisfied that this requirement is not met. 

9.      Subparagraph 7A(1)(a)(iii) of the Act requires an “allotment for duty”.  This is a technical term which is defined in s 5B(2) of the Act as follows:

(2)       A reference in this Act to a person, or a unit of the Defence Force, that was allotted for duty in an operational area is a reference:

(a)       in the case of duty that was carried out in an operational area described in item 1, 2, 3, 4, 5, 6, 7 or 8 of Schedule 2 (in column 1)—to a person, or unit of the Defence Force, that is allotted for duty in the area (whether retrospectively or otherwise) by written instrument issued by the Defence Force for use by the Commission in determining a person’s eligibility for entitlements under this Act; or

(b)       in the case of duty that was carried out in an operational area described in item 9, 10, 11, 12, 13 or 14 of Schedule 2 (in column 1)—to a person, or unit of the Defence Force, that is allotted for duty in the area (whether retrospectively or otherwise) by written instrument signed by the Vice Chief of the Defence Force for use by the Commission in determining a person’s eligibility for entitlements under this Act; or

(c)       to a person, or unit of the Defence Force, that is, by written instrument signed by the Minister for Defence, taken to have been allotted for duty in an operational area described in item 4 or 8 in Schedule 2 (in column 1).

10.     Mr Lobegeiger’s service records show that he was “assigned for service in Singapore” whilst he was at RAF Tengah.  I accept Mr Thrupp’s submission that this does not constitute an “allotment” of Mr Lobegeiger, within the meaning of s 5B(2) of the Act, for service at that base at that time.  Further, the component of Schedule 2 of the Act which refers to the period when Mr Lobegeiger was at Tengah reads:

Column 1

Description of operational areas

Column 2

Period

2.    The area of Malaya, including the waters contiguous to the coast of Malaya for a distance of 18.5 kilometres seaward from the coast.

The period from and including 29 June 1950 to and including 31 August 1957

11.     The description in Column 1 of that Table does not refer to Singapore and, although Tengah was within 18.5 kilometres of the Malayan coast, it was clearly land-based and not in the waters contiguous to the coast of Malaya.  Mr Lobegeiger’s service is not included in that Schedule reference. 

12.     In evidence was a copy of an instrument for allotment of RAAF personnel under the Act in relation to the Malayan Emergency.  It was issued under subsection 5B(2) of the Act and signed by the Acting Vice Chief of the Defence Force on 28 December 2000.  It identifies units or parts of units which were allotted for duty in certain operational areas.  One of these units is No 1 Squadron and the period of allotment is 29 June 1950 until 31 August 1957.  That includes the period of Mr Lobegeiger’s service at Tengah.  The operational areas are those in item 2 of Column 1 of Schedule 2 of the Act so, again, it includes Malaya but not Singapore.

13.     It follows that Mr Lobegeiger did not have qualifying service under s 7A(1)(a)(iii) of the Act.

14.     Subparagraph 7A(1)(a)(iv) of the Act will apply if Mr Lobegeiger rendered “warlike service” which is defined in s 5C of the Act to mean “service in the Defence Force of a kind determined in writing by the Minister for Defence to be warlike service”.  In evidence were Ministerial determinations concerning warlike service and none of these relate to the period when Mr Lobegeiger was in Singapore.  Because a specific determination by the Minister is required, the four incidents described by Mr Lobegeiger do not fall into the category of “warlike service”.

15.     Paragraphs 7A(1)(b) and (c) of the Act require that Mr Lobegeiger incurred danger from hostile forces.  The four situations described by Mr Lobegeiger did not involve hostile forces and so the requirements of the provision are not met.    

16.     Consequently, Mr Lobegeiger does not satisfy the terms of s 7A of the Act, and, accordingly, does not have qualifying service for the purposes of obtaining medical treatment under s 85 of the Act

Decision

17.     The decision under review is affirmed.

I certify that the preceding 17 paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:         ..............[sgd]..............................................

Eleanor O’Gorman, Associate

Date/s of Hearing  5 March 2007 and 13 July 2007
Date of Decision  26 July 2007
The Applicant was not represented
For the Respondent  Mr T Thrupp