Mackie and Repatriation Commission (Veterans' entitlements) - [2022] AATA 323

Mackie and Repatriation Commission (Veterans' entitlements) [2022] AATA 323 (25 February 2022)
Division:VETERANS’ APPEALS DIVISION
File Number: 2020/7687
Re:John Mackie
APPLICANT

Repatriation Commission And
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:25 February 2022
Place:Brisbane

The decision under review is affirmed.
............[SGD]...........................
Deputy President J Sosso
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – eligibility for veterans’ gold card – whether the veteran has rendered qualifying service – whether service in an operational area as defined in Schedule 2 of the Veterans' Entitlements Act – whether “allotted for duty” – service in Hong Kong – decision under review affirmed
LEGISLATION
Explanatory Memorandum, Veterans’ Affairs Legislation Amendment Bill 1990 (Cth)
Repatriation (Special Overseas Service) Act 1962-1965 (Cth)
Veterans’ Affairs Legislation Amendment Act 1990 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Goble and Repatriation Commission (1992) 29 ALD 259
Kirk and Repatriation Commission [2006] AATA 469
McShane and Repatriation Commission [2002] AATA 1349
Repatriation Commission v Davis (1990) 94 ALR 621
Repatriation Commission v Doessel (1990) 95 ALR 704
Repatriation Commission v Hawkins (1993) 45 FCR 205
Savage and Repatriation Commission [1997] AATA 451
SECONDARY MATERIALS
Review of Veterans’ Entitlements (the Clarke Review) (Report, January 2003)
REASONS FOR DECISION
Deputy President J Sosso
25 February 2022
INTRODUCTION

Mr John Mackie (the veteran) was born in 1944 and enlisted in the Royal Australian Air Force (RAAF) on 28 August 1961. The veteran performed six years of continuous full-time service and was discharged on 27 August 1967. In the period 17 December 1962 until 21 July 1965, the veteran served with 3 Telecommunications Unit and, from 21 July 1965 until 24 July 1967, he served with Base Squadron Butterworth Detachment A, which in the latter case, involved service in Hong Kong. The veteran was not allotted for “Special Service” in a “Special Area” as defined in s 12 of the Repatriation (Special Overseas Service) Act 1962-1965 (Cth) – Exhibit 1 T4 pp. 23, 31.
The veteran served at a Royal Air Force (RAF) listening station at Little Sai Wan, which was located on the then unhabituated remote eastern part of Hong Kong Island. The RAAF provided assistance to the RAF at Little Sai Wan from 1949 until 1985.
On 19 February 2020, the veteran lodged an Application for a Gold Card for Veterans of Australia’s Defence Force – Exhibit 1 T3 pp. 25 – 30.
A veteran is entitled to a Gold Card under the Veterans’ Entitlements Act 1986 (Cth) (the Act) if three conditions are satisfied. The first two conditions, as prescribed by s 85(4B) of the Act, are:
(a)the veteran is 70 or over; and
(b)the veteran has rendered “qualifying service”.
The third condition is procedural; it relates to either the manner in which a veteran is notified of his or her eligibility for a Gold Card or has made a written application for a Gold Card.
In this matter, as the veteran was born in 1944, he was over 70 years of…

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

Case: [2022] AATA 323
Decision Date: 25 February 2022

CaseChat Overview and Summary

This matter concerned an appeal by the veteran, Mr. Mackie, against a decision of the Repatriation Commission regarding his eligibility for a veterans' gold card. The core of the dispute centred on whether Mr. Mackie had rendered qualifying service in an operational area as defined by the *Veterans' Entitlements Act*. The case was heard by Deputy President Sosso P.

The legal issues before the court were whether the veteran's service in Hong Kong constituted qualifying service under the Act, specifically whether he was "allotted for duty" in an operational area. This involved determining the significance of his transit through Singapore and his posting to Base Squadron Butterworth Detachment A in relation to the definition of qualifying service under Schedule 2 of the Act.

Deputy President Sosso P reasoned that while there was no minimum time period for service, there needed to be actual service or duty performed within an operational area. The veteran's transit through Singapore, involving travel to and from an airport and an overnight hotel stay, was not considered to constitute carrying out a duty. Furthermore, there was no evidence presented that the veteran was allotted by written instrument for duty in Singapore. The Tribunal also noted that duty performed at Little Sai Wan in Hong Kong was not subject to an instrument or determination satisfying the requirements for qualifying service under the Act, nor had there been a written determination by the Defence Minister concerning warlike service in Butterworth or Singapore for the relevant period.

The decision under review was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Although it is not necessary for a veteran to satisfy any particular time period, there is a need for some service or duty being rendered while in an operational area. The Tribunal is unaware of any authority for the proposition that travelling to and from an airport and sleeping overnight in a hotel constitutes carrying out a duty. Even if the Tribunal is mistaken, as noted above, there is no evidence presented that the veteran was allotted by written instrument for duty in Singapore.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The veteran and Mr Williams both addressed the Tribunal, and as there were no factual matters in dispute, and this matter involves a relatively small but important threshold legal issue, no testimony was required, or given, by the veteran.CONSIDERATION The veteran’s service records disclose that the veteran had three postings during his service. His first posting, as previously noted, was to 3 Telecommunications Unit from 17 December 1962 until 21 July 1965. The second posting was to Base Squadron Butterworth for 21 July 1965. The third posting was to Base Squadron Butterworth Detachment A from 21 July 1965 until 24 July 1967 – Exhibit 1 T4 p. 32. The veteran testified that, after serving with 3 Telecommunications Unit, he flew from Perth to Hong Kong via Singapore in July 1965. The Delegate in the reviewable decision made the following observations – Exhibit 1 T2 p. 23:“In their response, Defence noted that the posting to BASQB BUT was for a period of less than one day. Defence assessed that this ‘posting’ was for administrative purposes only. It is possible that this notation may reflect that Mr Mackie travelled from Perth to Hong Kong via Butterworth. Defence located no record of Mr Mackie actually having undertaken any duties at Butterworth, or of any intent that he undertake duties at Butterworth en route to Hong Kong. Further, no evidence was found that Mr Mackie was actually a member of Base Squadron Butterworth.” In a letter dated 20 October 2021, the veteran made the following observations – Exhibit 9:“It is to be noted that I was in Singapore for over 24 hours July 1965 waiting for transport to HK.It should also be noted that my main base was Butterworth from which we were detached.” The veteran has, on a number of occasions, claimed that other persons who served with the RAAF in Hong Kong, at or around the same period that he did, have received the Gold Card and that Butterworth in Malaysia was the detachment point – Exhibit 7:“My position hasn’t changed, if these other members who were detached from Butterworth for special duties to Little Sai Wan, have been granted the gold card, why, for the same service am I being refused. Butterworth was the detachment point for the special duties service, which we all did, so in reality whether we stayed there or not, we were detached from there for the period of detachment.” Mr Williams, on behalf of the Respondent, made the following submissions – Exhibit 3:“5.1The respondent contends the applicant was not allotted for duty in an operational area pursuant item 7 of schedule 2 of the Act.5.2 The applicant’s reference to posting to Base Squadron Butterworth detachment A does not form the basis of being allotted for duty within item 7 of schedule 2 of the Act. The applicant did not proceed to Butterworth or perform any duty in the operational area comprising Malaysia including Butterworth.5.3The applicant did not attend, perform any duty or was allotted for duty at Butterworth base…5.4The applicant travelled by air to Hong Kong to undertake his duty via Singapore. The applicant stayed overnight at a hotel in Singapore, there is no record of performing any duty, a formal posting or allotted for duty whilst in Singapore.5.5The applicant did perform duty as a communications officer at Little Sai Wan in the Territories of Hong Kong (Base Squadron Butterworth Detachment A) from 21 July 1965 to 24 July 1967.5.6Duty performed at Little Sai Wan is not subject of an instrument or determination to satisfy qualifying service pursuant paragraphs (iii) or (iv) of section in 7A(1)(a) of the Act.5.7There has been no warlike service determination in writing by the Defence Minister concerning service in Butterworth or Singapore for the relevant period.”