Manning and Repatriation Commission

[2005] AATA 1126

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1126

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/538

VETERANS’ APPEALS DIVISION		)
Re		Robert Manning

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Mr M.A. Griffin, Member

Date15 November 2005

PlaceSydney

Decision The Tribunal affirms the decision under review.

[Sgd] Mr M. A. Griffin, Member

CATCHWORDS

VETERANS' AFFAIRS - qualifying service – whether allotted for duty - no written instrument of allotment for duty – no declaration of warlike service – the decision under review is 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

15 November 2005    Mr M.A. Griffin, Member

1. 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 which found that Mr Manning did not render qualifying service within the meaning of that term in section 7A(1)(iii) or (iv) of the Act.

2. At the hearing, Ms Doran represented Mr Manning. Mr Bunn, an advocate with Department of Veterans’ Affairs appeared for the Respondent. The Tribunal had before it the documents (“the T documents”) lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and also the Exhibits tendered during the hearing.

3. The sole issue in the matter is whether Mr Manning’s service with the Australian Army from 28 September 1966 to 12 January 1969 (as set out in the T documents and Exhibit A1) includes a period of qualifying service as defined in the Act. It is not in dispute that Mr Manning served with 4RAR in Malaysia from 30 May 1967 to 28 September 1967.The two relevant sub-paragraphs of section 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 area; or

(iv)rendered warlike service;

. . .”

4.      Section 5B so far as relevant provides in sub-section (2)(a):

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