MARIA RALSTON-SMITH and REPATRIATION COMMISSION
[2012] AATA 673
•4 October 2012
[2012] AATA 673
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/4025
Re
MARIA RALSTON-SMITH
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Senior Member Dr P McDermott, RFD
Date 4 October 2012 Place Brisbane The Tribunal affirms the decision under review.
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Senior Member Dr P McDermott, RFD
CATCHWORDS
VETERANS AFFAIRS – Benefits and entitlements – Applicant interned as a civilian by Japanese military forces during World War II – Applicant’s father had lived in Australia between 1919 and 1921 – Individuals under 21 years take the domicile of their father – Applicant’s father was not domiciled in Australia – Decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 34J
Compensation (Japanese Internment) Act 2001 (Cth) s 4
Veterans’ Entitlements Act 1986 (Cth) s 119
CASES
Parnell-Schoneveld v Repatriation Commission (2003) 74 ALD 37
REASONS FOR DECISION
Senior Member Dr P McDermott, RFD
4 October 2012
INTRODUCTION
During World War II the applicant was interned as a civilian by Japanese military forces. She has made an application for a compensation payment. Her application was refused and she has sought the review of that decision by this Tribunal. This application was determined on the papers with the consent of the parties pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (Cth).
RELEVANT LEGISLATION
I have to determine whether the applicant comes within the terms of s 4(2) of the Compensation (Japanese Internment) Act 2001 (“the Act”), which provides:
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; and
(c) the person was domiciled in Australia immediately before the commencement of that internment.
At all relevant times the applicant has been a civilian.
There is no issue that the applicant satisfies para (a) in s 4(2) of the Act.
There is also no issue that the applicant satisfies para (b) in s 4(2) of the Act.
There is documentary evidence from the Dutch Red Cross that on 31 August 1945 the applicant’s mother was in Camp Kramat, Batavia, with 11 children. The applicant was also moved to other camps in Java.
The relevant question is whether the applicant satisfies para (c) in s 4(2) of the Act.
CONSIDERATION
In these reasons, which are a matter of public record, it is not necessary for me to outline all of the personal details of the applicant. I will only mention the details which are material to the determination of this application.
The applicant was born in Java in 1934. In 1919, the applicant’s father was stationed
in Australia as a member of the Dutch Navy. There is evidence that he was then given permission to enter Australia. On his Dutch passport there is an endorsement dated 22 February 1919 from the Department of Home and Territories, Melbourne.
In 1921, her father then left Australia to work with the Department of Agriculture of the Dutch Government. He then worked and remained in what is now Indonesia until after the conclusion of World War II.
In 1950, a Dutch passport was provided to each of the applicant’s father and mother. Her parents then travelled from Indonesia to England on the ship MS Oranje. It has been assumed that the applicant had accompanied her parents. There are recorded voyages between England and Holland until they travelled to the Far East in 1951.
The solicitors who act for the applicant have submitted information from the Dutch consulate that in 1953 the applicant went to New Zealand where she married her husband and that her parents may have also migrated in that year to Australia.
The mother of the applicant received a certificate of registration as an Australian citizen in 1963. That certificate states that “she becomes an Australian citizen as from the date hereof”. There is no indication that she held an Australian passport prior to then. She certainly held a Dutch passport.
I have to determine whether the applicant was “domiciled in Australia immediately before the commencement of that internment” (condition (c) in s 4(2) of the Act).
In a letter of 17 August 2011, the respondent advised the solicitor of the applicant that individuals under the age of 21 take the domicile of their father. The letter also stated that the father of the applicant was a Dutch citizen at the time of his internment and no evidence of any connection to Australia was provided with the application form.
The respondent has referred to the decision of the Federal Court of Australia in
Parnell-Schoneveld v Repatriation Commission(2003) 74 ALD 37 (Parnell-Schoneveld). The respondent has relied upon the propositions of law, which are stated at [22], including the proposition that at birth children acquire the domicile of their father.
That particular proposition was not applied in that case. This is because the father of the applicant had passed away before the birth of the applicant and the applicant had acquired the domicile of her mother. In this case, both parents of the applicant had the same domicile, which was Java.
There is no evidence that either parent of the applicant was ever domiciled in Australia at the time before the commencement of that internment of the applicant and her family. There is no such contention in her application which was lodged by her solicitor. I therefore find that the applicant does not satisfy para (c) in s 4(2) of the Act.
I am required by s 9 of the Act to have regard to subs 119(1)(g) and (h) of the
Veterans’ Entitlements Act 1986(Cth), which require the decision maker to have regard to the substantial justice of the case and to take into account any difficulties that lie in the way of ascertaining the existence of a fact due to the passage of time.
In Parnell-Schoneveld at [46], it has been held that these provisions do not enable the respondent to disregard the statutory criteria in s 4 of the Act. There is no contention in this case that the passage of time has disadvantaged the applicant.
DECISION
I affirm the decision under review.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member. ........................................................................
Associate
Dated 4 October 2012
Hearing on the Papers 7 September 2012
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