Marinucci and Repatriation Commission

[2004] AATA 1280

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1280

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/188

VETERANS’ APPEALS DIVISION

Re:         ANTONIO OTTAVIO MARINUCCI

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             2 December 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
  Member

VETERANS’ AFFAIRS - application for pharmaceutical benefits card - service with Italian partisans - whether an allied veteran

Veterans’ Entitlements Act 1986 ss 5C(1), 5R(2), 93M, 119(1)(h)

Re Sharkey and Repatriation Commission (1988) 15 ALD 782

REASONS FOR DECISION

2 December 2004  G. D. Friedman, Member

1.      This is an application by Antonio Ottavio Marinucci (the applicant) for review of a decision of a delegate of the Repatriation Commission (the respondent) dated 27 November 2002.  The delegate affirmed a decision of the respondent dated 27 September 2002 to refuse a claim for a Repatriation Pharmaceutical Benefits Card (PB card) because the applicant was not an allied veteran within the meaning of the Veterans’ Entitlements Act 1986 (the Act).

2.      At the hearing of this matter on 30 September 2004 and 18 November 2004 Mr D. De Marchi, solicitor, represented the applicant and Mr R. Douglass, a Department of Veterans’ Affairs' advocate, represented the respondent.

3.      The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T14), plus three exhibits (Exhibits A1‑A3) lodged by the applicant and four exhibits (Exhibits R1-R4) lodged by the respondent.

BACKGROUND

4.      The applicant was born in Italy on 1 January 1926.  During World War 2 he joined a group of men in his home town area of Sulmona to fight the occupying German Army from 1943 to 1944.  He was called up to serve in the Italian Army on 13 November 1946, and served until 29 March 1950, when he satisfied national service requirements.  He migrated to Australia in 1952.

5.      On 25 September 2002 the applicant lodged a claim for a PB card.  On 27 September 2002 a delegate of the respondent refused the application.  On 27 November 2002 a delegate of the respondent affirmed the decision.  On 17 February 2003 the applicant lodged an application with the Tribunal for review of the decision.

6.      The issue before the Tribunal is whether the applicant’s activities during World War 2 constitute service as an allied veteran. 

EVIDENCE

7.      In oral evidence the applicant stated that in 1943, when he was 17 years old, he developed a hatred of the occupying German Army, and joined Conca d’Oro or Conca di Sulmona, an organisation consisting of a number of young men in his town, to engage in clandestine operations against the Germans.  The leader of the group was a Mr G. D’Antino.  The applicant said that these activities continued after the Italian Government surrendered to the Allies in September 1943, and his group was successful in harassing and attacking German personnel and equipment.

8.      The applicant told the Tribunal that he fled from his home to the mountains in order to avoid capture by the Germans, and became ill, after which his father prevented him from participating in further operations of this nature.  He said that in 1944 the Allies advanced into the Sulmona area, and he remained at home, while his friends joined partisan groups in other areas of Italy.

9.      Under cross-examination, the applicant explained that his group of partisans did not wear a uniform, had no formal chain of command and did not consider themselves subject to the rules and conventions of warfare.  He agreed that at no stage was he a member of the Maiella Brigade, which was formed from various partisan units and became part of the regular Italian Army in February 1944.

10.     In a written statement dated 29 April 2004 (Exhibit A3) Mr A. Comand said that he served as a partisan in Italy during World War 2, but in a different area from the applicant.  He stated that at that time he did not know the applicant or whether the applicant served in the partisan unit known as the Conga di Sulmona, but said he had no doubt that this group had contact with Allied forces and assisted in the overall war effort until the liberation of Italy.  He expressed the view that the Conga di Sulmona was an auxiliary to the Maiella Brigade, which in turn was associated with the Garibaldi Brigade and the Italian Provisional Government and Defence Force.

11.     In oral evidence Mr Comand stated that he operated in the north of the country, and in cross-examination he agreed that he did not have actual knowledge of the Conga di Sulmona, but said that although the groups operated individually, there was a degree of coordination to maximise their efficiency.

12.     In a written statement dated 27 April 2004 (Exhibit A2) Mr G. Ciacia, Federal President of the Australian branch of the Italian equivalent of the Returned Services League, said that he used to live near the applicant and was a member of the Maiella Brigade.  He stated that he was aware that the applicant was a member of the Conga di Sulmona and, as such, would probably have operated in conjunction with the Maiella Brigade.  He said that he was in no doubt that a unit such as the Conga di Sulmona would have received orders from allied military formations and Special Forces, and were integrated into the Italian Defence Force to liberate Italy from the Germans.  Mr Ciacia said that the applicant should be regarded as an allied veteran because he was awarded a certificate as a patriot by his local authority, and is entitled to be regarded as part of the liberation forces of Italy.

13.     In oral evidence Mr Ciacia stated that he and the applicant lived in the same street in Italy, and that the applicant assisted the partisans by helping Allied prisoners of war and undertaking general tasks such as the provision of food and supplies. 

14.     In a written report dated 19 February 2004 (Exhibit R1) Professor J. Grey, Australian Defence Force Academy, stated that the issues surrounding the activities of partisan and resistance movements in Italy are extremely complex.  He noted that the applicant does not claim membership of the Maiella Brigade, which was incorporated into the formal chain of command of the Italian military in 1944.  Professor Grey stated that Conca di Sulmona did exist, and the applicant may have been a member, but this group did not operate as part of the Italian Royal Army, and was not within a formal chain of command of that army or of the British Army.  He raised the difficulty of deducing whether the applicant’s operations with the Conca di Sulmona represented continuous full-time service, because members of partisan groups tended to use daily life as a cover for their clandestine activities.

15.     In a supplementary report dated 20 July 2004 (Exhibit R2) Professor Grey disagreed with some of the statements made by Mr Ciacia.  Professor Grey said:

…there was no organised and centrally directed partisan movement in this region of the kind found in the north of the country (and to which Mr Comand’s statement makes reference), and that the willingness of the local people to assist Allied POWs drew on a generalised anti-Fascism and a long tradition of peasant dissent from central authority and government.  Being instinctively against the government and the occupying German forces, and being organised in a formal sense, were not the same thing.

Professor Grey referred to research by Dr R. Absolom, author of A Strange Alliance: Aspects of Escape and Survival in Italy 1943-45, Florence, 1991, in which Dr Absolom stated that the applicant’s documents appear to put him in two Patriot Bands: Isolato di Abruzzo and Conca di Sulmona.  Dr Absolom said that if the applicant had been involved in providing food, lodging and general assistance to prisoners of war, he would have received a certificate of thanks from the Allied Screening Commission.  If he was an active partisan, he would have received a different type of certificate.  In an undated letter to Professor Grey (Exhibit R1) Dr Absolom said:

He does not appear to have submitted either type of certificate in support of his claim for a pension.  The certificates he does submit are all dated long after the events in question, some as many as four decades later.

It was the case that many who later claimed to have been partisans were in fact no more than post-hostilities hangers-on who contrived to get themselves enrolled, through political influence….there were of course large numbers of other forms of certification issued by political parties and groups in the postwar period, and these could not be regarded, in my opinion, as having any value for authentication.

16.      The applicant produced a Patriot Diploma dated 7 April 2004 (Exhibit A2), issued by the Italian Director-General of Military Personnel, honouring combatants for the liberation of Italy 1943-1945.

CONSIDERATION OF THE ISSUES

16. Eligibility for a PB card is governed by s 93M of the Act, which provides:

(1)       A Commonwealth veteran, an allied veteran or an allied mariner is eligible for a pharmaceutical benefits card under this Part if the veteran or mariner:

(a)is 70 years of age or older; and

(b)has rendered qualifying service during a period covered by paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1); and

(c)has been an Australian resident for a continuous period of at least 10 years.

17.     The term allied veteran is defined in s 5C(1) of the Act as:

(a)who has been appointed or enlisted as a member of the defence force established by an allied country; and

(b)who has rendered continuous full-time service as such a member during a period of hostilities;

but does not include a person who has served at any time:

(c)in the forces of a country that was, at that time, at war with Australia, or in forces engaged in supporting or assisting the forces of such a country; or

(d)in forces that were, at that time, engaged in war-like operations against the Naval, Military or Air Forces of Australia.

18. In s 5C(1) of the Act:

defence force established by an allied country means:

(a)the regular naval, military or air forces; and

(b)the nursing or auxiliary services of the regular naval, military or air forces; and

(c)the women’s branch of the regular naval, military or air forces;

raised by an allied country and operated by the country with regular military-like lines of command, that is to say, raised and operated in such a manner that the members of those forces and services:

(d)were formally appointed to, or enlisted in, those forces or services; and

(e)were required to wear uniforms or insignia distinguishing them as members of those forces or services; and

(f)were required to carry arms openly; and

(g)were subject to the rules and conventions of warfare.

Section 5R(2) of the Act provides:

(2)          If a person who is a claimant for an age service pension or an invalidity service pension satisfies the Commission:

(a)that the person had been appointed or enlisted as a member of the forces or services of:

(i)an allied country, being forces or services of a kind referred to in the definition of defence force established by an allied country; or

(ii)the government-in-exile of an allied country, being forces or services of a kind referred to in subsection 5C(3); and

(b)that those forces or services were raised and operated in such a manner that the members of those forces and services:

(i)were formally appointed to, or enlisted in, those forces or services; and

(ii)were subject to the rules and conventions of warfare; and

(c)that the person was not required, as such a member, to wear a uniform or insignia distinguishing the person as a member of those forces or services or to carry arms at all or to carry arms openly; and

(d)that it would have been unreasonable, having regard to the conditions existing, at the time the person served in those forces or services, in the parts of that country in which the person so could serve, for the person to have been required to wear a uniform or insignia or to carry arms or to carry arms openly;

the Commission must determine that the person is, for the purposes of the definition of allied veteran in subsection 5C(1) to be treated as a person who has been appointed or enlisted as a member of the defence force established by that allied country or that government-in-exile.

19.     Mr De Marchi noted that the Italian Government declared war on Germany on 13 October 1943, and from that date the Italian defence forces were fighting with the Allies against the German forces.  He said that the applicant served with the Conca D’Oro or Conca di Sulmona, which was part of the Maiella Brigade from October 1942 to June 1944, at which time he became ill and was no longer able to continue. 

20.     Mr De Marchi referred to the reports by Professor Grey, who noted that the various partisan groups consolidated in 1943-1944, and that Conca di Sulmona was legitimate and was almost certainly the group identified by the applicant as Conca D’Oro.  He said that Mr D’Antini did exist, which supports the claim that the applicant was under Mr D’Antini’s command.  Mr De Marchi noted that by February 1944 the British Government persuaded the Italian authorities to recognise the Maiella Brigade as an effective partisan organisation which was part of the Italian armed forces.

21. Mr De Marchi noted the applicant had documentary evidence of his wartime service - a Patriot Diploma and a Diploma of Garibaldi Medal. Mr De Marchi submitted that applicant’s service to his country as a partisan has been recognised officially and that the evidence is conclusive that the applicant satisfies all the requirements of s 93M of the Act. He referred to the provisions of s 5R(2) of the Act which relax the definition of allied veteran in certain circumstances, and said that in the uncertain political environment of the war, when the Italian Government controlled Italy with the Germans, then capitulated to the Allies, other than his allegiance to his country, the applicant’s allegiances were not relevant. 

22.     Mr De Marchi emphasised that the operations of partisans were difficult to categorise, including their relationship with the Italian and Allied armies, and that secrecy was crucial, so that precise information on these groups is not readily available.  He stated that in those uncertain times it could be argued that the applicant was a representative of the Italian Government in areas where there was no effective control, so that he could be considered an allied veteran at that time.

23.     Mr De Marchi submitted that the applicant has been in Australia for more than 50 years and has made a valuable contribution to this country.  He said that the Tribunal should take into account the provisions of s 119 of the Act because of the effects of the passage of time and the lack of adequate records and information.  He stated that denial of the PB card on a technicality would be inequitable.  

24.     Mr Douglass stated that the applicant’s description of his activities was inconsistent with the characteristics of the Maiella Brigade, and his Italian army service records make no mention of membership of an Italian army unit prior to his call-up on 13 November 1946.  He accepted that the applicant had served with the Conca di Sulmona.  However, he submitted that the applicant’s evidence about the organisation’s activities suggested that: there was no formal chain of command, no formal appointment to or enlistment in the Italian army, no wearing of uniform or insignia, no open carrying of arms and members were not subject to the rules and conventions of warfare.  Mr Douglass submitted that, for these reasons, the applicant was not a member of a defence force established by an Allied country.

25. Mr Douglass submitted further that the applicant did not render service which is analogous to continuous full-time service in the Australian Defence Service, and therefore he does not satisfy the requirement in s 5C(1) of the Act. Mr Douglass said that s 5R(2) of the Act does not assist the applicant because the requirement of a formal appointment or enlistment and the coverage by rules and conventions of warfare remained. Mr Douglass noted that the applicant had left Sulmona by 1944 and had been forbidden by his father from joining the Maiella Brigade.   

26.     The Tribunal reached its decision taking into account the oral and written evidence and the submissions made at the hearing.

27.     The Tribunal accepts the evidence from the applicant that he was a member of Conca di Sulmona or Conca d’Oro and assisted partisan groups in various ways by helping prisoners of war and providing food and other supplies.  The Tribunal also accepts the evidence that the applicant was a young man who fought against the German occupying forces in a clandestine manner, to the best of his ability, and in 1944 was prevented by his father from a more active participation in the activities of partisan groups operating in his local area. 

28.     The Tribunal accepts that the Maiella Brigade and other units received orders from allied military formations, and that from 1944 the Maiella Brigade was part of the Italian army, being formally designated as a division.  However, the Tribunal finds that, on the evidence of the applicant and Dr Grey, the Conca di Sulmona had no formal structure or chain of command, did not involve appointment to or enlistment in the Italian army, did not involve the wearing of uniforms or the open carrying of arms, and did not render its members subject to the rules and conventions of warfare.  The Tribunal finds further that the applicant was not a member of the Maiella Brigade, his group was not part of the Italian army, and he did not render continuous full-time service.

29.     Although the documents produced by the applicant record the appreciation of the Italian authorities for the applicant’s wartime activities and describe him as a patriot, the Tribunal agrees with Dr Absolom that these documents, some of which were issued nearly 60 years after the war, do not assist the applicant because they do not establish that the applicant served in the defence force of an Allied country.  The Tribunal does not accept Mr De Marchi’s submission that the uncertainty of the political environment in 1943 and 1944 qualifies the applicant as a representative of a government or a government-in-exile.

30.     For these reasons the Tribunal finds that the applicant does not satisfy the definition of allied veteran, and was not a member of a defence force established by an allied country under s 5C(1) of the Act. Therefore, the provisions of s 5R(2) of the Act do not assist the applicant in this application. Consequently, the Tribunal finds that the applicant does not satisfy s 93M of the Act and is not eligible for a PB card.

31.     The Tribunal takes into account the beneficial nature of the Act, the passage of time and any deficiency in official records (s 119(1)(h) of the Act).  However, in Re Sharkey and Repatriation Commission (1988) 15 ALD 782 the Tribunal noted that s 119(1)(h) cannot be used to provide evidence of facts if none exist. In the matter before it, the Tribunal is satisfied, on all the material presented, that s 119(1)(h) does not assist the applicant such as to enable the Tribunal to find in his favour. Consequently, the claim does not succeed.

DECISION

32.     The Tribunal affirms the decision under review.

I certify that the thirty-two [32] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)    Catherine Thomas

Clerk

Dates of hearing:  30 September 2004, 18 November 2004

Date of decision:  2 December 2004
Advocate for applicant:                Mr D. De Marchi
Solicitor for applicant:                 De Marchi & Associates
Advocate for respondent:            Mr R. Douglass

Solicitor for respondent:              Advocacy Section, Department of Veterans’ Affairs