Menzies and Repatriation Commission

[2001] AATA 875

DECISION AND REASONS FOR DECISION [2001] AATA 875

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N1999/1691

VETERANS' APPEALS  DIVISION       )          

Re      CECIL ROSS MENZIES    

Applicant

And    REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal       Senior Member M D Allen

Date5 October 2001

PlaceTamworth

ADMINISTRATIVE APPEALS TRIBUNAL  )         No   N1999/1691

)  
VETERANS' APPEALS DIVISION                )

Re:       CECIL ROSS MENZIES
  Applicant

And:     REPATRIATION COMMISSION

Respondent

DECISION

Tribunal              Senior Member M D Allen

Date  5 October 2001

Place                   Tamworth

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

(Sgd)  M.D. ALLEN

.............................

Senior Member
CATCHWORDS

VETERANS' ENTITLEMENTS: Qualifying service. Whether Applicant incurred danger from hostile forces of the enemy. Objective standard applied.

Veterans' Entitlements Act 1986 – s7A(1)

Repatriation Commission v Thompson 82 ALR 352

REASONS FOR DECISION

Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

1. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

1. The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:         (Kwai-Ling Wong)
          ..................................................................................……………………………….

Associate

Date of Hearing  5 October 2001
Date of Decision  5 October 2001

Representation for Applicant     Self-represented
Advocate for Respondent          Mr J Marsh, Department of Veterans' Affairs

DRAFT DECISION  

ADMINISTRATIVE APPEALS TRIBUNAL

Matter No N1999/1691
By MR M.D. ALLEN, Senior Member
MENZIES and REPATRIATION COMMISSION
TAMWORTH, FRIDAY, 5 OCTOBER 2001

MR ALLEN:   By application lodged with the Tribunal on the third day of November 1999 the applicant sought review of a decision by the respondent made on the eleventh day of November 1998 and affirmed by a reviewable decision made on 10 September 1999 that he did not render qualifying service pursuant to section 7A of the Veterans Entitlements Act 1986 as amended.

The proceedings arise out of an application by the applicant for what is known as a gold card, gold card in common parlance is an allowance given to former members of the service who have rendered qualifying service which entitles them to free medical treatment.  For reasons best known to the Department of Finance the gold card has been restricted not to all members or former members of the forces but only to those who rendered qualifying service.

At the outset it has been acknowledged by the respondent that the applicant volunteered to serve his country during the Second World War and although it has refused him entitlement that has been done because of the particular legislation and is no way intended to disparage the applicant's service for which he volunteered.  As with most people in the services his particular mustering and where he went was decided by others and it is simply unfortunate that his service and the exigencies of that service placed him in a situation where it would seem under the legislation he did not render what is termed qualifying service.

The term qualifying service as defined in paragraph 7A(1)(a)(i) of the Veterans Entitlements Act reads:

For the purposes of part 3 a person has rendered qualifying service if the person rendered service during a period of hostility 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 on 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.

It is conceded by the respondent that the applicant did render service during a period of hostilities.  He rendered service as a member of

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the Royal Australian Air Force attached to 20 Squadron which flew Catalina aircraft out of Darwin.  Two questions arose whether the applicant had engaged in operations against the enemy in an aircraft and if that was so, did he at that time incur danger from hostile forces of the enemy?

Exhibits A1 to A3 are numerous documents provided by the applicant relating to his service in 20 Squadron, in particular he states that he was involved on flight duties on five occasions prior to the cessation of hostilities on 15 August 1945 and a further flight, a sixth flight, was a lengthy daylight operation shortly after the cessation of hostilities, the objective of which was to locate and identify Japanese shipping coming in to surrender.

Because the facts of the applicant's flights was doubted by the respondent he has obtained considerable information from former members of 20 Squadron.  The respondent on its part relied on reports by a Mr Robert Piper, an air force historian.  Without going into any detail of those matters I accept that the applicant did engage in flights on Catalina aircraft as a supernumerary crew member.  It is true that no record of his flights exists but as I said in the course of argument anybody who knows anything about the services knows that there are occasions where people obtain trips or go to places where they are not strictly entitled to be but a blind eye is turned.

The applicant has explained how he came to undertake the flights and I see no reason to doubt his evidence in that regard.  So certainly I am prepared to accept that he did undertake flights, one of which was certainly an operational flight. 

The difficulty for the applicant is in the second part of the definition which requires that he incur danger from hostile forces of the enemy. That phrase has received judicial interpretation in the full Federal Court decision of Repatriation Commission v Thompson 82ALR 352. Quoting from the headnote of that case the court said:

Using the dictionary meanings of danger and incurred a serviceman incurred danger when he or she encountered danger, was in danger or was endangered.  A serviceman incurred danger from hostile forces when he or she was exposed, at risk of or in the peril of harm or injury from hostile forces.  A mere risk or liability to danger or danger which was fanciful or minimal was not sufficient.  The test for incurred danger was objective not subjective.

In this matter the applicant, to his credit, has very honestly said that at no time was any of the aircraft on which he was a supernumerary crew member fired upon by Japanese forces.  He pointed out that

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although he took a flight on 15 August on the same route as aircraft which took that same route on 12 August and 19 August and both of those aircraft had exchanges of fire with the enemy that therefore he was in danger from the enemy.

The point is however, as Thompson's case makes clear, the test is an objective one and if during his flight on 15 August the applicant did not exchange fire or be fired upon otherwise by the enemy then the objective standard has not been met.  It is not sufficient that he or his other crew members had an apprehension that they may have been fired upon.

So in this particular matter as I cannot find or be reasonably satisfied in the terms of subsection 4 of section 120 of the Veterans Entitlements Act 1986 that the applicant incurred danger from hostile forces of the enemy the decision under review must be affirmed.

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