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

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.

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.

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…

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.

Continue reading Menzies and Repatriation Commission

Details

AGLC: Menzies and Repatriation Commission [2001] AATA 875
Case: [2001] AATA 875
Decision Date: 5 October 2001

CaseChat Overview and Summary

Menzies and the Repatriation Commission presented a case before the court regarding the eligibility of the applicant for veterans' entitlements. The applicant argued that they were entitled to such benefits because they had served in the military and were exposed to the dangers posed by enemy forces. The Repatriation Commission, however, contested the applicant's claim, asserting that they had not been exposed to such dangers. The court was required to determine whether the applicant's exposure to enemy forces was sufficient to qualify them for veterans' entitlements.

The court's primary task was to examine the legal principles governing the eligibility for veterans' entitlements and to apply these principles to the facts of the case. The court needed to determine whether the applicant's exposure to enemy forces was sufficient to qualify them for veterans' entitlements and whether the Repatriation Commission's decision to deny the applicant's claim was lawful and reasonable. The court also had to consider the appropriate standard of proof required to establish that the applicant had been exposed to enemy forces.

The court found that the Repatriation Commission had applied an objective standard in determining whether the applicant had been exposed to enemy forces. This standard required the applicant to demonstrate that they had been in a situation where they were at risk of being attacked by enemy forces. The court found that the applicant had failed to provide sufficient evidence to meet this standard and, as a result, the Repatriation Commission's decision to deny the applicant's claim was lawful and reasonable. The court concluded that the applicant was not entitled to veterans' entitlements because they had not been exposed to enemy forces.

The court ordered that the applicant's claim for veterans' entitlements be dismissed. The court found that the Repatriation Commission's decision was lawful and reasonable and that the applicant had failed to provide sufficient evidence to meet the objective standard required to establish that they had been exposed to enemy forces. The court's decision was based on a careful examination of the legal principles governing the eligibility for veterans' entitlements and a thorough analysis of the evidence presented in the case.

Orders