Millar and Repatriation Commission - [2004] AATA 1263

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1263
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/557
VETERANS' APPEALS DIVISION

Re: CLIVE JOHN MILLAR
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       Mr C. Ermert, Member
Date:             30 November 2004
Place:            Melbourne
Decision:      The decision under review is affirmed.
(sgd) C. Ermert
Member

VETERANS' AFFAIRS – - entitlement to Gold Card - definition of veteran met under s 85(4A) of the Veterans' Entitlements Act 1986 - veteran's performance within defined period of hostilities - whether applicant rendered qualifying service
Veterans’ Entitlements Act 1986 ss 5B, 7, 85(4A),
Re Holmes and Repatriation Commission (2003) AATA 993
Re Mann and Repatriation Commission (2000) AATA 582
ReMeldrum and Repatriation Commission (1999) AATA 330
Repatriation Commission v Burton (1993) 31 ALD 475
Repatriation Commission v Thompson (1988) 44 FCR 20
Thompson v Repatriation Commission (1988) 17 FCR 266
Willcocks v Repatriation Commission (1992) 39 FCR 49
REASONS FOR DECISION
30 November 2004   Mr C. Ermert, Member
INTRODUCTION
1.      This is an application by Mr Clive John Millar (the veteran) for review of a decision of a delegate of the Repatriation Commission (the Commission) dated 19 September 2002.
2.      That decision affirmed an earlier decision of the Commission, dated 22 May 2002, which determined the veteran did not have the necessary World War II qualifying service and thus was not entitled to a Gold Card.
3.      At the hearing the veteran was represented by Mr De Marchi, solicitor and the Commission by Mr Purcell of counsel. The veteran appeared at the hearing to give his evidence.
THE LEGISLATION
4.      By making an application for a “Gold Card” Mr Millar has sought eligibility for the cost of medical treatment.
5.      Section 85(4A) of the Veterans’ Entitlement Act 1986 (the Act) provides that a veteran is eligible for provision of treatment if he or she is over 70 years of age and has rendered “qualifying service during the period covered by paragraph (v) of the definition of period of hostilities in sub-section 5B(1) …”.
6.      Section 5B defines “period of hostilities” (in so far as it applies to World War II) as the period between 3 September 1939 and 29 October 1945.
7. Section 7A refers to “qualifying service” and deems that a person has rendered qualifying service (relevantly) in the following circumstances:
7A Qualifying service
(1)       For the purposes of Parts lll and VA and sections 85 and 118V, a person has rendered qualifying service:
(a)if the person has, as a member of the Defence Force:
(i)rendered service, during a period of hostilities 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;

THE ISSUES
8.…

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 Millar and Repatriation Commission

Details

AGLC: Millar and Repatriation Commission [2004] AATA 1263
Case: [2004] AATA 1263
Decision Date: 30 November 2004

CaseChat Overview and Summary

In the case of Millar and Repatriation Commission, the applicant, Mr Clive John Millar, sought a review of a decision made by the Repatriation Commission, which had determined that he was not entitled to a Gold Card for the payment of medical treatment costs. The decision was based on the conclusion that Mr Millar did not have the necessary World War II qualifying service. The Tribunal was required to determine whether Mr Millar's service met the criteria for qualifying service under the Veterans' Entitlements Act 1986. This involved examining whether he rendered service within the defined period of hostilities and whether he incurred danger from hostile forces of the enemy.

The Tribunal found that Mr Millar's age met the requirement of being over 70 years old, as stipulated by s 85(4A) of the Act. However, the Tribunal determined that Mr Millar did not render qualifying service during his voyages across Bass Strait. The Tribunal concluded that his service did not constitute "operations against the enemy," as he was merely a passenger on a commercial transport ship engaged in routine passages. Furthermore, the Tribunal found that Mr Millar did not incur danger from enemy submarines or mines, as there was no evidence to suggest that he was exposed to, at risk of, or in peril of harm from hostile forces of the enemy during his passages. The Tribunal relied on the objective test for "incurred danger" as established in relevant case law. Consequently, the Tribunal affirmed the original decision of the Repatriation Commission, denying Mr Millar entitlement to a Gold Card.

The final orders of the Tribunal were to affirm the decision under review, meaning that Mr Clive John Millar's application for a Gold Card was dismissed, and he remained ineligible for the provision of treatment under the Veterans' Entitlements Act 1986.

Orders