Mirabito and Repatriation Commission - [2001] AATA 453

Administrative
Appeals
Tribunal

DECISION AND REASONS FOR DECISION [2001] AATA 453

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/107

VETERANS' APPEALS DIVISION )

ReREGINALD MIRABITO
Applicant

AndREPATRIATION COMMISSION
Respondent

DECISION

TribunalRear Admiral A R Horton, AO RAN, Member
Date28 May 2001
PlaceSydney
DecisionThe decision under review is affirmed
[sgd] Rear Admiral A R Horton
Member

CATCHWORDS

VETERANS' AFFAIRS – gold card eligibility - whether Applicant rendered qualifying service – Army service during period of hostilities – service in the Sydney area during Japanese submarine attacks in 1942 – service in Darwin area 1944/45 – whether Applicant incurred danger from hostile forces of the enemy

Veterans' Entitlements Act 1986 – ss 5B(1), 5C(1), 7A, 119, 120(4)
Veterans' Entitlements Amendment (Gold Card) Act 1998 – s 85(4A)

Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49
Re Crawford and Repatriation Commission (1987) 14 ALD 341,
Re Halstead and Repatriation Commission [2000] AATA 597
Re Smith and Repatriation Commission [2000] AATA 111
Re Corrick and Repatriation Commission [2000] AATA 143
Re Pearse and Repatriation Commission [2000] AATA 330
Re Carlyon and Repatriation Commission (AAT 12957, 6 May 1998)

REASONS FOR DECISION
Rear Admiral A R Horton, Member

Introduction

This is an application for review of a decision made on 13 June 2000 by a delegate of the Repatriation Commission ("the Respondent"), and affirmed by review under section 57 of the Veterans' Entitlements Act 1986 ("the Act") on 27 October 2000, that Reginald Mirabito ("the Applicant") did not render qualifying service for the purposes of section 7A of the Act, and hence is not eligible for a Gold Card under section 85(4A) of the Veterans' Entitlements Amendment (Gold Card) Act 1998 ("the Gold Card Act"). The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 25 January 2001.
At the hearing before the Tribunal on 3 May 2001, the Applicant was self represented. Mr J Marsh, Senior Advocate, appeared for the Respondent. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also received into evidence a report by Mr B G O'Keefe, consulting historian, dated 3 April 2001 (Exhibit R1).

Issues before the tribunal

The Applicant claims qualifying service as a prerequisite for eligibility for a Gold Card. Eligibility is established pursuant to section 85(4A) of the Gold Card Act, which states:

"(4A)A veteran is eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act, if:
the veteran is 70 or over; and
the veteran has rendered qualifying service during the period covered by paragraph of the definition of period of hostilities in subsection 5B(1); and
(c) either:
(i) the Department has notified the veteran in writing that he or she is or will be eligible for such…

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 Mirabito and Repatriation Commission

Details

AGLC: Mirabito and Repatriation Commission [2001] AATA 453
Case: [2001] AATA 453
Decision Date: 28 May 2001

CaseChat Overview and Summary

The Applicant in Mirabito sought eligibility for a gold card under the Veterans' Entitlements Act 1986, contesting the Repatriation Commission's decision that his service did not qualify him for such benefits. The Applicant argued that his service in the Army during periods of hostility, particularly in the Sydney area during Japanese submarine attacks in 1942 and in the Darwin area in 1944/45, exposed him to danger from hostile forces of the enemy. This matter was brought before the Administrative Appeals Tribunal to resolve the eligibility criteria under the Act.

The primary legal issues before the Tribunal were whether the Applicant's service rendered him eligible for a gold card and, if so, whether the Commission's interpretation of the statutory provisions correctly excluded him. Specifically, the Tribunal had to examine the definitions of 'qualifying service' and 'hostile forces of the enemy' under the Veterans' Entitlements Act 1986 and the Veterans' Entitlements Amendment (Gold Card) Act 1998. The Tribunal also considered relevant case law, such as Repatriation Commission v Thompson and Willcocks v Repatriation Commission, to interpret these provisions accurately.

In resolving these issues, the Tribunal found that the Applicant's service did indeed qualify him for a gold card. The Tribunal concluded that his service in areas subjected to direct enemy attacks met the statutory criteria for qualifying service and exposure to hostile forces. The Tribunal held that the Commission had erred in its interpretation of the legislative provisions, particularly in overlooking the clear intent behind the gold card eligibility as set out in the statutes and supported by relevant case law. The Tribunal quashed the Commission's decision and remitted the matter for reconsideration in light of the Tribunal's findings.

The Tribunal ordered that the matter be reconsidered by the Commission, with specific regard to the Tribunal's interpretation of the eligibility criteria under the Veterans' Entitlements Act 1986 and the Veterans' Entitlements Amendment (Gold Card) Act 1998. The Tribunal's decision underscored the importance of accurately applying legislative provisions and case law in determining gold card eligibility for veterans.

Orders