Mitchell and Repatriation Commission - [2001] AATA 1055

DECISION AND REASONS FOR DECISION [2001] AATA 1055

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/147

VETERANS' APPEALS DIVISION       )
           Re      RAYMOND MITCHELL
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr. D.W. Muller, Senior Member

Date7 December 2001
PlaceBrisbane

............(Signed)..................
D.W. MULLER
SENIOR MEMBER

CATCHWORDS
VETERANS' AFFAIRS – qualifying service – operations against the enemy – incurred danger
Veterans' Entitlements Act 1986: s.7A
Tiplady and Repatriation Commission No N86/426, AAT No. 3694

REQUEST FOR WRITTEN REASONS FOR DECISION

Mr. D.W. Muller, Senior Member

This is an application to review a decision to reject a claim for service pension on the ground that the applicant has not rendered qualifying service, pursuant to section 7A of the Veterans' Entitlements Act 1986.
Section 7A provides:
"7A Qualifying service
(1)For the purposes of Part III 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;"

There is no dispute about the facts. The Tribunal finds as follows:
(i)Raymond Mitchell, the applicant, was born on 7 February 1924.
(ii)He served in the Australian Army from May 1942 until September 1946.
(iii)On 7 September 1944, he embarked on the troop ship "Katoomba" at Townsville. He travelled on the "Katoomba" to Horn Island, arriving there on 10 September 1944. He then travelled by landing barge from Horn Island to Thursday Island.
(iv)On or about 12 September 1944, he was transported by motor launch to Cape York Peninsula and then by truck to an anti-aircraft battery at a place called Jacky Jacky. The AA Battery surrounded Higgins Airfield.
(v)On or about 20 September 1944, he was transported back to Thursday Island and then to Horn Island.
(vi)On 23 September 1944, he and his unit embarked on the troop ship "Duntroon" to travel to Brisbane. He arrived in Brisbane on 28 September 1944.
It was submitted by Counsel for Mr. Mitchell that the circumstances surrounding his deployment from Townsville to Higgins Field and back to Brisbane were practically identical to those with which the Tribunal was concerned in the case of Tiplady and Repatriation Commission No. N86/426, AAT No. 3694. In the case of Mr. Tiplady, the Tribunal decided that the veteran did have qualifying service.
The Tribunal's decision in Tiplady contains an extensive analysis of the known activities of Japanese and German forces in Australian waters during World War II. In particular the decision refers to the laying of minefields by three Japanese submarines in 1942, in the vicinity of Bathurst Island, Dundas Strait and in two other positions…

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 Mitchell and Repatriation Commission

Details

AGLC: Mitchell and Repatriation Commission [2001] AATA 1055
Case: [2001] AATA 1055
Decision Date: 7 December 2001

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) reviewed a decision by the Repatriation Commission to reject a claim for a service pension by Raymond Mitchell, who argued he had rendered qualifying service under section 7A of the Veterans' Entitlements Act 1986. The core of the dispute was whether Mr. Mitchell's service during World War II constituted 'qualifying service' as defined by the Act, specifically whether he had been involved in naval, military, or aerial operations against the enemy and had incurred danger from hostile forces.

The Tribunal addressed whether being involved in actual combat against the enemy was a necessary condition to satisfy the requirements of 'naval or military operations against the enemy'. The Tribunal rejected the narrower interpretation proposed by the respondent, holding that merely being in a combat zone or at risk from enemy action was sufficient, regardless of whether direct combat engagement occurred. The Tribunal relied on the broader context of the war and the inherent dangers present even without direct confrontation.

Considering the facts of Mr. Mitchell's service, the Tribunal found that his deployment and activities placed him in a combat zone, where he was exposed to the dangers of enemy mines and potential attacks. Given the real and present danger posed by the Japanese submarine mines laid in 1942, the Tribunal concluded that Mr. Mitchell had indeed incurred danger from hostile forces, thereby satisfying the requirements of 'qualifying service'. Consequently, the Tribunal set aside the Commission's decision and ruled that Mr. Mitchell was entitled to a service pension from 3 July 2000.

Orders