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             

1. 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.

2. 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;"

1. 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.

2. 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.

3. 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 – the first 88 miles and the second 106 miles west of Thursday Island.  Sixty-three mines were thought to have been laid.  The decision also reiterated that which is common knowledge, "That mines do break free from their moorings is of course well known (and towards the War's end, one of the Members of this Tribunal serving in the Navy saw many such which had been reported stranded on reefs or beaches – blown up by rifle fire)."

4. Mr. Mitchell gave evidence, which the Tribunal accepts, that when he was on the troop ship "Duntroon" – on the second day out from Thursday Island, he and other service personnel saw a spherical shape which looked like a mine floating in the sea not far from the ship.

5. The Tribunal was also referred by both parties to an article by a Naval historian, Piper, who reported:

   "Submarine mine laying in the Torres Strait is recorded in the recently released book Torres Strait Force by Reg Ball, released by Australian Military History Publication (AMHP), which states at page 17:
   In early January 1942 Japanese submarine 1-122 was ordered to the waters off north Australia to lay mines at the western approaches to Torres Strait.  However, it could not approach close enough to effect laying the mines because of shallow water and strong tides.
   It should be noted that the book Sensuikan 1-124 contradicts the above and states at page 29 that the 1-122 laid 30 mines in the Torres Strait area on 15 January 1942, then joined the 1-121 and headed to the north of Timor.  However, original Japanese records and their English translation state that in actual fact the submarine that went to the Torres Strait was the 1-123 which laid 40 mines on 25 February 1942.
   The discovery of a mine as recorded in Torres Strait Force, is confirmed.  Details are:  "17 December (1943) – 4th Australian Division advised finding mine on a beach approx. 1 mile south of Red Island Point jetty – 3 foot six inches in diameter.  The navy was advised and dispatched R.M.S. Officer to investigate"."

1. It was conceded on behalf of the respondent that Mr. Mitchell was a member of the Defence Force in a period of hostilities as defined in subsection 5B(1) of the Act.  However, it was submitted on behalf of the respondent that Mr. Mitchell was not undertaking naval or military operations against the Japanese when he was on duty in the Thursday Island, Horn Island, Cape York and Jacky Jacky area in September 1944 because he was not involved in actual combat against the Japanese.  It was also submitted on behalf of the respondent that Mr. Mitchell did not incur danger while travelling by ship and barge in the vicinity of Torres Strait in September 1944.

2. The Tribunal rejects the notion that to satisfy the conditions of "naval or military operations against the enemy" set out in section 7A a veteran had to be involved in actual combat against the enemy. If that interpretation be correct, any veteran who was bombed, sunk or shot at by the enemy while they were asleep in their bunk, or while they were being transported to a front line, would not have qualifying service unless they actually engaged the enemy by firing back. The Tribunal believes that such an interpretation is too restrictive.

3. When Mr. Mitchell was transported to Higgins Field, he was involved in an operation against the forces of Japan.  He was not sent there for a pleasure cruise nor for a training exercise.

4. The Tribunal takes the view that although no ships were sunk by mines in the vicinity of Torres Strait in 1944, that does not necessarily mean that the sailing of ships in the area was not a dangerous undertaking at that time. There was a real danger of striking a Japanese mine and anyone who travelled on a vessel in the area incurred danger from the Japanese mines which had been laid in 1942.  It is not a pre-requisite to the incurring of danger that one must be blown up.

5. The Tribunal sets aside the decision under review and determines that Raymond Mitchell has rendered qualifying service, pursuant to the provisions of section 7A of the Act and that he is entitled to be paid service pension with effect from 3 July 2000.

   I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member.

   Signed:         .....................................................................................
              B. Hitchcock, Secretary

   Date/s of Hearing  7 December 2001
   Date of Decision  7 December 2001
   Request for written reasons     21 January 2002
   Counsel for the Applicant        Mr. D. O'Gorman
   Solicitor for the Applicant         Gilshenan and Luton
   Respondent  Mr. R. Morison, departmental advocate