Mullen and Repatriation Commission - [2000] AATA 871

Administrative
Appeals
Tribunal

DECISION AND REASONS FOR DECISION [2000] AATA 871

ADMINISTRATIVE APPEALS TRIBUNAL )

) N0 N2000/349

VETERANS' APPEALS DIVISION )

ReDENNIS WILLIAM MULLEN
Applicant

AndREPATRIATION COMMISSION
Respondent

DECISION

TribunalRear Admiral AR Horton AO (Member)
Date3 October 2000
PlaceSydney
DecisionThe decision under review is affirmed.
..............................................
  Rear Admiral AR Horton
  Member

CATCHWORDS

VETERANS' AFFAIRS – Gold card eligibility – whether Applicant rendered qualifying service – RAAF service during period of hostilities – service on Mulgrave Island, Torres Strait – whether incurred danger from hostile forces of enemy

Veterans' Entitlements Act 1986 – ss5B(1), 5C(1), 7A, 120(4)

Repatriation Commission v Thompson (1988) 44FCR 20
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Burton (1993) 31 ALD 475
Re Crawford and Repatriation Commission (1987) 14 ALD 341
Re Bancroft and Repatriation Commission (AAT 11333, 25 October 1996)
Re Dwyer and Repatriation Commission (1987) 13 ALD 424

REASONS FOR DECISION
September 2000 Rear Admiral A R Horton
introduction

This is an application for review of a decision made on 13 August 1999 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 13 December 1999, that Dennis William Mullen ("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 6 March 2000.
At the hearing before the Tribunal on 29 August 2000, 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 Tribunal also received the following documents into evidence :
Exhibit No.     Descripton     Date
A1      Statement (with attachments) by the Applicant to the Tribunal          16 August 2000
R1      Report by Mr B G O'Keefe, consulting historian 7 June 2000

ISSUES BEFORE THE TRIBUNAL

The Applicant claims qualifying service as a prerequisite for eligibility for a Gold Card. Eligibility is established pursuant to subsection 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:
(a) the veteran is 70 or over; and
(b) 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 treatment; or
(ii) the veteran has notified the department in writing that he or she seeks eligibility for such treatment".

The Respondent concedes that the applicant is a veteran as defined in section 5C of the Act, that he served during the relevant period of hostilities as defined in subsection 5B(1), and that he meets the criteria for age as defined in subsection 85(4A)(a) of the Gold Card Act. Hence the only issue in this matter is whether the Applicant rendered qualifying service for the purpose of the Act. The required standard of proof is that of reasonable satisfaction pursuant to subsection 120(4) of the Act, equating to proof on the balance of probabilities as defined in Repatriation Commission and Smith 15 FCR 327.
"Qualifying service" is defined in section 7A of the Act, which relevantly states:
"7A(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; or
....."

FACTS AND EVIDENCE

The Applicant enlisted in the Royal Australian Air Force ("the RAAF") on 2 March 1943, serving until 20 February 1946. His record of service shows that he served on Mulgrave Island, Torres Strait (since renamed Badu Island but referred to herein as Mulgrave Island) from 8 January 1944 until 5 April 1945 (T3). Prior to enlistment he was a trainee teacher; aircrew training was not available and he was directed to Radar Operator training. On completion of the radar operators course at Richmond in October 1943, he was posted to 341 Radar Station, then forming at Mascot with a complement of 1 officer and 34 men. The role of the Station was to provide air warning.
In amplification of the chronological detail provided at Exhibit A1, the Applicant gave evidence that the unit deployed north from Sydney by train on 27 November 1943, the final destination having not been promulgated. The unit staged through Garbutt (Townsville), departing from that location by DC3 aircraft on 6 December for Horn Island off Cape York, being co-located with 88 Radar Station, until embarking with its equipment in a landing barge for Mulgrave Island on 9 December. In cross examination, the Applicant stated that the deployment from Sydney was uneventful.
Mulgrave Island is located some 35 nautical miles north of Horn Island. The Applicant described the island as having no infrastructure or roads, and the only inhabitants were in the native village on the coast, which was also visited by pearl luggers. The unit landed all equipment over the beach in the first few days, then set up a base camp at the foot of Mulgrave Hill on 16 December. In the ensuing three to four weeks, a road to the top of Mulgrave Hill was constructed to enable access for the mobile equipment, generators and 'doover' (housing radar equipment/aerial). He believed that the communications with Horn Island were not established until early February 1944 and radar surveillance operations commenced in early March. The unit had no defensive infrastructure, nor means of obtaining emergency assistance, except by trekking to the native village.
The Applicant described the reason for the siting of 341 Radar Station as being to provide surveillance and early warning to the north, given that 88 Radar Station on Horn Island, with a similar role, was effected by a 'blind arc' in that direction due to interference to radar coverage from off-shore islands. He understood the last unidentified aircraft sighted from Horn Island had been on 27 November 1943, but described the Horn Island personnel as being concerned at their blind arc, and hence an inability to detect aircraft to the north. In the period from December 1943 to March 1944, when 341 Radar Station was inoperative, the Applicant heard aircraft, but had no idea what was happening. To his knowledge there were no incidents reported by Horn Island in this period.
In the ensuing months, the unit carried out surveillance tasks as directed from Horn Island. The Applicant gave evidence that United States aircraft were tracked en route to Hollandia; the only "red alert" in response to an unidentified or possible enemy detection was relayed from Horn Island in early March 1944. The research by Mr O'Keefe indicates that an unidentified aircraft was detected approaching Horn Island from the north west on 4 March 1944, but "nothing eventuated" (Exhibit R1). An extract from the Operations Record Book of 341 Radar Station notes the tracking of an unidentified aircraft on 30 March (Exhibit R1). Mr O'Keefe states that after September 1943, Japanese air activity in the Merauke-Torres Strait area was "slight", and the official history Air War against Japan, 1943-1945 by George Odgers states "because of the absence of enemy air activity, both No 86 and 84 (Fighter ) Squadrons (located in the area) had little to do". The Applicant stated that he saw two or three enemy aircraft, but gave no evidence in support of this statement. In cross examination he gave no evidence that he was aware of any enemy activity other than unidentified radar detections which may have been hostile, and confirmed there were no raids on Mulgrave Island. He accepted the evidence of Mr O'Keefe that the last air raid on Horn Island occurred in June 1943 (Exhibit R1), some six months before he arrived in the area, but emphasised that allied servicemen remained frightened thereafter that further raids might occur.
The Applicant raised in evidence the concern that he had in regard to the threat from enemy mines laid in the Torres Strait area, and which may have drifted, both during the passage to Mulgrave Island and in the subsequent unloading. Mr O'Keefe stated that there is no record of any incident relating to mines in the Torres Strait area and that the area was swept with negative results in May-June 1945 (Exhibit R1).
ANALYSIS OF EVIDENCE AND FINDINGS
The Applicant contends that enemy activity, and the threat of such activity to those at Mulgrave Island, was greater in reality than now alleged. In particular, 341 Radar Station of only 35 men was established on Mulgrave Island, in a forward location, isolated, readily identifiable and "most vulnerable". The unit was located in a position dictated by the need to resolve a "blind spot" problem, to provide early warning to the mainland, and had no defences. The Applicant submitted that the significance of his unit being stationed in this forward and isolated position had not been properly taken into account in earlier considerations of his claim.
The Respondent submitted that there was common ground as regards the factual issues in respect to the Applicant's service at Mulgrave Island. There had been no air raids during his period of service on the island, and no incidents that might be attributed to enemy activity. The Respondent accepted that the Applicant had apprehension and fear, but that was insufficient to meet the objective "incurred danger" test. The Respondent acknowledged the service of the Applicant in what was an isolated outpost in the defence of Australia, and that he had no choice in the matter of when and where he served, but there was insufficient material in the evidence as to the Applicant's service to satisfy the qualifying service requirements for eligibility for the Gold Card.
Both parties to the hearing addressed the decision in ReDwyer and RepatriationCommission (1987) 13 ALD 424. Based on a report by the military historian, Lieutenant Colonel David Horner, that Tribunal found that Dwyer incurred danger and hence rendered qualifying service for the purpose of the service pension, because "the Japanese did have the strategic capacity to launch an attack on either Higgins Field base or Mulgrave Island (where the Applicant served from October 1943 at the former and from March 1944 to February 1945 at the latter). While with hindsight it can be said that such an attack was not probable, the capacity for, and the possibility of, an attack has been established". The Applicant in this matter served in the same unit as Dwyer, but sought to make the distinction that he had been stationed at Mulgrave for some 3 months before the arrival of the latter. The Respondent on the other hand saw Re Dwyer as being relevant to the extent that the background information and records of enemy activities accorded with the evidence given by Mr O'Keefe. The Tribunal notes one point of difference as being that Lieutenant Colonel Horner referred to relevant war diaries recording the detection on 3 March 1944 of unidentified aircraft 80 miles north west of Thursday Island, as well as the previously referred to aircraft detection on 4 March, which Horner described as a "sighting". The Tribunal takes the additional information in respect of the 3 March 1944 detection into account in considering this matter.
The Respondent also drew on the decision in Re Bancroft and Repatriation Commission (AAT 11333, 25 October 1996), as again being relevant in confirmation of the evidence given by Mr O'Keefe in this matter as to Japanese capabilities and activities. The Applicant is of the view that Re Bancroft has less relevance and that the action of the authorities in sending 341 Radar Station further off-shore was a reflection of the existing enemy threat. The Applicant submitted that in any event enemy activity was in fact greater in reality than thought (Exhibit A1).
The issue in this matter is whether the Applicant meets the eligibility criteria for the rendering of qualifying service pursuant to subsection 7A(1)(a)(i) of the Act, which requires the veteran to have rendered service "…in the field…", "in….military operations….", "against the enemy" and to have "incurred danger from hostile forces". The decision in Re Dwyer (supra) in respect of "incurred danger" was made against substantially the same criteria pursuant to the then section 36 of the Act for rendering service as is now incorporated under subsection 7A(1)(a)(i), but prior to various Federal Court considerations. In particular this Tribunal must draw on the later decision of the Full Federal Court in Repatriation Commission v Thompson (1988) 44 FCR 20, wherein the Court stated at pp 23-24:
"The words 'incurred danger' therefore provide an objective, not a subjective, test. A serviceman incurs danger when he encounters danger, is in danger or is endangered. He incurs danger from hostile forces when he is at risk or in peril of harm from hostile forces. A serviceman does not incur danger by merely perceiving or fearing that he may be in danger. The words 'incurred danger' do not encompass a situation where there is mere liability to danger, that is to say, that there is a mere risk of danger.
The danger must of course be more than a merely fanciful danger or a danger so minimal that a rule of de minimus applies. But to say that is not give a flavour to the word. Rather it is to use it in its ordinary sense."

Thus a more rigorous objective test as to the term "incurred danger" has been defined by the Full Court than was the case when the matter of Re Dwyer was considered.

The Tribunal also draws on an earlier decision in Re Crawford and RepatriationCommission (1987) 14 ALD 341, where that Presidential Tribunal stated:
"That is, the test of danger must entail an analysis of the actual military situation quite independent of an applicant's own view or perception of it at the time"
The "actual" military situation pertaining at the time of the Applicant's posting to Mulgrave Island was such that whilst the Japanese forces may have had some capacity and potential to conduct air attacks against the Torres Strait - Merauke area, as evidenced in an intelligence report prepared by General Macarthur's staff in March 1944, and referred to in the report by Lieutenant Colonel Horner in Re Dwyer (supra), the fact is that no such attacks took place. The reported incidents of detection of unidentified aircraft (which may have been friend or foe) by the radar facilities at Horn and Mulgrave Islands are minimal. The Applicant himself neither saw nor heard any evidence of enemy activity, and whilst he was concerned that the "doover" was an easily identifiable "target" on Mulgrave Hill, the fact is that it elicited no evident enemy reaction. Against the objective test as construed by the Full Court in Thompson (supra), the Tribunal cannot be reasonably satisfied that the Applicant incurred danger from hostile enemy forces.
A similar conclusion can be drawn as regards the threat from mines during the transfer of 341 Radar Station from Horn to Mulgrave Island, and during the unloading operations. There is no evidence that mines were observed, detected, or reported at any time. Olney J in Repatriation Commission v Burton (1993) 31 ALD 475, in discussing the concept of incurred danger specifically in relation to mine warfare, drew the conclusion that in the absence of any finding that the veteran in that case in any way encountered mines, there could be no basis for a conclusion that he encountered danger from hostile forces of the enemy, and the Tribunal follows that reasoning.
On the evidence, the Applicant did not incur danger as objectively defined in Thompson (supra), and cannot benefit from departmental policy in respect of the requirements of qualifying service. Qualifying service must be considered against the criteria in subsection 7A(1)(a)(i). The serviceman "must be at risk or in peril of harm from hostile forces"; it is not sufficient to perceive or fear that he may be in danger. The Applicant, to the reasonable satisfaction of the Tribunal pursuant to section 120(4) of the Act, does not meet this criteria, and hence did not render qualifying service for the purposes of section 7A of the Act.
The decision under review is affirmed.
I certify that this and the 21 preceding paragraphs are a true copy of the decision and reasons for decision herein of
Rear Admiral AR Horton AO (Member)
Signed:         ..................................................................................
  Associate
Date of Hearing  29 August 2000
Date of Decision  3 October 2000
Solicitor for Applicant               Self represented
Solicitor for the Respondent    Mr J Marsh, Department         of Veterans' Affairs