Nguyen and Repatriation Commission
[2012] AATA 603
•6 September 2012
[2012] AATA 603
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1940
Re
Phuoc Nguyen
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 6 September 2012 Place Sydney The Tribunal affirms the decision under review.
............[sgd]............................................................
Senior Member J F Toohey
CATCHWORDS
VETERANS ENTITLEMENTS – whether applicant rendered qualifying service – whether applicant an allied veteran – whether applicant incurred danger from hostile forces – whether danger incurred during a period of hostilities – inconsistencies in applicant’s evidence – inconsistencies not satisfactorily explained – decision under review affirmed
LEGISLATION
Veterans’ Entitlement Act 1986 ss 5B, 5C(1), 7A(c), 120(4) and Sch 2
REASONS FOR DECISION
Senior Member J F Toohey
7 September 2012
BACKGROUND
Mr Phuoc Tho Nguyen came to Australia from Vietnam as a refugee in July 1983. In 2002, and again in 2003, he applied for a service pension on the basis of his service in the Army of the Republic of Vietnam (ARVN). Both applications were refused. His third application, made in 2011, was also refused and is the subject of these proceedings.
On each occasion, the respondent has rejected Mr Nguyen’s application on the ground that he is not eligible for a service pension because he has not rendered qualifying service within the meaning of the Veterans’ Entitlements Act1986 (the Act).
The meaning of qualifying service is set out in s 7A(c) of the Act. A person renders qualifying service if he or she:
is an allied veteran who, during a period of hostilities, has, as a member of the defence force established by an allied country, rendered, in connection with a war, or war-like operations, in which the Naval, Military or Air Forces of Australia were engaged, service in an area within or outside the country in which the person enlisted in those forces, being service in respect of which the person incurred danger from hostile forces of the enemy.
By s 5C(1), an allied veteran is a person:
(a)who has been appointed or enlisted as a member of the defence force established by an allied country; and
(b)who has rendered continuous full-time service as such a member during a period of hostilities.
Period of hostilities in the context of Vietnam means duty in the operational area of Vietnam (Southern Zone) during the period 31 July 1962 to 11 January 1973: s 5B and Sch 2.
THE ISSUES
I have to determine whether Mr Nguyen rendered qualifying service of the purposes of the Act. That requires me to determine:
(i)whether he is an allied veteran;
(ii)if so, whether he incurred danger from hostile forces; and
(iii)if so, whether he incurred that danger during a period of hostilities.
For Mr Nguyen’s claim to succeed, I must determine each of these matters to my reasonable satisfaction: s 120(4).
THE EVIDENCE
Over the course of his applications, Mr Nguyen has submitted a range of documents including service details questionnaires, statutory declarations, and statements from several witnesses, all of which are before the Tribunal. Mr Nguyen also gave oral evidence before the Tribunal.
Also in evidence is a report of an interview conducted in 1983 for the purposes of Mr Nguyen’s application for resettlement in Australia, and a report of research undertaken for the Department of Veterans Affairs in 2002 by Writeway Research Service into Mr Nguyen’s claims.
The respondent says the inconsistencies in the documents submitted by Mr Nguyen are such that the Tribunal cannot be reasonably satisfied that he rendered qualifying service. Further, that no support for his claims in found in the Writeway report.
As will be seen, there are inconsistencies in almost every significant aspect of Mr Nguyen’s claims.
Date of enlistment
Notes of an interview in August 1983 in connection with Mr Nguyen’s application for refugee resettlement in Australia shows that he was employed as a linoleum maker from 1968 to 1973 and served in the ARVN from 1973 to 1975. Details of his rank, serial number, unit, and his unit’s location, are noted.
In contrast, in his applications for the service pension in 2002 and 2003, Mr Nguyen stated clearly on the application forms, in service details questionnaires, and in correspondence with the Department of Veterans Affairs, that he enlisted in the ARVN voluntarily on 2 February 1972.
In his most recent application, Mr Nguyen claims to have enlisted in the ARVN in 1971. In a statutory declaration in November 2011, and in evidence before the Tribunal, Mr Nguyen said the information he had given previously about his date of enlistment was not correct, and a friend had told him he must tell the truth. He now claims he voluntarily enlisted in the ARVN in April 1971 when he was 17, and deserted in November 1971 after his convoy came under attack from enemy forces. He claims he was arrested in February 1972 for deserting and was forcibly conscripted back into the army.
When asked at the hearing why he did not say in either of his previous applications that he had enlisted in April 1971, Mr Nguyen said he did not know. When asked about this again later during the hearing, he said he thought he only needed to present the fact that he was a soldier, and he thought that when he joined up was not important.
When asked why he apparently told the officer at the resettlement interview in 1983 that he served in the ARVN from 1973, Mr Nguyen said he could not remember details of the interview. He said he had spent seven nights on a sea voyage to Malaysia where the interview was conducted and, at the time, he could not recall details of his service. He could not offer any explanation for the dates recorded in the notes of the interview.
It is not surprising that Mr Nguyen cannot recall details of an interview that took place nearly 30 years ago but that does not explain why his years of service were clearly recorded in the notes, along with his rank, serial number and unit, and his unit’s location. Nor has Mr Nguyen offered any plausible explanation for his failure to say in his earlier applications that he enlisted in April 1971.
Danger from hostile enemy forces
Mr Nguyen has also given varying accounts of when he says he incurred danger from hostile forces.
When asked at the hearing when he first encountered enemy forces, Mr Nguyen described an incident in which he was part of a convoy that was attacked by enemy forces, and a truck only 30 or 40 metres from him was hit, killing four soldiers and wounding ten. He said this was the incident that led him to desert the ARVN. In a statutory declaration in November 2011, he wrote that this incident occurred in November 1971. When asked at the hearing when it occurred, he could not remember.
Mr Nguyen was asked about other encounters with enemy forces. He said there were two, in September 1972 and in November 1972. He said that, in the first, the ARVN lost ten soldiers in a battle that lasted about an hour; in the second, which occurred at the same location, the ARVN captured several enemy soldiers and guerrillas.
Mr Nguyen confirmed these three incidents were the only contact he had with the enemy.
Mr Nguyen was then asked about his statutory declaration, made in May 2002, in which he described “a big battle” at Long Thanh “from Jan. 1973 to the end Jan. 1973” in which he was “nearly killed”. During the hearing, he maintained that this battle occurred as described, and that he was nearly killed. When he was asked why he had not mentioned this incident previously during questioning, Mr Nguyen said that, whereas the other incidents were directed at his unit, this incident was directed at another unit and his unit was called upon to help. He also claimed that sometimes he does not remember things.
I do not accept Mr Nguyen’s claims about these encounters. I do not accept, if it occurred, that he could not remember the date of the encounter in 1971 when it is central to the claims he now advances. Further, his explanation for failing to recall the 1973 encounter, which appears to be the most serious of all, is not plausible. Because of the extent of the inconsistencies in his evidence generally, I am not prepared to accept that either of the incidents in 1972 occurred.
Other matters
In a number of other respects, the information provided by Mr Nguyen appears inconsistent or implausible. For instance, in his 2002 application, he wrote that his training comprised a “military basic course” from February 1972 to June 1972. He did not refer to the “military intelligence course” which he later claimed to have undertaken in May and June 1972. He could not explain this omission.
When asked why, if he had enlisted in 1971 and undertaken basic training, he would have been required to repeat that training when he was forcibly taken back into the army in February 1972, Mr Nguyen claimed that is what happens with deserters. This explanation seems improbable and I do not accept it. It more likely reflects that Mr Nguyen cannot recall what he has written at different stages in his applications.
Statements of witnesses
Statements have been provided by six witnesses in support of Mr Nguyen’s application. None of the witnesses gave evidence before the Tribunal.
One statement adds nothing because the writer says he met Mr Nguyen in March 1973 (after the period of hostilities). One writer states that he met Mr Nguyen in June 1971. According to a statement from his brother, Mr Nguyen served in the ARVN from 1972 to April 1975. Other statements provide limited, or no, assistance because they are in very general terms or the writer does not claim to have been involved in the encounters with enemy forces referred to by Mr Nguyen.
None of the witness statements has been tested. Insofar as they give any support to Mr Nguyen’s claims, I place no weight on them.
The Writeway report
In November 2002, the respondent asked Writeway Research Service, which provides historical research in relation to claims, whether any independent evidence about Mr Nguyen‘s claims could be located. The researcher was unable to verify his service details but that itself is not surprising given the circumstances in which the conflict in Vietnam ended.
The report refers to the peace talks that were underway in Paris from October 1972 to January 1973, and the ceasefire agreement signed on 27 January 1973. The researcher could not locate any reports that could verify Mr Nguyen’s claim that he was involved in enemy attacks in November 1972 and January 1973. He thought aspects of Mr Nguyen’s claims, such as being transferred between provinces, unlikely but did not rule them out.
CONSIDERATION
Mr Nguyen’s command of English is limited. I accept that he depends on others to complete forms for him and take down his statements. I accept that the contents of his statutory declarations and other documents depend in large part on what he was asked at the time. In my view, he is entitled to some latitude, and his claims should not be overly scrutinised for inconsistencies.
However, I do not accept that the inconsistencies in Mr Nguyen’s evidence can be attributed to his lack of English or his reliance on others. Most of the questions asked of him in the various application forms are straightforward. There are too many inconsistencies and too few satisfactory explanations for them.
I accept the possibility, given Mr Nguyen’s age at the time and the policy of conscription into the ARVN from the age of 18 years (about which there is no direct evidence before me but which I accept), that he served for a time in the ARVN.
I think it likely that the statement Mr Nguyen gave in his resettlement interview in 1983 most closely reflects the truth: that he was employed as a linoleum maker until 1973 (month not specified) and that he served in the ARVN from 1973 (month not specified) to 1975. The statement was taken closer in time to the events in question and at a time when Mr Nguyen had no reason not to tell the truth.
The period of hostilities ceased on 11 January 1973. Given the information Mr Nguyen gave the resettlement office about his employment and service, it is most unlikely that he served before that date. If he did encounter danger from hostile forces at any time during his service, I am not satisfied that it occurred during the period of hostilities.
It follows that I am not satisfied that Mr Nguyen rendered qualifying service for the purposes of the Act. I affirm the decision under review.
I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. ...........[sgd].............................................................
Associate
Dated 7 September 2012
Date(s) of hearing 4 September 2012 Solicitors for the Applicant Mr T Latimore, Legal Aid Commission of NSW Solicitors for the Respondent Mr N Bunn, Department of Veterans' Affairs Advocacy Section
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