Nguyen and Repatriation Commission (Veterans' entitlements)

[2018] AATA 226

Nguyen and Repatriation Commission (Veterans' entitlements) [2018] AATA 226 (29 January 2018)

Division:VETERANS' APPEALS DIVISION

File Number:           2017/4397

Re:Phu Khang Nguyen

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date of Decision:                    29 January 2018

Date of Written Reasons:      16 February 2018

Place:Melbourne

The decision under review is affirmed.

............................[sgd]............................................

Senior Member A. Nikolic AM CSC

VETERANS' AFFAIRS – member of the Armed Forces of the Republic of Vietnam - whether incurred danger from hostile forces of the enemy – whether during the period of Australia’s involvement in Vietnam War – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975; s 43

Veterans' Entitlements Act 1986; ss 5B, 5C, 7A, 119, 120

CASES

Negri v Secretary, Department of Social Services [2016] FCA 879; (2016) 246 FCR 1

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

16 February 2018

INTRODUCTION

1. On 1 June 2016 Mr Nguyen lodged a Claim to Determine Qualifying Service by a Commonwealth or Allied Veteran,[1] which was refused by a delegate of the Repatriation Commission (the Commission).[2] The delegate was not satisfied Mr Nguyen had incurred direct personal danger from hostile forces of the enemy, during a period of hostilities in which Australian forces were involved. On 16 November 2016 Mr Nguyen sought review of that decision,[3] which was affirmed by a Service Pension Review Officer of the Commission on 29 May 2017.[4] He has asked the Tribunal to review the Commission’s decision.[5]

   [1] Exhibit R1, pp.43-60.

   [2] Exhibit R1, pp.61-63.

   [3] Exhibit R1, p.64.

   [4] Exhibit R1, pp.65-72.

   [5] Exhibit R1, pp.3-4.

2. The hearing was held on 29 January 2018 with the assistance of a Vietnamese interpreter. Mr Nguyen was self-represented, gave oral evidence and was cross-examined. The Commission was represented by Mr Nam Nguyen, a solicitor with Sparke Helmore. At the conclusion of the hearing I made my decision ex tempore. On 2 February 2018 Mr Nguyen requested a statement in writing of the reasons for my decision in accordance with s 43(2A) of the Administrative Appeals Tribunal Act 1975. These are the reasons requested. In providing them I have had regard to the decision of Bromberg J in Negri v Secretary, Department of Social Services [2016] FCA 879; (2016) 246 FCR 1, which considered the extent to which the Tribunal could elaborate upon its oral reasons when producing written reasons. His Honour stated at 9:

   ‘As I have said, the reasons or explanation given in writing may be different to that given orally. Different reasons, as between those provided orally and those later provided in writing, are not necessarily demonstrative of different reasoning. As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).’

3. For the reasons that follow, the decision under review is affirmed.

   BACKGROUND

4. Mr Nguyen had previously lodged an Application to Determine Qualifying Service by a Veteran or Mariner on 15 October 2012, referring to two incidents on 21 April 1973 and 20 March 1975, where he claimed to have experienced danger from hostile enemy forces.[6]  His claim was refused because both of the incidents he relied upon occurred after Australia’s involvement in the Vietnam War officially ceased on 11 January 1973. In a letter to the Department on 19 February 2013,  Mr Nguyen sought a review of that decision, stating:

   ‘If the problem is judged on the individual basis only, it’s right that I didn’t render qualifying service as defined by the Law. But if things are regarded in respect of the real spirit of alliance, we all members of our former Republic of Vietnam should be treated as Allied Veterans.’[7]

   [6] Exhibit R1, p.30.

   [7] Exhibit R1, p.37.

5. A delegate of the Repatriation Commission affirmed the decision on 30 July 2013,[8] noting there was ‘no additional information of danger incurred during the required period included with Mr Nguyen’s request for review.’[9] The delegate was not satisfied Mr Nguyen had rendered qualifying service as defined under the Veterans’ Entitlements Act 1986 (the Act).

   [8] Exhibit R1, pp.39-42

   [9] Exhibit R1, p.41.

6. In seeking a review following the initial rejection of his second application in 2016, Mr Nguyen stated he had not previously given full details of incidents where he faced danger from the enemy, contending that he had suffered a superficial wound to his left eyebrow in December 1972 from a ‘fragment of some kind of weapon.’[10]

   [10] Exhibit R1, p.64.

   THE LEGISLATION

7. Section 5B(1) of the Act limits the period of hostilities in this case to 11 January 1973, when Australian forces officially ceased their involvement in the Vietnam conflict. 

8. The term ‘veteran’ is defined at section 5C(1) of the Act to include ‘an allied veteran,’ which is further defined in that section as 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;

   …

9. The expression “defence force established by an allied country” is also defined in section 5C(1) as follows:

   “defence force established by an allied country means:

   (a)       the regular naval, military or air forces; and

   …

   raised by an allied country and operated by the country with regular military-like lines of command, that is to say, raised and operated in such a manner that the members of those forces and services:

   (d)       were formally appointed to, or enlisted in, those forces or services; and

   (e)were required to wear uniforms or insignia distinguishing them as members of those forces or services; and

   (f)        were required to carry arms openly; and

   (g)       were subject to the rules and conventions of warfare.”

10. Section 7A of the Act provides the requirements for Qualifying Service. The relevant section in this matter is 7A(1)(c), which states a person has rendered qualifying service:

    …

    (c)if the person 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 …

11. Section 120(4) of the Act provides that the standard of proof in determining this matter is on the balance of probabilities.

    ISSUES

12. The issue for determination is whether Mr Nguyen incurred danger from hostile forces of the enemy during the period of Australia’s involvement in hostilities in Vietnam, which officially ended on 11 January 1973.

    EVIDENCE

13. Mr Nguyen testified that after volunteering to serve in the Army of the Republic of Vietnam (ARVN) on 1 September 1972, he undertook approximately a week of in-processing and medical checks before commencing his training at Dục Mỹ Camp in south central Vietnam. When asked to explain why Gia Dinh Province was listed as his place of enlistment in his 2012 application,[11] and Ho Nai Province as his place of enlistment in his 2016 application,[12] Mr Nguyen explained that his initial processing was undertaken in Ho Nai and other locations before the commencement of his recruit training. He claims to have been 16 years of age on enlistment and only received nine weeks of the scheduled 12-week training course due to an urgent need for reinforcements. In response to questions about when he arrived at his first post-training location, Mr Nguyen agreed it was possible he arrived in the An Lộc operational area towards the end of November or early December 1972.  When asked to explain why he had previously specified 24 November 1972 as his specific date of arrival,[13] Mr Nguyen said he had ‘just picked a date,’ which he estimated to be around nine weeks after his initial training commenced.

    [11] Exhibit R1, p.29.

    [12] Exhibit R1, p.47.

    [13] Exhibit R1, p.52.

14. In his statements, Mr Nguyen refers to involvement in various battles as follows:

    ‘The various regions where I engaged in battles were An Loc, Binh Duong, Lai Thieu, Hau Nghia…[14]

    …my unit were airlifted to …An Loc where one of the fiercest battles occurred…the nature of the battle where 3 North Vietnamese divisions of about 36,000 troops trying to attack the small city defended by an estimated 6000 South Vietnamese troops including my Ranger unit. The enemy had two regiments of tanks whilst our friendly forces had none….Days and nights, we had to stayed underground or in bunkers to be protected from shelling attacks…[15]

    All road were blocked because of enemy fighting therefore resupply not possible by road only aircraft supply drop….Because An Loc now almost fall to the ground.[16]

    [14] Exhibit R1, p.24.

    [15] Exhibit R1, p.7.

    [16] Exhibit R1, p.52.

15. Mr Nguyen was asked to elaborate on his involvement in the fighting at An Lộc, which history records as a major battle in April and May 1972. This was months before Mr Nguyen’s stated date of enlistment (1 September 1972) and, consistent with his description above, involved multiple North Vietnamese divisions against a single ARVN division.[17] Mr Nguyen stated that although his unit had been located at An Lộc, he did not actually fight at the Battle of An Lộc. It was similarly put to Mr Nguyen that history records the Battle of Binh Duong as a major search and destroy operation by the United States Army’s 1^st Infantry Division in early 1966, which was approximately six years prior to his enlistment. Mr Nguyen confirmed that he had not fought at the Battle of Binh Duong, but was part of ARVN forces subsequently located in the area where the battle had been fought.

    [17] See for example:  >

    Mr Nguyen was taken through his evidence regarding the superficial wound to his left eyebrow that he says occurred in early December 1972, approximately a week after his arrival in An Lộc. When asked why he didn’t advise the Department of that wound after the rejection of his 2012 application, Mr Nguyen said this was because of the ‘language barrier.’ He did not know he ‘had to explain specific incidents,’ and it was not until 2016 that he received assistance from an Australian veteran and included this incident in his second claim. When pressed as to why it had taken three years to inform the Department of this wound, Mr Nguyen said it was only after meeting the Australian veteran and the veteran’s mother at the Springvale RSL, that he was fully able to understand the qualifying criteria under the Act and the requirement for exposure to danger prior to 11 January 1973. It was only at that time that he thought it was relevant to include the details of the wound to his left eyebrow.

16. There are inconsistencies in Mr Nguyen’s evidence about the wound to his left eyebrow. In his letter to the Department dated 11 November 2016, he states:

    ‘Suddenly I heard a big explosion on my right and I felt a sharp pain of my forehead and blood was trickling down from my left eyebrow. I knew then I was hit by a fragment of some kind of weapon. I finally got back to my bunker and used bandage to cover my wound. It was only a superficial wound.’[18]

    [18] Exhibit R1, p.64.

17. In his oral evidence at the hearing, Mr Nguyen stated he was unaware about being hit by shrapnel until returning to his bunker and friends noticed he was bleeding from his left eyebrow. He also stated that nurses at an aid station had dressed the wound, which was ‘not a serious cut.’ When asked how he knew the wound had been caused by shrapnel, Mr Nguyen said he assumed it was shrapnel. Mr Nguyen was asked to clarify other inconsistencies in his evidence:

    (a)When asked about the contention in his Qualifying Service Details form that he had ‘injured [his] left eye when a bomb’ exploded on 24 November 1972,[19] Mr Nguyen said it was not his left eye but his left eye brow and it was not a bomb but an incoming rocket;

    (b)When asked to clarify the dates he provided to the Department about arrival at An Lộc and when the wound to his left eyebrow occurred,[20] Mr Nguyen stated: ‘This was a long time ago…[the date]…may not be correct;’

    (c)When asked to clarify the statement of his witness Thai Baty that he first met Mr Nguyen in 1970, when Mr Nguyen came to his cafeteria ‘for a coffee drink wearing a military uniform,’[21] Mr Nguyen agreed this was erroneous, given that he had not enlisted until September 1972;

    (d)When asked to clarify an inconsistency between his October 2012 evidence that he was a very junior soldier (Private 2^nd Class),[22] and his February 2013 statement that he had a commando platoon under his command,[23] Mr Nguyen said the evidence about him leading a commando platoon was not correct. He submitted that others had completed these forms and statements for him due to his poor understanding of English and he had just signed them;

    (e)When asked to clarify the inconsistency between his claim at the hearing that he was 16 years of age on enlistment,[24] compared to 17 years of age in his application to the Department,[25] Mr Nguyen submitted this reflects ‘confusion between Vietnamese tradition and the English language;’

    (f)When asked to clarify the date on a photograph provided in support of his 2012 application, which referred to Mr Nguyen undergoing his training at Dục Mỹ on 3 December 1973,[26] which was over a year after his claimed enlistment date of September 1972, Mr Nguyen said the caption was an error. Despite this photograph having been certified as a true copy, Mr Nguyen contends the date was incorrectly written by an interpreter, and he had not examined the caption closely before submission to the Department; and

    (g)When asked about the existence of documentary evidence relating to his service, Mr Nguyen said that contrary to his previous evidence about records of service having been lost en route to Australia, he did have a letter from a re-education camp after the war had ended. He said the letter had been provided to him by his sister and he had organised for it to be translated. I asked Mr Nguyen to provide a copy of the translated letter to the Tribunal, but he subsequently advised it could not be located.

    [19] Exhibit R1, p.49.

    [20] At Exhibit R1, p.49 he states he was wounded on 24 November 1972.

    [21] Exhibit R1, p.15.

    [22] Exhibit R1, p.24.

    [23] Exhibit R1, p.37.

    [24] Based on a date of birth of 7 June 1956 and enlistment date of 1 September 1972.

    [25] Exhibit R1, p.74.

    [26] Exhibit R1, p.82.

    WITNESS STATEMENTS

18. I have had regard for the witness statements in the T-documents and a statement tendered by Mr Nguyen from Mr Nang Nguyen dated 29 January 2018.[27] None of the witnesses have any personal knowledge of Mr Nguyen’s service in the ARVN. They did not appear at the hearing and were not cross-examined. I also note Mr Nguyen’s agreement that some of the information in these statements is erroneous. On that basis I afford the witness statements little weight.

    [27] Exhibit A1.

    SUBMISSIONS

19. Mr Nguyen submitted there were no witnesses able to provide first-hand testimony of his service and that he had done his best to complete all application documents. He contends that he served for approximately four months prior to the official end of Australia’s involvement in the Vietnam War, and in light of the wound to his left eyebrow in December 1972, had qualifying service within the meaning of the Act.

20. The Respondent submitted that the Tribunal could not be reasonably satisfied on the evidence that Mr Nguyen had rendered qualifying service within the meaning of section 7A(1)(c) of the Act. The Respondent said it was not possible to be reasonably satisfied in the complete absence of corroborating evidence regarding Mr Nguyen’s service, or on the basis of inference. The Respondent also highlighted the conflicting evidence provided by Mr Nguyen, contending it was more probable than not that he had actually enlisted and commenced training in December 1973, which was almost a year after Australia’s official involvement in the Vietnam War ended. On that basis he could not have incurred danger within the meaning of the Act during the time of Australia’s involvement. The Respondent highlighted that Mr Nguyen did not mention the wound to his left eyebrow in his 2012 application or after Departmental delegates advised him that the incidents he initially relied upon had occurred after Australia’s involvement ended on 11 January 1973. The Respondent referred to Mr Nguyen’s agreement in correspondence to the Department after the refusal of his 2012 application, that he did not meet the legal requirements for qualifying service, and that it was approximately three years later that he made his first reference to a wound to his left eyebrow within the qualifying period.

    CONSIDERATION

21. I have no doubt that Mr Nguyen served with the ARVN during the Vietnam War, but there is a dearth of evidence, such as service records or the re-education certificate he claims had been sent to him by his sister, to corroborate his account of his military service prior to 11 January 1973. On that basis Mr Nguyen’s evidence assumes significant importance and must be assessed on the balance of probabilities. 

22. As adduced earlier, there are significant inconsistencies in Mr Nguyen’s evidence. I accept that recollections can be more difficult with the passage of time and am cognisant of the provisions in this regard at section 119 of the Act. That said, the evidence before me is troubling in a number of respects, including Mr Nguyen’s evidence that he did not fully understand the application forms and statements prepared by others, but nevertheless signed them.

23. Mr Nguyen’s initial application to the Commission in 2012 referred to two incidents, which were after Australia’s official involvement in the Vietnam War had ended. It was almost three years after the refusal of that first application before he advised the Department of an incident in December 1972, which he contends resulted in a wound to his left eyebrow. There are no witnesses or other documentary evidence relating to his service at that time or the wound he relies upon.  

24. I consider it more probable than not, that Mr Nguyen would have remembered being wounded by shrapnel with greater clarity than other aspects of his service. I am satisfied on the balance of probabilities that he therefore would have referred to this incident in his dealings with the Department well before his second application in 2016.  I do not accept as reasonable some of his explanations regarding the inconsistencies identified in his evidence, which are sufficient to cast doubt on its overall credibility. 

25. I am unable to conclude from the evidence that Mr Nguyen did experience danger from hostile forces within the meaning of the Act, and am therefore not satisfied that he rendered qualifying service within the meaning of section 7A(1)(c).

    DECISION

26. It follows that I must affirm the decision under review.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic

...........................[sgd].............................................

Associate

Dated: 16 February 2018

Date of hearing:	29 January 2018
Applicant:	In person
Advocate for the Respondent:	Mr Nam Nguyen
Solicitors for the Respondent:	Sparke Helmore