Nguyen and Repatriation Commission (Veterans' entitlements)

This matter concerned an appeal by Mr. Nguyen against a decision of the Repatriation Commission affirming the refusal of his claim for qualifying service as a veteran. Mr. Nguyen had lodged an application asserting he experienced danger from hostile enemy forces on two occasions in 1973, after Australia's official involvement in the Vietnam War had ceased. His claim was initially refused on this basis. He later sought review, contending that if his service was assessed individually, it might not qualify, but argued that as a member of the Republic of Vietnam's forces, he should be treated as an Allied Veteran. In a subsequent application, he provided further details, including an alleged wound to his left eyebrow in December 1972 from enemy action.

The primary legal issue before the court was whether Mr. Nguyen had rendered qualifying service under the *Veterans' Entitlements Act 1986* (the Act). Specifically, the court had to determine if Mr. Nguyen, as an allied veteran, had incurred danger from hostile forces of the enemy during a period of hostilities in connection with a war or war-like operations in which the Australian Naval, Military or Air Forces were engaged, and if this service occurred prior to the cessation of Australian involvement on 11 January 1973. The definition of an "allied veteran" and "defence force established by an allied country" under the Act were also relevant to the determination.

The court's reasoning focused on the credibility and consistency of Mr. Nguyen's evidence. While acknowledging that Mr. Nguyen served with the Army of the Republic of Vietnam, the court found a significant lack of corroborating evidence, such as service records or official documentation, to support his account of service prior to 11 January 1973. The court noted numerous inconsistencies in Mr. Nguyen's statements regarding dates of enlistment, locations of service, the nature and timing of his alleged wound, and his rank. The court considered it improbable that Mr. Nguyen would not have recalled or reported being wounded by shrapnel with greater clarity and earlier in his dealings with the Department, particularly given the repeated advice he received that his initial claims fell outside the qualifying period. The court concluded that these inconsistencies, and the explanations offered for them, cast doubt on the overall credibility of his evidence, and therefore, it could not be satisfied on the balance of probabilities that he had incurred danger from hostile forces within the meaning of the Act.

Consequently, the court affirmed the decision under review, finding that Mr. Nguyen had not established that he rendered qualifying service as defined by the Act.