Nguyen and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 221
•7 April 2016
Nguyen and Repatriation Commission (Veterans’ entitlements) [2016] AATA 221
(7 April 2016)
Division
GENERAL DIVISION
File Number(s)
2014/5894
Re
Van Sang Nguyen
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 7 April 2016 Place Sydney The Tribunal sets aside the decision under review and in substitution decides that the Applicant rendered qualifying service within the meaning of s 7A of the Veterans Entitlement Act 1986 (Cth).
..........................[sgd]..............................................
Ms N Isenberg, Senior Member
CATCHWORDS
VETERANS ENTITLEMENTS - qualifying service - whether applicant rendered qualifying service - whether applicant allied veteran - whether applicant rendered service during period of hostilities as defined - whether applicant incurred danger in service - applicant served in the defence force of South Vietnam during the Vietnam War - applicant found to have met the criteria for qualifying service on the reasonable satisfaction/balance of probabilities - decision set aside and substituted
LEGISLATION
Veterans' Entitlement Act 1986 ss 5B, 7A, 120(4)
CASES
Repatriation Commission v M J Smith (1987) 74 ALR 537.
Repatriation Commission v Thompson (1988) ALR 352
Willcocks v Repatriation Commission (1992) 111 ALR 639REASONS FOR DECISION
Ms N Isenberg, Senior Member
7 April 2016
BACKGROUND TO THE APPLICATION
The Applicant, who was a citizen of the former Republic of South Vietnam, made a claim for qualifying service under the Veterans' Entitlement Act 1986 (‘the VE Act’). A delegate of the Repatriation Commission rejected the claim on the ground that the Applicant was not an allied veteran and had therefore not rendered qualifying service. That decision was affirmed on internal review and the Applicant now seeks review by this Tribunal. Acceptance of his claim may ultimately allow him to be eligible for service pension.
LEGISLATIVE SCHEME
Section 7A of the VE Act provides.
(1) For the purposes of Parts III and VA and sections 85 and 11SV, 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…
There was no dispute that South Vietnam was an allied country.
In s 5B of the VE Act, “period of hostilities” is defined to include the period of hostilities in respect of war-like operations in operational areas from 31 July 1962 to 11 January 1973 (both included). Vietnam is included in the schedule of operational areas.
“Allied veteran” is defined to mean, relevantly, a person who has enlisted as a member of the defence force established by an allied country; and who has rendered continuous full-time service as such a member during a period of hostilities.
The standard of proof for all issues before the Tribunal is that referred to in s 120(4) of the VE Act, that is, reasonable satisfaction / balance of probabilities: Repatriation Commission v M J Smith (1987) 74 ALR 537.
ISSUE
In order to have rendered qualifying service, s 7A requires the Applicant to demonstrate he:
·is an allied veteran
·has rendered service during a period of hostilities
·has incurred danger as a result.
CONSIDERATION
The Respondent contended, in summary, that for the Applicant to succeed, all three of the criteria in s 7A must have been met at the same point in time: Willcocks v Repatriation Commission (1992) 111 ALR 639; Repatriation Commission v Thompson (1988) 82 ALR 352, and contended overall, that the evidence before the Tribunal was not sufficient, on the balance of probabilities, to demonstrate this.
Is Mr Nguyen an allied veteran?
The Applicant contended that he served in the South Vietnamese defence force during the Vietnam War.
The Applicant produced a document dated 4 September 2015 in which was a certification by the Deputy Chief of Police of Thoi Lai, in the Socialist Republic of Vietnam that the Applicant was a soldier of the Republic of Vietnam prior to 1975 and that he was a Private 1st class in the commandoes. It is understandable that certification prior to that time was not available. The Respondent did not dispute the authenticity of the certification. I therefore find that Mr Nguyen was an allied veteran at least ‘before 1975’.
As to whether he served prior to 11 January 1973, Mr Nguyen provided a detailed statement to the effect that, in 1972 the Republic of Vietnam introduced conscription to assist in meeting the continued threat from North Vietnam. He described it as a “general mobilization” and said that he volunteered in order to have some control over the capacity in which he served. In cross-examination he said that if he had not joined he would have been punished. He said joined the Vietnamese Rangers on 23 March 1972 in Can Tho. At the end of March 1972 he was sent to "Duc My" Ranger Training Centre in Khanh Hoa province. Early in July 1972 his group of new recruits was transferred to the 42nd Ranger Battalion of the 4th Ranger Group, whose headquarters were in Long Binh camp in Bien Hoa district of Gia Dinh province. The forward camp was in Phu My, Qui Nhon, Binh Dinh. The battalion commander was Major Nguyen Huu Khang. He was in the 1st Company, and the commander was Lieutenant Nguyen Van Muoi.
The Applicant provided a statement by Ngoc Xuan Tran who was a lieutenant and company commander of 32nd battalion. Mr Tran wrote that he had friends who were officers in 42nd Ranger Group and he had seen the Applicant in that company from September 1972. Mr Tran was not called for cross-examination.
The 42nd Ranger Battalion, the Applicant wrote in his statement, was a mobile battalion responsible for protecting Binh Dinh and Quang Ngai provinces which included the districts of Bong Son, Tam Quan, Duc Pho, Phu My, Phu Cat, Phu Yen. In the middle of July 1972 the battalion went to support Bong Son district and was attacked by the Viet Cong. In this battle the battalion experienced casualties - nearly 20 killed or wounded.
In his evidence, the Applicant said that they faced Viet Cong or North Vietnamese artillery, but were themselves without support for some time. In his statement he said that they pushed back the Viet Cong attack with support from helicopters. When cross-examined about this discrepancy, he explained that the helicopters only resupplied them with food and ammunition. The battalion stayed in Bong Son for two days then returned to the forward camp in Phu My district. In late August 1972 that camp was shelled by the Viet Cong with 122mm rockets and the battalion again suffered casualties - five killed and more than 10 wounded.
In November 1972 the battalion was ordered to join in an operation in Tam Quan, Quang Ngai province with two companies of the Regional Forces which had been engaging in combat with the Viet Cong. After three days of fighting and with support from artillery, the Viet Cong/ North Vietnamese Army was pushed back leaving behind nearly 20 bodies.
The Applicant also gave an account of clashes with the enemy from February 1973 to April 1975 but this was outside the “period of hostilities”, as defined.
At the end of April 1975, his company returned to Phu Tho racecourse where they were ordered to surrender. He then returned to live with his family until 15 May 1975, when all former soldiers in the Republic of Vietnam Army had to present themselves. He underwent re-education – but only for 10 days due to his low rank of private. He then returned to his home but was forbidden to leave his residence, and every three months, for two weeks, he was obliged to undertake forced labour such as digging irrigation canals.
In 1982 he escaped Vietnam by boat and arrived at a refugee camp in Indonesia where he remained until 16 August 1984 when he was accorded refugee status and was permitted to come to Australia.
Despite this detailed account of the Applicant’s service, no evidence was led by the Respondent to counter the Applicant’s contentions about his service or the battles in which he said he participated. His account of the various troop movements and battles readily lent itself to be checked against historical data, but the Respondent did not adopt this course. The Applicant was only cross-examined in relation to various discrepancies with other accounts he had provided.
For example, when the Applicant was interviewed as part of his refugee application in 1984 it was written that between 1970 and 1974 he attended Can Tho Vocational School where he studied carpentry; that his military service was from 1974 to 1975; and that during 1975 to 1980 he underwent three months’ re-education and worked as a “carpenter at home”.
In his evidence the Applicant said that he completed two years of the carpentry course and had enlisted in the special forces instead of completing his studies. After demobilisation and re-education, he was compelled to do some labouring and then, until his escape, did odd jobs to earn a living, including some carpentry-related tasks.
In his evidence, the Applicant explained that the refugee application form was not read back to him so he had no idea what had been written by the translator. I note that, even now, the Applicant’s English skills are very limited and the entire hearing was conducted with the assistance of an interpreter in the Vietnamese language, and the Applicant did not display any apparent understanding of what was said until translated. I do not accept that, over 30 years ago his English would have accurately have been described as even ‘limited basic knowledge’. Mr Billy Nguyen, gave evidence about circumstances of the hardship associated with refugee arrivals and the haphazard nature of the ensuing questioning in which they participated, and I accept that the interview circumstances were less than ideal.
Further, parts of the form about which the Applicant was cross-examined related to assessment by the interviewer, and to that extent, do not necessarily represent what the Applicant had said, but rather, reflect the interviewer’s summary or interpretation.
In his questionnaire (completed as part of his application for qualifying service), the Applicant wrote that he had enlisted voluntarily on 23 March 1972, and somewhat confusingly, that the most notable incident in which he was engaged in direct combat was in February 1972. He said assistance in completing the form was provided by an old man who had confused the dates.
Despite the inconsistencies, I am prepared to accept that the Applicant served with the defence force of South Vietnam from 1972.
Did Mr Nguyen incur danger during a period of hostilities as a result of his service as an allied veteran?
The test of incurring danger from hostile forces of the enemy is an objective test, and cannot rely on mere risk of danger, but a real risk of injury from hostile forces of the enemy assessed on historical evidence of the actual enemy operations in the area in which the veteran served: Repatriation Commission v Thompson (1988) ALR 352.
As I have said, the Applicant gave a clear account of engaging with the enemy and that this account was not really challenged. I am satisfied that the Applicant incurred danger in that he and his platoon came under fire from the hostile forces of the North Vietnamese Army or Viet Cong in Bong Son in July and August 1972. He gave a clear account of coming under fire and of casualties. I am satisfied that he was exposed, at risk of, or in peril of harm or injury (per Thompson).
Consequently, I find the Applicant to have met the criteria for qualifying service.
DECISION
The decision under review is set aside, and in substitution therefore the Tribunal decides that the Applicant rendered qualifying service within the meaning of s 7A of the VE Act.
I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ...........................[sgd].............................................
Associate
Dated 7 April 2016
Date(s) of hearing 16 March 2016 Advocate for the Applicant B Nguyen Solicitors for the Respondent T O'Reilly, Department of Veterans Affairs
0
4
1