O'Brien and Repatriation Commission - [2000] AATA 876

DECISION AND REASONS FOR DECISION [2000] AATA 876

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1766

VETERANS' APPEALS DIVISION )
Re James Eric O'Brien

Applicant

And Repatriation Commission
Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date4 October 2000
PlaceSydney

Decision The decision under review is affirmed.

..............................................
M T Lewis
Senior Member

CATCHWORDS
VETERANS' ENTITLEMENTS – Gold Card – whether Applicant rendered qualifying service – whether Applicant incurred danger from hostile forces of the enemy

Veterans' Entitlements Act 1986 ss 7A, 85(4A)

Repatriation Commission v Burton (1993) 31 ALD 475
Re Lawrie v Repatriation Commission AAT No. 6359 (9 November 1990)
Re Maller v Repatriation Commission AAT No. 8280 (16 September 1992)
Re Kemp v Repatriation Commission AAT No. 11513 (5 November 1996)
Repatriation Commission v Thompson (1988) 82 ALR 352
Re Bancroft v Repatriation Commission AAT No. 11333 (25 October 1996)

REASONS FOR DECISION

4 October 2000 Mrs M T Lewis, Senior Member

This is a review of a reconsideration decision of the Repatriation Commission ("the Respondent) dated 20 November 1998 which determined that James Eric O'Brien ("the Applicant") was not eligible for a Gold Card on the basis that he did not render qualifying service as defined in section 7A of the Veterans' Entitlements Act 1986 ("the Act").
The Tribunal had before it documents provided pursuant to s37 of the Administrative Appeals Tribunal Act 1975. In addition the Applicant tendered a statement dated 1 November 1999 (exhibit A). The Respondent tendered reports of Mr Brendan O'Keefe, historian, dated 6 October 1999 (exhibit 1) and 13 November 1999 (exhibit 2). The Applicant was unrepresented and gave oral evidence at the hearing. Mr O'Keefe gave oral evidence at the request of the Respondent. The Respondent was represented by a Departmental advocate.
The only issue in these proceedings is whether the Applicant incurred danger from hostile forces of the enemy. The Respondent concedes that the Applicant satisfies all other criteria for eligibility for the Gold Card.
The standard of proof is that of reasonable satisfaction pursuant to s120(4) of the Act.

the relevant legislation

Eligibility for the Gold Card is set out in s85(4A) of the Act, and stipulates that the veteran must have rendered "qualifying service" during the period of hostilities for World War II, which is defined as 3 September 1939 to 29 October 1945. The definition of "qualifying service" is set out in s7A(1)(a) of the Act:
7A. (1)         For the purposes of Part III, 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading O'Brien and Repatriation Commission

Details

AGLC: O'Brien and Repatriation Commission [2000] AATA 876
Case: [2000] AATA 876
Decision Date: 4 October 2000

CaseChat Overview and Summary

The applicant in this case sought a Gold Card under the Veterans' Entitlements Act 1986, which would entitle them to certain benefits. The Repatriation Commission declined the application, leading the applicant to appeal to the court. The dispute hinged on whether the applicant had rendered qualifying service and whether they had been in danger from hostile forces of the enemy. The case was heard in the Federal Court of Australia.

The primary legal issues before the court were the interpretation and application of sections 7A and 85(4A) of the Veterans' Entitlements Act 1986. Specifically, the court had to determine whether the applicant's service qualified as 'service in a hostile area' and whether they had actually been in danger from enemy forces. The court also considered relevant case law, including Repatriation Commission v Burton, Re Lawrie, Re Maller, Re Kemp, Repatriation Commission v Thompson, and Re Bancroft.

The court examined the applicant's service records and the circumstances under which they served. It found that the applicant's service did not meet the criteria for being in a hostile area as defined by the Act and relevant case law. The court noted that the applicant had not been in a situation where they were directly exposed to hostile forces. The court also highlighted that the applicant's service was in an area that was not classified as hostile under the Act. Consequently, the court upheld the Commission's decision to deny the Gold Card application.

The final orders of the court were to dismiss the applicant's appeal and affirm the decision of the Repatriation Commission that the applicant was not entitled to a Gold Card under the Veterans' Entitlements Act 1986.

Orders