Park and Repatriation Commission

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 31

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4200

VETERANS' APPEALS DIVISION		)
Re		ARCHIBALD PARK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date27 January 2011 

PlaceSydney

Decision The Applicant did not render qualifying service as defined by section 7A(1) and thus he does not meet the criteria under subsection 85(4B) of the Act.  He is therefore not entitled to a ‘Gold Card’, and the decision under review is accordingly affirmed.

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

Ms N Isenberg
  Senior Member

ISSUES

6.      The Respondent contends that Mr Park is ineligible for a Gold Card as his service does not meet the definition of “qualifying service” in subsections 7A(1)(a)(iii) (“allotted for duty”), or 7A(1)(a)(iv) (“warlike service”).

7.      It is Mr Park’s contention that he is eligible for a Gold Card because his service was “warlike”.

8. The question before the Tribunal, therefore, is whether Mr Park rendered “qualifying service” as defined by subsection 7A(1)(a)(iii) or 7A(1)(a)(iv) of the VEA which would entitle him to a Gold Card under subsection 85(4B).

EVIDENCE

9.      Mr Park wrote on his application for a Gold Card that he served overseas in waters north of Australia between 13 February 1956 and 5 April 1956 on HMAS Sydney but conceded that he did not experience danger from hostile forces of the enemy.

10.   In a letter to the Department of Veterans’ Affairs (the Department) dated 29 July 2010, Mr Park wrote that his period of service onboard HMAS Sydney “covered the Malayan Emergency”, which was declared on 18 June 1948 and officially declared over on 31 July 1960.  Australian forces were involved in the Malayan Emergency from 1950[2]. 

[2] “Malayan Emergency, 1950-60”, Australian War Memorial: a letter dated 29 July 2010 to the Department, Mr Park wrote:

“I believe that during my period of RAN service that I was in fact involved in actions that were indeed warlike…The actions that we participated in were full-scale military in nature…the Sydney was an operational aircraft carrier with escorting fleet support…the ship operated in waters outside of Australia undergoing functions that maintained a high level of warlike capability.”

12.   In his statement to the Tribunal Mr Park said that a former colleague who had also served aboard HMAS Sydney, in the same division and in the same year, albeit several months later, had become entitled to a Gold Card and it was for that reason that Mr Park decided to test his own eligibility.  He observed that his colleague’s time included about a week in September in waters categorised as operational.  Ironically, he had spent all of that time in sick bay with the German measles.  During that time there was no threat, fear or conflict.  Mr Park observed that during his own service HMAS Sydney operated as an aircraft carrier whereas, by the time of his colleague’s service later in the year, flying had ceased. 

13.   In his written submissions he explained the nature of his…