Paul Sykes and Repatriation Commission - [2012] AATA 276

[2012] AATA 276

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/4530

Re

Paul Sykes

APPLICANT

And

Repatriation Commission

RESPONDENT

Decision

Tribunal
Senior Member Isenberg

Date 9 May 2012

Place Sydney
The decision under review is set aside and in substitution therefor it is decided that the Applicant did render qualifying service as defined in section 7A of the Veterans’ Entitlements Act 1986.
..........[sgd]..............................................................
Senior Member Isenberg
VETERANS’ AFFAIRS: Entitlements – whether Applicant rendered qualifying service – whether Applicant was allotted for duty – instrument of allotment - concept of ‘detachment’ – decision under review set aside
Veterans’ Entitlements Act 1986 : ss 5B(1), 7A(1)(iii), (iv), Schedule 2
-
Instrument of Allotment, 23 December 1997
Coulthard-Clark C, The RAAF in Vietnam : Australian Air Involvement in the Vietnam War 1962-1975 (1^st ed , Allen & Unwin, 1995)
Grey J, Up Top, The Royal Australian Navy and Southeast Asian Conflicts 1955-1972 (1^st ed, Allen & Unwin, 1998)
REASONS FOR DECISION
Senior Member Isenberg
Background

This is an application under section 175(2) of the Veterans' Entitlements Act 1986 ("the VEA") for review of a decision of the Repatriation Commission which found that Mr Sykes did not render qualifying service within the meaning of that term in section 7A(1)(iii) or (iv) of VEA.
Issue
The sole issue in the matter is whether Mr Sykes’ service with the RAAF includes a period of qualifying service as defined in the VEA.
Law
The Tribunal must consider this application according to its ‘reasonable satisfaction’: see s. 120(4) of the VEA.
Qualifying service has the meaning given under s. 7A of the VEA, relevantly as follows:
7A Qualifying service
(1) For the purposes of Parts III and VA and sections 85 and 118V, a person has rendered qualifying service:
(a) if the person has, as a member of the Defence Force:
…
(iii) rendered service outside Australia in an area described in column 1 of Schedule 2 during the period specified in column 2 of that Schedule opposite to that description, as a member of a unit of the Defence Force that was allotted for duty, or as a person who was allotted for duty, in that area; or
(iv) rendered warlike service ...
Under the qualifying service provisions of the VEA that relate to service during the relevant period, three elements need to be satisfied.
Firstly an operational area, per s. 7A(1)(a)(iii) and 5B(1), needs to be determined. Two operational areas apply to the Vietnam War as listed in Schedule 2 of the VEA under Items 4 and 8:
Schedule 2 - Operational areas
…

4. Vietnam (Southern Zone).

The period from and including 31 July 1962 to and including 11 January 1973

…

8. All that area of land and waters (other than land or waters forming part of the territory of Cambodia or China) bounded by a line commencing at the intersection of the boundary between Cambodia and Vietnam (Southern Zone) with the shore of Vietnam (Southern…

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.

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Details

Case: [2012] AATA 276
Decision Date: 9 May 2012

CaseChat Overview and Summary

Paul Sykes, the applicant, sought a review of a decision by the Repatriation Commission, which had denied him the benefit of qualifying service as defined in the Veterans' Entitlements Act 1986 (Cth). The dispute centred on whether the applicant's service with the Royal Australian Air Force (RAAF) qualified as a period of service under the Act, specifically in relation to his service at Sangley Point during the Vietnam War. The matter was heard and determined by the Administrative Appeals Tribunal (AAT).

The primary legal issue before the AAT was whether the applicant's service at Sangley Point qualified as "qualifying service" as defined in section 7A of the Veterans' Entitlements Act 1986 (Cth). This required a determination of whether the applicant had been allotted for duty in an operational area, and whether he had actually served in that area. The Tribunal needed to interpret the relevant legislative provisions and consider the evidence regarding the applicant's service.

The AAT found that the applicant's service at Sangley Point did constitute qualifying service. The Tribunal was reasonably satisfied that the applicant was allotted for duty in the operational area as part of the Australian Air Force Detachment Sangley Point, pursuant to the Instrument signed by the Minister for Defence, Industry, Science and Personnel on 23 December 1997. The Tribunal noted that the applicant's Personnel Occurrence Report and log book evidenced his presence at Sangley Point and his involvement in operations there. The AAT rejected the Repatriation Commission's contention that the applicant needed to be formally allotted to the Australian Air Force Detachment Sangley Point, finding that being physically present and serving in the area was sufficient.

The AAT set aside the decision of the Repatriation Commission and in its place decided that the applicant did render qualifying service as defined in section 7A of the Veterans' Entitlements Act 1986 (Cth).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Accordingly it may be taken that the Applicant was allotted for duty in an operational area, namely as part of the Australian Air Force Detachment Sangley Point described in the Instrument. I am therefore reasonably satisfied that the Applicant’s service with the RAAF includes a period of qualifying service as defined in the VEA. Decision The decision under review is set aside and in substitution therefor it is decided that the Applicant did render qualifying service as defined in section 7A of the VEA.

Ratio Decidendi

Legal Principle Established

Secondly, an individual needs to have been allotted for duty under the VEA, either on an individual basis or as a member of a unit that was allotted, see:5B War and operational area related definitions…Allotted for duty(2) A reference in this Act to a person, or a unit of the Defence Force, that was allotted for duty in an operational area is a reference:… or(c) to a person, or unit of the Defence Force, that is, by written instrument signed by the Defence Minister, taken to have been allotted for duty in an operational area described in item 4 or 8 in Schedule 2 (in column 1). (Tribunal’s emphasis)... The relevant instrument of allotment is that made by the Minister for Defence, Industry, Science and Personnel on 23 December 1997 (‘the Instrument’) which, under paragraph 5B(2)(c) of the VEA, determined that:…(b) each person included in a class of persons specified in Schedule B to this instrument to have been taken to have been allotted for duty in the operational areas described in item 4 and 8 in Schedule 2 (in column 1 of that Schedule) to the Act during the period determined according to paragraphs 1 and 2 in Schedule B; ……Schedule BClass of Persons…Aircrew members of Australian Air Force Detachment Sangley Point. Thirdly an individual needs to have actually served in the operational area in accordance with their allotment. That is a question of fact in each matter. The hearing It was decided, with the consent of the parties, that this application would be determined on the papers, in accordance with section 34 J of the Administrative Appeals Tribunal Act 1975.The Applicant’s service The applicant enlisted in the RAAF on 7 September 1961 and was discharged on 30 November 1969. He later re-enlisted, serving nearly another 20 years. It is his first period of service that is relevant to this application. On 11 December 1967 the Applicant transferred to 11SQN. Relevantly, his Personnel Occurrence Report referred to Flight Officer Sykes (and others) as follows: Departed 18 MAY 66 by service aircraft on temporary duty to SANGLEY POINT NAS then to BUTTERWORTH by service aircraft Returned 9 JUN 66 by service aircraft on completion of temporary duty. Auth HQRIC Ops Order l/66 [Tribunal note: NAS was explained to mean Naval Air Station.] A flight on 26 May 1966 is recorded in the applicant's log book as "OFFENSIVE OPS EX SEA IMP".Respondent submissions The respondent contended that notwithstanding the Applicant was at Sangley Point and that, by virtue of the flight of 26 May 1966, served within Vietnamese airspace, he was not an "Aircrew member[s] of Australian Air Force Detachment Sangley Point" as required by the Instrument. The respondent contended that being physically present at Sangley Point is not sufficient to be a member of Australian Air Force Detachment Sangley Point - the applicant must actually have been formally allotted to Australian Air Force Detachment Sangley Point. The Respondent referred me to the official history of RAAF operations in Vietnam, The RAAF in Vietnam; Australian Air Involvement in the Vietnam War 1962-1975, and the official history of RAN operations in Vietnam, Up Top, The Royal Australian Navy and Southeast Asian Conflicts 1955-1972, by way of background. Relevantly, they record that Sangley Point was an American naval air station in the Philippines from which 11 SQN flew reconnaissance anti-submarine patrols escorting HMAS Sydney to Vietnam as part of Operation TRIMDON, until 9 June 1965. The Respondent contended that the RAAF Detachment at Sangley Point was a temporary detachment that only existed for the duration of Operation TRIMDON. The Respondent noted that the flight is referred to in the log being as being part of SEA IMP, which was a peacetime SEATO exercise during May 1966. Participation in SEA IMP, of itself, is not considered qualifying service.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/4530
Re	Paul Sykes
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Senior Member Isenberg
Date	9 May 2012
Place	Sydney

4. Vietnam (Southern Zone).	The period from and including 31 July 1962 to and including 11 January 1973
…
8. All that area of land and waters (other than land or waters forming part of the territory of Cambodia or China) bounded by a line commencing at the intersection of the boundary between Cambodia and Vietnam (Southern Zone) with the shore of Vietnam (Southern…