Peterson and Repatriation Commission

[2002] AATA 387

DECISION AND REASONS FOR DECISION [2002] AATA 387

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/1238
VETERANS'      APPEALS     DIVISION
  Re:         GEORGE HENRY PETERSON
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       Mr A. Argent, Member
Date:             24 May 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd)  A. Argent
  Member
VETERANS' AFFAIRS - Gold Card - whether qualifying service - whether incurred danger from hostile forces
Veterans' Entitlements Act 1986 ss7A(1), 85(4A)
Repatriation Commission v Thompson (1988) 82 ALR 352

REASONS FOR DECISION

24 May 2002     Mr A. Argent, Member

1. This is an appeal by Mr George Henry Peterson (the veteran) against a decision of a senior delegate of the Repatriation Commission (the Commission) dated 18 September 2001.

2. That decision affirmed a previous decision of the Commission dated 31 January 2001, which determined the veteran had not rendered qualifying service during the period of hostilities of World War Two, and thus was not entitled to a Gold Card.

3. The period of hostilities of World War Two is from 3 September 1939 to 29 October 1945.

4. Qualifying service is defined at section 7A(1) of the Veterans' Entitlements Act 1986 (the Act). Part of this section reads:

   7A(1)      … 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; …

5. Section 85(4A) of the Act specifies that a veteran is eligible to be provided with treatment, that is, entitled to a Gold Card, if the veteran is aged 70 or over and has rendered qualifying service during World War Two.
   ISSUE

6. The issue before the Tribunal is whether the veteran rendered qualifying service during World War Two and specifically whether he "incurred danger from the hostile forces of the enemy" during a voyage by sea from 4 April 1944 to about 8 April 1944.
   THE EVIDENCE

7. The veteran presented his own case and the Commission was represented by Mr R. Douglass, an advocate with the Department of Veterans' Affairs.

8. The Tribunal had before it:

   (a)the documents (the T Documents) lodged by the Commission pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.  Included in these documents is material given by the veteran;

   (b)two reports dated 14 December 2001 and 16 January 2002 from Mr R. Piper, an historian, giving details of the movements of MV Duntroon, enemy sea activities in Australian waters and service records.

9. The veteran was born on 1 February 1919 and served full-time in the Australian Army from 6 December 1941 to 9 October 1945.  He did not serve outside of Australia.  He was aged 81 when he applied for the Gold Card.

10. The veteran based his case on his voyage on MV Duntroon from Fremantle to Adelaide during which the vessel crossed the Great Australian Bight in April 1944. During the voyage he said "this boat was on full alert."  He was aware of mines and enemy raiders in these waters.  He also mentioned he enlisted to serve wherever he was sent, including overseas and that he suffers from melanomas arising from his service in Western Australia.

11. Service records show he served in Victoria, Western Australia, New South Wales and Queensland.  There is no evidence in the records that he travelled in MV Duntroon but the respondent and the Tribunal accept that he did.

12. The evidence from historian Mr R. Piper is that Japanese submarine activities in Australian waters ceased in 1943; the German U-boat U-862 tracked west to east well south of southern Australian waters in December 1944; there were no mines in the waters sailed by MV Duntroon in early April 1944 and there is no evidence of any enemy air activities in the area traversed by MV Duntroon.
    FINDINGS

13. The standard of proof in this case is on the balance of probabilities; that is, on the balance of probabilities did the veteran incur danger from hostile forces of the enemy when he was a passenger in MV Duntroon from Fremantle to Adelaide in early April 1944?

14. "Incurred danger" is defined by the Full Court of the Federal Court in Repatriation Commission v Thompson (1988) 82 ALR 352. Their Honours said:

    …
    The words "incurred danger"… provide an objective, not a subjective, test. A serviceman incurs danger when he encounters danger, is in danger or is endangered. He incurs danger from hostile forces when he is at risk or in peril of harm from hostile forces. A serviceman does not incur danger by merely perceiving or fearing that he may be in danger. The words "incurred danger" do not encompass a situation where there is mere liability to danger, that is to say, that there is a mere risk of danger. Danger is not incurred unless the serviceman is exposed, at risk of or in peril of harm or injury.

15. The Tribunal finds the veteran did not incur danger from the hostile forces of the enemy during his voyage from Fremantle to Adelaide in early April 1944 because no enemy mines, aircraft or ships were encountered during this voyage.
    DECISION

16. As the Act allows the Tribunal absolutely no discretion in these applications, the decision of the Commission is affirmed.

    I certify that the sixteen [16] preceding paragraphs are a true copy of the reasons for the decision of: 
    Mr A. Argent, Member

    (sgd)       Olympia Sarrinikolaou
                  Clerk

    Date of Hearing:   1 May 2002
    Date of Decision:  24 May 2002
    Solicitor for the applicant:           Nil – self represented

    Advocate for the respondent:       Mr R. Douglass, Advocacy Section, Department of Veterans' Affairs