Raynor and Repatriation Commission

[2000] AATA 1130

DECISION AND REASONS FOR DECISION [2000] AATA 1130

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No    N2000/1294

VETERANS' APPEALS DIVISION        )          

Re      RODNEY WAYNE RAYNOR       

Applicant

And    REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal       Rear Admiral A R Horton AO, Member   

Date21 December 2000

PlaceSydney

Decision      The decision under review is affirmed    

[Sgd] Rear Admiral A R Horton AO
  Member
CATCHWORDS

VETERANS' AFFAIRS – army service - invalidity service pension - whether applicant is a veteran - qualifying service 

Veterans' Entitlements Act 1986 - ss 5B(1), 5C(1), 6C(1), 7(1), 37, 120(4)

REASONS FOR DECISION

Rear Admiral AR Horton AO, Member    

1. This is an application for review of a decision made on 10 March 2000 (T7) by a delegate of the Repatriation Commission ("the Respondent"), which was affirmed on 2 June 2000 (T2) under section 57 of the Veterans' Entitlements Act 1986 ("the Act"), that Rodney Wayne Raynor ("the Applicant") is not a veteran for the purposes of Part 111 of the Act. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 10 August 2000.

2. A hearing was held before the Tribunal on 20 December 2000. The Applicant represented himself at the hearing. Mr J Marsh, Senior Advocate, appeared for the Respondent. The Tribunal had before it the documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). No other material was received into evidence.

ISSUES BEFORE THE TRIBUNAL

1. The Applicant claims eligibility for the invalidity service pension under section 37 of the Act, which states, relevantly:

   "(1)      Subject to subsection (6), a person is eligible for an invalidity service pension if the person:

   (a)is a veteran: and

   (b)has rendered qualifying service; and

   (c)is permanently incapacitated for work in accordance with a determination under section 37AA".

2. "Veteran" is defined under subsection 5C(1) as;

   "(a)     a person (including a deceased person):

   (i)who is, because of section 7, taken to have rendered eligible war service; or

   (ii)in respect of whom a pension is, or pensions are, payable under subsection 13(6); and

   (b)       ….."

3. Eligible war service is relevantly defined at section 7 of the Act thus:

   "(1)      Subject to subsection (2), for the purpose of this Act:

   (a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service: and

   …"

4. Operational service is relevantly defined in subsection 6C of the Act thus:

   "6C Operational service – post World War 2 service in operational areas

   (1)Subject to this section, a member of the Defence Force who has rendered continuous full time service in an operational area as:

   (a)a member who was allotted for duty in that area; or

   (b)a member of a unit of the Defence Force that was allotted for duty in that area;

   is taken to have been rendering operational service in the operational area while the member was so rendering continuous full time service.

   6F Operational service – warlike and non-warlike service

   A member of the Defence Force is taken to have been rendering operational service during any period of warlike service or non-warlike service of the member."

5. Whilst the claim was considered in respect of eligibility as a "veteran", the conditions of subsection 37(1) also require the Applicant to have rendered qualifying service pursuant to section 7A of the Act, which relevantly states:

   "(1)

   (a)     if the person has, as a member of the defence force:

   (iii)subject to subsection (1A), 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 a s person who was allotted for duty, in that area;or

   (iv)          rendered warlike service"

FACTS AND EVIDENCE

1. The Applicant served in the Citizen Military Forces (CMF) from 6 November 1972 until 9 April 1974, and in the Australian Army from 10 July 1974 until 9 July 1980 and again from 15 July 1982 until 14 January 1997. His service career is recorded in Records of Service at T3, and they show that he served only within Australia, as confirmed in oral evidence. There is no evidence that he was allotted for duty vide section 6 of the Act.

2. The Applicant stated that he was discharged on medical grounds from the Army.  He is in receipt of a disability pension at the Special Rate, and holds a Gold Card.  In the course of the hearing, the Respondent confirmed that whilst the Applicant might meet the invalidity service pension criteria at subsection 37(1)(c) as regards permanent incapacity for work pursuant to section 37AA, this had not been addressed given the adverse decision on eligibility as a 'veteran'.

3. The Applicant raised a number of issues in respect of his perceived eligibility for the invalidity service pension, and these are summarised as follows:

   a.        The term "veteran" as defined in various authoritative dictionaries and as used by various service organisations has a much wider and more beneficial interpretation than the restrictive meaning incorporated in the legislation.  As such, it takes account of "one who has had long experience in military service (Oxford English Dictionary)" for example, a definition contrary to the legislation relevant to this matter.
   b.        The legislation discriminates against those career service personnel who for reasons outside their control, served only within Australia, and hence are disadvantaged in terms of eligibility for full benefits available to other personnel.
   c.        Current legislation has placed a less advantageous interpretation on pension entitlements.
   d.        Lack of clarity as to the relevant responsibilities between the Respondent and Centrelink leads to difficulty in ascertaining and receiving pension entitlements.
   e. There are inconsistent eligibility standards for various entitlements within the Act.

ANALYSIS OF EVIDENCE AND FINDINGS

1. The Tribunal addressed the above issues with the Applicant, in particular referring to the relevant legislative requirements that must be met in considering eligibility for the invalidity service pension, and to the fact that eligibility for pension relating to his defence caused incapacities is considered under the conditions of Part IV of the Act, for which different considerations may apply.

2. On the evidence available, and to the reasonable satisfaction of the Tribunal, Mr Raynor does not meet the criteria for the invalidity support pension. He is neither a veteran as defined in section 5C of the Act, nor does he have qualifying service pursuant to section 7A. These two criteria (and that of being permanently incapacitated for work) must be met as defined in the legislation at section 37 of the Act. His lengthy service in the Australian Army, and the circumstances that he gave in relation to his discharge, are acknowledged, but the Tribunal is bound by the extant legislation.

3. The decision is therefore affirmed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for the decision herein of Rear Admiral
A R Horton, Member.

Signed:         .....................................................................................
  Associate

Date/s of Hearing  20 December 2000
Date of Decision  21 December 2000
Advocates for the Applicant     Self-represented Applicant
Solicitor for the Respondent    Mr J March, Department Advocate