Riley and Repatriation Commission

[2003] AATA 147

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 147

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/650

VETERANS' APPEALS DIVISION		)
Re		DOROTHY MAY RILEY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr IR Way, Member

Date14 February 2003 

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.

(Sgd) IR Way
  Member

CATCHWORDS

VETERANS’ AFFAIRS – compensation – Japanese internment – eligibility – whether a child of a veteran who was a prisoner of war is eligible for compensation under the Act

Compensation (Japanese Internment) Act 2001 ss 4, 5, 6, 7
Veterans’ Entitlements (Compensation – Japanese Internment) Regulations 2001 reg 4

REASONS FOR DECISION

14 February 2003  Mr IR Way, Member           

1.      This is an application by Dorothy May Riley (“the applicant”) for review of a decision of the Repatriation Commission dated 18 June 2002, that the applicant is not eligible for a compensation payment pursuant to the Compensation (Japanese Internment) Act 2001 (“the Act”) or pursuant to the Veterans’ Entitlements (Compensation – Japanese Internment) Regulations 2001 (“the Regulations”).

2.      Both parties agreed that this matter should be dealt with by the Tribunal on the papers before it, without proceeding to a formal hearing.

3. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and the respondent’s written submissions dated 29 October 2002.

Background

4.      Dorothy May Riley was born on 20 June 1947 and is the daughter of George Henry Riley (“the veteran”).  The veteran saw service in World War II, including being interned in Changi, Singapore, as a prisoner-of-war of the Japanese military forces.  The veteran died on 13 May 1967.

5.      The applicant’s mother, Daisy Louise Riley, the wife of the veteran, died on 20 March 1988.

6.      The applicant submitted a claim, dated 27 March 2002 for a $25,000 ex gratia payment, as the surviving daughter of the veteran and pursuant to the Compensation (Japanese Internment) Act 2001 and/or the Veterans’ Entitlements (Compensation – Japanese Internment) Regulations 2001.

Legislative Background

7. The Act relevantly provides as follows:

“4        Eligibility for compensation payment

Partner of deceased veteran

(1)A person is eligible for a compensation payment in respect of a deceased veteran if the following conditions are satisfied:

(a)the person was alive at the beginning of 1 January 2001;

(b)the veteran died before 1 January 2001;

(c)the person was a partner of the veteran immediately before the veteran’s death;

(d)the veteran was interned by Japanese military forces at any time during the designated war period.

Civilian (in own right)

(2)A person is eligible for a compensation payment in the person’s own right as a civilian if the following conditions are satisfied:

(a)       the person was alive at the beginning of 1 January 2001;

(b)the person was interned by Japanese military forces at any time during the designated war period;

(c)the person was domiciled in Australia immediately before the commencement of that internment.

Partner of deceased civilian

(3)A person is eligible for a compensation payment in respect of a deceased civilian if the following conditions are satisfied:

(a)the person was alive at the beginning of 1 January 2001;

(b)the civilian died before 1 January 2001;

(c)the person was a partner of the civilian immediately before the civilian’s death;

(d)the civilian was interned by Japanese military forces at any time during the designated war period;

(e)the civilian was domiciled in Australia immediately before the commencement of that internment.

One payment only

(4)A person is not eligible for a compensation payment if the person is eligible for a Regulations payment.

(5)A person is not entitled to more than one compensation payment.

5Amount of compensation payment

A compensation payment is a one-off payment of $25,000.

6Claims

(1)Claims for compensation payments must be made in accordance with procedures determined by the Secretary under subsection (2).

(2)The Secretary may, in writing, determine the procedures for making claims.

7Determination of claims

(1)Claims are to be decided by the Commission.

(2)A person who is dissatisfied with the Commission’s decision on a claim may apply to the Review Tribunal for review of the decision.”

and with respect to Definitions states:

“civilian means a person who is not a veteran.

eligible person means a person who is eligible for a compensation payment.

partner, in relation to a veteran or civilian, means:

(a)       a person who is legally married to the veteran or civilian; or

(b)a person who is a partner (within the meaning of the Veterans’ Entitlements Act) of the veteran or civilian.

veteran means a person covered by subsection 6A(1) of the Veterans’ Entitlements Act.”

8. The Regulations relevantly provide as follows:

“4       Eligibility for compensation for internment by Japanese military forces

(1)A veteran is eligible for a single compensation payment of $25,000 if the following conditions are satisfied:

(a)the veteran was interned by Japanese military forces at any time during the designated war period;

(b)the veteran was alive on 1 January 2001.

(2)A dependant (other than a child) of a deceased veteran is eligible for a single compensation payment of $25,000 if the following conditions are satisfied:

(a)the dependant was alive on 1 January 2001;

(b)the veteran was interned by Japanese military forces at any time during the designated war period;

(c)the veteran died before 1 January 2001.

(3)A person in relation to whom the conditions in both subregulations (1) and (2) are satisfied is eligible for a single compensation payment of $25,000 only.”

9. With respect to review, the Act provides for a person who is dissatisfied with the Commission’s decision on a claim to apply to the Administrative Appeals Tribunal for review of that decision. There is no specific provision for review of decisions set out in the Regulations.

Consideration

10. There is no disagreement between the parties and the Tribunal finds that George Henry Riley was a veteran within the meaning of that term in the Act and that he was a prisoner-of-war of the Japanese military forces during World War II. The Tribunal is also satisfied that the veteran was married to Daisy Louise Riley, that the veteran died on 13 May 1967, his wife died on 20 May 1998 and that the applicant is the surviving daughter of that marriage.

11. To be eligible for consideration of a compensation payment under the Act, the claimant must be a partner of the veteran; or a civilian who was interned by Japanese military forces during the period 7 December 1941 to 29 October 1945; or the partner of a deceased civilian.

12. To be eligible for compensation pursuant to the Regulations, the claimant must be a veteran who was alive on 1 January 2001 or a dependant (other than a child) of a deceased veteran who died before 1 January 2001.

13.     On the material before it, the Tribunal finds that the applicant does not meet any of the necessary criteria to be eligible for compensation in respect of the veteran’s internment by the Japanese military forces.

14.     As such, the Tribunal is satisfied that the respondent’s decision is correct and the decision under review is affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member

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

This matter was heard on the papers
Date of Decision  14 February 2003

The Applicant Represented Herself
For the Respondent                  Mr Stoner, Departmental Advocate