Roper and Repatriation Commission

[2007] AATA 1130

CATCHWORDS – VETERANS’ AFFAIRS – operational service – whether veteran rendered continuous-full-time service outside Australia during World War 2 – the essential character of the veterans’ service – veteran did not have operational service

Acts Interpretation Act 1901 s 15B(4)
Administrative Appeals Tribunal Act 1975 s 37
Seas and Submerged Lands Act 1973
Veterans’ Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997 s 3, Schedule 1
Veterans’ Entitlements Act 1986 ss 5B(1), 5B(3), 5C(1), 5Q, 6(1)(a), 6(1)(n), 6A(1), 9(1), s 13(1)(a), 13(1)(c), 14, 120(1), 120(3), 120(4), 6 to 6F

Proctor v Repatriation Commission (1999) 54 ALD 343
Re Collier and Repatriation Commission [2004] AATA 663
Re Collier and Repatriation Commission [2004] AATA 663
Re Jackson and Repatriation Commission  (1992) 28 ALD 275
Repatriation Commission and Smith AAT 5999, 22 June 1990
Repatriation Commission v Ahrenfeld (1991) 29 FCR 556; (1991) 101 ALR 86
Repatriation Commission v Kohn (1989) 87 ALR 511
Repatriation Commission v Proctor [1998] FCA 609
Repatriation Commission v Smith (1987) 16 FCR 327
Roscoe v Repatriation Commission [2003] FCA 1568

DECISION AND REASONS FOR DECISION [2007] AATA 1130

ADMINISTRATIVE APPEALS TRIBUNAL     )          
  )          V2005/996
VETERANS’ APPEALS DIVISION                   )           

Re                CORAL SYLVIA ROPER

Applicant

AndREPATRIATION COMMISSION

Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  14 March 2007
Place:  Melbourne

Decision:The Tribunal decides that:

1.the applicant’s late husband did not have operational service within the meaning of s 6A(1) of the Veterans’ Entitlements Act 1986; and

2.the issues in this case must be decided according to the standard of proof set out in s 120(4) of the Veterans’ Entitlements Act 1986.

S A FORGIE
  Deputy President

REASONS FOR DECISION

The applicant, Mrs Coral Roper, made a claim for a pension on 29 October 2001. Whether she must establish her claim to the Tribunal’s reasonable satisfaction or can take advantage of the more liberal reasonable hypothesis standard provided in ss 120(1) and (3) of the Veterans’ Entitlements Act 1986 (VE Act) depends upon whether or not her late husband, Mr David Herbert Roper, had operational service within the meaning of s 6A(1) of that legislation. I have decided that he did not and so Mrs Roper must establish her claim to the Tribunal’s reasonable satisfaction.

BACKGROUND

1. Many of the facts forming the background to this case were agreed upon between the parties.  In light of that and on the basis of the material lodged in the matter, I have made the findings set out in the following paragraphs.

Mr Roper’s service

1. Mr Roper was born on 8 February 1926 and died on 3 February 2001.  He served in the Royal Australian Air Force (RAAF) from 21 April 1944 until 24 October 1945.  His postings during his service were:

   21 April 1944             1 Initial Training School, Somers, Victoria

   22 May 19441 Service Flying Training School, Point Cook, Victoria

   16 July 1944              1 Initial Training School, Somers, Victoria

   13 October 1944        Air Gunnery School, West Sale, Victoria

   5 December 1944       1 Personnel Depot, Melbourne, Victoria

   27…