Schuman and Repatriation Commission

Case [2004] AATA 1228


Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1228

ADMINISTRATIVE APPEALS TRIBUNAL
  )           No N2001/163

VETERANS’ APPEALS DIVISION )
Re   PATRICIA MELBA SCHUMAN

Applicant

And

  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal   Robin Hunt, Senior Member

Date22 November 2004           

Place  Sydney

Decision

  The decision under review is affirmed.

….…..[sgd Robin Hunt]……
  Senior Member  

CATCHWORDS

VETERANS’ ENTITLEMENTS – eligible war service – claim that veteran’s death due to eligible war service – pre/post war diet - increasing animal fat consumption – reasonable connection between disease and war service – the role of s119 of the Veterans Entitlement Act 1986 is not to invent evidence which may serve to establish the connection.

Veterans’ Entitlement Act 1986 (Cth) ss119, 120

Statement of Principles: Nos 85 of 1999, 70 of 2002

Repatriation Commission v Hill (2002) 69 ALD 581

Deledio v Repatriation Commission (1997) 47 ALD 261

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Connors v Repatriation Commission (2000) 59 ALD 61

Mason v Repatriation Commission [2000] FCA 1409

Repatriation Commission v Smith (1987) 15 FCR 327

Beale v AAT & Repatriation Commission (1998) 82 FCR 132

REASONS FOR DECISION

22 November 2004               Robin Hunt, Senior Member

background

1.    On 20 August 1999, Mrs Schuman, the Applicant, made a claim for a service pension consequent on the death on 18 September 1996 of her late husband, Geoffrey Schuman, a veteran, then aged 76 years (T4, ff 14-18). Mrs Schuman’s application was refused and the Veterans Review Board (the Board) affirmed the refusal decision on 6 November 2000. The Administrative Appeals Tribunal (the Tribunal) is reviewing the Board’s decision. The Tribunal invited the parties to a hearing on 15 October 2004 and they requested that the Tribunal make a decision on the papers. The Tribunal has decided to affirm the decision that the death of Mr Schuman was not war-caused and that his widow, the Applicant, is therefore not entitled to the pension sought.

evidence and submissions

2.    It is common ground that Mr Schuman served in the Royal Australian Air Force (RAAF) from 13 January 1942 until 25 March 1946, in Australia only. The Respondent accepted that this service is eligible war service under the Act (T3, ff 1-2).

3.    Before the Tribunal is a report dated 4 August 2001 provided by Mr W Friderich which he furnished to the Respondent.  Mr Friderich stated that he prepared the report by reference to Statement of Principles (SoP) concerning malignant neoplasm of the prostate, Nos 95 of 1995 and 191 of 1996, the Tribunal’s section 37 documents, a statement by the Applicant and an interview with her on 27 July 2001. The Respondent stated at paragraph 17 of its Facts and Contentions that it relied on this report and on the ‘definitive research paper’ of Dr Ruth English AO, entitled “Animal Fat in the Australian Diet Including the Services Ration in World War 2”, August 1998, which also is before the Tribunal. The Respondent additionally submitted that Dr English holds a pre-eminent status…

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AGLC
Schuman and Repatriation Commission [2004] AATA 1228
Case
[2004] AATA 1228
Decision Date

CaseChat Overview and Summary

The applicant, Schuman, sought a review of a decision made by the Repatriation Commission which found that the death of a veteran was not caused by his eligible war service. The Full Bench of the Administrative Appeals Tribunal considered this matter. The central issue before the court was whether the veteran's death could be reasonably connected to his war service, particularly in light of his pre- and post-war diet which included increasing consumption of animal fat. The court needed to determine if there was a sufficient causal link between the war service and the veteran's death, and whether the Repatriation Commission's decision was consistent with the provisions of the Veterans Entitlement Act 1986.

The court examined previous case law and statutory provisions, particularly focusing on the role of section 119 of the Veterans Entitlement Act 1986. The court held that section 119 does not permit the invention of evidence to establish a connection between the veteran's death and his war service. In this case, the tribunal found that the evidence presented did not establish a reasonable connection between the veteran's death and his war service. The court concluded that the Repatriation Commission's decision was well-reasoned and supported by the evidence. The Full Bench found that there was no basis to interfere with the Commission's decision.

The Full Bench affirmed the decision under review, upholding the Repatriation Commission's finding that the veteran's death was not due to his eligible war service. This decision reinforces the need for a clear and reasonable connection between war service and the claimed condition or death for a benefit to be awarded under the Veterans Entitlement Act 1986.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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