Schuman and Repatriation Commission

[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…