Short and Repatriation Commission

[2001] AATA 742

DECISION AND REASONS FOR DECISION [2001] AATA 742

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2000/104

VETERANS' APPEALS  DIVISION       )          
           Re      LEWIS SHORT      
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Miss WJF Purcell (Senior Member)        

Date23 August 2001

PlaceAdelaide

Decision      The Tribunal affirms the decision under review.           

(Signed)
  WJF PURCELL
  (Senior Member)

CATCHWORDS
VETERANS' AFFAIRS – Qualifying Service - whether applicant incurred danger from hostile forces of the enemy.

Veterans' Entitlements Act 1986 ss5B, 7A, 120(4)

REASONS FOR DECISION

23 August 2001  Miss WJF Purcell (Senior Member)                    

1. This is an application for review of a decision of the Repatriation Commission (the Commission) of 7 December 1999, which determined that the applicant had not rendered qualifying service pursuant to Section 7A of the Veterans' Entitlements Act 1986 (the Act) for the purposes of his Gold Card application.

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with exhibits tendered at the Hearing. The applicant appeared on his own behalf, and gave oral evidence. Mr Doube represented the Commission which called Mr Piper, a Military Historian, as a witness.

3. The applicant, who was born on 13 September 1926, served in the Royal Australian Navy as a Telegraphist from 31 July 1944 until his discharge on 19 June 1946.  His only recorded service outside Australia was aboard motor launch ML 1341 in Merauke, New Guinea, from 12 September 1945 until 14 October 1945.

4. On 2 June 1998, the applicant lodged an application for a Gold Card.  In answer to question 2, he listed his service in New Guinea 1944/45 as constituting qualifying service.  On 6 October 1998 a delegate of the Commission determined that the applicant did not meet the necessary qualifying service requirements.

5. On 14 October 1998 the applicant applied for review of the decision.  On 16 June 1999 a delegate affirmed the decision and summarized his investigations of the applicant's record of service as follows:

   "Mr Short's service records show that he served with the Royal Australian Navy from 31 July 1944 to 19 June 1946. They also indicate that he served aboard the 'Birchgrove Park' from 18 April 1945 to 3 May 1945, 'MSL707' from 4 June 1945 to 2 August 1945 and 'ML1341' from 12 September 1945 to 14 October 1945.
   Mr Short claimed in his Gold Card application that he served in New Guinea in 1944/1945. However the official records of the movements of the Birchgrove Park and MSL707 indicate that both of these vessels operated only in Australian coastal waters and did not visit any overseas ports. The eligible period for the south eastern Australian coastal waters ceases on 26 March 1945, and as Mr Short's service aboard these two vessels was after this date, he did not incur danger from hostile forces of the enemy during this service.
   Mr Short also served aboard the ML1341 when it travelled to Merauke, New Guinea on 12 September 1945. However this was after the Japanese surrender in the South West Pacific area on 15 August 1945, and in the absence of any claims of danger from hostile forces of the enemy, this also cannot be considered as qualifying service.
   While Mr Short claims that he served in New Guinea in 1944/45, extensive investigations were previously made to the Department of Defence (Navy Office), Department of Defence (Air Force Office), the Naval Historical Officer, the RAAF Historical Officer and the Australian Archives to confirm his overseas service. However despite their thorough research, the respective defence authorities were unable to supply any evidence that Mr short served in New Guinea prior to his time in Merauke, aboard the ML1341, on 12 September 1945.
   In the absence of any evidence of any other events in which Mr Short was exposed to any real physical danger or where his life was at peril, I find that Mr Short did not incur danger from hostile forces of the enemy. …" (T2/6-7)

1. In August 1999, the applicant lodged with the Tribunal an application for review of the decision refusing his application for a Gold Card.  On 29 November 1999, Deputy President Burns ruled that the Tribunal did not have jurisdiction to hear Gold Card applications pursuant to Section 85(4A) of the Act.  As a result of the Tribunal's decision, the Commission, on 30 November 1999, decided to treat the applicant's original application for a Gold Card as an informal application to determine qualifying service under Section 7A of the Act. He was advised to lodge a formal application.

2. On 6 December 1999, the applicant lodged an application to determine qualifying service.  In answer to question 15, as to whether he experienced danger from the enemy, the applicant stated:

   "I consider I may well have been 'in danger from hostile enemy forces,' neither I nor the Japanese forces knew of the surrender until some weeks after. But I cannot prove I was in danger any more than you can prove I was not hence my suggestions in letter."

3. On 7 December 1999, a delegate determined that the applicant's service did not constitute qualifying service on the basis that:

   "your service records show that you did not serve outside Australia at a time and place when there was enemy activity and there is no indication that you incurred danger from hostile forces of the enemy during the period referred to above" (T41/84).

4. On 9 February 2000 the applicant requested a review of the delegate's decision.  On 14 March 2000 a delegate affirmed the decision, and in the course of her statement of reasons said:

   "It is the policy of the Repatriation Commission to accept a veteran has incurred danger from hostile forces of the enemy, if the veteran served at certain places, at certain times, under specified conditions. The Commission accepts a veteran has incurred danger if he served in the south eastern Australian coastal waters between 3 September 1939 and 26 March 1945, being the period of known enemy activity in that area. Official records of the movements of the Birchgrove Park and MSL707 indicate that both of these vessels operated only in Australian coastal waters and did not visit any overseas ports. As Mr Short's service aboard these two vessels was after 26 March 1945 qualifying service cannot be conceded.
   Mr Short also served aboard the ML1341 when it travelled to Merauke, New Guinea on 12 September 1945. However this was after the Japanese surrender in the South West Pacific area on 15 August 1945, and in the absence of any claims of danger from hostile forces of the enemy, this also cannot be considered as qualifying service.
   Although Mr Short has said he considers he may well have been 'in danger from hostile enemy forces', the Federal Court has given an interpretation of the expression 'incurred danger' which goes beyond an apprehension of danger." (T36/71-72) 

5. Qualifying service is defined in Section 7A of the Act, in part, as follows:

"7A  Qualifying service

(1)For the purposes of Part III and sections 85 and 118V, a person has rendered qualifying service:

(a)       if the person has, as a member of the Defence Force:

(i)rendered service, during a period of hostilities specified in paragraph (a) or (b) of the definition of  period of hostilities in subsection 5B (1), at sea, in the field or in the air in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when the person incurred danger from hostile forces of the enemy in that area or on that aircraft or ship; or

…"

and Section 5B (1) defines period of hostilities, so far as is relevant for the purposes of this review, as meaning:

"…

(b)World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); or

…"

1. The standard of proof is that of reasonable satisfaction, in accordance with section 120(4) of the Act, which provides:

"120 Standard of proof
…

(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

1. The applicant submits that he has rendered qualifying service as he incurred danger from hostile forces of the enemy.  He maintains that the official War records are defective and incomplete; that only brief records were kept and others were lost.  These defective records do not disclose that he incurred danger from hostile forces on two occasions.  The first, when he was flown to Madang, New Guinea, on 18 April 1945, where he remained until 3 May 1945.  The second occasion was in August 1945, whilst serving on ML 1341 at sea; in and around Merauke, and in the Fly River.

2. The Commission argues that the applicant was not in Madang in April 1945, as he alleges, and that even if he had established his presence in Madang at that time, he did not actually incur danger from the enemy.  It argues also that the Japanese had signed a local cease-fire for the South West Pacific area on 15 August 1945, and the formal surrender of all Japanese forces was signed in Tokyo Bay on 2 September 1945, 10 days before the applicant arrived in Merauke on 12 September 1945.  He did not incur danger from hostile forces of the enemy at this time.

3. The applicant gave evidence that after his initial training at Cerberus, he was at Penguin, and was to join the HMAS Birchgrove Park at Madang.  He was informed that the telegraphic officer was in hospital, and he was flown to Madang in April 1945 to take over the duties.  He says that he was flown by RAAF 38 Squadron to Madang.  When he arrived the Birchgrove Park had left port and he remained in Madang for 2 weeks before his return flight to Cairns, and thence to Sydney.  He said that during his time in Madang he was quartered in galvanized iron and wood huts.  He had no set duties, and remained on the base.  He said that during his time on the base there was no contact with the enemy.

4. The applicant said in evidence that contrary to the information contained in his service records that he did not join the ML 1341, an anti-submarine vessel, at Merauke, on 12 September 1945, he joined the ML 1341 much earlier, some time after 9 August 1945, and before the cessation of hostilities.  He was in Merauke when the Japanese surrendered, and that there must have been tens of thousands of Japanese troops throughout the Pacific Islands, who had not heard about the surrender until the final surrender in Borneo on 29 October 1945.

5. The applicant said that whilst he was aboard ML 1341 it operated in conjunction with the Netherlands East Indies military, who with Australian troops, were in hostile contact until the ML 1341 struck a log whilst engaged in sweeps up and around the Fly River.  He said that one of the propellers was severely bent, and to assess the damage the ship was isolated in areas where Japanese forces were fighting with the Netherlands East Indies soldiers.  He said that he did not have any contact with Japanese forces, nor was he involved in any battles or skirmishes.  The ML 1341 travelled then to Thursday Island and underwent repairs.

6. The Commission called Mr Piper, Military Historical Consultant to the Department of Veterans' Affairs, who provided a written report (Exhibit R2) and gave evidence that there were 22 air raids at Merauke during World War II.  The first raid occurred on 22 December 1942, and the last on 9 September 1943.  The closest enemy ground action was in December 1943, when Australian Army reconnaissance watercraft met head on with Japanese motorized barges on the Eilenden River, some 240 miles north west of Merauke.  Japanese ground forces did not operate around the Merauke or Fly River area, as the area was held by the allies for the entire period of World War II.

7. Mr Piper gave evidence that the Hiroshima bomb was dropped on 6 August 1945 and the Nagasaki bomb on 9 August 1945.  Victory in the Pacific, or VP, was on 15 August 1945, and the Japanese surrender on the USS Missouri in Tokyo Bay was on 2 September 1945.  Mr Piper said that he examined the records of the ML 1341, and on 8 August 1945 the vessel's starboard propeller struck a submerged log in the Digel River in the Tanah Merah area.  It is recorded as being tied up at the wharf at Merauke from 12 September 1945 to 18 September 1945, when it departed for Thursday Island for repairs.  It remained at Thursday Island until 3 October 1945, and travelled then to Brisbane, where it is recorded on 15 October 1945 as secured alongside at Small Craft base Brisbane at 1150.

8. Mr Piper said in evidence that the ML 1341's recorded distance steamed for the month of September 1945, was 234 miles (the approximate distance from Merauke to Thursday Island), with an average speed, on one motor, of 7 – 8 knots.  Had the ML 1341 travelled to the Fly River as alleged by the applicant, it would have   covered more than twice that distance.  I accept Mr Piper's evidence.

9. I found the applicant's evidence convoluted and unsatisfactory, and I prefer to rely on the documentary evidence, and the evidence of Mr Piper in any area of conflict.

10. I do not accept the applicant's evidence that he was flown to Madang by RAAF 38 Squadron in April 1945.  I am satisfied on the evidence that the last occasion the Birchgrove Park was at Madang was on 5 March 1945;  that It travelled then to Sydney via Milne Bay, Port Moresby and Cairns and was paid off on 19 April 1945.  I am satisfied in accordance with his service records, that the applicant joined the Birchgrove Park in Sydney on 18 April 1945, and remained until 3 May 1945.  He returned then to Penguin.

11. In relation to the applicant's service in Merauke, I am satisfied on the evidence that the applicant did not travel to Merauke, as he alleges, some time after 9 August 1945, but joined ML 1341 on 12 September 1945, whilst it was tied up alongside the wharf, and that he was aboard the vessel when it left on 18 September 1945, to sail to Thursday Island for repairs.

12. The standard of proof in this matter is that of reasonable satisfaction; and having examined the whole of the evidence, and taken into account the parties' submissions, I am not reasonably satisfied on the evidence, that the applicant incurred danger from hostile forces of the enemy. I am not reasonably satisfied therefore, that the applicant rendered qualifying service in accordance with Section 7A of the Act.

13. For these reasons the Tribunal affirms the decision under review.

    I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member)

    Signed:   (F M Boekamp)

    Personal Assistant

    Date/s of Hearing  3 April 2001
    Date of Decision  23 August 2001
    Counsel for the Applicant        In Person
    Solicitor for the Applicant         -
    Counsel for the Respondent    Mr Doube
    Solicitor for the Respondent    Department of Veterans' Affairs