Stringer and Repatriation Commission
[2002] AATA 520
•28 June 2002
DECISION AND REASONS FOR DECISION [2002] AATA 520
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/1427
VETERANS' APPEALS DIVISION
Re: PAMELA LEONDRA STRINGER
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mr A. Argent, Member
Date: 28 June 2002
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) A. Argen.
Member
VETERANS' AFFAIRS – service pension entitlement – qualifying service
Veterans' Entitlements Act 1986
Re Repatriation Commission v Thompson (1988) 82 ALR 352
REASONS FOR DECISION
28 June 2002 Mr. A. Argent, Member
This is an appeal by Pamela Leondra Stringer ("the veteran") against a decision of a Service Pension Review Officer of the Repatriation Commission ("the Commission") dated 7 August 2001. That decision confirmed a previous decision made by a delegate of the Commission who determined the veteran had not rendered qualifying service during the period of hostilities of World War II. This decision means the veteran is not eligible for a Service Pension or a Gold Card.
The veteran presented her own case and was assisted by her husband. The respondent was represented by Mr R. Douglass, an advocate with the Department of Veterans' Affairs.
ISSUEThe issue before the Tribunal is whether the veteran rendered qualifying service during World War II and specifically whether she "incurred danger from hostile forces of the enemy".
Qualifying service is defined at section 7A of the Veterans' Entitlements Act 1986 ("the Act"). Part of this section reads:
7A. (1) …, 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 areas or on that aircraft or ship;
(ii)rendered service after 29 October 1945 in respect of which the person has been awarded, or has become eligible to be awarded, the Naval General Service Medal or the General Service Medal (Army and Royal Air Force) with the Minesweeping 1945-51 Clasp, the Bomb-Mine Clearance 1945-53 Clasp, or the Bomb and Mine Clearance 1945 -56 Clasp;
The period of hostilities of World War II is from 3 September 1939 to 29 October 1945.
THE EVIDENCEThe case was heard in a telephone hook-up.
The Tribunal had before it the documents ("the T documents") lodged by the Commission pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Included in these documents is a statement made by the veteran on 19 February 1996 concerning her case.
The Tribunal also took in as evidence:
(a)a letter from Mr K. Hargraves dated 11 February 2001; and
(b)a report from Associate Professor J. McCarthy dated 7 March 2002
The veteran was born on 15 December 1923, enlisted in the Australian Army Medical Women's Service ("AAMWS") on 16 March 1945 and was discharged on 8 April 1947. She was aged 74 when she made an application to determine qualifying service.
The veteran based her case for qualifying service on:
(a)the risk of an attack on the "Taroona" by hostile submarines during her voyage from Sydney to Jacquinot Bay, New Britain.
(b)danger from the large number of Japanese troops who were in close proximity to her when she served in Rabaul.
The veteran said she embarked in "Taroona" at Sydney on 25 August 1945 and arrived at Jacquinot Bay in 10 September 1945. She said the ship was blacked out during the voyage which indicated that the authorities believed there was risk or danger during the voyage. If there was not, then why was the ship blacked out?
Service records in the T documents show the veteran arrived in Rabaul from Jacquinot Bay on 26 October 1945 (or perhaps earlier). During her service with 118 Australian General Hospital at Rabaul from October 1945 to 29 March 1946, she said there were more that 90,000 Japanese troops in the area and she and others of her unit were confined to a narrow section of beach near her hospital.
She said she was apprehensive and anxious both during the sea voyage to Jacquinot Bay and during her service at Rabaul because there was no way of knowing what the Japanese might do. She confirmed there were no attacks on "Taroona" during the voyage to Jacquinot Bay and no hostile action by the Japanese against her or her unit at Rabaul.
The veteran also said she thought the legislation concerning qualifying service took a very narrow approach. Both she and her husband, Mr Stringer, who had extensive World War II service in 2/14 Battalion, believe that fearing to be in danger from the enemy arouses just as much anxiety as real and experienced danger from enemy action. They both stressed that there must have been danger from the Japanese forces because the ship sailed blacked out and she was confined to a small area in Rabaul.
In his report Associate Professor McCarthy states there was no hostile action against "Taroona" on the voyage Sydney–Jacquinot Bay when the veteran was a passenger. Japanese submarines had long departed these waters. The War Diary of 118 Australian General Hospital, the veteran's unit, has no record of any hostile action by Japanese forces against Australian service men and women in New Britain during the veteran's duty there.
FINDINGSThe standard of proof in this case is on the balance of probabilities; that is, on the balance of probabilities did the veteran incur danger from the hostile forces of the enemy when:
(a)she was in "Taroona" on the voyage Sydney-Jacquinot Bay, New Britain, 25 August – 10 September 1945?
(b)she served in Rabaul from about 26 – 29 October 1945? and
(c)she served in Rabaul after 29 October 1945 to 29 March 1946?
"Incurred danger" is defined by the Full Court of the Federal Court in Repatriation Commission v Thompson (1988) 82 ALR 352. Their Honours said:
"The words "incurred danger" provide an objective, not a subjective, test. A serviceman incurs danger, when he encounters danger, is in danger or is endangered. He incurs danger from hostile forces when he is at risk or in peril of harm from hostile forces. A serviceman does not incur danger by merely perceiving or fearing that he may be in danger. The words "incurred danger" do not encompass a situation where there is a mere liability to danger, that is to say, that there is a mere risk of danger. Danger is not incurred unless the serviceman is exposed, at risk of, or in peril of harm or injury."
The Tribunal finds the veteran served during a period of hostilities in that she was a member of the AAMWS before 29 October 1945.
The Tribunal finds, based on the Thompson decision quoted, the veteran did not incur danger during her voyage from Sydney to Jacquinot Bay on "Taroona" because there was no attack on the vessel.
The Tribunal also finds the veteran did not incur danger from the Japanese during her service in Rabaul during late October (that is, before the cessation of hostilities on 29 October 1945) as all the evidence is that there were no hostile actions taken against Australian service men and women in New Britain after the surrender on 15 August 1945.
The Tribunal further finds that, under the conditions of section 7A(1)(a)(ii) of the Act, the veteran did not render qualifying service after 29 October 1945.
The Tribunal understands the points made by Mrs Stringer and her husband and acknowledges her anxiety during the voyage to New Britain and the prevailing conditions at Rabaul during her service there. However, the Tribunal has no discretion in these cases and must be bound by the law.
DECISIONThe Tribunal affirms the decision under review.
I certify that the twenty-four [24] preceding paragraphs are a true copy of the reasons for the decision herein of
(sgd)Natalie Horwood
Clerk
Date of Hearing: 13 June 2002
Date of Decision: 20 June 2002
Counsel for the Applicant: Nil – self represented
Counsel for the Respondent: Mr R. Douglass, advocate with Department of
Veterans' Affairs
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