Terzis and Repatriation Commission
[2003] AATA 830
•26 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 830
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1121
VETERANS' APPEALS DIVISION ) Re JIM TERZIS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO, Member Date26 August 2003
PlaceSydney
Decision The decision under review is affirmed. ...............................................
Rear Admiral A R Horton AO,
Member
CATCHWORDS
VETERANS’ AFFAIRS - eligibility for Repatriation Pharmaceutical Benefits Card – Applicant born of Greek parents in Egypt – employment by Anglo–Egyptian Oilfields Ltd 1939 to 1962 – enlistment in Greek Army 1942 – whether continuous full-time service – whether allied veteran – whether incurred danger from hostile forces
LEGISLATION
Veterans’ Entitlements Act 1986 – sections 5B(1), 5C(1), 7A, 93M, 93ZB, 119, 120(4))
AUTHORITIES
Truchlik and Repatriation Commission (1989) 25 FCR 414
REASONS FOR DECISION
26 August 2003 Rear Admiral A R Horton AO, Member 1. This is an application for review of a decision dated 15 April 2002 by a delegate of the Repatriation Commission (“the Respondent”), and affirmed by review under section 57A of the Veterans’ Entitlements Act1986 (“the Act”) on 20 May 2002, that Jim Terzis (“the Applicant”) is not eligible for the Repatriation Pharmaceutical Benefits Card (“the RPBC”) pursuant to section 93M of the Act. The Applicant lodged an application for review by the Administrative Appeals Tribunal (“the Tribunal”) on 29 July 2002.
2. At a hearing before the Tribunal on 8 August 2003, the Applicant was represented by Mr David Christie, an advocate of the Returned Services League. Mr Peter Godwin, advocate, appeared for the Respondent.
3. The Tribunal had before it as evidence the following documents:
Exhibit
Description
Date
T1-12 pp1-40
Documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1
Statement by the Applicant
8 August 2003
A2
An extract of the diary of Mr Steve Lonsdale (2 pages)
A3
E-mail from Mr T Nolan, Shell Company
14 July 2003
A4
Statement from Mr H S Wells
17 June 2003
R1
Interpreted copies of Greek Army documents 25006 and 5509 (2 pages)
R2
Report by Mr B O’Keefe, Consulting Historian,
8 February 2003
BACKGROUND
4. The Applicant, otherwise known as Demitrios Terzis, was born at Suez, Egypt, of Greek parentage on 31 July 1922. In 1939, he joined Anglo-Egyptian OilFields Ltd as a boilermaker/welder apprentice, remaining with that company until 1962 (T9 page 32) when it was nationalised by the Egyptian government. In his claim of 27 December 2001 for the RPBC (T3), he states he was enlisted in the Greek Army on 8 August 1942, and was “dismissed on the same day having been attached to British service”. He states in Exhibit A1, and in oral evidence, that he was released from army service because of the important nature of his work at the Shell Refinery in Suez. For the remainder of the period of hostilities and thereafter until 1962, he was employed both at the refinery and at the Ras Matarma and Ras Gharib oilfields.
5. In his statement of claim for the RPBC, the Applicant recorded that he had experienced danger when enemy aircraft sought to bomb the refinery, and in oral evidence he stated that raids occurred on numerous occasions. On one occasion, when insufficient warning was given to enable the workers to take shelter in the air raid trenches, enemy aircraft bombed those trenches.
6. The primary decision by the Respondent, that the Applicant was not eligible for the RPBC, incorrectly attributed that ineligibility to the Applicant not being a Commonwealth veteran (as defined in subsection 5C(1) of the Act), in that he had not enlisted in a relevant force of a Commonwealth country. On review under section 57A of the Act, the delegate affirmed the decision, the determination being worded as follows (T11):
“… Although Mr Terzis could be regarded as an allied veteran for his one day enlistment in the Greek Army on 08.08.42, he did not incur danger from hostile forces of the enemy on this basis, as required by section 7A of the Veterans’ Entitlements Act 1986 (the VEA) for qualifying service.
Mr Terzis’ service as a civilian with Anglo-Egyptian Oilfields in Suez, although providing essential service in a protected industry, was not as a Commonwealth or allied veteran, as required by sections 93M and 7A. Mr Terzis does not have qualifying service in respect of this employment.”
7. Before the Tribunal, the Respondent contended that whilst the Applicant had enlisted in the Greek Army, he had not “rendered” service as a member of the defence force of that country, citing Truchlik and Repatriation Commission (1989) 25 FCR 414, nor had he rendered “continuous full-time service” as defined in section 5C of the Act. Hence he was not an allied veteran, and nor could he meet the “incurred danger” test in section 7A of the Act.
LEGISLATION
8. Eligibility for the Repatriation Pharmaceutical Benefits Card is established pursuant to section 93M of the Act, which relevantly states:
"Who is eligible?
(1) A Commonwealth veteran, an allied veteran or an allied mariner is eligible for a pharmaceutical benefits card under this Part if the veteran or mariner:
(a) is 70 years of age or older; and
(b) has rendered qualifying service during a period covered by paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1); and
(c) has been an Australian resident for a continuous period of at least 10 years."
9. Pursuant to section 5C(1) of the Act, an “allied veteran” is defined as a person:
"(a) who has been appointed or enlisted as a member of the defence force established by an allied country; and
(b) who has rendered continuous full-time service as such a member during a period of hostilities;
but does not include a person who has served at any time:
(c) in the forces of a country that was, at that time, at war with Australia, or in forces engaged in supporting or assisting the forces of such a country; or;
(d) in forces that were, at that time, engaged in war-like operations against the Naval, Military or Air Forces of Australia”.
10. “Defence force established by an allied country” is defined in section 5C relevantly as:
“(a) the regular naval, military or air forces; …
(b) …
(c) …
raised by an allied country and operated by the country with regular military-like lines of command, that is to say, raised and operated in such a manner that the members of those forces and services:
(d)were formally appointed to, or enlisted in, those forces or services; and
(e)were required to wear uniforms or insignia distinguishing them as members of those forces or services; and
(f) were required to carry arms openly; and
(g) were subject to the rules and conventions of warfare
Subsection 5R of the Act provides further explanation in respect of defence forces established by a government-in-exile, and makes provision, in the appropriate circumstances, for a concession in the matters of wearing uniform and carrying weapons. That concession applies only in respect of aged or invalidity service pensions, and hence is not relevant in this matter.
11. “Continuous full-time service” is defined in section 5C of the Act as:
(a) in relation to a member of the Defence Force:
(i) service in the Naval Forces of the Commonwealth of the kind
known as continuous full-time naval service; or
(ii) service in the Military Forces of the Commonwealth of the kind known as continuous full-time military service; or
(iii) service in the Air Force of the Commonwealth of the kind known as continuous full-time air force service; or
(b)in relation to a member of the naval, military or air forces of a Commonwealth country or an allied country – service in those forces of a kind similar to a kind of service referred to in subparagraph (a)(i)(ii) or (iii).
12. “Qualifying service” is defined in section 7A of the Act, which states relevantly:
"(1) For the purposes of part III and VA and sections 85 and 118V, a person has
rendered qualifying service:...
(a) ...
(b) …
(c) if the person is an allied veteran who, during a period of hostilities, has, as a member of the defence force established by an allied country, rendered, in connection with a war, or war-like operations, in which the Naval, Military or Air Forces of Australia were engaged, service in an area within or outside the country in which the person enlisted in those forces, being service in respect of which the person incurred danger from hostile forces of the enemy: or
(d) …
(2) In sub-paragraphs (1)(b)(ii) and (1)(h)(ii):
campaign medal, in relation to service during the period of World War 2 from its commencement to and including 29 October 1945, means:
(a) any of the following medals:
(i) 1939-1945 Star
(ii) ....
(iii) ....
(iv) Africa Star;
...
(b) any other medal declared by the regulations to be a campaign medal in relation to service during that period."
13. Section 5B(1) defines the “period of hostilities” and states, relevantly:
"(1) In this Act, unless the contrary intention appears: period of hostilities means:
(a) …
(b) World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); …
..."
14. “Residency” is defined in section 5G of the Act, which states relevantly:
"(1AA) An Australian resident is a person who:
(a) resides in Australia: and
(b) is one of the following:
(i) an Australian citizen
(ii) ...."
15. The Respondent concedes that the Applicant meets the age criteria as defined in section 93M of the Act, and is an Australian resident vide section 5G (1AA)(a) and (b)(i) of the Act. The Respondent does not concede that the Applicant is an allied veteran as defined in section 5C(1) of the Act, nor that he rendered qualifying service in a period of hostilities as defined in sections 7A and 5B(1) of the Act. Thus, these are the issues before the Tribunal.
FACTS AND EVIDENCE
16. As described in his statement at Exhibit A1, and as given in oral evidence, the Applicant was called up for Greek army service and travelled from Suez to Ishmalia on 8 August 1942 for enrolment. He recalls that, at interview, a British officer indicated he was to return to the refinery. An original document titled Certificate No.25006 (T4 page 24) in the Greek language and three translations (T4 page 23 and two documents at Exhibit R1) relate to this matter. Two translations are in respect of certificate No.25006, seemingly issued by the Greek Army Recruiting Office Athens. The former, at T4 page 23 is complete, the latter, at Exhibit R1, indicates that some portions of the original document are illegible and cannot be translated.
17. The former translation of the document at T4 page 24 states:
“It is certified that:
TERZIS DIMITRIOS of THEMISTOKLIS and PANAYIOTA born in 1922 group age 1943 R.A.N.4368 registered with the Males Register of the Municipality of Athens, Province and Prefecture of Attica, has gone in the army through the following changes:
1942 – 8th August was enlisted – dismissed on the same day having been attached to a British Service.
By the decision under No. 15/42 of the Suspensions Committee obtained suspension till the solution of the Techn. Years 1922-1923.”
18. Presumably in reference to another original document, the translator goes on to say:
“From the above is evidenced that he did not completed [sic] his Military obligations, To-day he has not any Military or Financial obligation having passed the 50th year of his age.
The present certificate is issued upon his application to be used for pension purposes.
Athens 5th January 1980”
The second translation is broadly in accord with the above, but refers to 4368 as an Army Unit, and does not use the expression “dismissed on the same day”, recording that the relevant text is illegible.
19. A further translation at Exhibit R1 is evidently of another document, the original of which is not before the Tribunal. This document, dated in Cairo on 3 May 1945, and referenced as Number 5509, is reputedly from the Recruiting Office of Greece to the Royal Consulate Suez, and states:
“I have the honour to forward the enclosed application which I processed and to request that you inform him, that resulting from the records kept regarding the recruitment lot for Dimitrios Terzis son of Themistokli, class 1943, under Ruling Number 15/42 of the Committee of Deferment army service is deferred until the resolution of the issue regarding technicians year of birth 1922 and 1923.
Now according to Order Number 55810/8.2.45 of the General Army Headquarters all persons in the above category are deemed, that they remain indefinitely deferred from presenting for army service until their class is called up by Greece, nor are they obliged to attend for enlistment.”
20. The Applicant gave evidence that he had not served in any capacity in the Greek army, and had returned to his employer, Anglo-Egyptian Oilfields, when instructed to do so at his “call-up” interview. He had not been allocated any official Greek Army number, and at all times was paid by his civilian employer. He had at no time received any instructions from the Greek Army, being responsible at all times to Anglo-Egyptian Oilfields management. He could not recall whether the refinery was managed by the British army officer, but understood that the refinery was controlled by the British.
21. The Applicant described, with considerable pride, significant events during his employment with Anglo-Egyptian Oilfields, both at the Suez refinery and at the oilfields, particularly on the occasion at Ras Gharib when he was heavily involved in the construction of replacement pipelines to the off shore mooring buoys, the original lines having been destroyed by enemy action. But, again, he was not being directed in his employment by the Greek Army, but by Anglo-Egyptian, albeit the industry was essential to the allied war effort.
22. Mr S Lonsdale was a dental mechanic posted to the 14th Field Ambulance, which was operating in the western desert. His diary (Exhibit A2) records that two days before the Applicant was interviewed for enlistment in the Greek Army (8 August 1942), he travelled from Alexandria to a Mobile laboratory about 60 kilometres south west of Alexandria (a distance determined by Mr O’Keefe (Exhibit R2) and agreed by the Tribunal). He records enemy bombing in the vicinity later that day, and in the course of the next few days. This would appear to have no relevance to the Applicant, who at that time was at Suez/Ishmaila, over 200 kilometres to the east/south east. Mr O’Keefe found no specific evidence of enemy air attacks on Ishmaila; he was not asked, nor does he comment on the frequency of air attacks on Suez and the Anglo-Egyptian refinery. As earlier noted, the Applicant gave evidence as to enemy air activity and attacks in that locality.
23. Mr Christie submitted that the documentation before the Tribunal confirmed that the Applicant had been enlisted in the Greek army, and would have been available for service in that Army had the Greek authorities so required. Had he returned to Greece in the course of the war, he would have had to undertake military service.. Mr Christie submitted that the term “dismissed” was not definitive, as evidenced by the inconsistencies in translations of the relevant decisions, and that there was no evidence to confirm that the Applicant had been discharged from his military service, at least for the duration of hostilities. He also considered the matter in Truchlik (supra) to be relevant to the circumstances in this matter, in that service must be considered in the ordinary and plain sense, rather than having some technical meaning.
24. Mr Christie submitted that the Applicant had been enrolled in the Greek Army and, at that point, had been directed to provide continuing essential service to the oil industry, and thus had rendered full-time service, and on his evidence, incurred danger whilst rendering that service. That service had been effectively completed on 3 May 1945 as evidenced in document number 5509 (Exhibit R1).
25. The Respondent submitted that whilst the Applicant enlisted on 8 August 1942, as a result of being called up by the Greek authorities, he had been “dismissed” and thus never served. The potential existed for him to be later called up for service, but the reality was that this did not occur. The Respondent further submitted that the views of Sheppard and Foster JJ in Truchlik (supra) must be followed, in that mere enlistment or enrolment is insufficient to meet the criteria of service or full-time service. The Respondent further submitted that the Applicant did not render service or continuous full-time service as required of a member of a defence force established by an allied country, and any danger he incurred was as a civilian. Thus, he could not meet the criteria in section 93M of the Act in respect of eligibility for the RPBC.
FINDINGS AND DECISION
26. The Tribunal accepts that the Greek Army is a component of a defence force established by an allied country, pursuant to section 5C of the Act. The documentary evidence before the Tribunal as to the Applicant’s service in the Greek Army is somewhat inconsistent and requires liberal interpretation. It is clear from the documentation that he was enlisted on 8 August 1942, having been called up and directed to attend the Greek authorities on that day at Ishmalia. The translation of the Greek Army Recruiting Office Certificate 25006 (T4 page 23) states categorically that he was dismissed on the same day and detached to a “British Service”.. The alternate translation at Exhibit R1 unfortunately states that the writing on the original document is such that a translation cannot be made. However, the Applicant himself has stated that at the point of enlistment he was directed to return to his employment because of its essential strategic importance.
27. There is no evidence that the Applicant was formally appointed to any “British Service”.. He continued with his employment with Anglo-Egyptian Oilfields, his work was directed by that organisation, and he was at all times remunerated by that organisation. It may well be that the operations of Anglo-Egyptian were overseen or even directed by the British military authority (as considered possible by Mr Terry Nolan of Shell Company (Exhibit A3)), but he was not a member of any such military force. In summary, there is no evidence before the Tribunal as to any personal military involvement other than on the day of enlistment.
28, Both parties referred to Truchlik (supra), a matter in which the applicant joined the Slovak Army in anticipation of conscription, but his loyalty and his duty and tasks were directed to the resistance movement and arranged by officers loyal to that resistance movement. After the rebellion by the army against the Slovak government in August 1944, Mr Truchlik enlisted and served in the Czechoslovak Army, Czechoslovakia being an allied country. The tribunal reached a decision that whilst Mr Truchlik had served in an allied defence force, he was excluded from an entitlement to a service pension as an allied veteran by the provisions of section 35(1) of the Act, as it then was, having served in “the forces of a country that was, at that time, at war with Australia, or in forces engaged in supporting or assisting the forces of such a country; … ”. On appeal, the Full Federal Court concluded that whilst Mr Truchlik was in the Slovakian Army, he had never “served” in it, since his loyalty, duty and tasks were to the resistance movement. Accordingly, the Court directed that he was to receive a service pension.
29. Their Honours addressed some issues relevant to this matter. Davies J refers to service in the Armed forces as being “service whether it be voluntary or pursuant to conscription”. But he did not consider that “served” has the technical meaning of “enrolled”. Drawing on various dictionary meanings, he considers the word “served” to ordinarily denote “the performance of a duty”. That is, in his words, “service is not performed by mere enrolment to serve. It involves the carrying out of the duties of the office or function”. Sheppard and Foster JJ agreed with this reasoning, considering that the legislation in respect of an “allied veteran” showed an intention on the part of the legislature to require not only enlistment, but also service.
30. Following Truchlik (supra), and the reasoning of their Honours, it is clear from the evidence before this Tribunal that whilst the Applicant was enlisted into the Greek Army on 8 August 1942, he did not serve in that army. Whilst “dismissed” as used in Certificate 25006 may be seen as an unusual descriptive word, it implies that he was not required to undertake any service thereafter, and that accords with the evidence before the Tribunal. At no time after 8 August 1942 was the Applicant required to provide any service to the Greek Army, or under any direction of Greek Army authorities.. Accordingly the Applicant was not an allied veteran as defined in section 5C(1) of the Act.
31. It must follow therefore, that whilst the Applicant may have incurred danger at the refinery or the oilfields, such danger did not occur in the course of military service and hence the criteria for qualifying service pursuant to section 7A(1)(c) of the Act has not been met. There is no evidence before the Tribunal to suggest that he incurred danger on the day of enlistment at Ishmalia. The Tribunal must therefore affirm the decision under review that the Applicant is not eligible for the RPBC.
32. In reaching this decision, the Tribunal well recognises the important role played by the Applicant in ensuring the continuation and certainty of fuel supplies at the Anglo-Egyptian Oilfields facilities. The Tribunal also accepts the evidence from the Applicant that enemy raids on those facilities took place and that he was endangered. But the legislation, as authoritatively interpreted by the Full Court in Truchlik (supra), is quite specific as to the definition of “allied veteran”, and the further consideration of qualifying service.
33. The decision under review, that is that the Applicant is not eligible for the Repatriation Pharmaceutical Benefits Card, is affirmed.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO, Member
Signed: C. Gregson
AssociateDate/s of Hearing 8 August 2003
Date of Decision 26 August 2003
Applicant’s Representative Mr D Christie
Advocate for the Respondent Mr P Godwin
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