Tien Nam VU and Repatriation Commission
[2013] AATA 172
[2013] AATA 172
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/2158
Re
Tien Nam VU
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr Conrad Ermert, Member
Date 27 March 2013 Place Melbourne The Tribunal affirms the decision under review.
[sgd].............................................................................
Mr Conrad Ermert, Member
CATCHWORDS
VETERANS' AFFAIRS - member of the armed forces of the Republic of Vietnam - whether service in period of hostilities - whether faced hostile forces of the enemy - no documentary evidence of service - credibility of statements and evidence - decision affirmed
LEGISLATION
Veterans' Entitlements Act 1986
REASONS FOR DECISION
Mr Conrad Ermert, Member
INTRODUCTION
In 1983 Mr Tien Nam Vu, the applicant, applied for and was accepted as a refugee for settlement in Australia. In his refugee application, he stated that he had served in the Army of the Republic of Vietnam (ARVN) from September 1972 until April 1975 (T‑Documents page 7). Unfortunately, there are no documents available, such as Mr Vu’s service records or his re-education certificate, to verify his military service.
On 10 August 2010 Mr Vu lodged an Application to Determine Qualifying Service by a Veteran or Mariner. On 11 November 2010 a delegate of the Repatriation Commission, (the Commission) the respondent, decided that Mr Vu had not rendered Qualifying Service as provided for in the Veterans’ Entitlements Act 1986 (the Act).
At Mr Vu’s request, a delegate of the Repatriation Commission reviewed this decision; and on 15 April 2011 decided to affirm it. On 7 June 2011 Mr Vu applied to this tribunal for a review of the delegate’s decision.
THE HEARING
I heard Mr Vu’s application on 4 December 2012 and 11 January 2013. Mr Vu represented himself and gave evidence under affirmation with the assistance of interpreters in the Vietnamese language. I also heard evidence from Dr Jeffrey Grey, Foundation Director, Australian Centre for the Study of Armed Conflict and Society, and Professor of History, School of Humanities and Social Sciences, University College, Australian Defence Force Academy. Mr Ken Rudge, a solicitor with the Department of Veterans’ Affairs, represented the Commission.
I took into evidence:
·the documents provided under section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents);
·a statement by Mr Vu dated 30 July 2012 (Exhibit A1);
·a statement by Dr Grey dated 10 April 2012 (Exhibit R1);
·a statement by Dr Grey dated 24 August 2012 (Exhibit R2);
·Dr Grey’s curriculum vitae (CV) received on 6 December 2012 (Exhibit R3);
·a letter from Robert J. Destatte dated 5 December 1996 (Exhibit R4);
·an email from Andrew Wiest dated 3 February 2012 (Exhibit R5); and
·an email from Jay Veith dated 4 April 2012 (Exhibit R6).
THE LEGISLATION
The relevant legislation is contained in the Veterans’ Entitlements Act 1986. Section 7A provides the requirements for Qualifying Service. For this case, the relevant section is 7A(1)(c), which states that a person has rendered qualifying service if that person, during a period of hostilities, as a member of the defence force established by an allied country and in connection with war or war-like operations in which the Naval, Military or Air Forces of Australia were engaged, has incurred danger from hostile forces of the enemy. Section 5B(1)(c) limits the period of hostilities in this case to 11 January 1973, when Australian forces officially ceased their involvement in the Vietnam conflict. Section 120(4) of the Act provides that the Standard of proof in determining this matter is on the balance of probabilities.
THE ISSUES
There is no dispute that the ARVN were part of defence forces established by an allied country and that the ARVN conducted operations in which the Naval, Military and Air Forces of Australia were engaged.
The issues for determination are whether Mr Vu:
·served as a member of the ARVN, and
·incurred danger from hostile forces of the enemy,
·prior to 11 January 1973.
THE EVIDENCE
Mr Vu testified that in September 1972 he enlisted voluntarily in the Regional Force (RF) in Da Lat. He then trained at the Lam Son Military Centre in Nha Trang. After three months of training, he returned to Da Lat for service at the Political Warfare School. He said his service number was 54/665363, a number which was given to him as a member of the RF. Mr Vu said he served at Da Lat for a few weeks, after which he was sent with reinforcements to the 22nd Infantry Division (22 Div), which was part of the Regular Force of the ARVN. At that time the division was involved in a critical stage of the war. Mr Vu said that the RF from the provinces in the II Military Region was sent to 22 Div to form the division. From then on he served in 22 Div.
Mr Vu stated that people enlisted into the RF were given service numbers starting with 54, while those enlisted in the Regular Force were given numbers starting with 74. He said that did not mean their military service was any different.
Mr Vu said that on reaching the age of 18, a person who volunteered for military service could choose whether to enlist in the Regular Force or the RF. If drafted, people had no choice and were enlisted in the Regular Force. Mr Vu re-iterated that he chose to volunteer and enlisted in the RF.
Mr Vu stated that when asked about his military background in the refugee camp he always spoke about his final service with the Regular Force and not the beginning of his service when he enlisted. He said that when he was captured by the Communists and questioned about his military service they accepted that he was a soldier. Mr Vu said that he was a proud soldier of the South Vietnamese regime and that he was proud to fight with the Allies against the Communists at that time.
In cross-examination Mr Rudge referred to T documents p8 and T documents p56, in which Mr Vu had listed 22 Div and the Army Psychological Warfare College in that order, as the units in which he served. Mr Vu agreed that both of those units were Regular Force units. He said that he was given his 54 service number on his original voluntary enlistment and that service numbers were retained throughout one’s military service.
Mr Rudge referred Mr Vu to his statement dated 3 August 2010 (T documents p11) in which he listed his service after basic training, as being first to 22 Div and then to the Army Psychological Warfare College in late 1973. Mr Rudge compared that to Mr Vu’s statement (Exhibit A1), in which those units are in the reverse order; and he pointed out the specificity of the late 1973 phrase. Mr Vu responded that the earlier statement is incorrect. He explained that the person who helped him prepare the earlier statement only took notes at the time and did not write the statement until a later day. He said the person must have misunderstood him. Mr Vu said he did not read the statement again after it was prepared and his children, who can read English, could not explain it to him.
Mr Rudge referred Mr Vu to T documents p56 in which he described his service rank as Sgt (Sergeant), and T documents p7 in which he describes his rank as Corporal. Mr Vu stated that he had been promoted to Sergeant but the paperwork had not gone through the system before the fall of the South Vietnamese regime. He said although he was a Sergeant, his title on any paperwork was still Corporal.
Mr Rudge referred Mr Vu to Exhibit R1 in which Dr Grey had recorded that the name of the Psychological Warfare Training Centre in Da Lat was changed in 1965 to the Political Warfare College. In response, Mr Vu stated that the person writing his statement did not know the importance of the name.
Mr Rudge referred again to T documents p56 and noted that the word compulsory had been circled rather than not compulsory. Mr Rudge put to Mr Vu that compulsory was not the same as his evidence of voluntary enlistment. Mr Vu said that his enlistment was voluntary but after you become a soldier your service is then compulsory. You have to serve where you are assigned.
Dr Grey gave his evidence under oath. He referred to his CV for his qualifications. Further to his statements R1 and R2, Dr Grey said if the information given by Mr Vu in his earlier statements (T documents p8 and T documents p11) were true then his service number must have commenced with the numerals 74. He explained that the service history shown in those documents relates only to Regular Force units. As a Regular Force enlistee, Mr Vu’s number would have commenced with 74 and that there were no known exceptions.
Dr Grey referred to Mr Vu’s training at Lam Son Military Training Centre, as shown on T documents p8. He said that the Lam Son Centre was part of a network of training centres across the country which only provided training to Regular Forces. Dr Grey said the RF was trained at local or district levels by visiting training teams. As they served only locally, there was no need for them to be taken away for other training.
Dr Grey re-iterated the inconsistencies in Mr Vu’s statements:
·Voluntary enlistment in T documents p7 compared with compulsory enlistment in T documents p39;
·Final rank of Corporal (T documents p7) compared with Sgt (T documents p39); and
·The change of name of the Psychological Warfare Training Centre to the Political Warfare College, which pre-dated the period that Mr Vu would have been there.
Mr Vu put to Dr Grey that during 1970 to 1972 the Lam Son Training Centre trained personnel for the RF as well as the Regular Forces. Dr Grey said it was his understanding that the Lam Son Centre trained only Regular Forces.
In re-examination, Mr Rudge asked Dr Grey if the account of Mr Vu’s service given in Exhibit A1 was plausible. Dr Grey agreed that it would be plausible if Mr Vu had enlisted in the RF.
I asked Dr Grey about the basis for his expert knowledge relating to this matter. He said that he was in contact with the few academics, mainly in the United States, who have researched the subject of the South Vietnamese armed forces. He said that some of those researchers were also in contact with surviving senior members of the ARVN. He agreed that he had no personal experience of the compilation and maintenance of the ARVN service records.
SUBMISSIONS
Mr Rudge stated the issue was whether Mr Vu had rendered qualifying service prior to the cut-off date of 11 January 1973. He conceded the issue of incurring danger as part of the qualifying service had not been ventilated in this hearing.
Mr Rudge questioned whether the material presented by Mr Vu could be considered credible on the balance of probabilities. He referred to Mr Vu’s account of his service as shown in his statement of 3 August 2010 (T documents p11) in which he listed his service after his military training as:
·“Assigned to 1st Battalion of 22nd Infantry Division as a combat private stationed in Qui Nhon Province in Central Vietnam after completion of my basic military training.
·Assigned to Army Psychological Warfare College in Dalat in late 1973 …”
Although Mr Vu said this sequence was incorrect, Mr Rudge contended that the statement could not be the result of a mistake. He submitted that the details are quite specific and reversing the sequence would not make sense of the phrase after completion of my basic military training, which is stated to be 03/12/1972
Mr Rudge contended further that Mr Vu’s statements are well written, with good grammar. They do not appear to suffer from a difficulty with the English language. He noted that the statements remained unaltered for about two years despite numerous opportunities to correct them, for example in Mr Vu’s application for a review of the decision. Mr Rudge pointed out that Mr Vu only changed the details of his statement following his receipt of Dr Grey’s statement. Mr Rudge submitted that Mr Vu referred to the Political Warfare College for the first time in his statement of 30 July 2012 (Exhibit A1).
Mr Rudge submitted that this discrepancy, combined with the other inconsistencies - of Mr Vu’s rank, his enlistment status and the name of the Political Warfare College - render Mr Vu’s evidence as not credible on the balance of probabilities.
In his final response, Mr Vu restated that he joined voluntarily and was given an RF service number. He said his statements were written in good English using good grammar but they were all prepared by different people. He said he wants to be confirmed as a real soldier of the South Vietnamese Army.
CONSIDERATION
Unfortunately, in this case there are neither service records nor a re-education certificate to corroborate Mr Vu’s account of his military service. Accordingly, the issue becomes one of the credibility of Mr Vu’s evidence, assessed on the balance of probabilities.
Mr Rudge contests the credibility of Mr Vu’s statements, noting the inconsistencies in the accounts of his enlistment, his military training, his service history, his rank, and the name of the Political Warfare College. Mr Rudge also relies on the evidence of Dr Grey, which indicates an inconsistency with Mr Vu’s stated enlistment in the RF, and the resulting 54 service number, and his training at the Lam Son Centre. Mr Rudge submits that Mr Vu’s most recent account of his service in Exhibit A1 appears to have been prepared from information contained in Dr Grey’s statement and lacks the required credibility.
In regard to his enlistment, Mr Vu’s oral evidence was that he enlisted voluntarily, contrary to the information provided in his earlier interview (T document p 39). Mr Vu did not give a specific explanation for this discrepancy, but stated that there were errors in the translation of the information he provided. The choice of answer at the interview was to select one of two alternatives, Compulsory or not compulsory. I do not accept as reasonable that a mistake in such a specific piece of information would occur as a result of an error in translation.
In his application for Qualifying Service, Mr Vu stated that he undertook his basic military training at the Lam Son Training Centre. He repeated this assertion in his statement (Exhibit A1) and in his oral evidence. As part of the statement, he asserted that he enlisted in the RF. Dr Grey said that, to his knowledge, only Regular Forces were trained at Lam Son. However, he conceded he did not have a detailed knowledge of the operations of the centre. In his oral evidence, Mr Vu said that RF soldiers were also trained at the Lam Son Centre. However, there is no independent evidence to corroborate this statement. From this evidence, I am unable to make a finding of the reasonableness of Mr Vu’s statements on this issue; but I note the existence of the discrepancy.
In regard to his enlistment, Mr Vu’s evidence was that he enlisted in the RF, was assigned a 54 service number and undertook basic military training at the Lam Son Centre. Dr Grey said this account would be plausible only if members of the RF were in fact trained at the Lam Son Centre. To his knowledge the RF were not trained at Lam Son. Instead they were trained locally by visiting training teams. Dr Grey said that an alternative history would be that Mr Vu enlisted in the Regular Force and trained at Lam Son. However, in that case his service number would have started with 74. In the absence of further evidence, I have no way of resolving the conflict in the evidence.
In regard to his service history, Mr Vu’s response at his refugee status interview (T documents p39) did not include service at the Political Warfare College. In his statement for Qualifying Service (T documents p11), Mr Vu listed his assignment to the 22nd Infantry Division after completion of my basic military training followed by his assignment to the Army Psychological Warfare College in late 1973. In his statement for this hearing (Exhibit A1), Mr Vu stated that he was sent to the college immediately after his basic training and prior to being transferred to 22 Div
Mr Vu contended that the different accounts were the result of different people preparing the statements on his behalf. Mr Rudge contended that the specificity of the information, particularly the inclusion of after completion of my basic military training and in late 1973 made it unlikely that the earlier information was in error. I find it difficult to accept that people preparing the statements for Mr Vu would confuse such specific information and list the two units incorrectly. The inclusion of after completion of my basic military training and in late 1973 strengthens my view, that the statements as written reasonably reflect the account given by Mr Vu at the time of their preparation. Accordingly, I find there is no reasonable explanation for the discrepancy in Vu’s stated service histories.
Mr Rudge and Dr Grey expressed concerns about the inconsistency of Mr Vu’s stated final rank. Mr Vu’s evidence was that he was promoted to Sergeant before the end of the war but the paperwork was not processed. There are no records to assist in resolving this issue. Nevertheless, I find Mr Vu’s explanation to be plausible, accepting Mr Vu’s account of the chaotic conditions at the closing stages of the war as a reasonable explanation for the paperwork not being processed and causing the inconsistency.
I am not as accepting over the name of the Political Warfare College. In his 2010 Service Details Questionnaire (T documents p8) Mr Vu provided very specific information about the name of the unit, naming it the Army Psychological Warfare College. Mr Vu used the same terminology in his supporting statement (T document p11). Dr Grey’s evidence is that the name was changed to the Political Warfare College in 1965, well before the time during which Mr Vu claimed to have served there.
Mr Vu changed the name of the unit in his 2012 statement (Exhibit A1). However, this was after he had had access to Dr Grey’s report. In his oral evidence Mr Vu offered no reasonable explanation for this inconsistency. I do not consider that the differences in such specific wording could reasonably result from difficulties in language translation.
In summary, I do not accept as reasonable Mr Vu’s explanations of the discrepancies in his enlistment and his service history. Nor is there an acceptable reason for the discrepancy in the name of the Political Warfare College. Lack of corroborating evidence prevents me from making a finding on the discrepancy between his service number and his basic military training. Nevertheless, the unexplained discrepancies are sufficient to cast doubt on the credibility of Mr Vu’s statements and evidence.
As a result, I am not satisfied on the balance of probabilities that Mr Vu has rendered service as he has stated. Accordingly, I cannot be satisfied that he incurred danger from hostile forces during the period of hostilities to 11 January 1973, as required by the Act.
This does not mean that I do not accept that Mr Vu served in the armed forces of the Republic of Vietnam. My findings indicate only that I am not satisfied that any service he rendered meets the provisions for Qualifying Service required by the Act.
DECISION
The tribunal affirms the decision under review.
I certify that the preceding 43 (forty‑three) paragraphs are a true copy of the reasons for the decision herein of:
Brigadier Conrad Ermert (Rtd), Member
[sgd]........................................................................
Associate
Dated 27/03/2013
Dates of hearing
4 December, 2012 & 11 January 2013
Self Represented Advocate
In person
Solicitor for Respondent
Mr Ken Rudge, Department of Veterans’ Affairs
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