Tomlin and Repatriation Commission
[2006] AATA 551
•23 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 551
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/73
VETERANS' APPEALS DIVISION ) Re MAURICE TOMLIN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier RDF Lloyd, Member Date23 June 2006
PlacePerth
Decision The Tribunal affirms the decision under review. ..........[Sdg. Brigadier RDF Lloyd]........
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – ex Royal Navy (RN) with attachment to Royal Air Force (RAF) – aircraft maintenance (ground crew) – seeking Repatriation Pharmaceutical Benefits Card (RPBC) – initially served within United Kingdom (UK) only 1943 to 1945 – transferred in RN/RAF to Australia (still ground crew) by M V Stirling Castle departing UK May 1945 and disembarked Sydney July 1945 – served in RAF within Australia only until end of hostilities – then returned to UK – entitlement to RPBC depends on applicant having rendered “qualifying service” as a member of the forces of a Commonwealth country – criteria not met decision under review affirmed.
Veterans’ Entitlements Act 1986 (Cth) ss 5B, 7A, 93M
Re Repatriation Commission v Smith (1987) 15 FCA 327
Thompson v Repatriation Commission (1988) 82 ALR 352
REASONS FOR DECISION
23 June 2006 Brigadier RDF Lloyd, Member 1. This is an application before the Administrative Appeals Tribunal (“the Tribunal”) by Mr Maurice Tomlin (“the applicant”) for a review of a decision by a Senior Delegate of the Repatriation Commission (“the respondent”) of 15 February 2005. That decision affirmed an earlier determination dated 28 September 2004, by a Commission Delegate rejecting the applicant’s claim for a Repatriation Pharmaceutical Benefits Card (RPBC), to which he considers he is entitled – based on his service in the Royal Navy (RN) in World War 2 (WW2). The Tribunal’s review is limited to that entitlement aspect only.
2. The applicant attended the Tribunal hearing and was not assisted by an advocate. His sworn oral evidence was clear and given in a manner which indicated a relatively good recollection of the relevant historical circumstances involved, albeit the detail was not strongly pursued by questioning in cross-examination. No other witnesses were called by the applicant. There were no respondent witnesses. The Tribunal had before it the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (‘the T documents”) and in addition the following documents were taken into evidence:
· At the request of the applicant:
§ Exhibit A1 – Statement by Mr M Tomlin, dated 08.04.05 (unsigned)
· At the request of the respondent:
§ Exhibit R1 – Command Paper 6833 by Committee on the Grant of Honours Decorations and Medals – Ministry of Defence (United Kingdom) – dated June 1946.
§ Exhibit R2 – Letter from Ministry of Defence Medal Office (United Kingdom) – dated 04 October 2005.
APPLICANT’S SERVICE AND RELATED MATTERS OF LAW
3. Mr Tomlin, at the time a citizen of the United Kingdom (UK), according to records available enlisted for service into the RN on 25 May 1943, aged 18 years. Subsequently in April 1944 he was attached to the Royal Air Force (RAF) as ground crew involved with aircraft inspection, maintenance and certification. According to his Service records he did not serve outside the UK until he was assigned to an RN element titled Fleet Air Base “Mobile Overseas Air Base” (MONAB) 7 in May 1945.
4. MONAB 7 was located at Meeandah, outside Brisbane. Mr Tomlin was transported to Australia in the MV Stirling Castle leaving Liverpool, according to the records, on 10 May 1945. The ship travelled across the Atlantic, through the Panama Canal and somewhere in the Pacific experienced some engine trouble. At reduced speed the ship made Wellington (New Zealand) where repairs were undertaken and thence to Sydney where Mr Tomlin disembarked on or about 24 July 1945 (T5 page 23). He completed the subsequent movement to Brisbane he says by train where he joined with MONAB 7.
5. No further documentation or other evidence to indicate any service by Mr Tomlin beyond his date of arrival at MONAB 7 being relevant in this matter was provided to the Tribunal. Hostilities of WW2 ended while the applicant was located there and he was subsequently repatriated to the UK and demobilized.
6. The eligibility criteria for the RPBC are set out in the Veterans’ Entitlement Act 1986 (“the Act”), at s 93M which states:
“93M 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”
7. The criterion of Australian residency is not an issue in this matter which is in contention, nor is the age of the applicant. The period of hostilities involved in this case is defined in s 5B (1) of the Act and is WW2 from its commencement on 3 September 1939 to 29 October 1945. His service as a “member of the forces of a Commonwealth country” (in the RN), as prescribed in the Act, is common ground and accepted by the Tribunal also.
8. It is the matter of rendering “qualifying service”, as defined in the Act that is in contention. Qualifying service for members of the forces of Commonwealth countries is defined in s 7A(1)(b) of the Act, which reads:
“(b)if, during a period of hostilities, the person has, as a member of the defence force established by a Commonwealth country, rendered, in connection with war or war-like operations in which the Naval, Military or Air Forces of Australia were engaged:
(i)service, in an area outside that country, at a time when the person incurred danger from hostile forces of the enemy in that area; or
(ii)service within that country, being service in respect of which the person has been awarded, or has become eligible to be awarded, a campaign medal; or”
9. Under the provisions of the Act, the Tribunal is required to decide this matter to its reasonable satisfaction, that is, on the balance of probabilities (Repatriation Commission v Smith (1987) 15 FCR 327 refers).
EVIDENCE AND CONCLUSIONS
10. It is evident to the Tribunal that Mr Tomlin felt his service had not been appropriately recognised by some in authority along the route of his claim procedures. To indicate that a person who had been living/operating in the UK in the period 1943-45 that they had not been exposed to danger from the enemy would seem to the Tribunal to be at the very least an inappropriate response. Whatever the circumstances, the applicant took umbrage and if correctly reported, understandably so. However, although it is not the Tribunal’s job to investigate this matter further, it places its concern on record.
11. Whilst already taken into evidence at Exhibit A1, the Tribunal considers it appropriate to include the applicant’s statement, as given orally by him at the hearing. He states as follows:
“I would like to make a statement before this hearing today to clarify why I have appealed against the decision not to grant me the Orange Health Card.
As an Australian I understand the governments decision was to extend to all veterans over 70 years of age who were in the Commonwealth Forces during the 2nd world war regardless of conflict the opportunity to obtain benefits from a Pharmaceutical Benefits Scheme as they grew older and their needs increased. I am not asking for a pension.
I was a member of the Royal Navy from May 1943 until September 1946. I was trained as an Electrical Air Mechanic and qualified to sign the aircraft maintenance schedules. The planes were inspected between flights after 40 hrs a minor inspection and 240 hrs a major inspection. I say this in order that it is understood what my service entailed. I was a part of ground crew. Before the war ended in Europe my service was in England.
On T17 P31 Headed Determination for R.P.B. Card Eligibility. This page states that my qualifying service is not conceded. This denial seems based on the fact that I was not in the South West Pacific area. I was not into navigation but it seems to me that to travel by sea from Panama to Wellington you have to go through the South West Pacific. The voyage is approximately 6610 Miles and we would have travelled about one third of that when the ship developed engine trouble. Then for about two weeks the ship proceeded very slowly to Wellington from 29/06/1945 until 16/07/1945. The time in transit is not taken into account for the awarding of medals. This is by Admiral Fleet Order. As the war finished on 18/08/1945 I would not have been eligible to claim medals due to time constraints.
The war ended on May 9th in Europe and with others I had been prepared for service in the far east. My memories are that as soon as the war ended in Europe we were bound for the far east without any embarkation leave. On the voyage to Australia after leaving Panama the ship developed engine trouble and we were sitting ducks for enemy attack. I was on that ship proceeding to the far east as a member of the British Pacific Fleet as I understood it and open to enemy action. Fiona Logan said that I had not been exposed to danger, by telephone, and was not convinced I was eligible for the card. I took umbrage at her remark and appealed for a review of the decision.
Subsequently I received the decision of Graham Follington. Mr Follington’s statement of my service record is not quite right.
He states “The record of service states that Mr Tomlin did not serve outside the United Kingdom until 26th July 1945 when he sailed for Sydney on the Stirling Castle.
It appears that Mr Follingham has based some of his judgement on a letter from Miss Finnegan.
On page 34 T9 to Miss Logan who advised that my service was based in the United Kingdom until 26th July 1945 when in fact I was in Australia on that day.
He also states that I went by ship to Brisbane, when actually we went by train.
I was in Australia as part of MONAB 7 as a member of the armed forces to defend Australia and do as ordered to end the war.
In his final paragraph he says that I have not rendered qualifying service.
I have said that the Stirling Castle experienced engine trouble whilst we were in the Pacific and that alone should have been sufficient. I was in the armed forces for the defence of Australia. I would have thought that I had rendered qualifying service in 1944 when from April 12 till January 3rd 1945 I was attached to the R.A.F. serving at Ford and North Weald. This should have qualified me for the 1939-1945 Star, however I have not made claim for any medals and did not realize they were necessary.
The scriptures says in proverbs Chapter 3 verse 27 :Withold not good from them to whom it is due, when it is in the power of thine hand to do it”.
I feel I was being denied a just entitlement.
I have numerous documents to substantiate my character since coming to Australia on January 9th 1949. Also an old photograph album that shows I was in New Zealand in July 1945.
I have lived and worked in Australia for 56 years am a self funded retiree and am now over 80 years of age.
I was only seeking a just entitlement. But now must advise that I am not entitled because my wife and I exceed the limited earning criteria. However that could change.”
12. As already emphasised, the only matter to be resolved is whether Mr Tomlin rendered qualifying service as defined in the Act. The dictates in this respect are two relatively clear cut alternatives.
(a)The first being that Mr Tomlin must have experienced (incurred) danger from enemy forces while serving outside the UK. From the evidence, the only known potential for this was when he was travelling on the MV Stirling Castle from the UK to Australia in 1945. In this regard:
§ It is clearly not a matter of simply voyaging through the South-West Pacific in order to qualify.
§ The applicant has described his concern/apprehension during this voyage, that precautions were taken on board, drills were practiced etc, and reduced speed was necessary due to engine problems – no doubt adding to the concern that may have been felt.
§ Nevertheless no enemy shipping or aircraft were sighted, and none should have been as in fact the voyage took place well after the last attack on Allied shipping in the Australian area (air/ maritime).
§ It is appreciated that Mr Tomlin may have felt some concern at times during this period on the ship, however the Tribunal is mindful that the applicant’s own evidence indicated that he had already had experiences of enemy air raid action in the UK over a considerable period. Whilst it is possible that this past experience may not have greatly helped, he was however no newcomer to the type of precautions experienced on the Stirling Castle.
In re Thompson v Repatriation Commission (1988) 82 ALR 352, the Court in part said:
“The words “incurred danger” therefore provide an objective, not a subjective, test … 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 mere liability to danger, that is to say, there is a mere risk of danger ….”.
From the evidence, as outlined, the Tribunal is not relevantly satisfied that Mr Tomlin “incurred danger from the enemy”, as intended by the meaning in the Act, on his voyage outside the UK to Australia in 1945.
(b)The second alternative is that his service within the UK is service in respect of which he has been awarded, or has become eligible to be awarded a campaign medal. In this regard:
§ The period involved in this case is from the applicant’s time of enlistment in May 1943 to when he left the UK on posting to Australia in May 1945.
§ The documentary evidence specific to this aspect is the letter from the Ministry of Defence Medal Office (UK) dated 04 October 2005, which is at Exhibit R2. This is augmented and supported by the detail contained in the Ministry of Defence (UK) document at Exhibit R1.
§ The Act (s 7A(2)) makes it clear that only specified campaign medals (stars) satisfy the qualifying service requirements for WW2, and these are: 1939-45 Star; Atlantic Star; Air Crew Europe Star; Africa Star; Pacific Star; Burma Star; Italy Star; and the France and Germany Star. The UK documentation (Exhibit R1) provides further qualification detail. Based on the overall evidence now before the Tribunal it is the 1939-45 Star, if entitled, which would most likely relate to Mr Tomlin’s service. However in that regard, he being a UK enlistee, it is appropriately a matter for UK authorities not those of Australia to execute. Certainly it is not within the jurisdiction of the Administrative Appeals Tribunal.
§ Exhibit R2 makes it clear that the Ministry of Defence (UK) has determined that the applicant is not eligible for the 1939-45 Star. It goes on to re-confirm this decision, having undertaken an additional review of Mr Tomlin’s records in response to a request by the respondent. The Tribunal has no alternative but to be relevantly satisfied with that determination.
§ Whether there is the possibility of further review being undertaken by UK authorities of Mr Tomlin’s eligibility for a campaign medal for his RN service prior to May 1945 whilst in (or based in) the UK, is a matter for the applicant to pursue – if he wishes to do so.
13. Based on all the evidence made available, the conclusions reached and its findings, the Tribunal is reasonably satisfied that the applicant is not entitled to receive a Repatriation Pharmaceutical Benefits Card.
DECISION
14. For the above reasons, pursuant to s 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the Repatriation Commission decision under review dated 15 February 2005.
I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier RDF Lloyd, Member
Signed: .......[Sgd. R Riberi]............................................
AssociateDate of Hearing 07 June 2006
Date of Decision 23 June 2006Representative for the
Applicant Self represented
Representative for the Mr Carl Ponnuthurai,
Respondent Department of Veterans Affairs
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