Tomlin and Repatriation Commission - [2006] AATA 551

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tomlin and Repatriation Commission

Details

AGLC: Tomlin and Repatriation Commission [2006] AATA 551
Case: [2006] AATA 551
Decision Date: 23 June 2006

CaseChat Overview and Summary

In the case of Tomlin and Repatriation Commission, the applicant, a former member of the Royal Navy who had been attached to the Royal Air Force, sought a Repatriation Pharmaceutical Benefits Card. The applicant served from 1943 to 1945 within the United Kingdom, before transferring to Australia in 1945 as a member of the Royal Navy/Royal Air Force, where he continued to serve in aircraft maintenance roles until the cessation of hostilities. Following the end of the war, the applicant returned to the United Kingdom. The applicant’s claim for a Repatriation Pharmaceutical Benefits Card was dependent on having rendered "qualifying service" as a member of the forces of a Commonwealth country, which was contested. The matter was before the Administrative Appeals Tribunal, which was required to decide whether the applicant’s service qualified under the criteria set out in the Veterans’ Entitlements Act 1986.

The primary issue before the Tribunal was whether the applicant’s service qualified as "qualifying service" under the legislation. The Tribunal considered the statutory provisions and relevant case law, including the decision in Re Repatriation Commission v Smith and Thompson v Repatriation Commission. The Tribunal focused on the nature and location of the applicant’s service, determining whether it met the statutory criteria for entitlement to a Repatriation Pharmaceutical Benefits Card. The Tribunal examined the applicant’s service in the United Kingdom and Australia, and whether it constituted continuous service within the forces of a Commonwealth country.

The Tribunal found that the applicant’s service did not meet the statutory criteria for entitlement to a Repatriation Pharmaceutical Benefits Card. The Tribunal held that the applicant’s service in the United Kingdom did not constitute qualifying service, as it was not continuous within the forces of a Commonwealth country. The Tribunal further found that the applicant’s service in Australia, while it did meet the statutory criteria, was not sufficient to qualify for the Card due to the applicant’s return to the United Kingdom following the cessation of hostilities. The Tribunal affirmed the decision under review, finding that the applicant was not entitled to a Repatriation Pharmaceutical Benefits Card.

The Tribunal’s decision was affirmed, and the applicant’s claim for a Repatriation Pharmaceutical Benefits Card was dismissed. The Tribunal found that the applicant’s service did not meet the statutory criteria for entitlement to the Card, as it did not constitute continuous service within the forces of a Commonwealth country. The Tribunal’s decision was based on a careful consideration of the statutory provisions and relevant case law, and was consistent with the principles established in previous decisions. The applicant’s appeal was therefore dismissed, and the decision under review was affirmed.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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