Tran and Repatriation Commission

[2004] AATA 1083

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1083

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/881

VETERANS’ APPEALS DIVISION		)
Re		QUAN PHI TRAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date14 October 2004

PlaceSydney

Decision The decision under review is affirmed.

[Sgd]  Dr JD Campbell   Member

CATCHWORDS

Veterans Entitlements - Invalidity Service Pension - Impairments - Assessment - Incapacity for work - Impairment alone – Permanent – decision under review is affirmed.

LEGISLATION

Veterans Entitlements Act 1986, sections 37, 37AA, 57A, 57(1), 175(2)

REASONS FOR DECISION

14 October 2004 Dr J D Campbell, Member

1.      In this matter the Applicant, Mr Quan Phi Tran, seeks a review of the decision of the Repatriation Commission (“the Respondent”) dated 19 December 2002 that determined that the Applicant was not permanently incapacitated for work as defined in section 37AA of the Veterans Entitlements Act 1986 (”VEA”) and that as a consequence he was ineligible for a grant of an Invalidity Service Pension (“ISP”). The primary determination was reviewed and affirmed in a further determination by the Respondent on 14 April 2003, pursuant to section 57(1) of the VEA.

BACKGROUND

2.      The Applicant was born on 10 January 1952 in Vietnam. The Applicant received limited education to year nine and then joined the Army at age 17. He was trained by the Americans at Camh Ranh Bay to repair electrical systems in naval vessels. He served in the army between 1969 and 1975 and married in 1973, with four children being born. In 1975 the Applicant underwent a three-day re-education program prior to being sent with his family to a new economic zone. He found existence difficult in the zone and he returned to Ho Chi Minh City with his family where he worked fixing electrical appliances. Subsequently he was arrested, interrogated and beaten over a four to five month period, during which time he tried to kill himself by banging his head against the wall. After his release the Applicant continued to experience difficulties with the authorities.

3.      In 1990 the Applicant left Vietnam in a boat with his cousin and travelled to the Philippines where he remained as a refugee for five years. In 1995 he was selected to come to Australia and he, followed by his family some two years later, lived in Cabramatta. He worked as a farm labourer for two to three years growing flowers, until he began experiencing difficulties with his arm. He received surgical treatment for his arm condition and on return to work his hours were limited because of his condition.  Subsequently, his employment was terminated by his employer.

4.      The Applicant was granted an Australian Visa on 13 December 1994 and on 7 April 1998 the Applicant became an Australian citizen. On 22 July 1999, the Applicant lodged an application concerning qualifying service, with the Repatriation Commission determining that the Applicant had rendered qualifying service as an allied veteran on 2 August 1999.

5.      On…