Upton and Repatriation Commission

[2007] AATA 1573

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1573

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 200700554

VETERANS' APPEALS DIVISION		)
Re		JOHN UPTON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr KS Levy RFD, Senior Member

Date23 July 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

................[Sgd].........................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – service pension – whether the applicant has qualifying service – applicant was willing to serve in Korea but did not actually serve there – applicant had no operational service and no service where there were hostile military forces – decision affirmed

Veterans’ Entitlements Act 1986 (Cth) ss 5B, 5C, 6C, 6D, 6F, 7A, 35B, Part III Division 1, Part III Division 2, 57, 120, Sch 2

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Repatriation Commission v Davis (1990) 19 ALD 506
Repatriation Commission v Doessel (1990) 21 ALD 107
Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49

Repatriation Commission v Mitchell (2002) 71 ALD 93
Repatriation Commission v Robertson [2004] FCA 173

Verth v Repatriation Commission [2002] FCA 375

REASONS FOR DECISION

23 July 2007   Dr KS Levy RFD Senior Member

Background

1.      John William Upton wishes to make an application for a service pension under Part III of the Veterans’ Entitlements Act 1986 (“the Act”). In order to do so, Mr Upton first seeks a determination that he has qualifying service under s 35B of the Act.

2. His original application was lodged with the Department of Veterans’ Affairs on 18 October 2006. A decision was made to reject his application on 5 December 2006. He appealed that decision under s 57 of the Act, his application being lodged on 11 December 2006. That application was likewise rejected, and Mr Upton was advised of this decision on 8 February 2007. He now seeks a review of that decision by the Administrative Appeals Tribunal.

Hearing on the Papers

3.      This appeal has been referred for a hearing to be undertaken “on the papers” - that is, without the need or requirement for a formal hearing.

Issue

4.      The following question must be determined by the Tribunal –

(a)Does the applicant have “qualifying service” in accordance with s 7A of the Act?

Evidence

5. As this application is to be heard on the papers, and the evidence is limited, all of the documents that are available for, and which can be utilised by, the Tribunal are the statements and the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975.

6.      The relevant facts are that Mr Upton served in the Australian Army as a National Serviceman during the three month national service intakes which existed in the 1950s.  He served from 6 August 1951 to 12 November 1951 on a full time basis with the National Service Training Battalion. Subsequently, as part of his military undertaking following that period of mandatory service, Mr Upton served in the (then) part-time…