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 Citizen Military Forces for almost five years (13 November 1951 to 6 August 1956).

7.      Mr Upton is clearly proud to have served in the Australian Army.  The basis of his present claim is that while he did not in fact serve overseas in any “operational area” he is, nevertheless, entitled to a service pension because, during his period of military service, he was willing to serve in the Korean conflict.  In this regard, it is clear from his claim that he was in fact “willing to give up my life for ALL Australians” (see folio 2).

8.      There is no evidence of Mr Upton actually undertaking operational service, either because of his volunteering to serve in such an operational area or from his being posted because of an obligation of service which he then had;  nor does Mr Upton make any such assertion in his application.

Consideration

9.      I have reached a decision in this matter after carefully considering the applicant’s submissions, the applicable statutory and case law, as well as the documentary evidence.

10.     The applicant seeks a determination that his military service is “qualifying service” so that he might then make an application for a service pension (see Part III, Division 1 and 2 of the Act – sections 35 to 35J). The Act provides relevantly as follows:

“7A Qualifying service

(1)  For the purposes of Parts III and VA and sections 85 and 118V, a person has rendered qualifying service:

(a)  if the person has, as a member of the Defence Force:

(i)  rendered service, during a period of hostilities specified in paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1), at sea, in the field or in the air in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when the person incurred danger from hostile forces of the enemy in that area or on that aircraft or ship; or

(ii)  rendered service after 29 October 1945 in respect of which the person has been awarded, or has become eligible to be awarded, the Naval General Service Medal or the General Service Medal (Army and Royal Air Force) with the Minesweeping 1945‑51 Clasp, the Bomb‑Mine Clearance 1945‑53 Clasp, the Bomb and Mine Clearance 1945‑49 Clasp or the Bomb and Mine Clearance 1945‑56 Clasp; or

(iii)  rendered service outside Australia in an area described in column 1 of Schedule 2 during the period specified in column 2 of that Schedule opposite to that description, as a member of a unit of the Defence Force that was allotted for duty, or as a person who was allotted for duty, in that area; or

(iv)  rendered warlike service; or

5B War and operational area related definitions

(1)  In this Act, unless the contrary intention appears:

…..

"allotted for duty" in an operational area has the meaning given by subsection (2).

…..

"period of hostilities" means:

(a)  World War 1 from its commencement on 4 August 1914 to 11 November 1918 (both included); or

(b)  World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); or

(c)  the period of hostilities in respect of Korea from 27 June 1950 to 19 April 1956 (both included); or

(d)  the period of hostilities in respect of Malaya from 29 June 1950 to 31 August 1957 (both included); or

(e)  the period of hostilities in respect of war‑like operations in operational areas from 31 July 1962 to 11 January 1973 (both included).

…

2)  A reference in this Act to a person, or a unit of the Defence Force, that was allotted for duty in an operational area is a reference:

(a)  in the case of duty that was carried out in an operational area described in item 1, 2, 3, 4, 5, 6, 7 or 8 of Schedule 2 (in column 1)--to a person, or unit of the Defence Force, that is allotted for duty in the area (whether retrospectively or otherwise) by written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act; or

(b)  in the case of duty that was carried out in an operational area described in item 9, 10, 11, 12, 13 or 14 of Schedule 2 (in column 1)--to a person, or unit of the Defence Force, that is allotted for duty in the area (whether retrospectively or otherwise) by written instrument signed by the Vice Chief of the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act; or

(c)  to a person, or unit of the Defence Force, that is, by written instrument signed by the Minister for Defence, taken to have been allotted for duty in an operational area described in item 4 or 8 in Schedule 2 (in column 1).

5C Eligibility related definitions

…

“member of a unit of the Defence Force" means:

(a)  a member of the Defence Force; or

(b)  another person who is:

(i)  a member of the unit; or

(ii)  attached to the unit; or

(iii)  appointed for continuous full‑time service with the unit.

"member of the Defence Force" includes a person appointed for continuous full-time service with a unit of the Defence Force.”

11. In addition to the above, in order to succeed in this application, Mr Upton would need to demonstrate that he has had operational service within the meaning of that term contained in s 6C, 6D or 6F of the Act. This might also require a demonstration of having undertaken “all like service” or “non-war like service” as prescribed by s 5C of the Act.

12.     Mr Upton clearly served in the Australian Defence Force in the National Service Training Battalion from 6 August 1951 to 12 November 1951.  He subsequently served in the Citizen Military Forces from the cessation of his National Service (full time component) to the Citizen Military Forces (a part time component for approximately five years).  As to whether the applicant can satisfy the definition of “qualifying service”, the requirements of s 7A(1)(a) need to be satisfied. Examining the provisions of that section reveals the following:

(a)Section 7A(1)(a)(i) – this section referred to persons who have rendered service in World War I, World War II, the hostilities in Korea from 27 June 1950 to 19 April 1956 or in Malaya from 29 June 1950 to 31 August 1957. There is no record which shows Mr Upton has served in an operational area within any of the categories or time periods shown in the above sub-section.

(b)Section 7A(1)(a)(ii) – this provision defines eligibility where an applicant has served in a post-World War II component of the Australian Military Forces and has been awarded, or is eligible to be awarded, a campaign medal. The medals specified are the Naval General Service Medal or the General Service Medal (Army and Royal Air Force) with minesweeping 1945-51 Clasp, the Bomb and Mine Clearance 1945 to 1949 Clasp or the Bomb and Mine Clearance 1945 to 1956 Clasp.

The applicant has been awarded a Service Medal which was initiated many years after Mr Upton’s service. It relates to his service as a National Serviceman. It is not however a campaign medal as referred to in s 7A(1)(a)(ii).

(c)Section 7A(1)(a)(iii) refers to an Australian Serviceman’s service overseas in an area gazetted in Column 1 of Schedule 2 and for the periods shown in Column 2 of Schedule 2 to the Act.

To satisfy this subsection the applicant must have been “allotted for duty” as defined in section 5B(2). This subsection was introduced into the Act in 1991 to overcome a broader interpretation which was given to that term by the Federal Court in cases prior to that time (see for example Repatriation Commission v Davis (1990) 19 ALD 506 and Repatriation Commission v Doessel (1990) 21 ALD 107). There is no evidence available to indicate that Mr Upton satisfies this provision as he has not served in any operational area.

(d)Section 7A(1)(a)(iv) – the applicant must have rendered war-like service. Section 5C defines “war-like service” as meaning “service in the defence force of a kind determined in writing by the Minister for Defence” to be war like service.

Again there is no authoritative source to indicate Mr Upton has     served in any such operational area. Indeed, he does not assert that.

13.     I must consider the weight of evidence and its relevance to the legislative provisions mentioned above.  I must do so to my reasonable satisfaction (s 120(4)).  This means I must be satisfied of the evidence on the balance of probabilities. 

14.     All of these provisions relate to some aspect of operational service.  They all relate to military operational service against the enemy.  The landmark decision in this area was Repatriation Commission v Thompson (1988) 44 FCR 20. There, Cooper J referred to the “incurred danger” test.  He said it was an objective test and a question of fact, not a question of law.  Likewise, in Willcocks v Repatriation Commission (1992) 39 FCR 49, Cooper J by analysing the words in that section said that it referred to military operations against the enemy, and which was also often referred to as a “military theatre of operations”.  The test laid down in Thompson was further applied by Cooper J in Repatriation Commission v Mitchell (2002) 71 ALD 93; and also by Beaumont J in Repatriation Commission v Robertson [2004] FCA 173.

15. Therefore, the above authorities demonstrate there is a consistent line of reasoning about the purpose of the law as set out in s 7A. The evidence must show that an applicant has at least served in an area where there were hostile military forces (see also Verth v Repatriation Commission [2002] FCA 375). It is not sufficient that an applicant was willing to serve in Korea and risk his life. The legal question is whether in fact the applicant did so, and particularly, whether he served in any areas defined in writing by the Minister for Defence or which is included in a reference in Schedule 2 to the Act.

16. On the evidence before me, I can find a willingness and a motivation by the applicant to serve in Korea, if necessary. However, I cannot find evidence of the applicant actually serving there and therefore, he does not satisfy the legal requirements contained in s 7A of the Act. I note this is an important issue for Mr Upton, however, he does not have “qualifying service” in terms of s 7A of the Act.

17.     The decision under review is therefore affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy RFD, Senior Member

Signed:         .....................................................................................
  Legal Research Officer

Hearing on the Papers              1 June 2007
Date of Decision  23 July 2007

The Applicant was self represented

For the Respondent                 Mr M Smith