Van Thanh Hoang and Repatriation Commission

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[2015] AATA 470  

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2014/2057

Re

Van Thanh Hoang

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Deputy President J W Constance
Date 30 June 2015
Place Sydney

1.   The decision of the Repatriation Commission dated 15 October 2013 is set aside;

2.   In substitution for the decision set aside, it is decided that Mr Hoang has rendered qualifying service within the meaning of subsection 7A(1)(c) of the Veterans’ Entitlement Act 1986 (Cth).

.............................[sgd]...........................................

Deputy President J W Constance

Catchwords

VETERANS’ AFFAIRS – qualifying service – allied veteran – whether applicant served with defence force of an allied country during a period of hostilities – whether applicant incurred danger from hostile forces of the enemy 

Legislation

Veterans’ Entitlements Act 1986 (Cth) ss 5B, 5C, 7A, 119

Cases

Repatriation Commission v Thompson (1988) 82 ALR 352

REASONS FOR DECISION

Deputy President J W Constance

30 June 2015

INTRODUCTION

  1. In 2013 Mr Hoang applied to have his service as a member of the South Vietnam Air Force during the Vietnam War recognised as qualifying service in accordance with the provisions of the Veterans’ Entitlements Act 1986 (Cth). Recognition of such service would entitle Mr Hoang to benefits under the Act.

  2. The Commission has decided that Mr Hoang did not render qualifying service as he had not established that he was an allied veteran within the meaning of the Act. Mr Hoang has applied to the Tribunal to review the Commission’s decision.

  3. For the reasons which follow the decision of the Commission will be set aside.

    THE LEGISLATION

  4. Section 7A(1)(c) of the Act provides:

    7A   Qualifying service

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

    …

    (c)   if the person is an allied veteran who, during a period of hostilities, has, as a member of the defence force established by an allied country, rendered, in connection with a war, or war-like operations, in which the Naval, Military or Air Forces of Australia were engaged, service in an area within or outside the country in which the person enlisted in those forces, being service in respect of which the person incurred danger from hostile forces of the enemy…

    It is not in dispute that the South Vietnam Air Force in which Mr Hoang served was a defence force established by an allied country. However, it is disputed that Mr Hoang is an allied veteran within the meaning of the Act. Furthermore, the Commission contends that I should not be satisfied that Mr Hoang incurred danger from hostile enemy forces during a period of hostilities.

  5. In section 5B period of hostilities is defined to include the period of hostilities in respect of war-like operations in operational areas from 31 July 1962 to 11 January 1973 (both included). Vietnam is included in the schedule of operational areas.

    EVIDENCE AND FINDINGS OF FACT

  6. Unless otherwise stated, the following findings of fact are based on the evidence of Mr…

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Details
Case
[2015] AATA 470
Decision Date

CaseChat Overview and Summary

The case of Van Thanh Hoang and the Repatriation Commission was heard in the Australian court, focusing on the eligibility of Mr. Hoang for veterans' benefits. Mr. Hoang, a former member of the South Vietnam Air Force, sought to establish that his service constituted 'qualifying service' under the Veterans' Entitlement Act 1986. The central dispute was whether Mr. Hoang's service with the South Vietnam Air Force during the Vietnam War qualified as allied veteran service and whether he incurred danger from hostile forces. The Repatriation Commission initially denied his claim, but Mr. Hoang appealed this decision.

The primary legal issues the court had to address were whether Mr. Hoang was an allied veteran, whether he served in the South Vietnam Air Force during a period when he was in danger from hostile forces, and whether this service occurred during a war in which Australian forces were engaged. To qualify as an allied veteran, Mr. Hoang needed to demonstrate that he had been enlisted in the defence force of an allied country and had rendered continuous full-time service during a period of hostilities. The court also needed to determine whether his service qualified as incurring danger from hostile forces, which requires an objective exposure to peril or harm from enemy forces, rather than mere liability or fear of danger.

The court found that Mr. Hoang had enlisted in the South Vietnam Air Force in 1972 and had served continuously until the fall of Saigon in 1975, thereby meeting the definition of an allied veteran. It was established that he was involved in the attack on the Tan Son Nhat Base, which occurred during the war, and thus he had indeed incurred danger from hostile forces. Additionally, the court confirmed that Australian forces were engaged in Vietnam throughout 1972, thus satisfying all criteria for qualifying service. Consequently, the court set aside the original decision of the Repatriation Commission and ruled that Mr. Hoang's service qualified as 'qualifying service' under the Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In section 5B period of hostilities is defined to include the period of hostilities in respect of war-like operations in operational areas from 31 July 1962 to 11 January 1973 (both included). Vietnam is included in the schedule of operational areas. EVIDENCE AND FINDINGS OF FACT Unless otherwise stated, the following findings of fact are based on the evidence of Mr Hoang. I am satisfied of the facts found on the balance of probabilities. Mr Hoang was born in North Vietnam on 3 July 1953.Mr Hoang’s enlistment in the South Vietnam Air Force On the basis of Mr Hoang’s evidence, I am satisfied that he joined the South Vietnam Air Force as a trainee helicopter pilot sometime in 1972. Initially he trained at Tan Son Nhat Base in Saigon, then at Nha Trang Base and later Can Tho Base. He continued as a member of the Force until the fall of the South Vietnam Government in 1975. Taking into account all of the evidence before me, I cannot be satisfied as to the day or month in 1972 that Mr Hoang joined the Air Force. In his statement dated 30 April 2015, prepared for the purpose of these proceedings, Mr Hoang said he was at the Tan Son Nhat Base when it was attacked in June 1972. In a statutory declaration[1] and in a Service Details Questionnaire,[2] both dated 12 March 2013, and in his Application to Determine Qualifying Service, dated 1 May 2013, he said that he enlisted in the Air Force on 8 February 1972. He confirmed these dates when he gave evidence.[1] Exhibit R1 p.28.[2] Exhibit R1 p.12 Notwithstanding the evidence referred to in the preceding paragraph, Mr Hoang said that he did not enlist until he was 19 years old and that the reason for this was that he completed his studies before enlisting. Mr Hoang’s nineteenth birthday was on 3 July 1972. His evidence that he did not enlist until he was 19 is inconsistent with his statement that he was transferred to the Nha Trang Air Force Training Centre on 25 June 1972, after having completed his basic English and military training course at the Tan Son Nhat Base.[3][3] Exhibit R1 p.28. A Department of Veterans’ Affairs questionnaire completed by Mr Ha and dated 7 October 2013 provides some support for the finding that Mr Hoang was a member of the Air Force sometime in 1972. Mr Ha stated that he first met Mr Hoang in 1972 when they attended helicopter training together at Nha Trang. Mr Ha was not called to give evidence. A similar questionnaire was completed by Mr Nguyen on 12 December 2012.[4] He stated that he first met Mr Hoang in 1972 at the Tan Son Nhat Base where Mr Hoang was studying English.[5] Mr Nguyen was not called to give evidence.[4] Exhibit R1 p.12.[5] Exhibit R1 p.18. In evidence is a photograph which Mr Hoang identified as being of himself and four others, all wearing the uniform of South Vietnam Air Force cadets.[6] I have also taken into account that a German travel document issued to Mr Hoang in 1982[7] recorded his occupation as “pilot”. This information was given to the authorities by Mr Hoang long before his coming to Australia and long before his application under the Veterans’ Entitlement Act. I accept Mr Hoang’s evidence that during the war the only means of training as a pilot in South Vietnam was with the military.[6] Exhibit R1 p.54.[7] Exhibit A2.

Decision

Reasons for decision

The Commission accepts that Forces of Australia were engaged in Vietnam in a war during the whole of 1972. As I have found that the attack on the Tan Son Nhat Base in which Mr Hoang was involved occurred sometime in 1972, the answer to this question is “yes”.CONCLUSION The reviewable decision, being the decision of the Repatriation Commission made 15 October 2013, will be set aside. In substitution for the decision set aside, it will be decided that Mr Hoang has rendered qualifying service within the meaning of subsection 7A(1)(c) of the Veterans’ Entitlement Act 1986 (Cth).

Ratio Decidendi

Legal Principle Established

The issues in dispute in determining whether Mr Hoang has rendered qualifying service are set out below.(1)Is Mr Hoang an allied veteran?(2)Did Mr Hoang render service in the South Vietnam Air Force during which he incurred danger from hostile forces of the enemy?(3)If so, was the service rendered in connection with a war in which the Forces of Australia were engaged?CONSIDERATIONIssue 1: Is Mr Hoang an allied veteran? An allied veteran is defined in section 5C of the Act asallied veteran" means a person: (a) who has been appointed or enlisted as a member of the defence force established by an allied country; and (b) who has rendered continuous full-time service as such a member during a period of hostilities; but does not include a person who has served at any time: (c) in the forces of a country that was, at that time, at war with Australia, or in forces engaged in supporting or assisting the forces of such a country; or (d) in forces that were, at that time, engaged in war-like operations against the Naval, Military or Air Forces of Australia. Continuous full-time service is defined as:"continuous full-time service" means: (a) in relation to a member of the Defence Force: (i) service in the Naval Forces of the Commonwealth of the kind known as continuous full-time naval service; or (ii) service in the Military Forces of the Commonwealth of the kind known as continuous full-time military service; or (iii) service in the Air Force of the Commonwealth of the kind known as continuous full-time air force service; or (b) in relation to a member of the naval, military or air forces of a Commonwealth country or an allied country--service in those forces of a kind similar to a kind of service referred to in subparagraph (a)(i), (ii) or (iii). It is accepted that South Vietnam is an allied country for the purposes of the section. Determination of whether Mr Hoang is an allied veteran consequently requires consideration of two issues:1.Was Mr Hoang enlisted as a member of the Vietnam Air Force?2.Did Mr Hoang render continuous full-time service during a period of hostilities? For the reasons given previously, I am satisfied that Mr Hoang enlisted in the Vietnam Air Force in 1972. I am also satisfied on the basis of his evidence that he served in the Vietnam War from his enlistment in 1972 through to the end of Australia’s involvement, and then on to the fall of Saigon. Mr Hoang therefore meets the requirements of the definition of allied veteran.Issue 2: Did Mr Hoang render service in the South Vietnam Air Force during which he incurred danger from hostile forces of the enemy? In Repatriation Commission v Thompson [9] the Full Court of the Federal Court considered the phrase incurred danger from hostile forces of the enemy as it was used in the definitions contained in section 36 of the Act. The Full Court said in part:The words “incurred danger” therefore provide an objective, not a subjective, test. A serviceman incurs danger when he encounters danger, is in danger or is endangered. He incurs danger from hostile forces when he is at risk or in peril of harm from hostile forces. 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, that there is a mere risk of danger. Danger is not incurred unless the serviceman is exposed, at risk of or in peril of harm or injury.The danger incurred must of course be more than a merely fanciful danger or a danger so minimal that the rule of de minimis applies. But to say that is not to give a flavour to the word. Rather it is to use it in its ordinary sense.[10][9] (1988) 82 ALR 352.[10] (1988) 82 ALR 352, 356.