Van Uy La and Repatriation Commission
[2013] AATA 222
•12 April 2013
[2013] AATA 222
Division Veterans' Appeals Division File Number(s)
2012/1095
Re
Van Uy La
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 12 April 2013 Place Melbourne 1.The decision of the Repatriation Commission made 21 December 2011 that Mr La did not render qualifying service as defined by section 7A of the Veterans’ Entitlements Act 1986 (Cth) is set aside.
2.In substitution for the decision set aside it is decided that between 26 December 1972 and 11 January 1973 (both dates inclusive) the applicant, Mr La, rendered qualifying service within the meaning of the Veterans’ Entitlements Act 1986 (Cth) as a member of the South Vietnamese Air Force.
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Deputy President J W Constance
CATCHWORDS
VETERANS' AND MILITARY COMPENSATION – South Vietnamese Air Force – qualifying service – period of hostilities - whether incurred danger from hostile forces of the enemy before Australian Forces withdrew – obligations under section 33(1AA) of the Administrative Appeals Tribunal Act 1975 - decision under review set aside.
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 33(1AA)
Veterans’ Entitlements Act 1986 ss 5B, 7A
CASES
Repatriation Commission v Thompson (1988) 82 ALR 352
REASONS FOR DECISION
INTRODUCTION
In 2011 Mr La applied to have his service as a member of the South Vietnam Air Force during the Vietnam War recognized as qualifying service in accordance with the provisions of the Veterans’ Entitlements Act 1986 (Cth). Recognition of such service would entitle Mr La to benefits under the Act.
The Commission has decided that Mr La did not render such service as he had not incurred danger from hostile forces of the enemy at any time before the Australian Forces withdrew from Vietnam on 11 January 1973. Mr La has applied to the Tribunal to review the Commission’s decision.
For the reasons which follow the decision of the Commission will be set aside and it will be decided that Mr La has rendered qualifying service.
THE LEGISLATION
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;
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 findings of fact in paragraphs 7-14 inclusive are based on the evidence of Mr La. I am satisfied he is an honest witness who gave his evidence to the best of his recollection. I am satisfied of the facts found on the balance of probabilities.
Mt La was born in Vietnam in 1955.
In December 1972, when he was 17 years old, Mr La joined the South Vietnamese Air Force. He was immediately sent to the Bien Hoa Air Base and commenced training. From the time he commenced training Mr La performed guard duty at night as part of a team of three.
One or two days after New Year 1973 Mr La commenced guard duty at 9pm on a shift which was to end at midnight. The bunker in which he was stationed consisted of five fuel drums filled with sand. Just as he was finishing his shift the sirens in the base began to sound. Mr La was told by others on his shift to lay down as rockets were coming.
The rocket attack was by North Vietnamese Forces and lasted about 20 minutes. During the attack Mr La remained lying behind the drums which formed the bunker. He heard a lot of explosions nearby.
He was transported from the bunker at about 6am. At this time he observed that a hangar about 150-200 meters from his bunker had been damaged in the attack. He also noticed other damaged buildings in the area.
Mr La was discharged from the Air Force in April 1975, at the end of the war.
Mr La initially applied to the Department of Veterans’ Affairs to determine his qualifying service in 2000.[1] In that application he did not refer to the attack described above; he did refer to enemy activity which took place in December 1974 and April 1975.
[1] Exhibit T1 p.39; application dated 12 October 2000.
At the time Mr La made his initial application he did so with the assistance of a friend as his own command of English was very limited. As his friend completed the application form Mr La advised him of the incidents in 1974 and 1975 as he regarded them as more serious than the incident in January 1973. Mr La’s initial application was rejected. Several years later Mr La was advised by a friend that an application may be successful if he experienced danger before the Australian Forces withdrew from Vietnam. Mr La then lodged the application now being considered.
Statement of Mr Huynh[2]
[2] Exhibit T1 p.iv.
Mr Huynh was a member of the South Vietnamese Air Force during the war.
In his statement dated 17 March 2012 he said, in part:
On 01/04/2011, I made a witness statement for Mr. La to support his application for qualifying service as a veteran. In this statement, I stated that I met Mr. La in 1972 at Bien Hoa Airbase, which was not correct because the place I first I [sic] met him was in Saigon when we both had not enlisted in the Air Force. I was confused of the time as it was about 40 years ago.
I also stated that we had incurred dangers together during an enemy shelling attack on about 2nd or 3rd January 1973. Actually, we only incurred danger together during another shelling attack in mid January 1973. The reason I was confused of the time of 2 shelling attacks because [sic] after I enlisted and met Mr. LA at Bien Hoa Airbase, he always told me that he was almost killed during the shelling attack in early January 1973.
Report of Dr Grey, Historian, dated 26 July 2012.
In his report Dr Grey refers to a publication by Roger P. Fox, Air Base Defense in the Republic of Vietnam 1961-1973 (Office of Air Force History, Washington DC, 1979).
Dr Grey reported in part:
Bien Hoa was a major base, and not only for the air force. It was a regular and repeated target of enemy activity throughout the war. … Fox tabulated enemy attacks on the ten major air force facilities in the Republic of Vietnam between 1961-1973 including Bien Hoa. His tabulation shows stand-off attacks made on 16 December 1972 and on 22 January 1973, the latter resulting in damage to one aircraft. No attack is recorded on Bien Hoa between 26 December 1972 and 11 January 1973.
This does not mean that no such attach [sic] occurred in this time frame, merely that the US-generated records that Fox used to construct his table did not record it.[3]
[3] Exhibit R1.
I accept the evidence in this report and find accordingly.
Report of Writeway Research Service Pty Ltd dated 29 May 2012[4]
[4] Exhibit R4.
This report was prepared at the request of the Commission. The author was requested to advise whether there was a mortar attack on Bien Hoa Air base on the 2nd or 3rd of January 1973.
The report states, in part:
Editions of the Saigon Post covering the period 26 December 1972 to 20 January 1973 were examined. … there was a record of an attack on Bien Hoa Air Base in the 6 January 1973 edition. The article, headed Three Civilians Killed as Reds Shell Bien Hoa includes the following relevant text:
SAIGON (AP) – Communist-led forces shelled the big allied air base at Bien Hoa, 15 miles northeast of Saigon, before dawn Thursday, (4 January 1963) and initial reports said three Vietnamese civilians were killed and 10 were wounded. Two homes were reported damaged.
About 16 rounds of Soviet built 122mm rockets were fired at the base shortly after midnight, South Vietnamese military spokesmen said and several of the ……..(unreadable)…….missiles landed in a village adjoining the base.
There were no immediate reports of any other casualties or damage either by the U.S. or Saigon Commands.
The article is accompanied by a photograph of the bodies of two villagers, with relatives and neighbours looking on, and the caption dates the rocket attack as Jan 4 with the photograph attribution being (UPI photo by N.N. Anh).[5]
[5] Exhibit R4, p 3.
ISSUE FOR DETERMINATION
The Commission concedes that Mr La has rendered qualifying service in accordance with section 7A if it is shown, on the balance of probabilities, that he incurred danger from hostile forces of the enemy during the period between his enlistment in the South Vietnamese Air Force (26 December 1972) and Australian Forces ceasing to be engaged in the war in Vietnam (11 January 1973). I am satisfied that this is a proper concession.
REASONING
In Repatriation Commission v Thompson [6] 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.[7]
[6] (1988) 82 ALR 352.
[7] (1988) 82 ALR 352, 356.
I am satisfied that during the attack on the base described by Mr La he incurred danger from hostile forces of the enemy. Although he was not injured he spent about 20 minutes lying behind a row of fuel drums filled with sand whilst the base was attacked with mortars and/or rockets. Although no one was injured in the attack a building within 200 yards of where he was lying was struck. Had the bunker in which Mr La was sheltering been hit he would have been seriously injured and probably killed. That danger was neither fanciful nor minimal.
The Commission raised the issue of whether the attack described in fact took place before the withdrawal of the Australian Forces on 11 January 1973, only about a week after the time Mr La claimed the attack happened.
When questioned as to the time of the attack Mr La was clear in his recollection that it was two or three days after New Year. He specifically recalled New Year as it had been a holiday when he was at school. Further he satisfactorily explained his failure to refer to the incident when he completed an earlier application form in 2000.
Mr Huynh’s statement contradicted Mr La, but I accept Mr Huynh’s explanation for his confusion. In so doing I have taken into account that it is now 40 years since the events being described.
The information contained in the Writeway Report has provided considerable support for the conclusion I have reached in relation to Mr La’s evidence. It provided independent corroboration of the evidence of Mr La that there was a serious attack on the base in the first few days of January 1973 and before 11 January of that year. It should be noted that when Mr La gave his evidence as to the date of the attack he was unaware of the contents of the Writeway Report.
DELAY IN THE COMMISSION PROVIDING A COPY OF THE WRITEWAY REPORT TO THE TRIBUNAL AND TO MR LA
It is particularly concerning that the Commission received the Writeway Report on 31 May 2012 but did not provide a copy, nor disclose its existence, to either Mr La or the Tribunal until after Mr La had presented his evidence at the hearing on 18 February 2013. This report provided important support to Mr La’s claim and had it been provided earlier may have enabled the Tribunal to resolve the matter at an early stage without the parties having to expend the time and resources which they have.
I am concerned also that had Mr La sought legal assistance in preparing this matter for hearing there was a real likelihood that he may have been advised to withdraw his application on the basis that the material provided by the Commission up to the time of the hearing suggested that he was mistaken as to the time of the attack.
In not providing the report until the time it did the Commission failed to meet its obligations under section 33(1AA) of the Administrative Appeals Tribunal Act 1975 (Cth).
CONCLUSION
The decision of the Repatriation Commission made 21 December 2011 that Mr La did not render qualifying service as defined by section 7A of the Veterans’ Entitlements Act 1986 (Cth) will be set aside.
In substitution for the decision set aside it will be decided that between 26 December 1972 and 11 January 1973 (both dates inclusive) the applicant, Mr La, rendered qualifying service within the meaning of the Veterans’ Entitlements Act 1986 (Cth) as a member of the South Vietnamese Air Force.
I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
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Associate
Dated 12 April 2013
Date(s) of hearing 18 February 2013 Applicant In person Advocate for the Respondent Mr K Rudge, Department of Veterans' Affairs Advocacy Section
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