Van Uy La and Repatriation Commission - [2013] AATA 222

[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.

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Van Uy La and Repatriation Commission

Details

AGLC: Van Uy La and Repatriation Commission [2013] AATA 222
Case: [2013] AATA 222
Decision Date: 12 April 2013

CaseChat Overview and Summary

Van Uy La applied to the Repatriation Commission to determine if his service in the South Vietnamese Air Force qualified for veterans' entitlements. The Commission found that his service did not qualify as he had not been exposed to danger from hostile forces before Australian forces withdrew from Vietnam. The Administrative Appeals Tribunal (AAT) reviewed this decision and found that the Commission had failed to meet its obligations under the Administrative Appeals Tribunal Act 1975. The AAT set aside the decision of the Commission and found that Mr La's service from 26 December 1972 to 11 January 1973 qualified as it occurred during the period of hostilities in Vietnam, which was defined by the Veterans' Entitlements Act 1986.

The central legal issue in this case was whether Mr La's service in the South Vietnamese Air Force qualified as "qualifying service" within the meaning of the Veterans' Entitlements Act 1986. This required the Tribunal to determine if Mr La had been exposed to danger from hostile forces before Australian forces withdrew from Vietnam. The Tribunal also had to consider the obligations of the Repatriation Commission under section 33(1AA) of the Administrative Appeals Tribunal Act 1975, which required the Commission to provide a report within a reasonable time.

The AAT found that the Repatriation Commission had failed to provide its report within a reasonable time, and this failure had prejudiced Mr La's application. The Tribunal also found that Mr La's service did qualify as "qualifying service" because it occurred during the period of hostilities in Vietnam, as defined by the Veterans' Entitlements Act 1986. The Tribunal noted that Mr La had been exposed to danger from hostile forces during a rocket attack on the Bien Hoa Air Base in early January 1973. The Tribunal was satisfied that Mr La was an honest witness who gave his evidence to the best of his recollection.

The Tribunal set aside the decision of the Repatriation Commission and in its place found that Mr La's service between 26 December 1972 and 11 January 1973 qualified as "qualifying service" under the Veterans' Entitlements Act 1986. The Tribunal also found that the Repatriation Commission had failed to meet its obligations under section 33(1AA) of the Administrative Appeals Tribunal Act 1975. The Tribunal's decision was based on the evidence of Mr La and a report from a historian, Dr Grey. The Tribunal found that Mr La was an honest witness who gave his evidence to the best of his recollection, and that the historian's report supported Mr La's account of events.

Orders

Orders of the court

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Background

Background to the litigation

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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 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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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Division	Veterans' Appeals Division
File Number(s)	2012/1095
Re	Van Uy La
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President J W Constance
Date	12 April 2013
Place	Melbourne