Vandegraaff and Repatriation Commission
[2004] AATA 271
•16 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 271
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/196
VETERANS' APPEALS DIVISION
Re: EDWARD LEENDERT VANDEGRAAFF
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mr E. Fice, Member
Date: 16 March 2004
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) E. Fice
Member
VETERANS' AFFAIRS —- whether applicant falls within definition of veteran under the Veterans' Entitlements Act 1986 - applicant rendered eligible war service as defined under s 6A(1) - applicant member of Defence Force or member of an allied country - applicant domiciled in Australia or an external Territory at relevant time
Veterans' Entitlements Act 1986
Parnell‑Schoneveld v Repatriation Commission (2003) 74 ALD 37
Re Stott and Repatriation Commission (1995) 36 ALD 447
Miller v Teale (1954) 92 CLR 406
Re Flynn (deceased) Flynn v Flynn [1968] 1 All ER 49
Qureshi v Qureshi [1971] 1 All ER 325
REASONS FOR DECISION
16 March 2004 Mr E. Fice, Member
Mr Vandegraaff, who is in receipt of a service pension, applied to the Department of Veterans' Affairs (the Department) for a disability pension under the Veterans' Entitlements Act 1986 (the Act). By letter dated 6 May 2002, a delegate of the Repatriation Commission informed Mr Vandegraaff that he was not entitled to claim a pension, because he was not a "veteran" as defined under the Act.
Mr Vandegraaff sought review of that decision by the Veterans’ Review Board (the VRB). By written decision made on 13 December 2002, the VRB rejected Mr Vandegraaff's submissions and affirmed the decision made by the delegate of the Repatriation Commission.
Mr Vandegraaff has brought this application before the Tribunal pursuant to s 175 of the Act.
At the hearing of this matter, Mr Vandegraaff was represented by Mr P. Liefman, solicitor, and the Repatriation Commission was represented by its advocate, Mr R. Douglass. The Tribunal received into evidence the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T14) (the T documents), together with three exhibits (Exhibits R1‑R3A5) lodged by the Repatriation Commission.
RELEVANT BACKGROUND
Mr Vandegraaff, who was born and educated in Holland, completed his initial flight training with the Dutch Air Force as an engineer in about 1936. In 1938, he joined KLM Royal Dutch Airlines (KLM Airlines) as a flight engineer and he was stationed in the Dutch East Indies as Indonesia was then called. In 1942, following the Japanese invasion of the Dutch East Indies, all Dutch nationals were evacuated to Australia. Mr Vandegraaff arrived in Port Hedland, Australia, on 7 March 1942 and from there he flew to Perth and then on to Sydney. After arrival in Sydney, he continued to work for KLM Airlines, transporting munitions and troops to Darwin.
On or about 2 September 1942, Mr Vandegraaff received a notice from the Consulate General of The Netherlands for the Commonwealth of Australia which certified that he had been called up for military service with the Royal Netherlands Army in Australia as from 25 August 1942. Mr Vandegraaff reported to the Royal Australian Air Force (RAAF) in Canberra for further instructions where he was provided with RAAF uniforms and he used the base and its facilities. Although he was equipped with an RAAF uniform, he wore the insignia of the Netherlands East Indies (NEI) Forces.
On 26 October 1942, he commenced service with Nº 18 (NEI) Squadron, which had formed using modified B‑25 Mitchell bombers. He was later transferred to Nº 19 (NEI) Squadron, which was based at Archerfield, near Brisbane. He saw service in Darwin, New Guinea, Moratai, Biak, Borneo, Singapore and the Dutch East Indies. In about 1946, he again flew in the Dutch East Indies on Skymaster aircraft, from Java and from Batavia to Los Angeles, for some months.
On 31 May 1947, Mr Vandegraaff was honourably discharged from the army. At about that time, he married an Australian who he had first met in 1943. They moved to Bandung and Mr Vandegraaff took up a position with KLM Airlines for the purpose of completing his contract. Prior to leaving Australia, he registered his interest in employment with Qantas and Australian National Airlines (ANA).
After about two months in the Dutch East Indies, Mr Vandegraaff was transferred to Amsterdam where he completed his contract with KLM Airlines by flying out of Amsterdam on intercontinental routes for approximately three years. He then resigned his position with KLM Airlines to take up a position with ANA in 1950. He became an Australian citizen in 1953.
Mr Vandegraaff applied for, and was granted, a service pension, commencing 23 January 1992. He qualified for a service pension on the basis that he was an allied veteran for the purposes of Part III of the Act.
On or about 29 January 2002, Mr Vandegraaff lodged a claim for a disability pension on the grounds that he suffered from cramps in calves from walking, angina/bypass surgery, venous insufficiency, sun spots (some BCC) and haemorrhoids. This claim was rejected for the reason that it was said Mr Vandegraaff did not fall within the definition of a "veteran" as it applied to Part II of the Act. Mr Vandegraaff sought a review of that decision by the VRB. The VRB affirmed the decision.
THE PARTIES' CONTENTIONS
In essence, Mr Vandegraaff's argument is that, following his conscription into the Netherlands Army (although he denies it was the army, but rather the air arm of the Netherlands Defence Forces), he served with an RAAF-raised unit, Nº 18 Netherlands East Indies (NEI) squadron, from 26 October 1942 until 9 September 1946, when he was attached to the 19th Transport squadron RAAF. There is no dispute that Mr Vandegraaff saw operational service during the World War 2.
Mr Liefman submitted that Mr Vandegraaff falls within the provisions set out in s 13(1)(b) of the Act, in that he is a veteran who has become incapacitated from a war‑caused injury or war‑caused disease and, accordingly, the Commonwealth is, subject to the Act, liable to pay Mr Vandegraaff a pension by way of compensation.
A "veteran" is defined under s 5C of the Act as:
veteran means:
(a)a person (including a deceased person):
(i)who is, because of section 7, taken to have rendered eligible war service; or
(ii)in respect of whom a pension is, or pensions are, payable under subsection 13(6); and
(b)in Parts III and VIIC also includes a person who is:
(i)a Commonwealth veteran; or
(ii)an allied veteran; or
(iv)an allied mariner.
Mr Douglass submitted that Mr Vandegraaff is not a person to whom a pension is payable under s 13(6) of the Act. His application for a disability pension falls within Part II of the Act and, accordingly, (b), under the definition of "veteran", does not apply to him. It, of course, did apply to him in respect of his application for a service pension because that was under Part III of the Act.
Pursuant to s 7(1)(a) of the Act, a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service.
Operational service with respect to world wars is defined under s 6A of the Act. In so far as it is relevant, that section provides:
6A(1) Subject to subsection (3), a person referred to in column 2 of an item in the following table is taken to have been rendering operational service during any period during which the person was rendering continuous full-time service of a kind referred to in column 3 of that item.
Operational service
Item
Person
Nature of service
1
A member of the Defence Force
(a) continuous full-time service outside Australia during a war to which this Act applies
(b) …
(c) …
(d) …
2
…
…
3
A member of the naval, military or air forces of a Commonwealth country or of an allied country who was domiciled in Australia or an external Territory immediately before his or her appointment or enlistment in those forces
Continuous full-time service during a war to which this Act applies rendered:
(a) outside that country; or
(b) within that country but in such circumstances that the service should, in the opinion of the Commission, be treated as service in actual combat against the enemy
"Continuous full‑time service" is defined under s 5C of the Act, so far as it is relevant, as follows:
continuous full-time service means:
(a)in relation to a member of the Defence Force:
(i)…
(ii)…
(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).
"Defence Force" is defined under s 5C as having the same meaning as in the Defence Act 1903 (the Defence Act). Section 30 of the Defence Act provides that the Defence Force consists of three arms, namely the Australian Navy, the Australian Army and the Australian Air Force.
Mr Liefman also submitted that Mr Vandegraaff was attached to, or was a member of, a unit of the Defence Force when he served with Nº 18 and Nº 19 Squadrons. He submitted, therefore, that Mr Vandegraaff was a member of a Defence Force as defined under s 6A(1) Item 1(a).
Essentially, the Repatriation Commission contended that Mr Vandegraaff was not a member of the Defence Force during World War 2 as defined under the Act. It also contended that whether or not he was a member of a unit of the Defence Force under the Act is irrelevant for the reason that that particular definition relates only to operational service after the conclusion of World War 2 in operational areas. It is common ground that Mr Vandegraaff did not render continuous full‑time service in an operational area after the conclusion of World War 2.
The Repatriation Commission relied heavily on the evidence of Mr R. Piper, an expert called to give evidence regarding the history of Nº 18 and Nº 19 Squadrons. He was the RAAF historical officer for some 15 years and has had 30 years continuous experience in researching and writing on historical army, navy and air force subjects, and was, in particular, the RAAF/aviation history specialist.
Relying on Mr Piper's written report and his oral evidence, the Repatriation Commission contended that, although Nº 18 Squadron was formed as a unit of the RAAF, it was deleted as a unit of the RAAF on 6 July 1942. Effective 4 April 1942 the squadron was a Netherlands unit and not a RAAF unit. In fact, it was known as Nº 18 (NEI) Squadron, indicating that it was a Netherlands East Indies squadron and not a RAAF squadron. It was regarded as a Netherlands unit allocated to RAAF command. Similarly, Nº 19 (NEI) Squadron was formed on 15 August 1945, being an amalgamation of two other Dutch units, the Netherlands East Indies Transport section, Melbourne, and the Netherlands East Indies Transport section, Brisbane. Therefore, according to the Repatriation Commission, Mr Vandegraaff was not a member of the Defence Force as defined under the Act and, as a result, did not qualify for operational service as defined under s 6A(1) Item 1 of the Act.
The Repatriation Commission submitted that the only basis upon which Mr Vandegraaff may qualify for operational service under the Act is if he falls within the provisions set out in s 6A(1) Item 3. He must prove that he was a member of the naval, military or air forces of an allied country who was domiciled in Australia or an external Territory immediately before his appointment or enlistment in those forces
The Repatriation Commission submitted that there was no evidence that Mr Vandegraaff was domiciled in Australia in order to qualify under that sub‑section of the Act.
CONSIDERATIONS
The fact that Mr Vandegraaff qualifies for a service pension does not mean that he is eligible under the Act for a disability pension. The reason is that the definition of "veteran" is different when applied to Part II as opposed to Part III of the Act. To qualify for a service pension, which falls within Part III of the Act, Mr Vandegraaff merely had to demonstrate that he was an allied veteran. There is no question that Mr Vandegraaff falls within the definition of an "allied veteran" as described in the Act. However, to qualify for a disability pension, Mr Vandegraaff must have rendered eligible war service as set out in s 7 of the Act. As far as Mr Vandegraaff is concerned, that means he must have rendered operational service as defined under s 6A(1), as his relevant service was rendered during the course of the World War 2. It is, therefore, of no assistance to him to claim that he was a member of a unit of the Defence Force and that he provided continuous full‑time service in an operational service area as such a member. Eligibility provided to members of a unit of a Defence Force who render continuous full‑time service in an operational service area only applies to post-World War 2 service in designated operational areas. There is no question that s 6C of the Act does not apply to Mr Vandegraaff.
In accordance with s 6A Items 1 and 3, for Mr Vandegraaff to succeed he must show that he was either a member of the Defence Force as defined under the Act, or that he was a member of an allied country and that he was domiciled in Australia or an external territory immediately before his enlistment in the Forces of that allied country.
Mr Vandegraaff's evidence is that, when he first joined Nº 18 Squadron after being called up for military service with the Royal Netherlands Army in Australia on 25 August 1942, he was given a RAAF uniform, although he did wear Netherlands East Indies insignia. He was paid in Australian dollars, but he did not dispute that the Australian Government was reimbursed for payments made to the Netherlands East Indies Forces in Australia by the Dutch Government. He admitted that a Dutch commanding officer controlled operations . He said that 18 Squadron was a mixture of RAAF and Dutch personnel and, although the commanding officers were Dutch and reported to the Dutch Government, they were under the operational control of the RAAF. He said that complete independence from the RAAF had not been possible.
However, Mr Piper has put into evidence historical records of Nº 18 Squadron. That evidence discloses Nº 18 (NEI) Squadron was formed in Canberra on 4 April 1942. This was less than one month after Java had fallen to the Japanese and it was agreed with Southern Area Command that the United States Air Force would provide all stores and equipment to that unit. On 6 July 1942, Nº 18 Squadron was deleted as a unit of the RAAF and, effective from 4 April 1942, Nº 18 (NEI) Squadron became a Netherlands unit not a RAAF unit. Number 18 Squadron was described as a Netherlands unit but allocated to RAAF command by the Commanding General Allied Air Forces. Number 18 Squadron was disbanded on 25 November 1945.
Number 19 Squadron was formed on 15 August 1945 from the amalgamation of two other Dutch units, the Netherlands East Indies Transport Section, Melbourne and Netherlands East Indies Transport Section, Brisbane. Mr Vandegraaff's records disclose that he served with both the Netherlands East Indies Transport Section in Brisbane and later with the amalgamated 19 Squadron. In his evidence, Mr Piper said that the Dutch personnel of 18 and 19 (NEI) Squadrons were not considered to be members of the RAAF but they were a separate entity and were Dutch military personnel. This is supported by a letter from the Consulate General of The Netherlands, in which it is stated that Corporal Vandegraaff had been called up for military service with the Royal Netherlands Army in Australia as from 25 August 1942. Mr Piper also said in evidence that the Dutch members of 18 and 19 Squadrons reported to the Netherlands East Indies Government and its chain of command. They were paid by the Netherlands East Indies Government and they were part of the Netherlands East Indies Forces. Also, they were subject to the disciplinary procedures of the Netherlands East Indies Forces, rather than RAAF disciplinary procedures.
Accordingly, I find that Mr Vandegraaff was not a member of the Defence Forces as defined by the Act. He was a member of the Netherlands Army in Australia from 25 August 1942 until his discharge on 31 May 1947. Because he was not a member of the Defence Force as defined under the Act, he is not a person to whom s 6A Item 1 applies.
The only remaining possibility is that Mr Vandegraaff is a person to whom Item 3 of s 6A of the Act applies. There is no issue that Mr Vandegraaff provided continuous full‑time service during the World War 2 outside Australia and, accordingly, he fulfils the requirements regarding the nature of service under s 6A Item 3. Therefore, the only question remaining is whether he was domiciled in Australia immediately before his conscription into the Netherlands Army.
Mr Vandegraaff's evidence is that, when he came to Australia in March 1942 following the invasion of Java by the Japanese, he had already left Holland to pursue opportunities outside of Holland, presumably those offered by KLM Airlines, although his family remained in Holland.
Mr Vandegraaff said that, shortly after his arrival in Sydney, he attended night school in order to complete his matriculation. His said he did that with the intention of remaining in Australia and taking up residence. He met his future wife in 1943 but they could not marry at that time. He eventually married her in 1947 in Brisbane, shortly before he left Australia to return to Java to complete his contract with KLM Airlines. He was only there for three or four months, before he was transferred back to Holland where he stayed to complete his contract with KLM Airlines.
Mr Vandegraaff gave evidence to the VRB, that, before he left Australia for Java following his discharge, he applied for a job with Qantas and ANA and registered his interest to join those companies. He said his intention was to come back to Australia to live permanently. When asked when he formed the intention to come and live in Australia permanently, he said that was in 1947, at the time he married his Australian wife. When asked whether he had prior to that time contemplated that Australia would be his permanent home, he answered "No. Well, I was working in Dutch East Indies, and actually the advent of the war, all whatever plans you had changed everything".
Mr Vandegraaff returned to Australia in 1950 and became a naturalised Australian in 1953.
The Domicile Act 1982 (Cth) is not applicable to this case as it is not concerned with the domicile of a person before the commencement of that Act. As was pointed out in the case Parnell‑Schoneveld v Repatriation Commission (2003) 74 ALD 37, one of the relevant Commonwealth principles regarding domicile is that a domicile of choice is acquired if a person resides in a country and intends to remain indefinitely. Senior Member Barbour, in Re Stott and Repatriation Commission (1995) 36 ALD 337, relying on Miller v Teale (1954) 92 CLR 406 said the common law principle applicable to domicile of choice, namely that an intention to remain for an indefinite period and lawful presence, are the criteria required for Australia to have become a person's domicile of choice.
There is clearly some difficulty in determining what the intention of a person might be. There are many matters which may be taken to account, although, as Megarry J said in Re Flynn (deceased) Flynn v Flynn [1968] 1 All ER 49 (at 51):
…In one sense there is no end to the evidence that may be adduced; for the whole of a man's life and all that he has said and done, however trivial, may be prayed in aid in determining what his intention was at any given moment of time. …All that the court can do is to draw inferences from what has been said and done; and in doing this, too much detail may stultify.
Furthermore, the Courts have expressed some caution in accepting direct declarations of intention regarding domicile, the reason being that such declarations may be influenced by self‑interest. They may be inconsistent with conduct, which may well speak louder than words. And, if the word "domicile" is used, the declarant is unlikely to have understood the meaning of the legal term which embodies concepts of great complexities (see Qureshi v Qureshi [1971] 1 All ER 325, 338‑339).
In order for Mr Vandegraaff to have been domiciled in Australia immediately before his enlistment in the Netherlands East Indies Army, he must have formed an intention to remain in Australia for an indefinite period of time. The only evidence offered by Mr Vandegraaff to support that contention is the fact that he went to night school in Sydney in order to complete his matriculation. However, in his evidence before the VRB, Mr Vandegraaff made it clear that he did not form an intention to remain in Australia indefinitely until the time the married in 1947 which was just prior to his return to Holland for about three years to complete his contract with KLM Airlines. The fact that he considered himself bound to KLM Airlines under a contract commenced before Mr Vandergraaff first came to Australia implies that he was prepared to go where his employer sent him. In fact, that is just what he did when the war ended. Had he formed an intention to stay in Australia when he first arrived in Sydney prior to being called up for service with the Netherlands East Indies Army, one might have expected Mr Vandegraaff to abandon his contract with KLM Airlines at the conclusion of the war and remain in Australia, seeking employment with Qantas or ANA as he said was his intention.
The fact that Mr Vandegraaff chose to return to Holland to work for KLM Airlines at the conclusion of the war, coupled with the fact that he has given evidence that he formed an intention that Australia would be his permanent home at about the time he was married in Brisbane, in 1947, in my opinion, excludes Mr Vandegraaff as a person to whom s 6A Item 3 applies.
CONCLUSION
For the reasons I have set out above, I find that Mr Vandegraaff does not qualify for a disability pension under Part II of the Act. As unfair as that may seem, it is the only conclusion that can be reached having regard to the facts and the legislation which must be applied in this case. It may be that Mr Vandergraaff is entitled to a disability pension from the Netherlands government and he should pursue that possibility.
Accordingly, the Tribunal affirms the decision under review.
I certify that the forty‑three [43] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr E, Fice, Member
(sgd) Catherine Thomas
Clerk
Date of Hearing: 10 December 2003
Date of Decision: 16 March 2004
Solicitor for the applicant: Mr P. Liefman, Peter J. LiefmanSolicitor for respondent: Mr R. Douglass, Advocacy Section,
Department of Veterans’ Affairs
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