Vandegraaff and Repatriation Commission - [2004] AATA 271

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…

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 Vandegraaff and Repatriation Commission

Details

AGLC: Vandegraaff and Repatriation Commission [2004] AATA 271
Case: [2004] AATA 271
Decision Date: 16 March 2004

CaseChat Overview and Summary

Edward Leendert Vandegraaff, an Australian citizen who had served in the Royal Netherlands Army during World War 2, sought a disability pension under the Veterans' Entitlements Act 1986 (Cth). His claim was rejected by the Repatriation Commission, and the Veterans' Review Board upheld the decision. The central issue before the Administrative Appeals Tribunal was whether Vandegraaff qualified as a "veteran" under the Act, specifically concerning his eligibility for a disability pension. The Tribunal needed to determine if Vandegraaff rendered "eligible war service" as defined by the Act.

The Tribunal examined the definition of "eligible war service" under section 6A(1) of the Act, which includes service by members of the Defence Force or by members of allied countries who were domiciled in Australia at the time of enlistment. Vandegraaff argued that he served with an RAAF-raised unit, thus qualifying as a member of the Defence Force. However, historical evidence presented by the Repatriation Commission indicated that the units Vandegraaff served with were not part of the RAAF but were Dutch units under RAAF command. Vandegraaff did not meet the criteria of being a member of the Defence Force as defined by the Act. Furthermore, the Tribunal found that Vandegraaff was not domiciled in Australia before joining the Royal Netherlands Army, as he did not form the requisite intention to remain in Australia indefinitely. The Tribunal concluded that Vandegraaff did not qualify for a disability pension under Part II of the Act.

The Tribunal affirmed the decision of the Repatriation Commission, holding that Vandegraaff did not meet the statutory requirements to be classified as a veteran for the purposes of claiming a disability pension. The Tribunal suggested that Vandegraaff might be entitled to a disability pension from the Netherlands government and should pursue that option.

Orders