Veloskey and Repatriation Commission (Veterans' entitlements)

[2019] AATA 5244

Veloskey and Repatriation Commission (Veterans' entitlements) [2019] AATA 5244 (6 December 2019)

Division:VETERANS' APPEALS DIVISION

File Number:          2018/6916

Re:Michael Veloskey

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:6 December 2019

Place:Sydney

The reviewable decision is affirmed.

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

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ benefits and entitlements – application for a Gold Card – where applicant did not render Qualifying Service as defined in the Act – decision affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) – ss 5B, 5C, 6, 7A, 85, 120

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

6 December 2019

1. The Applicant in this case, Mr Michael Veloskey, is currently 95 years of age. Mr Veloskey served in the defence forces for varying periods of time between 1943 and 1947.

2. He received a Returned from Active Service Badge (‘RASB’). The Applicant gave evidence that he has worn this badge every day since receiving it.

3. In addition to his services in the defence forces, the Applicant has also rendered significant service to the Macedonian community and has been honoured for that service.

4. On 8 June 2018, the Applicant lodged an ‘Application for a Gold Card for Veterans of Australia’s Defence Force’ with the Department of Veterans Affairs. That application was rejected on 13 August 2018 by a delegate of the Respondent who found that the Applicant did not render ‘Qualifying Service’ as required under section 85(4B) of the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’). This decision was affirmed by another delegate on 7 November 2018. On 27 November 2018, the Applicant applied to this Tribunal for review.

5. There is only one issue in this case, namely whether the Applicant meets the requirements of Qualifying Service under the Act.

   RELEVANT LAW

6. Qualifying Service is relevantly defined in section 7A of the Act as:

   Qualifying service

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

   (a)if the person has, as a member of the Defence Force:

   (i)     rendered service, during a period of hostilities specified in paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1), at sea, in the field or in the air in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when the person incurred danger from hostile forces of the enemy in that area or on that aircraft or ship; or

   (ii)    rendered service after 29 October 1945 in respect of which the person has been awarded, or has become eligible to be awarded, the Naval General Service Medal or the General Service Medal (Army and Royal Air Force) with the Minesweeping 1945-51 Clasp, the Bomb-Mine Clearance 1945-53 Clasp, the Bomb and Mine Clearance 1945-49 Clasp or the Bomb and Mine Clearance 1945-56 Clasp; or

   (iii)   rendered service outside Australia in an area described in column 1 of Schedule 2 during the period specified in column 2 of that Schedule opposite to that description, as a member of a unit of the Defence Force that was allotted for duty, or as a person who was allotted for duty, in that area; or

   (iv)   rendered warlike service;

7. ‘Operational Service’ is defined in sections 6 to 6F of the Act.

8. ‘Period of hostilities’ for the purposes of the Act is defined in section 5B as follows:

   "period of hostilities" means:

   (a)World War 1 from its commencement on 4 August 1914 to 11 November 1918 (both included); or

   (b)World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); or

   (c)the period of hostilities in respect of Korea from 27 June 1950 to 19 April 1956 (both included); or

   (d)the period of hostilities in respect of Malaya from 29 June 1950 to 31 August 1957 (both included); or

   (e)the period of hostilities in respect of war-like operations in operational areas from 31 July 1962 to 11 January 1973 (both included).

9. ‘Warlike service’ is defined in section 5C of the Act as meaning service in the defence forces of a kind determined in writing by the Defence Minister to be ‘warlike service’.

10. Mr Veloskey’s service has been accepted as Operational Service by the Respondent, but he has chosen not to pursue the entitlements available to him having met that requirement.

    CONSIDERATION

11. I found Mr Veloskey to be a very honest witness who feels aggrieved that he has been found not to be eligible for a Gold Card on the basis of his service in the defence forces. It is clear he served Australia well.

12. The difficulty is that on the basis of the evidence before the Tribunal, Mr Veloskey does not meet the requirements for Qualifying Service, set out in section 7A(1). In particular he did not have overseas service during the period of hostilities as defined; he was not awarded any medal or clasp for service outside Australia after 29 October 1945; he was not allocated duties as required for service after World War II under Schedule 2 of the Act in the manner specified, and did not render warlike service as required by the Act.

13. The service records which are before the Tribunal do not place Mr Veloskey as serving outside Australia until at least 7 February 1946, which is outside the ‘period of hostilities’ for World War II as defined in the Act.

14. There is no evidence of Mr Veloskey falling within any of the current ‘warlike service’ determinations in force for defence force operations which commenced prior to 1 July 2004. Although Mr Veloskey received the RASB, this is not relevant to a determination of eligibility for a Gold Card under the Act.

15. I note that the standard of proof for the making of decisions under the Act is set out in subsection 120(4) as being ‘reasonable satisfaction’. The Tribunal can only decide on the basis of the evidence placed before it.

16. On the basis of the evidence before the Tribunal I am satisfied on the balance of probabilities that Mr Veloskey does not meet the requirements of the Act in respect of a Gold Card. Having met Mr Veloskey and heard his evidence it is a decision I make with some regret, however the Act does not give any discretion to a decision-maker where the requirements of the Act are not met.

    DECISION

17. The reviewable decision is affirmed.

I certify that the preceding 17 (seventeen)  paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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

Dated: 6 December 2019

Date of hearing:	27 November 2019
Applicant:	In person
Advocate for the Respondent:	Mr T O’Reilly
Solicitors for the Respondent:	Department of Veterans’ Affairs