VICTOR RONALD THOMAS MELLER and REPATRIATION COMMISSION
[2010] AATA 538
•21 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 538
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0181
VETERANS' APPEALS DIVISION ) Re VICTOR RONALD THOMAS MELLER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date21 July 2010
PlaceAdelaide
DecisionThe decision under review is affirmed.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS' ENTITLEMENTS ACT - Application to determine qualifying service - RAF flying officer - service in Borneo - participation in missions adjacent to border with Indonesia - meaning of "war-like operations" - meaning of "incurred danger from hostile forces of the enemy" - decision under review affirmed.
Veterans’ Entitlements Act 1986 (Cth), s 7A(1)(b)(i)
Re Farrell and Repatriation Commission [2000] AATA 69
Re Lindsay and Repatriation Commission [2002] AATA 182
Re Verth v Repatriation Commission [2002] FCA 375
Repatriation Commission v Mitchell (2002) 71 ALD 93
Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49
Creyke and Sutherland, Veterans’ Entitlements Law, 2nd Edition, The Federation Press
REASONS FOR DECISION
21 July 2010 Deputy President D G Jarvis 1. The applicant, Victor Ronald Thomas Meller, served in the Royal Air Force (RAF) in Borneo, between 27 October 1965 and 7 December 1966. He lodged an application with the Department of Veterans’ Affairs to determine whether his service counted as qualifying service so as to qualify him for a service pension.
2. His application was rejected by a delegate of the Repatriation Commission, and that rejection was affirmed on review by a service pension review officer, on the grounds that he did not meet the definition of having incurred danger from hostile forces of the enemy within the meaning of s 7A(1)(b)(i) of the Veterans’ Entitlements Act 1986 (Cth) (the Act). He has applied to this tribunal for review of the determination of the review officer.
3. Mr Meller was based at RAF Kuching at the time of the Indonesian confrontation with Malaya. He became involved in certain activities, to which I will refer below, adjacent to the border with Indonesia. At the relevant time, sporadic enemy hostile actions and incursions were taking place along the border.
Issue before the Tribunal
4. The issue before the tribunal is whether Mr Meller’s involvement in the relevant activities constituted operations against the enemy at a time when he incurred danger from hostile forces of the enemy, within the meaning of s 7A(1)(b)(i) of the Act.
5. It is accepted that Mr Meller is a Commonwealth veteran as defined in s 5C(1) of the Act, that he served during a period of hostilities defined in s 5B(1)(e), that he was a member of a Defence Force established by a Commonwealth country, and that he rendered service in connection with war or war-like operations with Australian Forces as defined in Item 7 of Schedule 2.
Background Facts
6. Mr Meller is aged 66, and now lives in the Philippines. He appeared before the Tribunal and gave evidence through a Skype internet connection. Whilst there were some difficulties with communication, I am satisfied that the relevant issues were fully canvassed during the hearing, and also in relevant documents provided to the tribunal prior to the hearing. I found Mr Meller to be a patently honest witness, and accept the veracity of his evidence.
7. Mr Meller was engaged in full-time service with the RAF from 1963 until 1968, and was with the RAF Reserve from then until 1972. He is eligible to receive the General Service Medal and the Borneo Medal. He also served with the RAAF from 1971 to 1976 and from 1978 to 1993. His service did not include operational service within the meaning of the Act.
8. He provided information in support of his application to determine qualifying service in various communications to the Department and to the Repatriation Commission. Copies of these communications are included in the T documents (being the documents provided to the tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth)). He later provided further written information and submissions to this tribunal. In support of his submission that he had engaged in operations against the enemy and had incurred danger from hostile forces of the enemy, he focussed at the hearing on three particular activities, namely:
(a)he participated in a number of missions, which he estimated at between four and eight, with helicopters from No. 110 Squadron on re-supply runs to forward areas adjacent to the Indonesian border delivering fresh supplies, mail and ammunition, and providing medical evacuation as required (the “helicopter missions”);
(b)he participated in a supply drop from a No. 41 Squadron Royal New Zealand Air Force Bristol freighter whereby supplies were dropped by parachutes to the British Ghurkha Brigade stationed along the Indonesian border to the south of Kuching (the “parachute supply drop”); and
(c)he participated in a mission to suspend unserviceable parachutes on the side of a cliff or steep slope directly opposite the Indonesian border. The parachutes were to be used for target practice the following day by RAF helicopters from No. 110 Whirlwind Squadron firing wire-guided air-to-ground missiles (the “target site mission”).
Legislative Scheme
9. Under s 35B of the Act, a veteran who wants to establish that he or she has rendered qualifying service must make a proper claim for determination that he or she has rendered such service. If a veteran has rendered such service, he or she is then eligible for various benefits under the Act.
10. A person is taken to have rendered “qualifying service” in the circumstances referred to in s 7A of the Act. This provides relevantly as follows:
“7A(1) For the purposes of Parts III and VA and sections 85 and 118V, a person has rendered qualifying service:
…
(b)if, during a period of hostilities, the person has, as a member of the defence force established by a Commonwealth country, rendered, in connection with war or war-like operations in which the Naval, Military or Air Forces of Australia were engaged:
(i)service, in an area outside that country, at a time when the person incurred danger from hostile forces of the enemy in that area; or …”
11. The matter must be determined in accordance with the standard of proof referred to in s 120(4) of the Act, which provides as follows:
“(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.”
12. The tribunal must determine the matter in accordance with the provisions of s 119 of the Act, taking into account in particular any difficulties attributable to:
(a)the effects of the passage of time, including its effect on the availability of witnesses; and
(b) the absence of, or a deficiency in, relevant official records.
Consideration
13. The remaining issues which I must determine in order to decide whether Mr Meller rendered “qualifying service” within the meaning of s 7A(1)(b)(i) are first, whether he rendered service “in connection with war or war-like operations” in which the Defence Forces of Australia were engaged, and second, whether he did so at a time when he “incurred danger from hostile forces of the enemy”.
14. In the context of the first issue the advocate for the Commission referred to Willcocks v Repatriation Commission (1992) 39 FCR 49 and Repatriation Commission v Mitchell (2002) 71 ALD 93.
15. These cases are of very limited assistance in the present case. That is because in each case the court was considering the meaning of the expression “military operations against the enemy” in s 7A(1)(a) of the Act. However, the words that I must interpret, in s 7A(b)(i), are whether Mr Meller’s service was “in connection with war or war-like operations” in which the Australian Defence Forces were engaged. The words “in connection with” are words of wide import, and contrary to the interpretation of the word “against” in s 7A(1)(a)(i), would I think include activities reasonably incidental to war or war-like operations. Further, the expression “war or war-like operations” are also words of wide import, and have a wider connotation than “military operations against the enemy”, insofar as that expression has been interpreted to require “hostility or active opposition to the enemy” (see Willcocks (supra) at [56]).
16. As to the second requirement, that is that the veteran incurred danger from hostile forces of the enemy, a Full Court of the Federal Court (Davies, Wilcox and Foster JJ) said in Repatriation Commission v Thompson (1988) 44 FCR 20, at 23 – 24:
“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.”
17. Examples of other cases concerning this second requirement are helpfully summarised in Creyke and Sutherland, Veterans’ Entitlement Law, 2nd Edition, The Federation Press, at [7A.07]. I have had regard to a number of these cases in making my decision. I think the cases turn on their facts, and indicate that the question of whether a veteran incurred danger from hostile forces of the enemy is a matter of fact and degree, and will involve assessing, according to the circumstances of each case, the probability of the veteran being at risk of harm or injury. The fact that no hostile incident took place is not an essential ingredient of having incurred danger, but is nevertheless a relevant consideration: see Verth v Repatriation Commission [2002] FCA 375, Re Lindsay and Repatriation Commission [2002] AATA 182 and Re Farrell and Repatriation Commission [2000] AATA 69.
18. I shall consider the various activities relied upon by Mr Meller in turn.
The helicopter missions
19. Mr Meller gave evidence that he participated in at least four and up to eight missions on helicopter re-supply flights to British Army units based along the Indonesian border with Sarawak.
20. The border between Indonesia, Borneo and Sarawak was, for the most part, unmarked and ran through coastal plains, dense jungle and steep mountainous ridges. There were few border crossings due to the impassable nature of the terrain. They comprised for the most part native jungle tracks, and there were some river crossings.
21. Allied units were located in the vicinity of the border crossings to stop incursions by Indonesian military forces. Such incursions occurred relatively frequently, particularly in the early part of Mr Meller’s service in Borneo. The units were not necessarily based on the border. Rather, they were located in the best defensive positions, so as to guard the crossings. Not surprisingly, Mr Meller was unable to say how far away the Indonesian border was from the various defensive positions. In supporting correspondence to the Department, Mr Meller said that all allied troops positioned on forward areas along the border during the Indonesian conflict were dug into fox holes or other similar defensive positions because there was “a clear and present danger of being shot at by Indonesian troops positioned on the other side of the border” (exhibit R1, T6, page 25).
22. Mr Meller said that helicopters would approach the landing clearings directly, and would fly low and fast when approaching to reduce the risk of casualties from enemy gunfire. The clearings were designated by flares, which were deployed by troops on the ground as soon as they heard a helicopter approaching. Often the helicopter would be relatively close by then, because the noise of the helicopter was masked by the surrounding dense forest and mountains.
23. It was necessary for the helicopter to land in small clearings, many of which were only a few feet wider than the diameter of the helicopter’s rotor blade. By sitting in the co-pilot’s seat, Mr Meller was able to observe the clearance on one side of the helicopter, while the pilot observed the clearance to the front and to the other side, and with the assistance of a mirror, the rear. Mr Meller volunteered to participate in the missions, to assist the pilots in this way. He was required to carry a side arm when he participated in the missions.
24. In the case of some of the missions in which he participated, the helicopter had been despatched to undertake medical evacuations, in which case it only landed at one clearing. In other cases, where supplies were being dropped, the helicopter landed and took off at about three clearings on each mission.
25. In cross-examination, Mr Meller acknowledged that the clearings had been created at points further away from the border than the defensive positions occupied by the troops, but he did not think that the clearings would have been far distant, because of the need to carry the goods dropped from the clearings to where the troops were located.
26. Mr Meller also acknowledged that pilots had been instructed to keep on the allied side of the border with Indonesia, and not to cross over the border, because of the danger of being fired upon by Indonesian troops. However, he said that because the border was unmarked, it was not possible for the pilots to determine the location of the border, or to know whether they had crossed over the border.
27. It was conceded on behalf of the Commission, by reference to Willcocks (supra) and Mitchell (supra), that the first requirement of s 7A(1)(b)(i) was satisfied in the case of these helicopter missions. I think that this concession was appropriate, not because those cases apply, but because of the width of the expression “in connection with war or war-like operations” in s 7A(1)(b)(i), as discussed above.
28. Mr Meller submitted that he also satisfied the second requirement, namely that he incurred danger from hostile forces of the enemy. He gave evidence that during his time in Kuching, two helicopters had returned from supply or medivac missions with bullet damage. In addition, soon after he arrived at Kuching, a helicopter was shot down by Indonesian gunfire after landing a few hundred yards over the border on a re-supply mission, and the pilot was killed. Mr Meller did not say that any bullet damage had resulted from Indonesian forces that had made incursions over the border, and did not suggest that he was in danger (whether during the helicopter missions or the parachute supply drops) from Indonesian forces that had made such incursions.
29. I accept that there was a risk that the helicopters in which Mr Meller flew during the missions might have crossed the border, and if they did, they might have been fired on. However, I think it reasonable to infer that, having regard to their instructions and in order to avoid danger as far as possible, the pilots of the helicopters concerned did their best to avoid crossing the border. Mr Meller agreed in cross-examination that he had no idea whether the helicopters had crossed to the other side of the border. He also said that he had not at any time been aware that helicopters in which he had flown had been fired at by Indonesian forces, but he added that it was not possible to know whether this might have occurred, since he would not have been able to see or hear such gun fire, and the only possible indicator that the helicopter had been fired at was any visible damage to it.
30. There is accordingly no evidence before me that during any of the missions in which Mr Meller participated the helicopters in which he flew were fired upon by Indonesian forces. Further, and I think importantly in the context of the present matter, there is no evidence that those helicopters strayed, or were likely to have strayed, on to the Indonesian side of the border, or (if they did stray over the border), that they did so at a place where Indonesian forces were located. I accept that there was a risk of these things occurring on each of the missions, but I am not reasonably satisfied that they did occur, or that Mr Meller incurred danger from Indonesian forces during any of the missions, within the meaning of s 7A(1)(b)(i) of the Act. The potential for a risk of danger is not sufficient.
The parachute supply drop
31. Mr Meller gave evidence that on one occasion, he volunteered to participate in a flight to re-supply Ghurkha troops at selected drop zones positioned along the border between Indonesia and North Borneo. I am satisfied that this mission occurred in connection with war or war-like operations.
32. This mission involved the aircraft flying low over the drop zones, at a height of about 300 feet, during a period which Mr Meller estimated at approximately 30 minutes. He said that the supplies dropped comprised live rations, that is, chickens and goats, for the Ghurkha soldiers. The cargo was thrown out of the rear left-hand passenger door by means of a flap, hinged at the doorway, and the supplies were attached to parachutes.
33. Mr Meller said that, as was the case with the British troops, the Ghurkha soldiers were positioned not necessarily at the border, but at a suitable defensive position close to the border, and the drop zones were located on the Borneo side of the positions, although again not very far from those positions. He was unaware of the distance of the drop zones from the border. He said that the drop took at least 10 circuits to complete, because of the comparatively small size of the trap door. As was the case with the helicopter re-supply missions, the pilot was under instructions not to cross the border into Indonesia.
34. Mr Meller drew my attention to an extract from a book published in 2000 which refers in part to the operations of No. 41 Squadron RNZAF. The book records that on 13 October 1965, a freighter aircraft strayed into Kalimantan while dropping supplies to a border post, and was holed by small-arms fire, with three bullets hitting the fuselage (see the annexure to exhibit R4, at page 226).
35. Once again, he said that it was impossible to say whether the aircraft in which he was flying had strayed over the border into Indonesia, because the location of the border could not be detected from the aircraft, and again it was not possible to know whether the aircraft had been subjected to enemy fire, or whether (if it had crossed the border) it did so at a location where there were enemy troops.
36. In these circumstances I am not reasonably satisfied that when he engaged in this mission, Mr Meller incurred danger from hostile forces of the enemy. There is no evidence that the aircraft crossed the border, or that it came under enemy fire. The evidence before me merely discloses that these things might have occurred, but that is insufficient to satisfy the requirements of the section. I think the same sort of considerations and resulting conclusions apply to this mission as apply to the helicopter missions.
The target site mission
37. On this occasion, Mr Meller led a team, comprising himself and three other RAF personnel, to a position adjacent to the Borneo side of the border to hang out unserviceable parachutes over a cliff or steep slope. The parachutes were to be used as targets for a firepower demonstration of helicopters using air-to-ground missiles, as well as providing target practice for the pilots. He explained that this operation was part of a program of psychological dissuasion aimed at Indonesian forces, whereby the RAF would put on shows of force, including the use of an RAF Vulcan bomber, to demonstrate the firepower that could be brought against Indonesian forces.
38. The team was taken to the target site by being lowered from a helicopter at about 10.00 am, and remained at the target zone for about three or four hours. The site was located on one side of a valley, directly opposite the Indonesian border, in sight of two manned Indonesian watch towers. Mr Meller could clearly see at least two armed Indonesian soldiers at each of the watch towers. They were about 1,000 to 1,500 yards away. He could see them watching his party through binoculars, but they were not exhibiting any sign of hostility to his party.
39. Mr Meller said that he and the others were in a position where they could have been fired upon by the Indonesian soldiers, but this did not occur. He surmised that this was because if they had been fired upon, then almost certainly the RAF helicopters would have fired missiles at the watch towers the following day, instead of (as was planned) merely engaging in the proposed demonstration of firepower. He said there were remnants of shredded parachutes at the site when he went there, and it accordingly appeared that there had been a previous demonstration at the site of firepower from helicopters.
40. It was submitted on behalf of the Commission that this mission did not involve Mr Meller participating in “military or aerial operations against the enemy”. However, as mentioned above, the first issue under s 7A(1)(b)(i) raises a different issue, namely whether the service occurred “in connection with war or war-like operations”. I am satisfied that this requirement is met in the case of this mission.
41. It is accordingly necessary for me to decide whether this mission entailed Mr Meller having incurred danger from hostile forces of the enemy, being the second issue arising under the section. Whilst he was at risk of being fired upon by the enemy during this mission, this did not happen. Further, the Indonesian soldiers were a considerable distance away, and Mr Meller did not suggest that he or the three other personnel with him took any steps to defend or protect themselves, either by taking cover or deploying one of their party on watch. I am not reasonably satisfied that Mr Meller or those with him were sufficiently close to the Indonesian forces to constitute their being in danger from those forces.
Other Matters
42. Mr Meller referred in the communications included in exhibit R1 to other activities in which he engaged when he was based in Kuching. He did not refer during the hearing to any activities other than those to which I referred in paragraph 8 above. However, I have considered the matters raised in the relevant correspondence, and the activities to which he refers again do not meet the requirement that he incurred danger from hostile forces of the enemy.
43. I have not overlooked Mr Meller’s evidence as to the inherent danger of his activities during the supply missions. I refer to the risks of the RNZAF aeroplane crashing due to the low altitude at which it was flying, and the risks inherent in the terrain and weather conditions. Further, Mr Meller described the action he took during the re-supply drop to the Ghurkha forces to observe where the cargo had landed, and this entailed obvious and significant danger. He also referred to the danger of the helicopters flying at speed at tree-top level, the danger from low clouds and mountainous terrain and unsafe weather conditions, and the risks inherent in landing in small clearings, where the rotors or the undercarriage of a helicopter could strike trees on landing or taking off.
44. I accept that the supply missions in which Mr Meller engaged were clearly dangerous for the reasons referred to in the preceding paragraph, and Mr Meller should be commended for volunteering to participate in them. However, as I have said, it has not been established to my reasonable satisfaction that they entailed danger from hostile forces of the enemy, and so the requirements of the section have not been met.
Decision
45. The decision under review is affirmed.
I certify that the 45 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G Jarvis.................................. (Signed) ...............................
Associate
Date/s of Hearing 17 June 2010
Date of Decision 21 July 2010
Counsel for the Applicant Applicant in person
Advocate for the Respondent Mr Adrian Crowe
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