Webber and Repatriation Commission
[2001] AATA 882
•12 October 2001
DECISION AND REASONS FOR DECISION [2001] AATA 882
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/851
VETERANS' APPEALS DIVISION )
Re RAYMOND ALEXANDER WEBBER
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President DP Breen, Presidential Member
Date12 October 2001
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
VETERANS' AFFAIRS - qualifying service - whether eligible for service pension.
Veterans' Entitlements Act 1986 s 7A, 35(b)
REASONS FOR DECISION
12 October 2001 Deputy President DP Breen, Presidential Member
On 12 October 2001, constituting the Tribunal sitting alone, I heard and determined a case brought by Mr Raymond Alexander Webber, as applicant, against the Repatriation Commission, as respondent. Mr Webber's application for review sought review by the Tribunal of a decision by the Commission made on 1 March 2000 which determined that the applicant did not, during the course of his service in the Australian Army from 22 December 1944 to 29 October 1947, render qualifying service.
Mr Webber, on 18 February 2000, had lodged a claim under subsection 35(b) of the Veterans' Entitlements Act 1986 (Cth)(as amended) for a determination that he had rendered such service. The making of such a claim is a pre-condition to the grant of a service pension pursuant to Part III of the Act.
The Repatriation Commission decision determined that Mr Webber did not render such service, the consequence obviously being, that he was not eligible to receive a service pension. The original delegate's determination was reviewed by a senior delegate and affirmed on 15 June 2000. That step opened the door to the jurisdiction of this Tribunal to further review the original decision.
At the hearing, the evidence was comprised of the "T" Documents, Exhibit 1 and an extract from the Service and Casualty Form, Exhibit 2, relating to Mr Raymond Alexander Webber, the form being one which recorded relevant details of his service in the Australian Army in the period I have already identified.
In addition to this evidence, I had the benefit of Mr Webber's oral contribution from the bar table together with that of Mr M Smith, the advocate who represented the Commission. I also had the assistance of the respondent's Statement of Facts and Contentions drawn and signed by Mr Smith and presenting an outline of the issues and other details of the case relevant to the exigencies of its being heard.
Inter alia, this Statement correctly identifies the standard of proof as being that of reasonable satisfaction (more commonly referred to as the "balance of probabilities").
Paragraph 4 of the Statement of Facts and Contentions reads as follows:
"4.1The applicant served in the Australian Army from 22 December 1944 to 29 October 1947.
4.2He served in New South Wales during the period of hostilities, but later left Australia on 29 March 1946 to join the British Commonwealth Occupation Forces in Japan, returning to Australia on 18 October 1947."
The evidence contained in the documentary material shows that this outline of facts is correct in all respects, a matter which was accepted by Mr Webber.
Section 7A(1) provides:
"(1)For the purposes of Part III 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)subject to subsection (1A), 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; or
…….."
The history of Mr Webber's service does not bring him eligibility under any of these provisions. Thus, the decision that he did not render qualifying service for service pension purposes is consistent with, and demanded by, the facts of his service. The only decision the Tribunal can make, it having already been delivered with a brief statement of oral reasons, is to affirm the decision under review.
Mr Webber lamented that the terms of the legislation were unfair to people such as himself, but I explained to him that his perception in that regard did not in any way enable the Tribunal to make a decision otherwise demanded by the facts of his service and by application to them of the statutory terms defining qualifying service. I explained to him further that it was a matter for the Parliament to amend the statute and that the only course open to him was to take such steps as he might conclude to be appropriate (such as taking the issue to the RSL) to having his cause considered by the Parliament.
The decision of the Tribunal is that it affirms the decision under review.
I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed: Denise Burton
SecretaryDate/s of Hearing 12 October 2001
Date of Decision 12 October 2001
Rep. for the Applicant Applicant appeared in person
Solicitor for the Respondent Mr M Smith, Departmental Advocate
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