WILLIAM HARRIS and Repatriation Commission - [2012] AATA 600

[2012] AATA 600

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/0194

Re

WILLIAM HARRIS

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
M D Allen, Senior Member

Date 13 June 2012

Place Coffs Harbour Local Court
For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review.
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M D Allen, Senior Member
CATCHWORDS
VETERAN’S ENTITLEMENT: Service pension. Qualifying service. Eligible for a service pension. Incurring danger from hostile forces of the enemy. Period of hostilities. Exposed to risk of harm and injury from prisoners of war. Did not incur danger. Decision affirmed.
LEGISLATION
Veterans' Entitlement Act 1986, s 5B, subs (1), s 7A
CASES
Repatriation Commission v Thompson [1988] 82 ALR 352

Repatriation Commission v Robertson [2004] FCA 173
Willcocks v Repatriation Commission (1992) 39 FCR 49

Orr v Repatriation Commission [1991] AATA 271
REASONS FOR DECISION
M D Allen, Senior Member
6 September 2012

At the conclusion of the hearing of this matter the terms of the decision intended to be made and the reasons therefore were stated orally. At that time, the Applicant, pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish to him a statement in writing of the reasons of the Tribunal for the decision.
The oral reasons for the decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.
The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.

I certify that the following paragraphs are a true copy of the reasons for the decision herein of M D Allen, Senior Member

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Associate

Dated 6 September 2012

Date(s) of hearing

13 June 2012

Applicant

Advocate for Applicant

In person

Mr M Van Wyck

Advocate for the Respondent

Mr N Bunn, Advocacy, Department of Veterans’ Affairs

EXTRACT OF TRANSCRIPT OF PROCEEDINGS:
MR ALLEN: By application made the 16^th day of January 2012, the applicant sought review of decisions by the respondent Repatriation Commission that determined he had not rendered qualifying service, as that term is defined in the Veterans’ Entitlements Act 1986, as amended. The relevant legislation commences with section 5B of the Veterans’ Entitlements Act 1986, subsection (1) thereof which states:
In this Act, unless the contrary intention appears … “period of hostilities” means … World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included).

Section 7A of the Act then goes on to state:
For the purposes of Parts III and VA and sections 85 and 118V, a person has rendered qualifying service:
…(c) if the person is an allied veteran who, during a period of hostilities, has, as a member of the defence force established by an allied country, rendered, in connection with a war, or war-like operations, in which the Naval, Military…

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 WILLIAM HARRIS and Repatriation Commission

Details

AGLC: WILLIAM HARRIS and Repatriation Commission [2012] AATA 600
Case: [2012] AATA 600
Decision Date: 13 June 2012

CaseChat Overview and Summary

The matter before the court involved William Harris and the Repatriation Commission. Harris sought a service pension under the Veterans' Entitlements Act 1986, claiming he was eligible due to his service during hostilities. The Repatriation Commission, however, denied his claim on the basis that Harris did not incur the necessary danger from hostile forces of the enemy during the relevant period. The dispute was ultimately determined by the Federal Court of Australia.

The central legal issue was whether Harris's service qualified him for a service pension, particularly if he was exposed to danger from hostile forces of the enemy. The court had to assess whether Harris's exposure to risk from prisoners of war constituted the requisite danger under the Act. Additionally, the court needed to decide if the period of hostilities during which Harris served qualified him for the pension.

The court examined the evidence and the statutory requirements for a service pension under the Veterans' Entitlements Act 1986. It found that Harris did not incur the danger from hostile forces of the enemy as defined by the Act, and that his exposure to risk from prisoners of war did not meet the necessary criteria. The court held that the Repatriation Commission's decision to deny Harris's claim was justified based on the evidence presented. Consequently, the appeal was dismissed, and the original decision was affirmed.

The court's decision upheld the Repatriation Commission's denial of Harris's claim for a service pension. The court's ruling confirmed that Harris did not meet the statutory criteria for receiving a service pension due to his lack of exposure to danger from hostile forces of the enemy. As a result, Harris's appeal was unsuccessful, and the decision denying his claim was maintained.

Orders