Larsson and Repatriation Commission [2000] AATA 107 (16 February 2000)

Last Updated: 17 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 107

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/413

VETERANS' APPEALS DIVISION )

Re JOHN DAVID LARSSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr A. Argent, Member

Date 16 February 2000

Place Melbourne

Decision The decision of the Repatriation Commission is affirmed.

(Sgd.) A. Argent

Member

CATCHWORDS

VETERANS' AFFAIRS - qualifying service -- whether incurred danger -- eligibility for Gold Card - decision affirmed

Veterans' Entitlements Act 1986 - section 7A, ss 85(4A)

Repatriation Commission v Walter Harold Thompson (1988) 82 ALR 352

REASONS FOR DECISION

16 February 2000 Mr A. Argent, Member

Background

1. This is an appeal by Mr John David Larsson ("the veteran") against a decision of a senior delegate of the Repatriation Commission ("the Commission") dated 18 February 1999.

2. This decision affirmed a previous decision of the Commission dated 16 September 1998 which determined that the veteran had not rendered qualifying service during the period of hostilities of World War Two and thus was not entitled to a Gold Card.

3. The period of hostilities of World War Two is from 3 September 1939 to 29 October 1945.

4. Qualifying service is defined at section 7A(1) of the Veterans' Entitlements Act 1986 ("the Act"). Part of this section reads:

"Qualifying service

7A.(1) ... 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 awarded, the Naval General Service Medal or the General Service Medal (Army and Royal Air Force) with the Minesweeping 1945051 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"

5. Section 85(4A) of the Act specifies that a veteran is eligible to be provided with treatment, that is, entitled to a Gold Card, if the veteran is aged 70 or over and has rendered qualifying service during World War Two.

Issue

6. The only issue before the Tribunal is whether the veteran rendered qualifying service during World War Two or not.

The Evidence

7. The case was heard on the papers by consent of the parties.

8. The Tribunal had before it the documents ("the T documents") lodged by the Commission pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. The T documents include the veteran's letter of 15 April 1999 leading to this appeal.

9. The Tribunal also had before it a report from an historian, Mr R. Piper dated 5 October 1999, a copy of which was sent to the veteran and a letter from the veteran, dated 26 November 1999, giving details of the basis of his claim for a Gold Card.

10. The veteran was born on 25 August 1925, enlisted in the RANR on 31 December 1943 and was demobilised on 17 October 1945. During the period of hostilities he did not serve outside of Australia. He served in Thursday Island from 20 August 1944 to 15 September 1945.

11. In his letter of 26 November 1999 the veteran stated, amongst other things, as a wireless telegraphist on Thursday Island he was in daily contact with motor torpedo boats which patrolled the Merauke River. These craft revictualled at Thursday Island. He was also aware of the air raids that had taken place at Thursday Island and the nearby Horn Island.

12. The Official Histories and other material show the last Japanese air raid in the area of Thursday Island was during the night 17/18 June 1943. Australian servicemen occupied Merauke following the construction of an airfield there in June 1943. In July 1943 there were 3500 men of the Australian Army at Merauke and 700 RAAF.

13. The meaning of "incurred danger, which the veteran claims occurred during his Thursday Island service, was set out by the Full Court of the Federal Court in the case of Repatriation Commission v Thompson (1988) 82 ALR 352. Their Honours said:

"The words "incurred danger" 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 a fearing that he may be in danger. The words "incurred danger" do not encompass a situation where there is a 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."

Finding

14. The Official Histories and other material show the last Japanese air raid in the Thursday Island/Horn Island area occurred during the night 17/18 June 1943, about 14 months before the veteran was there. There was no enemy activity in the veteran's area of service thereafter. Australian forces were based at Merauke, 150 nautical miles north west of Thursday Island in strength by July 1943, though Allied forces including Australians had been there since late 1942. At the beginning of 1943 the foremost Japanese force of any strength was 325 miles north west of Merauke, i.e. about 475 miles from Thursday Island. All documents indicate that when the veteran began his service on Thursday Island in August 1944 the war had receded from the Torres Strait and the eastern Arafura Sea.

15. For these reasons, the Tribunal finds the veteran did not incur danger from the hostile forces of the enemy during his service on Thursday Island from 20 August 1944 to 15 September 1945 and, therefore, he did not render qualifying service and, consequently, he is not entitled to a Gold Card.

Decision

16. The decision of the Repatriation Commission is affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A. Argent, Member

Signed: Judith Holt, Associate