Bennett and Repatriation Commission [2000] AATA 67 (4 February 2000)

Last Updated: 4 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 67

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/646

VETERANS' APPEALS DIVISION )

Re THOMAS ARTHUR BENNETT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr A. Argent, Member

Date 4 February 2000

Place Melbourne

Decision The decision under review is affirmed.

(Sgd.) A. Argent

Member

CATCHWORDS

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

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

REASONS FOR DECISION

Mr A. Argent, Member

1. This is an application by Mr Thomas Arthur Bennett to review the decision by a senior delegate of the Repatriation Commission on 20 May 1999, who affirmed a decision of the Commission of 23 April 1999, that the veteran, Thomas Arthur Bennett, had not rendered qualifying service and, therefore, was not entitled to receive a Gold Card.

2. Qualifying service is defined in the Veterans' Entitlements Act 1986 ("the Act") at section 7A. As it applies to this particular case, "a person has rendered qualifying service if the person has, as a member of the Defence Force, rendered service ... in the field in military operation against the enemy in an area at a time when the person incurred danger from hostile forces of the enemy in that area ....".

3. The section of the Act which refers to the issue of a Gold Card is s85(4A). This section of the Act states that the entitlement to a Gold Card depends upon the veteran having qualifying service and being over the age of 70 years.

The Evidence and Findings

4. This case was heard on the papers. These papers include a letter to the Department of Veterans' Affairs from Mr Bennett on 4 May 1999; the decision of the senior delegate of the Repatriation Commission dated 20 May 1999; Mr Bennett's service records; an extract from the Official History - Royal Australian Air Force 1939-1942; and a report from Associate Professor J. McCarthy dated 28 September 1999 covering a number of points raised in Mr Bennett's application.

5. Mr Bennett was taken on strength in the Citizen Military Forces on 26 January 1942 and transferred to the AIF on 7 September 1942. He served in 2 Field Squadron, Royal Australian Engineers in Victoria, West Australia, New South Wales, the Northern Territory and Queensland. He was discharged on 24 July 1946.

6. In his written evidence received by the Department on 4 May 1999, Mr Bennett states he was in the Squadron's advance party sent to Darwin and "there were Jap planes over every night." His service records show he was in the Northern Territory beginning 19 July 1944.

7. However, the Act states qualifying service in the Northern Territory is three continuous months between 19 February 1942 and 12 November 1943 (the dates of the first and last Japanese air raids in the Northern Territory) and the service has to be north of 14 degrees 30 minutes South, i.e. the parallel that runs through Katherine.

8. Clearly, Mr Bennett was not in Darwin in the period mentioned and Official Histories show the last Japanese air raid was on 12 November 1943.

9. Therefore, Mr Bennett did not incur danger from the hostile forces of the enemy when he served in the Northern Territory.

10. Mr Bennett also claims he faced danger in Cairns and Townsville. There was enemy air activity over Cairns area on 31 July 1942 and the last enemy flight over Townsville was on 29 July 1942. During this period records show Mr Bennett was serving in Victoria.

11. Therefore, Mr Bennett did not incur danger from the hostile forces of the enemy when he served in Northern Queensland in late 1944. The war had shifted well north to the northern shores of New Guinea and the Philippines by then.

Decision

12. For the reasons given above, the decision is affirmed.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A. Argent, Member

Signed: Judith Holt, Associate