Churchill and Repatriation Commission [2000] AATA 68 (4 February 2000)

Last Updated: 4 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 68

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/595

VETERANS' APPEALS DIVISION )

Re COLIN KEITH CHURCHILL

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

4 February 2000 Mr A. Argent, Member

1. This is an appeal by Mr Colin Keith Churchill ("the veteran") against a decision of a senior delegate of the Repatriation Commission on 11 March 1999, which affirmed the decision of 30 December 1998 that the veteran had not rendered qualifying service and, therefore, he was not entitled to a Gold Card.

2. Qualifying service is defined at section 7A of the Veterans' Entitlements Act 1986 ("the Act"). As far as this case is concerned, the critical phrase in this section of the Act is whether Mr Churchill "incurred danger from hostile forces of the enemy in that area".

3. Under another section of the Act, s85(4A), only veterans who have rendered qualifying service are entitled to a Gold Card.

The Evidence

4. This case was heard on the papers. The papers available to the Tribunal were those filed under section 37 of the Administrative Appeals Tribunal Act 1975 and are called the "T documents". The Tribunal also had a report from Associate Professor McCarthy of the Australian Defence Force Academy.

5. The documents show Mr Churchill was born on 25 March 1925, and he enlisted in the Royal Australian Air Force on 13 April 1943, served as a telegraphist in a number of units in Australia, including the Northern Territory, from 15 June 1944 to 13 August 1945 and was discharged on 12 March 1946. There was no overseas service.

6. The veteran states that when he was based in Darwin he was allocated to certain air force units . During his service in Darwin with 9 Stores Depot from 18 November 1944 to 18 August 1945, the veteran states he was attached to various RAAF units. These duties took him to Bathurst, Melville and Croker Islands during the period December 1944 - January 1945. Travel was by watercraft.

7. The veteran also states his "returned from active service" badge implies he should be entitled to a Gold Card.

8. Associate Professor McCarthy, in his report dated 23 October 1999, states that by December 1944 Darwin was of little interest to the Japanese and the number of Australian troops there were drastically reduced. There were no Japanese naval or aircraft activities anywhere near Darwin or the islands mentioned. Indeed, as early as March 1944, only two Japanese airstrips within 800 kilometres (about 440 miles) of Darwin were in use. The last Japanese activity in the area mentioned by the veteran was on 6 August 1943 and the last raid on Darwin was 12 November 1943.

Findings

9. The veteran did not serve north of 14 degrees 30 minutes South in the Northern Territory for a continuous period of three months between 19 February 1942 and 12 November 1943.

10. It is clear from the evidence that during the veteran's service in Darwin in late 1944 there was no Japanese activity in his area. It follows then that he did not incur danger from hostile forces of the enemy during his service in the RAAF and, therefore, the veteran did not render qualifying service. Thus under the provisions of s85(4A) of the Act, he is not entitled to a Gold Card.

11. Turning to the matter of a "returned from active service" badge raised by the veteran, the Tribunal understands the confusion which arises with the issue of this badge, campaign and service medal entitlements and the requirements of a Gold Card. All have differing criteria. However, the Tribunal must abide by the terms of the Act, that is, whether or not the veteran incurred danger from the hostile forces of the enemy.

Decision

12. The decision under review 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