Tomulescu and Repatriation Commission [2003] AATA 479 (16 April 2003)

Last Updated: 28 May 2003

DECISION AND REASONS FOR DECISION [2003] AATA 479

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2002/268

VETERANS' APPEALS DIVISION

)

Re

FILIP TOMULESCU

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member M D Allen Brigadier R D F Lloyd OBE MC RL, Member

Date 16 April 2003

Place PerthADMINISTRATIVE APPEALS TRIBUNAL ) No W2002/268

)

VETERANS' APPEALS DIVISION )

Re: FILIP TOMULESCU

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen

Brigadier R D F Lloyd OBE MC RL, Member

Date 16 April 2003

Place Perth

Decision FOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

(Sgd) M.D. ALLEN

............................

Presiding Member

CATCHWORDS

VETERANS' ENTITLEMENTS - Service Pension - whether Applicant had service in the forces of a country at war with Australia - service in Romanian Army - whether Tribunal reasonably satisfied Applicant did not have service in that Army before Romania changed sides in World War II.

Veterans' Entitlements Act 1986 - s7A, s5C, ss120(4) and (6)

Truchlik v Repatriation Commission 25 FCR 414

Casarotto v Australian Postal Commission 86 ALR 399

Repatriation Commission v Smith 15 FCR 327

REASONS FOR DECISION

Senior Member M D Allen

Brigadier R D F Lloyd OBE MC RL, Member

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for 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 reasons for the said decision.

3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Brigadier R D F Lloyd OBE MC RL, Member

Signed: Nathaniel Wills

.........................................................................................................................

Associate

Date of Hearing 16 April 2003

Date of Decision 16 April 2003

Solicitor for Applicant Applicant was self-represented

Advocate for Respondent Mr C Ponnuthurai, Department of Veterans' Affairs

ORAL REASONS FOR DECISION

ADMINISTRATIVE APPEALS TRIBUNAL

Matter No W2002/268

By M.D. ALLEN, SENIOR MEMBER AND

BRIG R.D.F. LLOYD OBE MC RL

TOMULESCU and REPATRIATION COMMISSION

PERTH, 16 APRIL 2003

MR ALLEN: By application made the 24th day of July 2002, the applicant sought review of a determination by a Senior Delegate of the respondent, made the 27th day of June 2002, affirming a prior decision that the applicant had not rendered qualifying service as an allied veteran. Section 7A paragraph 1(c) of the Veterans' Entitlements Act 1986 states inter alia that a person has rendered qualifying service 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 or Air Forces of Australia were engaged, service in an area within or outside the country in which the person enlisted in those forces, being service in respect of which the person incurred danger from hostile forces of the enemy."

Allied veteran is defined in section 5(c), subsection (1) following terms. Allied veteran means:

A person who has been appointed or enlisted as a member of the Defence Force established by an Allied country and (b) who has rendered continuous full-time service as such as a member during a period of hostilities but does not include a person who has served at any time (c) in the forces of a country that was, at that time, at war with Australia or in forces engaged in supporting or assisting the forces of such a country. Or (b) in forces that were at that time engaged in warlike operations against the naval, military or air forces of Australia.

In Truchlik and Repatriation Commission, 25 FCR 414 at 419 his Honour Davies J said in relation to the question of service:

Service is not performed by mere enrolment to serve. It involves the carrying out of the duties of the office or function.

The majority, Sheppard and Foster JJ, agreed with that summation. In other words, a person has to be carrying out the duties of an office in the military forces. The standard of proof in this matter is that of to the Tribunal's reasonable satisfaction. As was pointed out in Repatriation Commission and Smith, 15 FCR 327, that term equates to the civil standard of proof, that is to say proof on the balance of probabilities. In speaking of proof, the Tribunal in this particular case has also had regard to what was said by his Honour Hill J in Casaroto and Australian Postal Commission, 86 ALR 399, commencing at 412.

Let us say at the outset that we are aware that subsection (6) of section 120 of the Veterans Entitlements Act specifically provides that neither party to this review bears any onus of proof. However, as Hill J in Casarotta says:

"it may be said that what was said by Woodward J in McDonald and Director General of Social Security should be confined to the context of social security legislation. Thus, in Minister for Health and Thompson, Mr Beaumont J, referring to proceedings before the Medical Services Committee established under the Health Insurance Act 1973, said:

"Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the Social Security area. However where, as here, a breach of discipline or something analogous is alleged, the onus of proving such a breach lies upon the accuser."

The general position is explained by Professor Enid Campbell in Principles of Evidence at Administrative Tribunals, published in Campbell and Waller, Editors, well and truly tried Monash studies in law, namely at page 53:

"There may be legal burdens of proof to be discharged in administrative proceedings, just as there are legal burdens of proof in purely judicial proceedings. Sometimes the incidence of the burden of proof is spelled out by legislation but more often than not it is simply implied in the nature of the proceedings. If, for example, entitlement to grant of a license or benefit depends on proof that certain qualifications have been met, the burden of proving the relevant facts going to qualifications must fall upon the applicant. Similarly, where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a license or the finding that a breach of discipline has occurred, the onus of proving that these circumstances have arisen would devolve on the accuser.""

His Honour Hill J then continued:

"Nevertheless, as a practical matter, an applicant for review in the Tribunal in such a case as the present is asserting a claim for a right to compensation and ultimately the Tribunal, in considering the claim, can only act on the evidence before it. To do otherwise would be to commit an error of law. Thus, in a practical sense if not a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the Tribunal all material which it will be necessary for the Tribunal to have before it to enable it to come to a decision."

Where, as here, material necessary to an applicant's case is not laid before the Tribunal, the applicant will not be able to complain if the Tribunal, doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant. Those principles apply, notwithstanding that as said, neither party to this review bears any onus of proof. The applicant applied for a determination as to whether or not he had rendered qualifying service, in a document which was received on or about 10 June 2002. In that he claimed that he had had service as an Allied veteran in the armed forces of Romania.

In document T3, page 11 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the applicant discloses that he enlisted in the Romanian armed forces in the town of Focsani in 1943. Contained at document T7, page 35, is an extract from the historical library of the Department of Veterans Affairs, dealing with Romania. It appears that Romania was considered an enemy force from 22 June 1941 to 24 August 1944. It then states:

Romania declared war on Germany on 25 August 1944. Prior to 25 August 1944, Romania was considered service with an enemy force.

The general concept as we understand it is that until the 25th day of August 1944, Romania was part of the Axis forces. It then changed its allegiance and fought against the Axis forces. The net result, however, is that prior to 25 August 1944, service with the Romanian armed forces was considered service with enemy force. The applicant, at the time he applied for the original determination, provided the original of certain documents which had been given to him, evidencing his service in the Romanian forces. He also provided translations of those documents. The certification in the documents is, "I certify this to be a true translation of the original document. TIS translator."

It would appear that the actual translator was the applicant's son but on questioning by the Tribunal the Applicant stated that he agreed with the translation as an accurate translation and we note that the translator is a recognised translator. Likewise, there is nothing in the material to which the respondent took objection. The extract from the applicant's military service book, which occurs at page 18 of the section 37 documents discloses inter alia that the applicant held the rank of Lieutenant in Artillery and his military service consisted as following. 09.42-11.43 School of Military Education - student. 07.44 to 10.44 Regiment 11th Artillery Putna Commandant Section.

Other notations note that the applicant from March 1945 and for the period to May 1945 also served in the 11th Artillery Regiment as a commandant of a section. We were told in evidence from the applicant that a commandant of a section was a person in charge of two guns. The applicant's evidence is quite straightforward. He said that he commenced university in - he thinks - around 1938, commencing a 6-year course. When war broke out in 1939 he was a student. As a student, he was required to undertake compulsory military training. This compulsory military training was as a member of the reserve and he trained one day a week.

During that time he was still a student and used to go home at night after completing his day training. He completed his training at the School of Military Education but then he was in his final stages of compulsory student military training, preparing for his final exams which would qualify him as an officer. Although his record of service showed that he joined the 11th Artillery Regiment in July 1944, he states that at that time he was still not on full-time military service but was undertaking further training and ultimately an examination as an officer of artillery.

When war was declared against Nazi Germany on 25 August 1944, he was enlisted for full-time military service, but it was not until that time that he was engaged in full-time military service. The situation the Tribunal therefore finds itself in is that the applicant's sworn evidence is that up until 25 August 1944, he was not engaged in full-time military service. The record of service which has been produced says that he was a member of the 11th Artillery Regiment as the commandant of a section, commencing in July 1944. We note also that the applicant, in his original claim, said that he was enlisted in 1943, which in a sense is confirmed in that in November 1943 he completed his attachment with the School of Military Education.

The situation we have is that there is a conflict between the sworn evidence of the applicant and the documentary evidence. Although, as stated, there is no onus of proof on either party to this review, the fact is the Tribunal must still be reasonably satisfied that the criteria for the grant of recognition as an Allied veteran has been met in this matter. Although it was only for a short period, the documents disclose that in the period from July 1944 up to and including 24 August 1944 the applicant was serving in the army of a country which was an enemy of Australia. We are left in the position, in the conflict of the evidence before us, that we cannot be reasonably satisfied of the applicant's claim and the decision under review is therefore AFFIRMED.