Cooke and Repatriation Commission [2003] AATA 853 (24 July 2003)

Last Updated: 2 September 2003

DECISION AND REASONS FOR DECISION [2003] AATA 853

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2003/48

VETERANS' APPEALS DIVISION	)
	Re	Alan George Cooke

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal

Ms A F Cunningham (Part-time Member)

Date 24 July 2003

Place Hobart

Decision

The decision under review is affirmed.

[Sgd A F Cunningham]

Part-Time Member

CATCHWORDS

Veterans' Entitlements - qualifying service - service rendered outside Australia - operational areas - Indonesia not included - appeal dismissed.

Veterans' Entitlements Act 1986 - s7A

REASONS FOR ORAL DECISION

25 August 2003

Ms A F Cunningham (Part-time Member)

1. This is a statement of reasons for decision pursuant to s.43(2A) of the Administrative Appeals Tribunal Act 1975 in respect of a decision made on 24 July 2003.

2. The applicant has sought the review of a decision of a senior delegate of the Repatriation Commission, dated 29 January 2003, affirming a decision of a delegate of the Repatriation Commission of 7 January 2003 which found that the applicant had not rendered qualifying service within the meaning of s7 of the Veterans' Entitlements Act 1986 ("the Act").

3. The applicant gave oral evidence by telephone from the United States of America. The respondent was presented by Mr M Castle, who called no evidence. The T documents were submitted pursuant to s37 of the Administrative Appeals Tribunal Act 1975.

4. There is no dispute as to the applicant's service. The T documents revealed that he served with the RAAF in Indonesia between August 1965 and July 1967 as a linguist at the Australian Embassy.

5. In order to qualify for a service pension, the applicant must have rendered qualifying service under the Act.

6. The applicant's evidence was that he was stationed in Indonesia which was a dangerous country to be in at the time. He said in a letter directed to Chris Craven, Veterans' Affairs office, Tasmania (T9):

"Records will show that the staff of the Australian Embassy was under constant treat and harassment by Indonesia Military and Civilian Forces. It was an extremely dangerous period for any Australian living in Indonesia at the time.

I do not understand the difference between a serviceman working in the safety of an Air force Orderly Room in Malaysia or Singapore who faced limited threat compared to the constant threat we lived under in Jakarta during those years and I am appealing your decision accordingly."

7. The applicant's main duties whilst stationed in Indonesia comprised that of a linguist and organising fly-over clearance.

8. The Tribunal is bound to apply the relevant legislative provisions to determine the applicant's qualification for a service pension, namely 7A of the Act. The relevant provision is s7A1(a)(iii) which refers to service outside Australia in an area described in column 1 of Schedule 2 during the period specified in column 2 of that Schedule.

9. The area relevant to the applicant's service is contained in paragraph 7 which states:

"The territories of Malaysia, Brunei and Singapore and the waters adjacent to those countries."

10. In column 2 the relevant period is stated as:

"The period from and including 17 August 1964, to and including 30 September 1967."

11. The Tribunal notes the applicant's frustration and confusion as to why Indonesia was not included in the defining paragraph given the circumstances of his service. The Tribunal has no discretion in the matter however and must apply the law as it stands.

12. As Indonesia is not included as an operational area for the period of the applicant's relevant service, the applicant fails to meet the provisions under the Act for "qualifying service" and his appeal must fail.

13. The Tribunal affirms the decision under review.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing 24 July 2003

Date of Decision 24 July 2003

Counsel for the Applicant Applicant appeared on own behalf

Solicitor for the Applicant

Counsel for the Respondent Mr M Castle

Solicitor for the Respondent Repatriation Commission