Repatriation Commission v Robertson [2004] FCA 173

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Robertson [2004] FCA 173 ADMINISTRATIVE LAW – judicial review – Veterans' Affairs – Gold Card eligibility – whether qualifying service rendered – where Tribunal found condition of "operations against the enemy" satisfied and condition of "incurred danger from hostile forces" satisfied – whether no evidence to support findings. Veterans' Entitlement Act 1986 (Cth) s 7A Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to Minister for Multicultural Affairs v Eshetu (1999) 197 CLR 611 referred to Repatriation Commission v Mitchell [2002] FCA 1177 cited Repatriation Commission v Thompson (1988) 44 FCR 20 cited Willcocks v Repatriation Commission (1992) 39 FCR 49 discussed REPATRIATION COMMISSION V BRUCE JOHN GRAY ROBERTSON N 1244 OF 2002 BEAUMONT J 5 MARCH 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1244 OF 2002

ON APPEAL FROM THE VETERANS' APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: REPATRIATION COMMISSION

APPLICANT

AND: BRUCE JOHN GRAY ROBERTSON

RESPONDENT

JUDGE: BEAUMONT J

DATE OF ORDER: 5 MARCH 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed, with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1244 OF 2002

BETWEEN: REPATRIATION COMMISSION

APPLICANT

AND: BRUCE JOHN GRAY ROBERTSON

RESPONDENT

JUDGE: BEAUMONT J

DATE: 5 MARCH 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

Beaumont J:

Introduction 1 The respondent applied to the Administrative Appeals Tribunal ('the Tribunal') to review a decision of the Repatriation Commissioner's delegate that the respondent did not render 'qualifying service' within the meaning of s 7A of the Veterans' Entitlement Act 1986 (Cth) ('the Act'), and thus was not eligible for a Gold Card pursuant to s 85(4) of the Act. The Tribunal set aside the Repatriation Commission's decision, and in lieu thereof, decided that the respondent was so eligible. The Repatriation Commission ('the Commission') now appeals from that decision on a question or questions of law (only). 2 'Qualifying service' is defined in s 7A as follows: '... a person has rendered qualifying service ... if the person has, as a member of the Defence Force…rendered service, during a period of hostilities ... in naval military or aerial operations against the enemy in an area ... at a time when the person incurred danger from hostile forces of the enemy in that area ... .' 3 In his claim, the respondent relied upon seagoing service towards the end of the Second World War, outside the coastal waters of Australia, in the Pacific.