Chan v Secretary, Department of Family and Community Services
[2004] FCA 1255
•28 SEPTEMBER 2004
FEDERAL COURT OF AUSTRALIA
Chan v Secretary, Department of Family & Community Services
[2004] FCA 1255Social Security Act 1991 (Cth)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)STANFORD CHAN V SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES AND HIEU QUAN CHAN
N 875 OF 2004
BEAUMONT J
28 SEPTEMBER 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N875 OF 2004
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
STANFORD CHAN
APPLICANTAND:
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
FIRST RESPONDENTHIEU QUAN CHAN
SECOND RESPONDENTJUDGE:
BEAUMONT J
DATE OF ORDER:
28 SEPTEMBER 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
N875 OF 2004
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
STANFORD CHAN
APPLICANTAND:
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
FIRST RESPONDENTHIEU QUAN CHAN
SECOND RESPONDENT
JUDGE:
BEAUMONT J
DATE:
28 SEPTEMBER 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BEAUMONT J:
INTRODUCTION
These proceedings concern an application for review of the decision of the Administrative Appeals Tribunal (the ‘Tribunal’) constituted by Ms N Isenberg, Member, dated 30 April 2004 affirming the decision of the Social Security Appeals Tribunal (‘SSAT’) dated 22 August 2002, which affirmed the decisions of the Authorised Review Officer (‘ARO’) on 2 January 2002 and the first respondent dated 3 September 2001 that debts of Parenting Payment Single (‘PPS’) and Pensioner Education Supplement (‘PES’) paid in the period 18 June 2001 to 15 August 2001 and Family Tax Benefit (‘FTB’) paid in the period 1 July 2001 to 15 August 2001 are to be recovered from the applicant.
BACKGROUND
The background to the matter is outlined (at [2] – [13]) in the Tribunal’s Reasons for Decision, which I have set out below.
On 14 December 2000, the Family Court of Australia issued orders in relation to the applicant and Ms Hanh Minh Vu’s son, the second respondent, born 25 July 2000, whereby he was to reside with Ms Vu and have little contact with the applicant. On 2 February 2001, the Family Court issued further orders that the second respondent reside with Ms Vu and have six hours per week contact with the applicant.
On 7 May 2001, the applicant contacted Centrelink (a delegate of the first respondent) to claim payment, advising that Ms Vu had returned to Vietnam. On 22 May 2001, the applicant claimed FTB in respect of the second respondent and advised a change of carer from Ms Vu. The applicant was subsequently paid FTB.
On 18 June 2001 the applicant claimed PES and PPS also on the basis that the second respondent was in his care.
The applicant asserts that he qualified for payments of PPS, PES and FTB as he lived with, and cared for, the second respondent between 26 April 2001 and 20 July 2001. Centrelink contended that the second respondent was not in his care to the extent of being a qualifying child for payments of PPS and PES, and little, if at all, in his care for the purposes of FTB.
Centrelink understood the second respondent to have been in the care of Ms Vu during the relevant period. The second respondent was paid ‘Special Benefit’, as he did not have a sufficient livelihood in his mother’s care. At that time Ms Vu was not a permanent resident and, therefore, she was not authorised to work in Australia.
On 22 June 2001 the applicant was advised by letter that he must notify Centrelink within 14 days of a change in circumstances, specifically, if the second respondent stopped living with him, was no longer in his care, was no longer dependant on him, or if he shared the second respondent’s care with anyone.
On 3 July 2001, the conditions surrounding the care of the second respondent changed as the applicant began sharing care of the second respondent with Ms Vu. The applicant did not advise Centrelink of this change.
On 9 August 2001, the applicant returned to Australia, having been overseas for some weeks.
On 16 August 2001, a hearing was held at the Family Court and a decision was handed down which held that the second respondent was to reside primarily with his mother.
On 20 August 2001, the applicant phoned Centrelink regarding the cancellation of his payments and told a Centrelink officer that the ‘child [was] with him’. On 30 August 2001, the applicant attended an interview at Centrelink, at which the cancellation of his payments for the second respondent was finalised.
On 3 September 2001, Centrelink sent the applicant three account payable notices for recoverable debts. A debt was also determined regarding FTB paid to the applicant during the year 2000/01; the applicant has not appealed the decision to recover this debt.
On 2 January 2002, the ARO affirmed the decision to raise and recover the debts based on the fact that the applicant was not qualified for the payments; he did not have care of the second respondent. Parts of the PPS and PES debts raised prior to 1 July 2001 are raised per s 1224(1), as it then was, of the Social Security Act 1991 (Cth) (‘the Act’) and parts of the debts raised after 1 July 2001 are raised per s 1223(1) of the Act. The FTB debt was raised under s 71(1) of A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (‘the FAA Act’). Recovery was not waived under s 1237AAD of the Act, as the applicant did not notify Centrelink of the circumstances as to the second respondent’s care.
THE RELEVANT LEGISLATION
(a) Raising the debts
The PPS and PES debts raised prior to 1 July 2001 are raised under s 1224(1) (as it then was) of the Act:
‘Debts arising from recipient’s contravention of law
1224(1) If:
(a)an amount has been paid to a recipient by way of social security payment or fares allowance; and
(b)the amount was paid because the recipient or another person:
(i) made a false statement or a false representation; or
(ii)failed or omitted to comply with a provision of the social security law or this Act as in force immediately before 20 March 2000, the 1947 Act or the Social Security (Fares Allowance) Rules 1998;
the amount so paid is a debt due by the recipient to the Commonwealth.’
The PPS and PES debts raised after 1 July 2001 are raised under s 1223(1) of the Act:
‘Debts arising from lack of qualification, overpayment etc.
…1223(1) Subject to this section, if:
(a) a social security payment is made; and
(b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit,
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.’
The FTB debt was raised under s 71(1) of the FAA Act:
‘Debts arising in respect of family assistance other than child care benefit and family tax benefit advance
No entitlement to amount
(1) If:
(a) an amount has been paid to a person by way of family tax benefit, maternity payment or maternity immunisation allowance (the assistance) in respect of a period or event, and
(b) the person was not entitled to the assistance in respect of that period or event;
the amount so paid is a debt due to the Commonwealth by the person.’
(b) Waiving the debts
The provisions of the Act relating to the waiver of the PPS and PES are contained in Part 5.4 of the Act. The relevant sections of Part 5.4 are as follows:
‘Section 1235 - Meaning of debt
In this Part, debt means:
(a) a debt recoverable by the Commonwealth under Part 5.2, or
…
Section 1236 - Secretary may write off debt
1236(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
1236(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law, or
(b) the debtor has no capacity to repay the debt, or
(c) the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor, or
(d)it is not cost effective for the Commonwealth to take action to recover the debt.
1236(1B) For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(a) the debt cannot be recovered by means of deductions, or legal proceedings, or garnishee notice, because the relevant 6 year period mentioned in section 1231, 1232 or 1233 has elapsed, or
(aa) the debt cannot be recovered by means of deductions or setting off because the relevant 6 year period mentioned in section 86 of the A New Tax System (Family Assistance) (Administration) Act 1999 has elapsed, or
(b) there is no proof of the debt capable of sustaining legal proceedings for its recovery, or
(c)the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud, or
(d) the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.
1236(1C) For the purposes of paragraph (IA) (b), if a debt is recoverable by means of:
(a) deductions from the debtor’s social security payment, or
(b) deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999, or
(c) setting off under section 84A of that Act;
the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.
1236(2) A decision made under subsection (1) takes effect:
(a) if no day is specified in the decision - on the day on which the decision is made; or
(b) if a day is specified in the decision - on the day so specified (whether that day is before, after or on the day on which the decision is made).
1236(3) Nothing in this section prevents anything being done at any time to recover a debt that has been written off under this section.
Section 1236A - Application
1236A(1) Sections 1237,1237A, 1237AA, 1237AAA, 1237AAB, 1237AAC, 1237AAD and 1237AAE apply to:
(a)debts arising on or after 1 January 1996; and
…
Section 1237 - Power to waive Commonwealth’s right to recover debt
Secretary’s limited power to waive
1237(1) On behalf of the Commonwealth, the Secretary may waive the Commonwealth’s right to recover the whole or a part of a debt from a debtor only in the circumstances described in section 1237A, 1237AA, 1237AAA, 1237AAB, 1237AAC or 1237AAD and, if the debt is an assurance of support debt, subject to section 1237AAE.
When waiver takes effect
1237(2) A waiver takes effect:
(a) on the day specified in the waiver (whether that day is before, after or on the day on which the decision to waive is made); or
(b)if the waiver does not specify when it takes effect - on the day on which the decision to waive is made.
…
Section 1237AAD - Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.’
The provision of the FAA Act relating to the waiver of the FTB debt is s 97:
‘Waiver of debt arising from error
(1)The Secretary must waive the right to recover the proportion (the administrative error proportion) of a debt that is attributable solely to an administrative error made by the Commonwealth if subsection (2) or (3) applies to that proportion of the debt.
(2) The Secretary must waive the administrative error proportion of a debt if:
(a) the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt; and
(b) the person would suffer severe financial hardship if it were not waived.
(3) The Secretary must waive the administrative error proportion of a debt if:
(a) the payment or payments were made in respect of the debtor’s eligibility for family assistance for a period or event (the eligibility period or event) that occurs in an income year; and
(b) the debt is raised after the end of:
(i)the debtor’s next income year after the one in which the eligibility period or event occurs; or
(ii) the period of 13 weeks starting on the day on which the payment that gave rise to the debt was made;
whichever ends last; and
(c) the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt.
(4) For the purposes of this section, the administrative error proportion of the debt may be 100% of the debt.’
THE TRIBUNAL’S DECISION
The Tribunal identified two issues for determination. First, whether the applicant was entitled to PPS, PES and FTB during the relevant periods. Secondly, if the applicant was not entitled to those benefits, were there recoverable debts as alleged:
·$1730.58 due to overpayment of PPS, during the period: 18/06/01 – 15/08/01;
·$262.97 due to overpayment of PES, during the period: 18/06/01 – 15/08/01; and
·$966.00 due to overpayment of FTB, during the period: 01/07/01 – 15/08/01.
The Tribunal considered documentary evidence lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’), including extracts from the applicant and Ms Vu’s Family Court proceedings.
The Tribunal also considered oral evidence. The Tribunal’s Reasons for Decision note (at [19]) that ‘[the applicant] and Ms Vu gave evidence and were cross-examined. I also asked them questions.’
The Tribunal’s findings in relation to these questions are summarised below.
(a) Was the applicant entitled to PPS, PES and FTB?
The Tribunal noted (at [14]) that there was ‘no dispute that this [issue] turned, in respect of each type of benefit, on whether [the second respondent] was in [the applicant’s] care, and if so to what extent, and during what period’.
The Tribunal set out the relevant evidence at [22] – [54] of its Reasons for Decision.
The Tribunal considered (at [21]) that the applicant and Ms Vu gave ‘very different accounts’ of the second respondent’s care during the relevant periods. By way of summary, the Tribunal noted (at [43]) that the applicant’s position was that he had care of the second respondent from 26 April 2001 until 20 July 2001, whereas Ms Vu’s evidence was that he did not.
The Tribunal noted (at [44]) that it had sought assistance from such contemporaneous material as was available including, in particular, extracts from the Family Court proceedings. However, the Tribunal found that ‘far from assisting, this material confirmed that the parties have been in dispute in relation to this very issue for quite some time’.
At [45], the Tribunal noted that it had ‘some difficulties with some aspects of [the applicant’s] evidence’ and detailed the matters that led it to have these ‘difficulties’ and ‘reservations’ at [45] – [53] of its Reasons for Decision.
By contrast, the Tribunal considered (at [54]) that there was ‘some thread of consistency’ in Ms Vu’s evidence.
The Tribunal preferred Ms Vu’s account ‘on the balance of probabilities’. The Tribunal found that the second respondent was not in the applicant’s care during the period for which the applicant was paid PPS, PES and FTB, the benefits the subject of this application.
(b) Were the respective debts recoverable?
The Tribunal found that the overpaid amounts, totalling $2959.55 are debts as defined in s 1223(1) of the Act. In the Tribunal’s view, the only waiver which may have any application to the applicant is s 1237AAD.
The Tribunal found ‘on balance’ that the applicant did not contact Centrelink and that, therefore, relief was available (pursuant to subs 1237AAD(a)(i)) as the payments to the applicant were based on ‘false representations’. Moreover, the Tribunal stated (at [63] – [64]):
‘Even [if] this was not the case, I am not satisfied that there are special circumstances that make it desirable to waive the debt [as required by subs 1237AAD(b)]. Although [the applicant] gave evidence of being of fairly limited financial means, there was no evidence of other circumstances which are “special”. In any event, I note that [the applicant] has apparently been able to finance an overseas trip recently. For this reason I also find that [the applicant’s] circumstances do not attract the benefits of section 97 of the FAA Act in relation to his FTB.
For the same reason I do not consider the debts should be written off under any provision of section 1236 of the Act.’
THE APPLICATION TO THIS COURT
By his Notice of Appeal, the applicant purports to raise six ‘questions of law’ and nine ‘grounds’ of appeal in relation to the Tribunal’s decision, as follows:
‘2.THE QUESTIONS OF LAW raised on the appeal are:
(a).Based on the evidence before the Tribunal, it was not open to the [T]ribunal to make the decision that it did. In this case, have no evidence approved that the [second respondent] was living with [Ms Vu] between 26 April 2001 and 20 July 2001. But it have enough evidence approved that that [the second respondent] was living with the … applicant at that time.
(b).The AAT [Member] Ms N Isenberg shall does not allowed [Ms Vu] to do a witness and shall does not accepted her conflict of evidence. [Ms Vu] did received the [second respondent’s] Special Benefit Payment between 26 April 2001 and 20 July 2001. The out come of the decision have conflict with benefit of [Ms Vu]. [Ms Vu] did a conflict of evidence in the witness box, her evidence unreliable.
(c).The AAT deprived the applicant’s right to do a witness to give evidence. Ms N Isenberg shall lets the applicant to do a witness to give evidence, unless she makes a favour on the applicant. In two days of hearing, Ms N Isenberg only let [Ms Vu] to do a witness, but did not allow the applicant to do a witness.
(d).The AAT [Member] Ms N Isenberg cited some documents from Family Court Appeal Book, but they are not evidence.
(e).The AAT [Member] Ms N Isenberg was not acting in good faith in making a decision.
(f).The decision of Ms N Isenberg was so unreasonable that no reasonable person could have made it.
…
4.GROUNDS:
(a).[Ms Vu] is a Vietnamese, she was refused Refugee Status by Refugee Review Tribunal on 15 March 2001, she has not made further appeals. On 26 April 2001, [Ms Vu] told the Applicant that she intended go back Vietnam, and let the [second respondent] stay with the applicant. [Ms Vu] wrote down a “Declaration” stated that the [second respondent] lives with the applicant on 26 April 2001.
(b).The Applicant applied “Family Tax Benefit”, “Parenting Payment Single” and “Pensioner Education Supplement” from Centrelink between 18 June 2001 and 20 July 2001.
(c).On 16 August 2001, Centrelink cancelled the applicant all payment, and did not allow the applicant to apply any payment for life. The applicant has to stopped the full time course at TAFE for looking job. On 31 August 2001, Centrelink referred the applicant to ST VINCENT DE PAUL ask for food.
(d).On 3 September 2001, Centrelink sent three account payable notices for debt amount $2959.55 as over payment to the applicant. The applicant opposed Centrelink’s decisions and made appeals.
(e).The proceedings at the Social Security Appeals Tribunal (SSAT), [Ms Vu] was requested by SSAT to join my application without my consent. The SSAT affirmed that Centrelink’s decisions on 22 August 2002.
(f).The …Tribunal affirmed that SSAT and Centrelink’s decisions on 30 April 2004.
(g).The decision of the AAT, [Member] Ms N Isenberg made wrong consideration in this case. Paragraph 45, [Ms Vu] has been admitted that she signed the “Declaration” dated 26 April 2001. [Ms Vu] did 5 years law studies at university in Vietnam, she understood legal responsibility. The [second respondent’s] name “Hieu Quan Chan” was first used and it is the only name consented by both parents on 10 August 2000, therefore, it without doubt that [Ms Vu] resumed the [second respondent’s] name when the [second respondent] returning to the applicant. Paragraph 46, [Ms Vu] finished RRT appeal proceeding on 15 March 2001, therefore, Ms N Isenberg said that “at a time when she had already lodged her RRT appeal” is wrong. Also on 7 May 2001, the applicant did telling Centrelink staff that [Ms Vu’s] Refugee Status was refused by RRT. It is unable to know [Ms Vu’s] proceeding, if she has not told the applicant. Whether or not [Ms Vu] genuine returned Vietnam, it is not a matter for this case. Therefore, Ms N Isenberg made wrong in Paragraph 46. About Paragraph 47 & 48, the applicant did nothing wrong, the applicant do not understand why Ms N Isenberg says it. In Paragraph 49, [Ms Vu] whether or not back in Vietnam, it is not a matter for this case. The important points are whether or not [Ms Vu] signed the declaration on 26 April 2001 and whether or not the [second respondent] lives with the applicant. In Paragraph 50, it was did by Centrelink staff, the applicant never know what they did on the computer. In Paragraph 51, the applicant has no agreement (including writing and oaral [sic]) with [Ms Vu] for share the care of the [second respondent].
(h).The AAT [Member] Ms N Isenberg says in her decision Paragraph 63 that “… Although he gave evidence of being of fairly limited financial means, there was no evidence of other circumstances which are “special”. In any event, I note that Mr Chan has apparently been able to finance an overseas trip only recently”. Ms N Isenberg did not know why the applicant has been to overseas recently and who paid the fees. The applicant’s family (5 people) total income about $410 per week.
(i). The applicant made this appeal.’
The first respondent has provided written submissions responding separately to each claim in the Notice of Appeal. The second respondent has been excused from the proceedings, and has provided no submissions. The applicant has not provided any written submissions in support of his claims, although he made some oral submissions at the hearing. Accordingly, I set out below my consideration of whether any of the ‘questions of law’ or ‘grounds’ of appeal asserted by the applicant disclose an error of law by the Tribunal.
(a) Question of law 2(a) – no evidence
The applicant has not tendered any transcript from the Tribunal hearing in support of his assertion that there was ‘no evidence’ that the second respondent was living with Ms Vu for the period between 26 April 2001 and 20 July 2001.
The first respondent submits that the Tribunal’s findings of fact were ‘clearly based on the evidence before it’, referring to the oral evidence of Ms Vu. The applicant has not made any submissions in relation to this claim.
In its Reasons for Decision, the Tribunal paraphrased the oral evidence of Ms Vu and the applicant (at [22] – [36]) and noted (at [43]):
‘Essentially, their evidence was in direct conflict. [The applicant’s] position was that he had care of [the second respondent] from 26 April 2001 until 20 July 2001 whereas Ms Vu’s evidence is that he did not.’
The Tribunal also considered contemporaneous material, including information from a childcare centre attended by the second respondent, and transcript from the Family Court proceedings.
The Tribunal had ‘difficulties’ and ‘reservations’ concerning the applicant’s evidence, which it outlined at [45] – [53] of its Reasons for Decision, but found ‘some thread of consistency’ in Ms Vu’s evidence. On the basis of this evidence, the Tribunal preferred ‘on the balance of probabilities’ Ms Vu’s account of the caring arrangements for the second respondent.
There is no basis for any assertion of an error of law by the Tribunal in this connection.
(b) Question of law 2(b) –evidence of Ms Vu
The applicant submitted in Court that:
‘[The Tribunal] adopted the evidence of [Ms Vu] … but … [Ms Vu] was in conflict with this case and, moreover, [Ms Vu] has once been involved in the case, is a party to the case – she is a party to the case. So under that circumstance I would say she not be allowed to give evidence.’
The first respondent submits that:
‘The applicant appears to be alleging that evidence Ms Vu gave to the [Tribunal] was in conflict with the [Tribunal’s] decision, or was unreliable. In either event, whether to accept the evidence of Ms Vu and what weight to place on it was a matter for the [Tribunal]. The applicant essentially seeks to review the merits of the [Tribunal’s] decision.’
The applicant also seems to assert that the Tribunal’s decision is infected by legal error, as it ought not properly to have allowed Ms Vu to give evidence.
I note that s 33 of the AAT Act provides:
‘33 Procedure of Tribunal
(1)In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
…’
Section 40 of the AAT Act sets out powers of the Tribunal, including at subs (1A) to ‘summon a person to appear before the Tribunal … to give evidence’.
There is no error of law by the Tribunal, as asserted.
(c) Question of law 2(c) – applicant’s witness
The applicant submitted orally:
‘I just think that when [the Tribunal] makes an unfavourable decision on me it’s because it did not allow me to give evidence in the witness box …
…
And also the decision was made without my evidence. I did not go into the box to give any evidence at all and so there’s no application of main evidence at all in the decision. So it became that the main evidence in that case was the evidence of the mother of the child and mother also admitted the she has signed – it was signed by her and although it was a finding of the facts but I would repeat that [the Tribunal] has made three mistakes in law; that is without my evidence how can a fair decision be made and for the two days hearing it is only the mother who’s been giving evidence. So I think it’s very unjust for me to have the case heard in that circumstance.’
The first respondent’s written submission stated:
‘The applicant appears to be alleging that the [Tribunal] denied him the “right” to call a witness to give evidence in support of his claims, whereas it allowed Ms Vu to be a witness and give evidence in the proceedings.
…
The applicant has not provided any evidence that he requested the [Tribunal] to take evidence from a witness and that this request was refused. He does not provide particulars of the witness he would have called, nor what evidence that witness would have given to the [Tribunal]. He has not provided any particulars or evidence as to how the [Tribunal’s] alleged denial of the opportunity for him to call a witness, or by allowing Ms Vu to be a witness, resulted in any practical injustice to him.’
The first respondent responded in Court to the applicant’s oral submissions by drawing attention to [19] of the Tribunal’s Reasons for Decision where it states: ‘[The applicant] and Ms Vu gave evidence and were cross-examined.’
The first respondent also referred to subsequent paragraphs in which the respective oral evidence of the applicant and Ms Vu is summarised by the Tribunal.
In relation to Ms Vu’s application, the first respondent argued:
‘The applicant in his oral submissions today also referred to Ms Vu’s making of a declaration as to the child being in his care. The Tribunal in fact at paragraph 45 of its decision it makes a finding that it was unlikely Ms Vu did in fact sign that declaration. It appears the applicant is asserting that the court should somehow look behind that factual finding on the Tribunal’s part. The respondent asserts that to do so would be to engage in merits review of the decision.’
In reply, the applicant submitted orally:
‘So it is stated in paragraph 19 [of the Tribunal’s Reasons for Decision] that [the applicant] and Ms Vu gave evidence and were cross-examined but in fact I never did and I was never cross-examined. They allege that I had given evidence, what, what evidence have I given? I have all my information, so there is none and I never went to the witness box and I think the [Tribunal], I think the member of the Tribunal had made a mistake in regards to this …
Only mother of child, that is, Ms Vu gave evidence for two days and then the court closed after her evidence. I had no opportunity to give any evidence …’
I accept the first respondent’s submission that the applicant has not provided any evidence that the Tribunal ‘deprived’ him of the opportunity to testify personally, or to call any other witnesses at the hearing. In fact, [19] of the Tribunal’s Reasons for Decision directly contradicts the applicant’s claim that he did not give evidence at the hearing, and [20] – [55] outline various aspects of the applicant’s oral evidence at the hearing. The applicant’s claim is without any substance.
(d) Question of law 2(d) – Family Court appeal book
The applicant did not make any submissions in relation to this claim.
The first respondent submits that the applicant has not particularised which documents the Tribunal cited were not in evidence, nor how the Tribunal’s reliance on these documents resulted in any practical injustice to him.
The first respondent refers to the following excerpts from the Tribunal’s decision in relation to this issue, as follows.
Paragraph 18
‘Other documents were tendered and these have been attached to the Tribunal’s file. In particular, each party provided a number of extracts from [the applicant] and Ms Vu’s Family Court proceedings.’
Paragraph 38
‘[The applicant] tendered an extract from the Family Court proceedings, including evidence from Ms Pahor, the Centre director who said that it was [the applicant] who regularly dropped off [the second respondent] at the Centre, during a period of two and a half months.’
Paragraph 41
‘Other material from the Family Court proceedings included a statement by [the applicant] dated 12 July 2001 that he had looked after [the second respondent] from 26 April 2001 to 25 June 2001 (recorded in error as 25 April 2001), and that [the second respondent] went to the Centre from 4 May 2001 to 25 June 2001.’
Paragraph 44
‘I sought assistance in coming to my decision from such contemporaneous material as was available, in particular the extracts from the Family Court proceedings which were tendered.’
Paragraph 59
‘I also had available to me of a portion of the Family Court transcript dated 17 August 2001 (Exhibit 2R4).’
It is clear that the Tribunal relied on material from the applicant and Ms Vu’s Family Court proceedings, as it was entitled to do so. It appears that the applicant himself tendered extracts from these proceedings. There is no substance to this claim by the applicant.
(e) Question of law 2(e) – bad faith
The applicant did not make any submissions in relation to this claim.
The first respondent submits:
‘This is a serious allegation in support of which the applicant has provided no evidence: see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] to [48]. There is no substance to this asserted “question of law” and the applicant has made no attempt to properly plead or prove the allegation.’
I accept the first respondent’s submissions and dismiss this claim.
(f) Question of law 2(f) – unreasonable decision
The applicant did not make any submissions in relation to this claim.
The first respondent submits:
‘In the absence of further particulars, it appears that the applicant essentially seeks to review the merits of the [Tribunal’s] decision. Accordingly, there is no substance to this asserted “question of law”.’
I accept the first respondent’s submissions and dismiss this claim.
(g) Grounds 4(a) to (f), (i) – various factual claims
The applicant did not make any submissions in relation to these claims.
The first respondent submits:
‘The applicant in these “grounds” simply recites his understanding of the history of the proceedings and, as such, are not grounds of appeal at all.’
I accept the first respondent’s submission that these assertions do not disclose any arguable errors of law by the Tribunal.
(h) Grounds 4(g) – various grounds
The applicant did not make any submissions in relation to these claims.
The first respondent submits:
‘In this ground the applicant refers to various paragraphs of the [Tribunal’s] decision which set out its factual findings, and reasons for making them. He appears to simply dispute those findings. At their highest, these grounds simply seek to review the [Tribunal’s] factual findings on their merits.
Re paragraph 45: that it was unlikely that on the day of her unexpected telephone request to the applicant, Ms Vu draft[ed], typed and signed the declaration which referred to the second respondent by a name not commonly used by her.
Re paragraph 46: that it was doubtful that Ms Vu would have told the applicant she was returning to Vietnam and was taking immediate steps for the long term care of the second respondent “at a time when she had already lodged her RRT appeal.” It is clear that the [Tribunal] was referring to Ms Vu’s appeal from the RRT decision of 15 March 2001 – see paragraph 30 of the [Tribunal’s] decision. The applicant appears to have misunderstood a reference to the “RRT appeal” to be a reference to the RRT’s decision.
Re paragraphs 47 and 48: the [Tribunal’s] comparison of the applicant’s inconsistent evidence at paragraphs 47 to 48.
Re paragraph 49: The applicant appears to assert that it was not relevant for the [Tribunal] to have regard to whether Ms Vu had returned to Vietnam, and raises evidence he thinks was important for resolving the issue before the [Tribunal]. It is clear that the [Tribunal] was again comparing his inconsistent evidence. It is a matter for the [Tribunal] as to what weight to give to evidence before it.
Re paragraph 50: The applicant appears to claim that the Centrelink records were done by Centrelink staff and he did not know “what they did on the computer”. The [Tribunal] did not accept that all those entries on those business records were errors, a finding which was open to it.
Re paragraph 51: that he had a written or oral agreement for the care of the child, yet the [Tribunal] notes it was on his own evidence that the second respondent occasionally stayed overnight with Ms Vu.
This ground is without substance.’
I accept the first respondent’s submission that these assertions do not disclose any errors of law by the Tribunal.
(i) Ground 4(h) – applicants limited financial means
The applicant submitted orally:
‘As regards [the Tribunal’s] allegation that I gave untruthful evidence but I don’t know what untruthful evidence I have given. You know my family is in great hardship, you know I have three children all together and my wife is unemployed and so, my family consists of five members and is only making $700 fortnightly.
So in that circumstance, if I am forced to repay the debt and well, I would be in very desperate situation and that is it.’
The first respondent submits:
‘The applicant simply disputes the [Tribunal’s] comment in paragraph 63 [of its Reasons for Decision] about his apparent ability to finance a recent overseas trip. This ground is without any substance.’
I accept the first respondent’s submission that this assertion does not disclose any error of law by the Tribunal.
ORDERS
It follows that the application must be dismissed, with costs.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.
Associate:
Dated: 28 September 2004
Solicitor for the Applicant:
The applicant appeared in person
Solicitor for the Respondent:
Australian Government Solicitor
Date of Hearing:
6 September 2004
Date of Judgment:
28 September 2004
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