Do v Registrar of Births, Deaths and Marriages
[2023] VSC 200
•20 April 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 04046
| QUAN SY DO | Appellant |
| v | |
| REGISTRAR OF BIRTHS, DEATHS AND MARRIAGES | First Respondent |
| THI HAI VAN KIEU | Second Respondent |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 March 2023 |
DATE OF JUDGMENT: | 20 April 2023 |
CASE MAY BE CITED AS: | Do v Registrar of Births, Deaths and Marriages |
MEDIUM NEUTRAL CITATION: | [2023] VSC 200 |
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APPEAL – Application for leave to appeal and appeal of VCAT decision – Whether the deceased and the second respondent were in a ‘domestic relationship’ – Whether the Tribunal applied the correct definition of ‘domestic relationship’ – Whether the phrase ‘domestic relationship’ has a common meaning beyond its various definitions in the legislation and regulations – Whether the Tribunal had regard to irrelevant considerations – Whether decision open – Births, Deaths and Marriages Regulations 2008 reg 5 – Relationships Act 2008 (Vic) s 35.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J Levine | Maciel Pizzorno & Co Lawyers |
| For the First Respondent | Mr L Brown (Crown Counsel for the State of Victoria) and Ms J Kretzenbacher | Victorian Government Solicitor |
| For the Second Respondent | Ms K J Le Faucheur | Nguyen Do Lawyers |
TABLE OF CONTENTS
A. Introduction.................................................................................................................................. 1
B. The meaning of ‘domestic relationship’.................................................................................. 2
B.1The regulatory definition...................................................................................................... 2
B.2What meaning was the Tribunal required to apply?....................................................... 5
C. Did the Tribunal err in law?...................................................................................................... 7
C.1Did the Tribunal apply the correct definition (Grounds of Appeal 1 to 4)?................. 7
C.2Did the Tribunal err in its approach when it concluded that the deceased and Ms Kieu were a ‘couple’?............................................................................................................................. 8
C.3Did the Tribunal have regard to irrelevant considerations or fail to have regard to mandatory relevant considerations when concluding that the deceased and Ms Kieu were in a ‘domestic relationship’?...................................................................................................................... 11
C.3.1The finding that recognition of a domestic relationship was symbolic (Ground of Appeal 5)................................................................................................................. 11
C.3.2 The failure to apply for a partner visa (Ground of Appeal 6)........................... 11
C.4Did the Tribunal make findings that were not open on the evidence?....................... 12
C.4.1The sexual relationship (Ground of Appeal 7)................................................... 12
C.4.2Ms Kieu and the deceased would be living together (Ground of Appeal 8). 14
C.5 Did the Tribunal wrongly impose an onus on Mr Do Jnr (Grounds of Appeal 10 to 12)? 15
D. Disposition.................................................................................................................................. 16
HIS HONOUR:
A. Introduction
Mr Sy Tinh Do died on 30 May 2018. The Registrar of Births, Deaths and Marriages determined, and recorded on the death certificate, that the deceased was in a ‘domestic relationship’ with Ms Thi Hai Van Kieu, the second respondent, at the time of death. Quan Sy Do, the appellant, who is the deceased’s son, disputes that this is so. I will refer to the appellant as Mr Do Jnr. Mr Do Jnr applied to the Victorian Civil and Administrative Tribunal (‘the Tribunal’) for a merits review of the Registrar’s decision. The Tribunal was satisfied that Ms Kieu and the deceased were in a ‘domestic relationship’, as that term is defined in the Births, Deaths and Marriages Registration Regulations 2008, and affirmed the Registrar’s decision. Mr Do Jnr has now applied under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 for leave to appeal against the Tribunal’s decision. Any appeal, if leave be granted, is limited to an appeal on a question of law. The matter proceeded on the basis that any appeal, if leave were granted, would be determined with the application for leave.
Determining whether the deceased and Ms Kieu were in a domestic relationship required the Tribunal to form an opinion that required a degree of value judgment and impression. The finding, ultimately, was a finding of fact. So long as the Tribunal did not misdirect itself, had regard to the relevant considerations and was not influenced by irrelevant considerations, and the opinion formed was reasonably open, the conclusion cannot be challenged as an error of law.
Mr Do Jnr’s principal argument was that the Tribunal misdirected itself as to the meaning of ‘domestic relationship’. He also contended that the Tribunal erred in law by having regard to irrelevant evidence, failing to have regard to relevant evidence, in the making of various factual findings, and by (he says) erroneously imposing an onus on him.
In relation to the meaning of ‘domestic relationship’, Mr Do Jnr contended the Tribunal erred by applying the definition in the Births, Deaths and Marriages Registration Regulations 2019 rather than the definition in the Relationships Act 2008, or by applying the definition in the Births, Deaths and Marriages Registration Regulations 2019 without regard to the provisions of the Relationships Act 2008, Part IV of the Administration and Probate Act 1958 and/or the (repealed) Part IX of the Property Law Act 1958 and the cases that have considered the concept of a ‘domestic relationship’ where used in those Acts.
B. The meaning of ‘domestic relationship’
B.1 The regulatory definition
The Births, Deaths and Marriages Registration Act 1996 requires the Registrar of Births, Deaths and Marriages to maintain a register of, among other things, deaths.[1] Other than requiring the Register to contain ‘the particulars’ of a death, the Act does not identify what detail the Register is required to record relating to a death, although it provides that the Register may contain information ‘if its inclusion is considered appropriate by the Registrar’.[2] A funeral director who arranges for the disposal of human remains must give the Registrar a notice specifying ‘any prescribed particulars’.[3] The Birth, Deaths and Marriages Registration Regulations 2008 set out the particulars that a funeral director was required to specify. Until they were amended in 2016, to which amendments I will return, the regulations relevantly required only that the notice specify ‘the marital status of the deceased’.[4]
[1]Births, Deaths and Marriages Registration Act 1996 (Vic) s 34.
[2]Ibid s 41.
[3]Ibid s 39(1).
[4]Births, Deaths and Marriages Registration Regulations 2008 (Vic) reg 9(1)(i).
In 2008, the Relationships Act 2008 was enacted in order ‘to establish a relationships register in Victoria for the registration of domestic relationships and caring relationships’.[5] Section 35(1) of the Relationships Act 2008 defines ‘domestic relationship’ as follows:
[5]Relationships Act 2008 (Vic) ss 1(a) and 4.
domestic relationship means—
(a) a registered domestic relationship; or
(b)a relationship between two persons who are not married to each other but who are living together as a couple on a genuine domestic basis (irrespective of gender); or
(c)the relationship between two adult persons who are not married to each other but are a couple where one or each of the persons in the relationship provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a relationship in which a person provides domestic support and personal care to the other person—
(i) for fee or reward; or
(ii) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);
Section 35(2) of the Relationships Act 2008 sets out what is to be considered, at least for the purposes of that Act, in determining whether a domestic relationship exists or has existed. It provides as follows:
(2)In determining whether a domestic relationship (other than a registered domestic relationship) exists or has existed, all the circumstances of the relationship are to be taken into account, including any one or more of the following matters as may be relevant in a particular case—
(a) the degree of mutual commitment to a shared life;
(b) the duration of the relationship;
(c) the nature and extent of common residence;
(d) whether or not a sexual relationship exists;
(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
(f) the ownership, use and acquisition of property;
(g) the care and support of children;
(h) the reputation and public aspects of the relationship.
In 2016, the Births, Deaths and Marriages Registration Regulations 2008 were amended by the Births, Deaths and Marriages Regulations (Registration of Deaths) Regulations 2016. Instead of requiring a funeral director to give notice of the ‘marital status’ of the deceased, a funeral director was required to give notice of the ‘relationship status’ of the deceased.[6] This required the funeral director to give notice of whether the deceased was in a ‘domestic relationship’.[7] The phrase ‘domestic relationship’ was defined in reg 5 of the Births, Deaths and Marriages Registration Regulations 2008 as follows:
[6]Births, Deaths and Marriages Registration Regulations 2008 (Vic) reg 9(1)(i).
[7]See the definition of ‘relationship status’ in reg 5 of Births, Deaths and Marriages Registration Regulations 2008 (Vic).
In these Regulations –
...
domestic relationship means
(a) a registered domestic relationship; or
(b) the relationship between 2 adult persons who are not married to each other but are a couple where one or each of the persons in the relationship provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether they are living under the same roof, but does not include a relationship in which a person provides domestic support and personal care to the other person-
(i) for fee or reward; or
(ii) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);
In 2019, the Births, Deaths and Marriages Registration Regulations 2008 were repealed and replaced by the Births, Deaths and Marriages Registration Regulations 2019. The 2008 regulations applied when Mr Do Snr died and the funeral director gave notice to the Registrar and the Registrar made an entry in the register. The 2019 regulations applied when the Tribunal, standing in the shoes of the Registrar, made its decision. In accordance with s 58(3) of the Victorian Civil and Administrative Tribunal Act 1998, a decision of the Tribunal in a merits review is deemed to have had ‘effect from the time at which the original decision under review has or had effect’. There is room for argument as to whether, strictly, the Tribunal was required to apply the 2008 regulations (as amended) or the 2019 regulations. However, the definitions of ‘domestic relationship’ are the same in both the 2019 regulations and the 2008 regulations (as amended) and so it doesn’t matter which set of regulations is considered. I will refer below to the 2008 regulations, but the same reasoning process would apply also under the 2019 regulations.
B.2 What meaning was the Tribunal required to apply?
Mr Do Jr’s central submission was that the term ‘domestic relationship’ where it appears in the Births, Deaths and Marriages Registration Regulations 2008 should have the same meaning across the different legislative regimes and that it should be given a ‘natural and ordinary meaning’ that requires consideration of matters beyond those contained in the definition: even if the relationship met the definition in the regulations, it was necessary for the Tribunal to ‘step back’ and consider the ‘quality’ of the relationship and whether it amounted to what one would ordinarily think of as a domestic relationship.
I disagree. The phrase was defined in the Births, Deaths and Marriages Registration Regulations 2008 in a way that was expressed to apply in all circumstances, rather than, for example, as one sometimes sees, applying ‘unless the context otherwise requires’.[8] Further, I do not accept that the phrase ‘domestic relationship’ has a natural or ordinary meaning in the same way that, say, ‘boyfriend’ or ‘girlfriend’ or even ‘couple’ and ‘partner’ have. But more fundamentally, the term is defined in different ways in different parts of different legislation. That should not be seen to be a mistake. The clear legislative intention is that the term have its defined meaning in those areas where a particular definition applies, rather than that it have some type of composite meaning across all the different legislative regimes. As examples:
[8]See, eg, Interpretation of Legislation Act 1984 (Vic) s 18; Administration and Probate Act 1958 (Vic) s 56; Children, Youth and Families Act 2005 (Vic) s 3 (definition of ‘contact’).
(a) First, the definition of ‘domestic relationship’ contained in s 35(1) of the Relationships Act 2008, set out in para 6 6 above, is said to apply ‘in this Part’, that is, in Part 3.2 of that Act, headed ‘Relationship agreements’. That Part deals with agreements that provide for ‘financial matters’ between persons in a domestic relationship. Putting to one side a ‘registered domestic relationship’, the definition has a set of criteria in para (b) and an alternative set of criteria in para (c). Section 35(2) sets out a number of matters to be taken into account under both. Para (b) of the definition of ‘domestic relationship’ covers persons who are ‘living together as a couple on a genuine domestic basis’. Para (c) of the definition can apply even if people are not living ‘under the same roof’. It is not necessary further to explore the differences between paras (b) and (c) of the definition, other than to observe that, it may be assumed, there will or may be situations where one but not the other would apply. By way of contrast, the definition of ‘domestic relationship’ contained in reg 5 of the Births, Deaths and Marriages Registration Regulations 2008 is expressed to apply in those Regulations (and not more broadly), and it includes an equivalent of para (c) of the definition in s 35(1) of the Relationships Act 2008 but not an equivalent of para (b) of that definition. Nor does it include an equivalent of s 35(2) of the Relationships Act 2008.
(b) Next, there is a different definition of ‘domestic relationship’ contained in s 39(1) of the Relationships Act 2008. That definition is expressed to apply in that Part, that is, Part 3.3, that is headed ‘Property and maintenance’. The definition in s 39(1) of the Relationships Act 2008 has an equivalent to para (b) of the definition in s 35(1), but no equivalent to para (c) of the definition in s 35(1) and, again, no equivalent to s 35(2).
(c) Finally, s 3(1) of the Administration and Probate Act 1958 has a definition of an ‘unregistered domestic partner’ which is similar, but not identical, to the criteria in para (b) of the definition in s 35 of the Relationships Act 2008. The definition in the Administration and Probate Act 1958 is in the following terms:
unregistered domestic partner of a person who dies means a person (other than a registered domestic partner of the person) who, although not married to the person—
(a)was living with the person at the time of the person's death as a couple on a genuine domestic basis (irrespective of gender); and
(b)either—
(i)had lived with the person in that manner continuously for a period of at least 2 years immediately before the person’s death; or
(ii)is the parent of a child of the person, being a child who was under 18 years of age at the time of the person's death.
The fact that the same term, or a similar term, is defined in different ways in different legislative instruments, or in a different way within the same legislative instrument, indicates that the term is to be given the meaning set out in the relevant definition where that definition applies. It does not reveal a legislative intention to harmonise all the definitions and to ensure that the term has the same meaning across each legislative instrument. To interpret the definitions in that way would be against the legislative intention, not in furtherance of it.
In these circumstances, I conclude that the Tribunal was required to consider and to apply the definition of ‘domestic relationship’ contained in reg 5 of the Births, Deaths and Marriages Registration Regulations 2008 (and now in reg 5 of the Births, Deaths and Marriages Registration Regulations 2019) in accordance with the terms of that definition. I reject Mr Do Jnr’s submission that the Tribunal was required in some way to apply some broader concept of a ‘domestic relationship’ either in substitution for the defined meaning, or in addition to it.
C. Did the Tribunal err in law?
C.1 Did the Tribunal apply the correct definition (Grounds of Appeal 1 to 4)?
It is convenient to set out again the definition in reg 5 of the Births, Deaths and Marriages Registration Regulations 2008 (and now in reg 5 of the Births, Deaths and Marriages Registration Regulations 2019):
domestic relationship means
(a) ...
(b)the relationship between 2 adult persons who are not married to each other but are a couple where one or each of the persons in the relationship provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether they are living under the same roof, but does not include a relationship in which a person provides domestic support and personal care to the other person—
(i) for fee or reward; or
(ii)on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);
The Tribunal identified the question it had to answer in the following terms:[9]
[9]Footnote omitted.
[121]Based on the text of regulation 5, the question is whether, at the time of his passing:
• Mr Do Snr was in a relationship with Ms Kieu, but they were not married;
• they were ‘a couple’; and
• either or both provided personal or financial commitment and support of a domestic nature for the material benefit of the other.
[122] I do not need to be satisfied that they were living under the same roof.
[123] It is also clear that I am not required to consider each of the matters identified in section 35 of the Relationships Act 2008 (Vic), or necessarily take into account ‘all of the circumstances of their relationship’, although — to the extent those considerations are not inconsistent with the matters indicated in the preceding paragraphs — I consider they may be useful indicators as to the characterisation of the relationship that existed between Ms Kieu and Mr Do Snr at the relevant time.
The above is, with respect, a concise and accurate summary of what the Tribunal had to decide. The Tribunal did not misdirect itself as to the test that had to be applied.
C.2 Did the Tribunal err in its approach when it concluded that the deceased and Ms Kieu were a ‘couple’?
The Tribunal expressed its findings as follows:
[138]Based on the evidence, I am satisfied and find that, as at 30 May 2018, Ms Kieu and Mr Do Snr:
(a) were in a relationship, namely they were engaged to be (but had not yet) formally married;
(b) were a ‘couple’ in that the relationship between them was both romantic and sexual; and
(c) each provided personal or financial commitment and support of a domestic nature for the material benefit of the other.
Mr Do Jnr relied on this paragraph to submit that the Tribunal erred by basing its conclusion that Ms Kieu and the deceased were a couple based only on the facts that the relationship between them was both romantic and sexual. If that is what the Tribunal did, it would have erred because the concept of two persons being a ‘couple’ must involve matters beyond that.
However, para 138(b) of the reasons should not be read in isolation and when the reasons are read as a whole it is apparent that the Tribunal did not limit itself in the way alleged. The Tribunal had earlier set out Mr Do Jnr’s submission that the deceased and Ms Kieu were not a ‘couple’ for reasons including that they lived in different countries, had no strong financial or emotional links, had no common property, that the deceased had no intention of forming a ‘common household’ with Ms Kieu, and that Ms Kieu entered a new relationship shortly after the death of the deceased.[10] The Tribunal was not persuaded by these matters. The Tribunal had regard to the evidence relating to their relationship and made findings of fact in which it, in essence, accepted the evidence led by Ms Kieu and rejected much of the evidence led by Mr Do Jnr to the effect that the relationship was ‘contrived’. It is apparent that the Tribunal had regard to many aspects of their relationship in order to conclude that the deceased and Ms Kieu were a ‘couple’. For example:
[10]Do v Registrar of Births, Deaths and Marriages (Review and Regulation) [2021] VCAT 1125, [97], [99].
(a) The Tribunal referred to the fact that the deceased and Ms Kieu were engaged to be married;[11]
[11]Ibid [138](a).
(b) The Tribunal referred to the evidence that Ms Kieu had converted to Catholicism,[12] and that on 11 February 2018 she and the deceased underwent a ‘religious wedding ceremony’ in Hanoi;[13]
(c) The Tribunal concluded that a letter written by the deceased on 14 June 2017 to the Australian Department of Immigration and Border Protection was ‘an accurate statement [by the deceased] about the development of his relationship with, and feelings for, Ms Kieu at that point in time’.[14] The Tribunal included this letter as an appendix to its decision. The letter set out the strong feelings that the deceased had for Ms Kieu, stated that they spoke often on the telephone when they were not in the same country, that they had travelled together extensively when he visited her in Vietnam, that he had met her friends and family, that they had ‘promised to be faithful with each other like one husband one wife, dividing and bearing family responsibility and support each other when happy or sad, dividing responsibility about money in our common lives, rental, electricity, water, gas and all other necessary expenses to live without regard for the strength to earn money’[15] and that they had ‘decided to love and support, live together and look after each other in our remaining lives’; and
(d) The Tribunal accepted that the deceased and Ms Kieu were in the process of trying to find a suitable place where they could live at the time of the deceased’s death.[16]
[12]Ibid [43].
[13]Ibid [44].
[14]Ibid [135].
[15]A minor typographical error has been corrected in this quotation.
[16]Ibid [135] (para 4).
For this reason, I reject Mr Do Jnr’s submission that the Tribunal erred in law when it concluded that the deceased and Ms Kieu were a ‘couple’.
I note that Mr Do Jnr relied on the decision of Daly AsJ in White v Hume,[17] where her Honour applied Jonah v White[18] to conclude that a domestic relationship had to have ‘the necessary degree of mutuality’,[19] in support of his submission that the concept of ‘domestic relationship’ went beyond the precise wording of the definition. Daly AsJ was concerned with the definition of a ‘domestic relationship’ in s 35(1) of the Relationships Act 2008 in the context of an application for a property settlement and maintenance after a relationship had ceased. The definition is set out in paras 6 and 7 above. Section 35(2)(a) expressly refers to ‘the degree of mutual commitment to a shared life’ as a matter that may be relevant. Accordingly, her Honour’s approach was consistent with her applying the statutory definition before her, rather than her Honour imposing some additional flavour to the term. There is nothing in her Honour’s approach which is inconsistent with the conclusions I have drawn above.
C.3 Did the Tribunal have regard to irrelevant considerations or fail to have regard to mandatory relevant considerations when concluding that the deceased and Ms Kieu were in a ‘domestic relationship’?
C.3.1 The finding that recognition of a domestic relationship was symbolic (Ground of Appeal 5)
[17][2013] VSC 95.
[18](2011) 258 FLR 236.
[19][2013] VSC 95, [46]-[47].
The Tribunal observed that ‘the recognition of a person as a domestic partner of a deceased is effectively symbolic’.[20] It was not suggested that this statement was incorrect, in the sense that the recognition was conclusive of any particular legal rights (although Mr Do Jnr submitted that it could, conceivably, give rise to some form of estoppel). Rather, Mr Do Jnr submitted that the Tribunal erred in law by having regard to that fact.
[20]Ibid [120].
I do not accept that the lack of legal consequences of a finding of a ‘domestic relationship’ is an irrelevant consideration in the sense that having regard to the lack of legal consequences means that the decision was reached unlawfully.[21] The legal consequences of a finding would ordinarily be a context in which the findings have to be considered. In any event, I am satisfied that the Tribunal would have reached the same conclusion even if it had not observed, effectively in passing, that the recognition of a person as a domestic partner was ‘effectively symbolic’.[22]
[21]Cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40; Sinclair v Triposid Constructions Pty Ltd [2013] VSC 722, [21] (Emerton J).
[22][2021] VCAT 1125, [120].
C.3.2 The failure to apply for a partner visa (Ground of Appeal 6)
Ms Kieu had not applied for a ‘partner visa’. Her failure to do so was a factor that might have indicated that she was not in a domestic relationship. However, for a decision to be set aside on the basis that a particular matter was not considered, that particular matter must be a matter that the legislature required to be considered as a condition of the lawful making of that decision.[23] The legislature did not require that the decision maker have regard to a person’s visa status, or visa intentions, in deciding whether they were in a domestic relationship. Accordingly, even if Ms Kieu’s failure to apply for a ‘partner visa’ was a fact that could have been used in assessing whether she was in a domestic relationship, the failure to have regard to that fact was not an error of law.
[23]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40.
In any event, the Tribunal accepted Ms Kieu’s evidence on the relationship between her and the deceased and their intentions. In those circumstances, I am not satisfied that the failure on her part to have applied for a ‘partner visa’ could have led to a different conclusion.
C.4 Did the Tribunal make findings that were not open on the evidence?
C.4.1 The sexual relationship (Ground of Appeal 7)
The Tribunal found that the relationship between Ms Kieu and the deceased was ‘both romantic and sexual’. Mr Do Jnr accepted that Ms Kieu had said in oral evidence that they had a sexual relationship. He argued, however, that that piece of evidence should not have been admitted by the Tribunal. His submission was that:
(a) Ms Kieu did not give any evidence of a sexual relationship in her witness statement, which was adopted by her in her evidence in chief;
(b) He did not cross-examine on the point, and so evidence of a sexual relationship was not able to be adduced in re-examination; and
(c) He had objected to the question that led to the answer that there had been a sexual relationship, and the Tribunal had in substance upheld his objection, with the result that the evidence given was not evidence upon which the Tribunal could rely.
As I read the transcript, the question that led to the answer of a sexual relationship did arise out of cross-examination. Counsel for Mr Do Jnr put to Ms Kieu that she was ‘not in a de facto relationship’ with the deceased.[24] Ms Kieu said she did not accept that. Her answer was:
No, I don’t accept it because we already had a wedding in church and as Catholics, the wedding in church is very important. In April 2017 ... he already convinced me to – and I – we stayed together in Vietnam.
[24]Transcript of hearing of 24 August 2021 before Member Tang, page 30 of 89.
In re-examination, Ms Kieu was asked to explain what she meant by ‘staying together’. The Tribunal, over objection, allowed the question. Ms Kieu said that: ‘I went to stay together with him in a hotel and we had a sexual relationship’. Ms Kieu then started to mention ‘following trips’, but the Tribunal prevented her from doing so.
In my view, putting to someone that they were not in a de facto relationship opens up the scope for that person to respond in terms of whether or not they were in a sexual relationship and if the answer is unclear it is permissible to clarify the evidence in re-examination. Accordingly, the Tribunal was correct to permit Ms Kieu to give the answer she did in re-examination and was entitled to act upon it to conclude that Ms Kieu and the deceased had a sexual relationship.
Mr Do Jnr submitted, contrary to the above, that the Tribunal did in fact uphold his objection and that the evidence, reflected in the transcript, was in fact excluded. That is not how I read the transcript. Rather, I read the Tribunal’s cutting off of Ms Kieu’s evidence following her statement of their sexual relationship as being the Tribunal preventing her from going further, rather than indicating that what she had already said was not to be received in evidence. This is because there had previously been an objection made by counsel for Mr Do Jnr about Ms Kieu expanding upon events in subsequent trips, about which she was not asked questions in cross-examination, and that objection had been upheld. The Tribunal permitted the question as to what Ms Kieu had meant when she had said in answer to a question put in cross-examination that they had ‘stayed together’ in April 2017, but did not permit her to go further.
The situation, then, was that the evidence established that Ms Kieu and the deceased had had a sexual relationship in April 2017, but was silent as to whether or not that sexual relationship had continued. Even if that were the only evidence, in my view that would justify the Tribunal’s finding that the relationship between them was ‘both romantic and sexual’. It would also be open, in my view, for the Tribunal to infer, in the absence of any evidence to the contrary, that the sexual relationship had continued, particularly in circumstances where Mr Do Jnr had objected to Ms Kieu giving evidence of what had happened in subsequent trips.
There were also in evidence various hotel receipts suggesting that Ms Kieu and the deceased had shared rooms. These were in the Tribunal book, the documents of which, the Tribunal ruled, could be relied upon even if not referred to in a witness statement of the object of oral evidence. Mr Do Jnr objected to the Tribunal relying on them on the grounds that it would be unfair to him given that they were not referred to in the applicant’s case and he did not cross-examine on them, and because there was no evidence as to their nature and effect. However, it is to be recalled that the Tribunal is not bound by the rules of evidence but is entitled to inform itself on any matter as it saw fit.[25] It has not been submitted, and probably it could not be submitted, that in this respect Mr Do Jnr was denied procedural fairness. In my view, these records provided further support, if further support were needed, for the Tribunal’s finding that the deceased and Ms Kieu had a sexual relationship.
[25]Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(1).
For the above reasons, it was not an error of law for the Tribunal to conclude that Ms Kieu and the deceased had a relationship that was both romantic and sexual.
C.4.2 Ms Kieu and the deceased would be living together (Ground of Appeal 8)
Ms Kieu and the deceased were not living together at the time of his death. The Tribunal found that the deceased and Ms Kieu ‘intended to formally marry and then live together’ and that they ‘intended to live together in rented accommodation’.[26] There was evidence, accepted by the Tribunal, that the deceased had been looking for a place where they could live together. The Tribunal stated:
Mr Do Jnr’s evidence is that his father did not intend to live with Ms Kieu after she arrived in Australia and he had found her room in a boarding house to live in. This is inconsistent with the evidence given by his own witness, Mr Ho, that his father had asked for help in locating a two to three bedroom house for him and Ms Kieu (and her son) to live in. I prefer the evidence of Ms Kieu’s son that Mr Do Snr took him and his mother to visit properties around Maidstone, which is consistent with Mr Ho’s evidence about the assistance he was asked to provide…
[26][2021] VCAT 1125, [139](a), (f).
Mr Do Jnr submitted that ‘there was no evidence at all upon which VCAT could have reasonably made a finding that [the deceased and Ms Kieu] would be living together in the foreseeable future.’ His counsel did not identify where in the reasons the Tribunal had made a finding that the deceased and Ms Kieu ‘would be’ living together. In my view, this ground of appeal is without substance. The evidence, and the finding, was that they wanted to live together, had looked for a place where they could live together, but had not yet found a place where they could live together. That finding was open, and a matter to which the Tribunal could have regard. A ‘domestic relationship’ may be found ‘irrespective of ... whether they are living under the same roof’.[27] There was no statutory requirement that the Tribunal be satisfied, and the Tribunal did not form a view on, whether they inevitably would be living together ‘in the foreseeable future’.
[27]Births, Deaths and Marriages Regulations 2008 (Vic) reg 5 (definition of ‘domestic relationship’).
C.5 Did the Tribunal wrongly impose an onus on Mr Do Jnr (Grounds of Appeal 10 to 12)?
Mr Do Jnr’s fundamental contention was that the relationship between his deceased father and Ms Kieu was ‘contrived’ for the purpose of achieving a visa for Ms Kieu. In the course of discussing this submission, the Tribunal stated:
[125]... I do not consider that the Registrar or Ms Kieu bear any particular onus. Rather, I need to be satisfied as to the existence (or otherwise) of the domestic relationship on the balance of probabilities.
[126] However, because Mr Do Jnr’s assertion that any relationship between Ms Kieu and his father was ‘contrived’ is a serious allegation that could give rise to criminal charges under the Migration Act 1958 (Cth), I consider it is a matter which needs to be proved to my reasonable satisfaction, rather than ‘by inexact proofs, indefinite testimony, or indirect references’.[28]
[28]Citing Briginshaw v Briginshaw (1938) 60 CLR 336.
Mr Do Jnr submitted that the Tribunal ‘erred in law in holding that there was an onus of proof’ upon him.
The Tribunal later stated that it did ‘not find key aspects of Mr Do Jnr’s evidence to be credible’[29] and that:
…the account given by Ms Kieu and her witnesses is credible and well supported by the documentary evidence available. I accept that evidence.[30]
[29][2021] VCAT 1125, [135].
[30]Ibid [137].
In reaching this conclusion, the Tribunal evaluated the evidence given by the parties, and decided what evidence it preferred. The Tribunal then expressed itself ‘satisfied’ that Ms Kieu and the deceased were in a domestic relationship.
It may be that there was no ‘onus’ on Mr Do Jnr to establish that the relationship was contrived, although it is common sense that a finding to that effect would not be made unless a Tribunal were satisfied that this was so. The issue that the Tribunal had to determine was whether or not there was a domestic relationship, not whether a relationship was ‘contrived’. Ultimately, however, this ground fails because the dispute did not turn on the issue of any onus. The Tribunal made actual findings in Ms Kieu’s favour: it preferred the evidence called by her and the Registrar to the evidence called by Mr Do Jnr. It is a mischaracterisation to say that there was an ‘onus’ placed on Mr Do Jnr that was in any way relevant to the decision that was made.
D. Disposition
I will grant leave to appeal but dismiss the appeal.
I will hear the parties on the form of order and on the question of costs.
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