Huynh, V.C. v Secretary to the Department of Social Security

CATCHWORDS

APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

- Famlly

Allowance - children living in Vletnam - 'custody, care and

control'.

Social Security Act

1947 (Cth) ~ ~ . 6 ( 1 ) ,

6(1A)

Administrative Appeals Tribunal Act 1975 (Cth) s.44

VAN CONG HUYNH V .

SECRETARY, DEPARTMENT OF SOCIAL SECURITY

NSW G622 Of 1986

Davies J.

27 October 1987

Sydney

IN THE FEDERAL COURT OF AUSTRALIA	)
1

NEW SOUTH WALES DISTRICT REGISTRY

No. G622 of 1986

)

DIVISION

GENERAL

)

On Appeal from the General Admlnistratlve

Division of the Administative Appeals Tribunal

BETWEEN :

VAN CONG HUYNH

Applicant

AND :

SECRETARY,

DEPARTMENT OF SOCIAL

SECURITY

Respondent

CORAM :

Davies J.

DATE

27 October 1987

PLACE :

Sydney.

MINUTES OF ORDER

THE COURT ORDERS

THAT:

1. The appeal be dismissed.

NOTE :

Settlement and entry of orders is dealt with l n

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

) )

NEW SOUTH WALES DISTRICT REGISTRY

)

No. G622 of

1 9 8 6

GENERAL DIVISION

)

On Appeal from the General Administrative

Division of the Administative Appeals Trlbunal

BETWEEN: VAN

CONG

HUYNH

Appllcant

AND :

SECRETARY,

DEPARTMENT OF SOCIAL

SECURITY

Respondent

CORAM :	Davies J.
DATE :	27 October 1987
PLACE :	Sydney.

REASONS FOR JUDGMENT

This is an appeal from a declsion of the

Administrative Appeals Tribunal which affirmed

a decislon

cancelllng the entitlement of the applicant, Mr Van Cong

Huynh, to family allowance with respect to three of

his

chlldren who reslde in Vletnam with their mother, Mr Huynh's

wife.

2 .

I need not deal with the facts at any length.

After

the unification of Vietnam in 1975, Mr Huynh was sent to a

re-education centre and was retained there €or three years.

During this time, the two eldest children stayed with

Huynh's parents in Sadet while the two younger children stayed

with their mother at her parent's residence

in Vlnh Long.

Upon Mr Huynh's release, the family was reunited and for a

number of years lived in Mr Huynh's home village of Sadet.	A
fifth child was born there In 1981.

In 1983 Mr Huynh and his two eldest

children fled

Vletnam by small boat arriving in Australia on 5 October 1983. Mr Huynh's wife and three younger children remained in Vietnam because of the danger of the voyage and it was hoped that they

would be reunited. Since

that time, however, Mr Huynh's wife

and three youngest children

have been unable to obtain permits

entitling them to leave Vletnam.

In October 1984,

Mr Huynh's wife and the three

younger children attempted

to flee from Vietnam

but were

arrested. The children were retained in custody for one month and then released to the parents of their mother.

Mr Huynh's

wlfe was kept in custody for approximately 12

months.

Since Mr Huynh's escape from Vietnam, and sub~ect

the periods of custody, the three younger children and their mother have resided with her parents. Mr Huynh has sent ,

3 .

regular parcels of medicine and goods at a cost of

$1,000.00

to $1.200.00 per annum.

Mr Huynh has kept in constant

communication by post with his wlfe

and his directlons have

been sought wlth respect to all matters

of signlficance so far

as the children are concerned. The Tribunal held:-

"There can be no doubt that he 1 s a concerned and

caring father doing the very best he can to

ultimately bring about a reunification of the

family in Australia."

The Tribunal found that Mrs Huynh and the chlldren were

substantially supported by the applicant but that they have recelved some support from Mr Huynh's family and hls wife's family in Vietnam.

In Secretary to the Department of Social Security

Ho,

delivered this day, I have examined the criteria for entltlement

to a family allowance.

I need not repeat my remarks. The

crucial expression, which

now appears in s . 6 ( 1 ) of the Soclal

Securlty Act 1947 (Cth) ("the Act")

but previously appeared in

s . 9 5 ( 1 )

thereof, is "custody, care and control".

Since the

coming into operation of the relevant provisions

of Act No. 9 5 of

1 9 8 5 ,

on 5 September 1 9 8 5 ,

there has also been the requlrement

contalned in s . 6 ( 1 A )

of the Act that the claimant for the

allowance should have the rlght to have and to make decisions

concerning the daily care and control of the child.

It 1s not

necessary in thls appeal to examine those criterla separately. In

Secretary to the Department of Social Security

Ho, I polnted

out that they look to the factual circumstances

of the case

rather than to legal entitlement

and that a person may receive a

famlly allowance in respect of a child only if that person has the responsibility for the welfare of the chlld and undertakes the child's care and control. In brief, family allowance 1s an

allowance provided for the benefit of the child and it 1s to be

paid to the person who cares for the

child and has responslblllty

for the child's control and welfare.

I pointed out that this was

the view of the legislation which had been adopted in decisions

of the Administrative Appeals Tribunal including Re Ta (Hung

Manh) and Director-General of Social Security (1984)

A.L.D.

6 3 3

and Re Le V. Secretary to the Department of Social Security

(1986) 11 A.L.N. N6.

In the present case, the Trlbunal

referred to those two

decisions and expressed asslstance from the comprehensive revlew

to be found In Re Ta.

The Tribunal also referred to the

Minister's speech in support of the Bill which introduced the

expression "custody, care and control" into the Act.

This

reference was criticised by Mr I.M.

Khan, who appeared for the

applicant, but as Mr Khan did not submit that an error of law was

involved, I need not discuss the matter further.

The Tribunal expressed its view of the legislation in

these words:-

"It was intended to be a practical and comprehensive

criterion and I draw the inference that it is a

broad factual custody, care

and control rather than

a concatenatlon of narrowly construed technical, 9

legal definrtlons that

is the test required to

be applied."

That was the correct approach to the legislation and Mr Khan did not point to any statement in the reasons of the Tribunal

which showed error in this regard.

Mr Khan submitted that the

correct test was not "factual custody, care and control" but "constructive custody, care and control" (the underlining is mine). However, for the reasons stated in Secretary to the

Department of Social Security

Ho, I re~ect

that submission.

The Trlbunal expressed Its conclusion In these

terms:-

"In the circumstances of thls case such factual 'custody, care and control' does not and cannot

for the present exist.

This is most easily

tested by reference to the most critical declslon

the applicant can take, namely a decision to

bring his wife and the three chlldren to

Australia.

Whilst ever the Government of the

DRVN has not issued exit vlsas, the applicant 1 s

unable to factually resume the 'custody, care and

control' he so earnestly wants.

Factual

'custody, care and control' is in reality exercised by his wife and whilst she was imprisoned appears to have been exercised by her

parents. I readily accept that the aoplicant

contributes significantly to the maintenance of

the children, seeks

to exercise some controls

over them and is doing his very best to reunite

the family. These factors go some way towards

establishing factual 'custody, care and control'

but in the absence of any real control over

their

movement to Australia, they are insufficient in

my view to establish the reality of that

'custody, care and control'.	Provided these
other factors are maintained,	I merely express

the view that I would have no difficulty in

finding such 'custody, care and control' once the

exit visas are issued."

Mr Khan did not challenge any, save the ultimate,

finding of fact but pointed to the emphasis whlch the Tribunal

placed upon the inability of Mr Huynh to bring his wife and three

children to Australla

as he wished and to the Tribunal's

expressed view that, had exit visas been granted, the Trlbunal

would have had no difficulty in finding that Mr Huynh had the

custody, care and control of his children In Vietnam.

Mr Khan

of exlt vlsas, appeared to so dominate the Tribunal's thinking that it became the sole operative factor for the relectlon of Mr Huynh's claim to the family allowance In respect of h1s chlldren

did not submit that the geographical separatlon between Mr Huynh

and his children or the failure to obtaln exlt visas were

in Vietnam. Mr Khan submitted that the Trlbunal In the present

case did not undertake the careful survey of all the €acts of the

matter that was undertaken in Re Ta and in Re Le.

Certainly, from the point of view of consistency of

approach in the Adminlstratlve Appeals Tribunal, the Trlbunal In the present case did not approach Its task In qulte the same way

as was done in Re Ta and Re Le.

In nelther of those cases was

the same dominance given to the applicant's inabillty to obtaln

an exlt visa for his chlldren.

If, in Re Ta and Re Le, the

Tribunals had considered that factor to have the weight which the

Tribunal in the present case appears to have given to it, the

Trlbunals would no doubt have

said

so.

But this appeal is not concerned with matters of

consistency.

This is an appeal brought under s . 4 4 of the

Administrative Appeals Tribunal Act 1975 (Cth) and it is am

7 .

appeal on polnts of law. Unless an error of law is shown, ~t 1s

not for this Court to Interfere with the Trlbunal's conclusions

of fact. Provided that the Trrbunal has taken into account all

relevant factors, excluded from its consideration Irrelevant

factors and applled the correct legislative crlterla, the

decision is not one €or the intervention of thls Court.

The

welght which a tribunal gives

to particular factors is a matter

for Its own judgment, not for the ~udgment

of the Court.

Inconslstency of approach in the welghlng up of llke factors may lead to lnconslstency in decision-rnaklng and a sense of Injustice by those who are affected thereby, but it does not of itself lead to an error of law whlch will justlfy lnterventlon by thls Court.

As was pointed out in Secretary to the Department of

Social Securlty v. - Ho, the expresslon "custody, care and control" provides a factual test taklng Into account all the multitude of arrangements pursuant to which children may be found in the care

of others.

It is a test which looks not to legal custody, to

legal rights and entltlernents, but to the factual upbringing of

the child, to the

issue as to who is taking care of the chlld.

Once the legislative criteria is understood In this

sense,

and it was so understood by the Tribunal In

the present

case,

the question as to

who is the person or who are the perso

'ns

who has or have that custody, care and control is an issue of

fact, not an Issue of law.

Thus in Commissioner of Taxatlon v.

Miller (1946) 7 3 C.L.R.

93, it was held by Rich and Dixon W .

that the question whether or not a person was "resident" withln

the territories of Papua, Norfolk Island or New Gulnea within the

meaning of s . 7 of the Income Tax Assessment Act 1936 (Cth) was a

question of fact and that an appeal did not lle to the High Court

from a declsion of a Board of Review on that question unless the

facts before the Board were Incapable of the legal complexion

placed upon them by the decision. At p.101, Rich J. said:-

"There is, in my oplnion, nothing in the present

case to suggest that the question whether Miller

was a resident is other than one of degree and

therefore of fact.

In these circumstances, there

1s nothing to ~ustify

our entertaining the appeal."

At p.103, Dixon J. said:-

"Having regard to the character

of the place, I do

not thlnk that, had I been in the Board's place, I

should have regarded the facts I have stated as

leading to the conclusion that the taxpayer was a

resldent of Papua. But I am not satisfled that

their decision involved any question of law."

At p.104, his Honour said:-

"The Board have given their reasons

and no

misapprehension of the meaning of the provision In question 1s disclosed and no misconception appears as to what amounts to 'resldence' as a general

proposition. No proposition of law appears to have been in contest and no contestable propositlon of

law appears to have been assumed.

It all seems to

me to come

back to the so-called question of fact.

I am, therefore, not satisfied that the appeal lies."

In Lombardo v. Federal Commissioner of Taxation (1979)

28 A.L.R.

574, at 576, Bowen

C.J. said:-

"The position where a statute uses words

ich are

not technical was elaborated

by Jordan CJ

Australian Gas Light CO v. Valuer-General

(1940) 40

SR (NSW) 126 as fOllOwS, at

137: -

'(1)	The question what is the meaning of an

ordinary English word or phrase as used in the

statute is one of fact not of law ... Thls questlon

is to be resolved by the relevant tribunal itself,

by considering the word in its context with the

assistance of dictionaries and other books, and not

by expert evidence ... although evidence is

and the meaning of a technical legal term is a

receivable as to the meanlng of technical terms ...

questlon of law ...

(2) The questlon whether a particular set of facts

comes within the descriotion of such a word or

phrase 1s one of fact ...'

: see also FC of T v.

Broken H111 South Ltd (1941) 65 CLR

150 at 160; 2

AITR 257 at 263; and Brutus v. Cozens 119731 AC 854 at 861.

In the above situations where applicatlon of the

statute 1s clearly a question

of fact, a question

of law will only arise

if there was no evidence

support the conclusion of fact or it is obvious

from the transcript of the case that the Board has

misunderstood the law in some relevant oarticular:

Edwards (Insp of Taxes)

v. Bairstow [l9561 AC 14 at

33 per Lord Radcliffe.

On the other hand a question of law will be

involved where technical legal words must

construed before the statute can be applied to the

found facts. Also, as stated previously, where the

facts must fall clearly within or without the

statute."

Likewise in Minister for Aboriginal Affairs

Peko-Wallsend Ltd (1986) 66 ALR 299 at 308, Mason J., with whom

Gibbs C.J. and Dawson J. agreed, said, when	speaking of
administrative discretion:-

"It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the

decision-maker and not the court to determlne the

10.

appropriate weight to be glven to the matters whlch are required to be taken into account ln exerclslng the statutory power."

In Puhlhofer v. Hllllngdon London Borough Councll [l9861 1 A.C.

4 8 4 at 518, Lord Brightman, with whom the other members of the

House agreed, said:-

"Where the existence or non-existence of a fact 1s

left to the judgment and discretion of a publlc

body and that fact involves a broad spectrum

ranging from the obvious to the debatable to the

just concelvable, ~t is the duty of the court to

leave the decision of that fact to the public body

to whom Parliament has entrusted

the

decision-making power save In a case where It 1s

obvious that the public body, consciously or

unconsclously, are actlng perversely."

The Trlbunal's decislon In the present case 1s not one where the facts of the case were incapable

of supporting the

conclusion arrived at.

Indeed, the conclusion was that whlch was

arrlved at In Re Ta and In Re Le In somewhat

similar

circumstances.

The appeal has arisen from the weight given by

the Tribunal to the lack of exit visas, taken in the llght of the

Tribunal's statement that It would have found entltlement had

exit visas been granted.

The Tribunals in Re Ta and Re Le did

not give to the

lack of exit visas the same weight and I myself

would not do so.

The separation between the applicant and his

chlldren seems a more important factor.

Nevertheless, the

Tribunal was the ~ u d g e

of the facts and the weight which it gave

to relevant facts was a matter for its judgment.

The Trlbunal

took into account all relevant factors.	I see no error of law In
the Tribunal's decision.

11.

Mr Khan further submitted that the Tribunal had blindly followed Departmental policy.

However, there is no reference in

the Tribunal's decision to Departmental policy, other

than its

reference to the Minister's speech in support of the B111 whlch

introduced the relevant provisions. I am not prepared to draw

the conclusion that the Tribunal in fact followed Departmental

policy rather than conslderlng the matter in the manner described

in its reasons for decision.

Mr Khan also submitted that

the Act was welfare

legislation and should be given an interpretation appropriately. I have taken the ob~ect of the Act into account when consldering

its interpretation.

This consideration does not assist the

applicant to establish that, as a matter of practical fact,	he
had the custody, care and control of his children in Vletnam.

For these reasons, therefore, the grounds of appeal fail and the appeal will be dismissed.

I certify that this and the

preceding pages are a true copy of the Reasons for Judgment herein O E the Honourable Mr Justice Davies.

Associate: 3 +?AL

12.

Counsel for the applicant:

Mr I.M. Khan

Solicitors for the applicant:

Legal Aid Commission of N.S.W.

Counsel for the respondent:

Mr R.B.

Wllson

Solicitors €or the respondent:

Australian Government Solicitor

Date of hearing:

29 September 1987

[1987] FCA 567

27 Oct 1987