Van Sy Ha v Minister for Immigration and Ethnic Affairs

[1996] FCA 777

IN THE FEDERAL COURT OF AUSTRALIA                  ) 
  )  
NEW SOUTH WALES DISTRICT REGISTRY                 )  No NG 152 of 1996
  )  No NG 153 of 1996  GENERAL DIVISION  )     

BETWEEN:  VAN SY HA  

Applicant

AND:  MINISTER FOR                   IMMIGRATION & ETHNIC   AFFAIRS

Respondent

Coram:           Davies J.
Date:              21 August 1996
Place:              Sydney

REASONS FOR JUDGMENT

These proceedings brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and under the Migration Act 1958 (Cth), seek orders of review with respect to a decision of the Immigration Review Tribunal ("the Tribunal") made on 24 January 1996. I have ordered that the two proceedings be consolidated so that there need only be one order of the Court.

I do not find it necessary to consider whether this is a matter in respect of which proceedings could be brought under the Administrative Decisions (Judicial Review) Act or whether the proceedings must be brought under s. 476 of the Migration Act. I am content, in dealing with the matter, to deal with it on the footing that the question before the Court is that found in s. 476(1)(e) of the Migration Act, which states:

"476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

...

(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

..."

The application to the Court did not express it to be an application under s. 476, but that is a mere matter of amendment and I treat the application as being under that section. As I have said, I do not find it necessary to decide whether the jurisdiction of the Court lies under the Migration Act or under the Administrative Decisions (Judicial Review) Act.

The application is brought by Mr Van Sy Ha for review of a decision by the Tribunal refusing his daughter, Thi My Tram Ha, a transitional (permanent) visa under provisions of the Migration Act which came into effect on 1 September 1994 pursuant to the Migration Reform Act 1992 (Cth). Under reg.23 of the Migration Reform (Transitional Provisions) Regulations, the application for review of the decision of the Minister for Immigration & Ethnic Affairs ("the Minister") made on 23 August 1994, was to be dealt with by the Tribunal under the criteria which applied when the original application for the visa was made. These criteria were found in the provisions for a Class 101 (child) visa set out in the Migration (1993) Regulations ("the 1993 Regulations") as follows:

"101.32  Criteria to be satisfied at time of application (visa - before entry)

101.321  The applicant is:

(a)        either:

(i)the natural child of an Australian citizen or an Australian permanent resident; or

(ii)...; and

(b)a dependent child of the Australian citizen or Australian permanent resident referred to in subparagraph (a)(i) or (ii).

101.322  The applicant is sponsored by a person who:

(a)        has turned 18; and

(b)        is an Australian citizen or an Australian permanent resident; and

(c)        is either:

(i)the Australian citizen or Australian permanent resident referred to in paragraph 101.321 (a) or (b), as the case requires; or

(ii)        ...

101.33  Criteria to be satisfied at time of decision (visa - before entry)

101.331The sponsorship referred to in clause 101.322 has been approved by the Minister and is still in force.

101.332The applicant satisfies public interest criteria 4001 to 4004 and 4007 to 4009.

...

101.334  If so requested by the Minister, an assurance of support in relation to the applicant has been given, and has been accepted by the Minister.

...

101.338The applicant continues to satisfy the criterion specified in clause 101.321."

Regulation 1.3 of the 1993 Regulations defines "dependent child" as follows:

"`dependent child' means the natural or adopted child of a person (other than a child who is a spouse or engaged to be married), being a child:

(a)who:

(i)         has not turned 18; and

(ii)is wholly or substantially in the daily care and control of that person; or

..."

At the time the original application was made, Miss Ha was living with one of Mr Ha's brothers in Vietnam and, since 1994, has been living with another of his brothers
in Vietnam.  The principal question before the Tribunal, which it answered negatively to Mr Ha, was whether his daughter was "wholly or substantially in the daily care and control" of Mr Ha, both at the time when the application for a visa was lodged and when the original decision was made. 

In determining whether there is an error of law of the type specified in s. 476(1) of the Migration Act, it is sometimes found that an error has been expressly stated in the reasons of the tribunal.  On other occasions, however, although the law is stated correctly, it can appear from the reasons of the tribunal that there must have been an error involving the interpretation of the law and/or in the application of the law to the facts. 

There were, I think, four factors in the present case from which such an implication could be drawn.  The first is that there was no sufficient reference in the Tribunal's reasons to authorities, including authorities of this Court, on the meaning of the expression "daily care and control" or on the meaning of the analogous expression, "custody, care and control" which is found in the social security legislation.  I shall refer to this matter in more detail.   Secondly, there was, I think, no sufficient statement of the facts which could be put in favour of the applicant's case.   Thirdly, there was a discussion of the onus of proof by the Tribunal and a statement referring to a lack of satisfaction of this onus.  Finally, there were one or two specific matters mentioned in the decision which may indicate that there was an error of law in the Tribunal's reasoning.

The Tribunal referred to the decision of the Administrative Appeals Tribunal in Re Ta and Director-General of Social Security (1984) 6 ALD 633. That was a case
where a father had sought a family allowance in respect of three children who were in Vietnam living with his wife.   Mr Ta had come to Australia with a son and was seeking to bring his wife and other children to Australia, but at the time when he sought a family allowance, he had been unable to achieve that result.  The Administrative Appeals Tribunal, constituted by Deputy President A.N. Hall, found against the applicant, holding in effect, very much as the Tribunal has done in the present case, that the children were in the "custody, care and control" of the mother and that the fact that they were receiving support from the father and that he was in communication with them was not sufficient to constitute "custody, care and control."  This approach was also followed by an Administrative Appeals Tribunal in which I presided in Re Le and Secretary, Department of Social Security (1986) 11 ALN N6. 

However, that approach did not find favour with Full Courts of this Court, of which the most important decision, for present purposes, is Van Cong Huynh v Secretary, Department of Social Security (1988) 18 FCR 402, in which a Full Court, in overruling a decision of my own, held that the Administrative Appeals Tribunal had made an error of law. The facts were, again, not too dissimilar to the facts of the present case. A Vietnamese man had fled the country leaving behind his wife and three children. He continued to support them by sending parcels of medicine and goods, he communicated regularly with them and he gave directions in respect of matters of significance so far as the children were concerned, but he was unable to arrange the necessary exit visas so that they could leave Vietnam and join him in Australia.

The Administrative Appeals Tribunal, presumably following the same approach as had been adopted in cases such as Re Ta and Re Le, rejected his claim for family allowance.   The Full Court, constituted by Sheppard, Morling and Burchett JJ, thought that approach to be wrong and remitted the matter for reconsideration.  Their Honours considered that the fact that the family was divided and that the father could not be with the children was not in itself a sufficient reason for finding that the father did not have "custody, care and control" of the children.  At 412 Burchett J said:

"The Act [the Social Security Act 1947 (Cth)] should be construed against the background of the various and complex problems created by mass migration, often of people with very limited resources, and often of political refugees and fugitives from civil war, persecution or invasion. It cannot be supposed that Parliament used the general language found in s 96 (5) with the intention that it should apply to a multiplicity of reasons for the delay of reunion of a family, but not to one of the most tragic and most common. It seems to me that if children are left by a migrant with some person, whether it be (as in this case) the mother, or some other person, who accepts custody, care and control, on behalf of the migrant and acknowledging his right to custody, care and control of the child, the fact that it is not possible for the child to be brought to Australia as at the time the application for family allowance is made is no bar in law to the application..."

Since that time, an approach more generous than that which I had considered to be appropriate has been adopted. Two examples of decisions of the Administrative Appeals Tribunal, both of which were presided over by Purvis J, are Re Van Vy Vu and Secretary, Department of Social Security (1989) 17 ALD 192 and Re Quan Hue Huynh v Secretary, Department of Social Security (1989) 17 ALD 395. In those cases, the facts were of the same general character as they are in the present case.

I have not sought to go through all the cases of the Immigration Review Tribunal and the Administrative Appeals Tribunal on this topic.  I have only looked at a few, but what has struck me is that there are cases in which the facts as presented by the applicant in the present case have been found to be sufficient to justify a finding of "custody, care and control" for the purposes of the social security legislation.  The
approach taken under the Migration Act should, if anything, be more generous.  The Migration Act, of course, is dealing with a situation where the parent is in one country and the child is in another. 

I do not propose to discuss any distinction that might be drawn between the words "custody, care and control" in the social security legislation and the words "daily care and control" as used in the 1993 Regulations, but I think it is clear enough that the expression "daily care and control" was adopted in the light of the exposition of the meaning of "custody, care and control".  Very much the same sort of factors are taken into account in dealing with both.

The ultimate question is a question of fact and it is not for the Court to say whether or not Mr Ha had "daily care and control" of his daughter.  That is a question for the decision-maker or tribunal of fact.  However, I think it would certainly have been proper for the Tribunal to look at the expression in the light of the decisions which have examined the meaning and operation of the comparable provision in the social security legislation.  "Daily care and control" has specifically been considered in this Court by Morling, Beaumont and Burchett JJ in Secretary, Department of Social Security v Field (1989) 25 FCR 425 and by O'Loughlin, Lindgren and Sackville JJ in Jankovic v Minister for Immigration & Ethnic Affairs (1995) 56 FCR 474.

In the light of these authorities, the word "daily" does not, I think, mean that there must be a close physical association between the applicant for the visa and the parent.  "Daily" is used rather more as a distinction between periodical or intermittent care and control and the ongoing control which obviously the regulation has in mind. 

I also do not wish to say anything about the words "wholly or substantially."  They were dealt with in Jankovic and, whether or not the words were satisfied in this case is, in the end, a question of fact. 

One matter the Tribunal in the present case did not deal with, and which was considered in many of the cases to which I have referred, is that of delegation, ie, delegation by the person who is alleging "custody, care and control" or "daily care and control" of functions of another person who has the more immediate physical control of the child.  Delegation was discussed in a decision of the Administrative Appeals Tribunal, Re A and Director-General of Social Security (1984) 5 ALN N489.  The words of Senior Member Clarkson and Mr I. Wilkins in that case were subsequently cited by Deputy President Hall in Re Ta.  The Deputy President also considered what was said in a decision of Re Parks and Director-General of Social Security (1984) 6 ALN N274. The concept of delegation was referred to in several later cases, including the decision of the Full Court in Van Cong Huynh.  I have cited what Burchett J had to say in relation to it.  Another decision, in which delegation was accepted in a different context is Re B (An Infant) [1964] Ch 1. Buckley J at page 7 said:

"Was there at any time during the relevant period anyone other than the applicant who effectively controlled any aspect of the child's life and, if so, was such control exercised and enjoyed with the consent and authority of the applicant or otherwise?  During the applicant's periods of duty Mr. and Mrs B. have, or one of them - and doubtless it has usually been Mrs B. - has had the physical care and control of the child and been obliged to make the constant transient decisions which are involved in looking after and controlling a small child.  This function, however, has been performed on the applicant's behalf and in consequence of arrangements made by her."

Those comments were made in a case where an unmarried mother and nurse had lived in a hospital and had left her child on an average four days and five nights a week with
a married couple nearby and the question was whether the child was "continuously in the care and possession of" the mother. 

Those are all cases to which, I think, the Tribunal might have had regard.  Indeed, in interpreting a difficult expression such as "daily care and control" I am of the opinion that the Tribunal ought to have looked to those decisions and others like them to obtain instruction as to the proper meaning of the expression.

The next point is that there was no sufficient statement of the facts in the Tribunal's reasons.  The Tribunal said:

"It was the Applicant's evidence that the Principal [Miss Ha] was born out of wedlock in 1981 as the result of a relationship with a woman (`Nga') he had met in 1979.  The birth certificate stating the Applicant as the natural father has since been authenticated by the relevant authority in Vietnam through the kind assistance of the Australian Consulate-General's in Ho Chi Minh City.  The Applicant was in a `re-education camp' from early 1981 until his escape in October that year.  He told the Tribunal that he had only seen his daughter once, just before he left Vietnam for Hong Kong in December 1981 when she was bout [sic] five months old.  In July 1983 the Applicant arrived in Australia.  He was married in 1986 but did not tell his wife about the Principal until 1990.  The Applicant and his wife have two children.

The Principal's mother Nga was married in 1984 and has since had four children.  The evidence suggests that, for economic reasons, it was decided that the Principal should go and live with her father's side of the family.  There was also some suggestion that the Applicant [sic] was not well treated by her step-father.  Accordingly, in 1990 she moved in with one of the Applicant's brothers in Danang and lived there until around June 1994 when she moved to Saigon to live with another uncle.  The Applicant told the Tribunal that since 1990 he has been sending funds back to Vietnam to support his daughter.  In this regard there is ample evidence to indicate that the funds were sent through friends or relatively [sic] travelling to Vietnam.  On one occasion his wife had brought back some money when she returned to Vietnam to see her mother who was ill.

The Principal told the Tribunal that he talks to his brother regularly about his daughter's progress in school.  As well he and his daughter also correspond and talk on the telephone from time to time.  Letters and copies of telephone accounts have been tendered in support."

That was not the substance of the case as it was put on behalf of the applicant.  The substance of the case was put in a letter from the firm of E.J. Harris, Solicitors, to the Immigration Review Tribunal dated 5 June 1995 which stated, inter alia:

"I am further instructed that in 1990 Mr Van Sy Ha was advised by his brother Mr Thanh Minh Ha that he had been informed by Tram's mother, Mrs Thi Nga Nguyen, that she could no longer afford to care for her and she expressed the wish to have Tram be looked after by someone from Mr Ha's side of the family as she and her present husband already had four of their own.

Upon receipt of such advice Mr Ha asked his brother, Mr Thanh Minh Ha, to look after his daughter on his behalf and he would provide the moneys for all her expenses.  On the 22nd November 1990 Mr Ha sent to the said brother an amount of Five Thousand US Dollars (USD 5,000.00) via the agent called Hong Hoa at 8 Old Town Plaza, Bankstown.  The receipt of which is enclosed.  (It was a common practice at that time that the Vietnamese overseas sent their moneys to their relatives in Vietnam via the black market and the currency to be used for the conversion in Vietnam was US Dollars only).  In addition, on the 12th December 1990 Mr Ha's wife, Thi Lanh Le, on her husband's behalf brought with her an amount of Two Thousand Dollars ($2000.00) and gave them to Mr Thanh Minh Ha for Tram's expenses and schooling during her visit in Vietnam.

Mr Ha could not attend to the sponsorship promptly as he had been advised by his brother that an application for migration to Australia for Tram could not be processed and approved by the local authority as she had not been permanently registered in the family registration book of her uncle."

The case as put was that, in 1990, Mr Ha's daughter went to live with Mr Ha's brother by arrangement with Mr Ha.  Previously, she had been living with her mother.  Because of financial problems, or perhaps because of the relationship between the girl and her stepfather, it had been thought desirable that she should leave her mother's household and should join her father's family.  By arrangement, then, Miss Ha went to live with her uncle, Mr Ha's brother.  The arrangement between Mr Ha and his brother was the type of arrangement which, in accordance with the authorities I have mentioned, would be likely to be regarded as a delegation.

Mr Ha took over the financial responsibility for his daughter and the evidence before the Tribunal, and which the Tribunal accepted, was that there were, in 1990, two sums which were paid, one of $5,000 and one of $2,600, and that subsequent substantial sums were paid thereafter.  The payment of such large sums in 1990 is quite strong evidence that Mr Ha's daughter went to live with his brother by arrangement with Mr Ha and that Mr Ha undertook responsibility for her.

The letters in evidence also support the case that was put that Mr Ha had responsibility for his daughter and that this was understood.  There is a letter to him from his  daughter of 12 December 1994 which added the following PS:

"Dad, can I have for once a birthday party which will be filmed for memory at Uncle Hoa's place?  It's all right if you don't want it, that is only my wish; if OK, let me know my exact date of birth so that I can ask Uncle and Aunty to organise it for me."

It is only a minor point, but it is illustrative of a daughter regarding her father as authoritative.  Another letter to Mr Ha from his daughter dated 5 May 1995 shows that the moneys received from Mr Ha were important, and reads, inter alia:

"Until recently uncle Hoa had been receiving money from you very regularly but this month he got the money very late.  So please check with the people through whom you send money to us.  If money came late then uncle would be in difficulty in paying all the bills for my school, my clothes, my musical and English classes as well as dancing class etc..."

As to contact, there are in evidence many phone accounts of Mr Ha, going back at least to early 1992, which detail phone calls from Australia to Vietnam.  Counsel for the respondent, Ms R.M. Henderson, said that we do not know for certain that the numbers called were made to Mr Ha's brother and his daughter.  However, I think that this inference could readily be drawn.  The interest which was expressed by the brother in relation to keeping contact is shown in a letter from him to Mr Ha of 5 June 1995 which relevantly reads:

"When necessary you can ring me on the old number or the followings:

* 018.753.104 which is Mr and Mrs Diep's phone and leave a message for me, tell them that our names are Hoa and Lan, our address is Child care centre, creek 1, State-run-farm of An Ha.

* 753.103 which is Mr Phuong and Mrs My's phone (Electronic Repaire Services) and leave a message for me.

If you wish to talk to little Tram, you should ring between 10AM to 1PM or between 6PM to 10PM on every sundays.

In urgent situations you can ring me any time except the period between 11PM and 4AM Viet Nam time because the people who own the phone would be sleeping between those hours.

I intended to get the telephone service connected at my place due to the fact that the cost has been dropped as low as 5,000.000. Dongs (Vietnamese currency).  But I haven't got it yet because I want to spend money for other things which are much more needed."

As I have said, it is not the function of the Court to make a decision, but it seems to me that the facts which have been put are as strong as the facts which resulted in favourable decisions in the cases I have mentioned.

The third point I raised was that the Tribunal referred to the question of onus of proof.  I find this surprising as it seems to me not to be a case where onus had any particular relevance.  The facts were proved insofar as they could have been proved,  evidence was given by people in Australia who produced such records as they could produce and all persons who would have been expected to be called as witnesses were called.  In these circumstances I would have thought that the question of onus would not have arisen and that the Tribunal would decide whether, on the facts, Mr Ha had "daily care and control" of his daughter or he did not.

The Tribunal referred to McDonald v Director-General of Social Security (1984) 1 FCR 354. In that case, Woodward J, at 356-7, discouraged the use, by tribunals, of the concept of onus of proof. At 357 his Honour said: "It would probably be more convenient to avoid using that expression in cases such as the present." It seems to me that the case before the Tribunal was not a case in which onus of proof was of any
particular significance.  It was for the Tribunal to make up its mind on the ultimate point and I am left troubled by the space which the Tribunal gave to the concept, particularly since it did not set out the facts as, in my view, they ought to have been set out.

Finally, there are two passages in the Tribunal's reasons which may suggest that the Tribunal was looking for something which, I think, does not arise from the words "daily care and control".  First is the following sentence to which counsel for the applicant, Mr R.B. Wilson, referred:

"The requirement should therefore be read down having regard to the purpose of the legislation which is clearly to facilitate close family reunion particularly with dependent child/children of Australian citizens or permanent residents (see the relevant Procedures Advice Manual)."

Secondly, there is a passage which reads:

"Until she moved in with her uncle in 1990 when she was about nine years old she has had no contact with her father.  The Tribunal is unable to find persuasive evidence to indicate that the Applicant had made attempts at being reunited with his daughter before then.  Indeed it was not until December 1993 that the sponsorship was signed.  When asked why he did not take steps to sponsor his daughter to Australia any sooner the Applicant said that she was not a part of his brother's family then."

The fact that Mr Ha had no contact with his daughter before 1990 may be relevant to the issue in question, but really only as background information.  The claim was made by reference to the fact that, in 1990, the daughter left the mother's home and moved to live with the father's family and it was at that time, on the applicant's case, that he assumed "daily care and control" of his daughter.  It is of little significance that, prior to that time, the daughter had lived with and had been supported by her mother. 

There have been other cases in which tribunals have thought that some particular factor was either favourable or adverse to the question of care and control.  In Secretary
to the Department of Social Security v Van Luc Ho (1987) 17 FCR 582, a decision of the Administrative Appeals Tribunal was set aside because, again in relation to a Vietnamese man who had left his wife and seven children behind in Vietnam, it had declared the question to be "ultimately, whether he has retained parental sovereignty and autonomy". It was pointed out by myself in that case that one should apply the words of the applicable legislation and one should not substitute for them some other words or concept of the tribunal's choosing. In Jankovic, it was also emphasised that one should apply the words of the legislation and not other words or other concepts. 

So, in the present case, although I think that the relationship with the child prior to 1990 was not totally insignificant, as the question was whether the daughter was in her father's care and control at the time of the application and of the decision, what had happened at an earlier stage, before she went to live with her uncle, was really of no significance. 

The factors I have discussed above lead me to conclude that there was a misunderstanding by the Tribunal of the proper meaning of the expression "daily care and control".  For that reason, I think the decision should be set aside.  The matter will be remitted for rehearing.  I would not wish the Immigration Review Tribunal to think that anything I have said is an indication as to how the matter should be decided.  The question is a question of fact, once the words of the regulation are given their proper meaning, and that question of fact is a matter for the Immigration Review Tribunal.  It can arrive at its determination after hearing further evidence if it wishes to have some further facts before it which were not before the previous Tribunal. 

I shall not incorporate in my decision any specific order that the matter go back to an Immigration Review Tribunal differently constituted but, of course, the practice is that once a tribunal has given a decision, then, if the matter is remitted for rehearing, it will be heard by a differently constituted tribunal.  Otherwise, the principles of natural justice would not be complied with.  This does not reflect in any way upon the first Tribunal, it is simply a practice which insists that the matter go back to a person who has an entirely fresh mind about it. 

The order of the Court will be that the decision of the Immigration Review Tribunal is set aside and the matter remitted for hearing and determination again, with or without the hearing of further evidence.  I order that the respondent pay the applicant's costs.

I certify that this and the 14 preceding pages
are a true copy of the reasons for judgment herein of
the Honourable Justice Davies.

Associate:

Date:  21 August 1996

Counsel for the applicant:  R.B. Wilson

Solicitors for the applicant:  E.J. Harris Solicitors

Counsel for the respondent:  R.M. Henderson

Solicitor for the respondent:  Australian Government Solicitor       

Date of hearing:  21 August 1996

Date of judgment:  21 August 1996