" S0DGMENT No. 3 e1yS1. CATCHWORDS APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL - Family Allowance - children living in Vietnam - 'custody, care and control'. Social Security Act 1947 (Cth) ss.6(1), 6(1A) Administrative Appeals Tribunal Act 1975 (Cth) s.44 VAN _ CONG HUYNH v. NSW G622 of 1986 Davies J. 27 October 1987 Sydney SECRETARY, DEPARTMENT OF SOCIAL SECURITY or Cm nae 4. con Fae FEDERAL COURT ALETRALIA oF PAUINCEP a REGIS IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G622 of 1986 ) ) GENERAL DIVISION On Appeal from the General Administrative 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 in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G622 of 1986 ) ) GENERAL DIVISION On Appeal from the General Administrative 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. REASONS FOR JUDGMENT This is an appeal from a decision of the Administrative Appeals Tribunal which affirmed a decision cancelling the entitlement of the applicant, Mr Van Cong Huynh, to family allowance with respect to three of his children who reside in Vietnam with their mother, Mr Huynh's wife. 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 for three years. During this time, the two eldest children stayed with Mr Huynh's parents in Sadet while the two younger children stayed with their mother at her parent's residence in Vinh Long. Upon Mr Huynh's release, the family was reunited and for a number of years lived 1n 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 Vietnam 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 Vietnam. 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 wife was kept in custody for approximately 12 months. Since Mr Huynh's escape from Vietnam, and subject to the periods of custody, the three younger children and their mother have resided with her parents. Mr Huynh has sent Py 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 wife and his directions have been sought with respect to all matters of significance so far as the children are concerned. The Tribunal held:- "There can be no doubt that he 1s 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 children were substantially supported by the applicant but that they have received some support from Mr Huynh's family and his wife's family in Vietnam. In Secretary to the Department of Social Security v. Ho, delivered this day, I have examined the criteria for entitlement to a family allowance. I need not repeat my remarks. The crucial expression, which now appears in s.6(1) of the Social Security Act 1947 (Cth) ("the Act") but previously appeared in s.95(1) thereof, is "custody, care and control". Since the coming into operation of the relevant provisions of Act No. 95 of 1985, on 5 September 1985, there has also been the requirement contained in s.6(1A) of the Act that the claimant for the allowance should have the right to have and to make decisions concerning the daily care and control of the child. It is not necessary in this appeal to examine those criteria separately. In Secretary to the Department of Social Security v. Ho, I pointed out that they look to the factual circumstances of the case rather than to legal entitlement and that a person may receive a family allowance in respect of a child only if that person has the responsibility for the welfare of the child and undertakes the child's care and control. In brief, family allowance is 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 responsibility 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) 6 A.L.D. 633 and Re Le v. Secretary to the Department of Social Security (1986) 11 A.L.N. N6. In the present case, the Tribunal referred to those two decisions and expressed assistance from the comprehensive review to be found in Re Ta. The Tribunal also referred to the Minister's speech 1n 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:- "Tt was intended to be a practical and comprehensive criterion and I draw the inference that 1t is a broad factual custody, care and control rather than a concatenation of narrowly construed technical, s legal definitions 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 1s mine). However, for the reasons stated in Secretary to the Department of Social Security v. Ho, I reject that submission. The Tribunal expressed its conclusion in these terms:- "In the circumstances of this case such factual 'custody, care and control' does not and cannot for the present exist. This 1S most easily tested by reference to the most critical decision the applicant can take, namely a decision to bring his wife and the three children to Australia. Whilst ever the Government of the DRVN has not issued exit visas, the applicant 1s 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 applicant 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 which the Tribunal e placed upon the inability of Mr Huynh to bring his wife and three children to Australia as he wished and to the Tribunal's expressed view that, had exit visas been granted, the Tribunal would have had no difficulty 1n finding that Mr Huynh had the custody, care and control of his children in Vietnam. Mr Khan did not submit that the geographical separation between Mr Huynh and his children or the failure to obtain exit visas were irrelevant factors but he submitted that the one factor, the lack of exit visas, appeared to so dominate the Tribunal's thinking that it became the sole operative factor for the rejection of Mr Huynh's claim to the family allowance in respect of his children in Vietnam. Mr Khan submitted that the Tribunal in the present case did not undertake the careful survey of all the facts of the Matter that was undertaken in Re Ta and in Re Le. Certainly, from the point of view of consistency of approach 1n the Administrative Appeals Tribunal, the Tribunal in the present case did not approach its task in quite the same way as was done in Re Ta and Re Le. In neither of those cases was the same dominance given to the applicant's inability to obtain an exit visa for his children. 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 Tribunals would no doubt have said so. But this appeal is not concerned with matters of consistency. This is an appeal brought under s.44 of the Administrative Appeals Tribunal Act 1975 (Cth) and it is am appeal on points of law. Unless an error of law 1s shown, it 15s not for this Court to interfere with the Tribunal's conclusions of fact. Provided that the Tribunal has taken into account all relevant factors, excluded from its consideration irrelevant factors and applied the correct legislative criteria, the decision is not one for the intervention of this Court. The weight which a tribunal gives to particular factors 1s a matter for 1ts own judgment, not for the judgment of the Court. Inconsistency of approach in the weighing up of like factors may lead to inconsistency in decision-making and a sense of injustice by those who are affected thereby, but it does not of itself lead to an error of law which will justify intervention by this Court. As was pointed out in Secretary to the Department of Social Security v. Ho, the expression "custody, care and control" provides a factual test taking 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 entitlements, but to the factual upbringing of the child, to the 1ssue as to who is taking care of the child. 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 persons who has or have that custody, care and control is an issue of fact, not an issue of law. Thus in Commissioner of Taxation v. Miller (1946) 73 C.L.R. 93, it was held by Rich and Dixon W. that the question whether or not a person was "resident" within the territories of Papua, Norfolk Island or New Guinea 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 lie to the High Court from a decision 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 1S, 1n my opinion, nothing 1n 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 justify our entertaining the appeal." At p.103, Dixon J. said:- "Having regard to the character of the place, I do not think 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 resident of Papua. But I am not satisfied 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 'residence' as a general proposition. No proposition of law appears to have been in contest and no contestable proposition 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 which are not technical was elaborated by Jordan CJ in 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 ... This question 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 receivable as to the meaning of technical terms ... and the meaning of a technical legal term is a question of law ... (2) The question whether a particular set of facts comes within the description of such a word or phrase 1s one of fact ...': see also FC of T v. Broken Hill South Ltd (1941) 65 CLR 150 at 160; 2 AITR 257 at 263; and Brutus v. Cozens [1973] AC 854 at 861. In the above situations where application of the Statute 1s clearly a question of fact, a question of law will only arise if there was no evidence to 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 particular: Edwards (Insp of Taxes) v. Bairstow [1956] AC 14 at 33 per Lord Radcliffe. On the other hand a question of law will be involved where technical legal words must be 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 v. 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:- "Tt follows that, in the absence of any statutory indication of the weight to be given to various considerations, it 1s generally for the e decision-maker and not the court to determine the 10. appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power." In Puhlhofer v. Hillingdon London Borough Council [1986] 1 A.C. 484 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 public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it 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 is obvious that the public body, consciously or unconsciously, are acting perversely." The Tribunal's decision 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 which was arrived 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 light of the Tribunal's statement that 1t would have found entitlement 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 children seems a more important factor. Nevertheless, the Tribunal was the judge of the facts and the weight which it gave to relevant facts was a matter for its judgment. The Tribunal took into account all relevant factors. I see no error of law in e the Tribunal's decision. ll. Mr Khan further submitted that the Tribunal had blindly followed Departmental policy. However, there 1s no reference in the Tribunal's decision to Departmental policy, other than its reference to the Minister's speech in support of the Bill which introduced the relevant provisions. I am not prepared to draw the conclusion that the Tribunal in fact followed Departmental policy rather than considering 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 object of the Act into account when considering 1ts 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 Vietnam. For these reasons, therefore, the grounds of appeal fail and the appeal will be dismissed. I certify that this and the /O preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Davies. Associate: J G-eddo pate: 27 chet (17 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. Wilson Solicitors for the respondent: Australian Government Solicitor Date of hearing: 29 September 1987