WODGMENT No, LE LSS. Social services - claim for family allowance by father resident in Australia of children still in Vietnam - children unable to travel to Australia because of refusal of Vietnamese Covernment ts arant cxic visas - finding by Administrative Appeals Tribunal that father excrcising a substantial degree of care and control over children from Australia - whether Tribunal's decision to refuse payment of benefit on ground that father did not have custody, care and control of children because he could not bring them to Australia disclosed an error of law. Social Security Act 1947, ss. 95, 96 Social Security and Repatriation Legislation Amendment Act 1985, 3. 124 VAN CONG HUYNH v. SECRETARY, DEPARTMENT OF SOCIAL SECURITY No. G577 of 1997 f N - =f Coram: Sheppard, Morling and Burchett JJ. . 2 52 ia Place: Cydney ESS Be} my i-s\s J 2 "SS * < Date : 20 April 1998 g I THE CEDERSAL SCURT oF NUCSTEALIC. UE SONTH WALES BISTRICT ERCICTE SENEFIL DIVISIO BETWEEN: AND: CORAM: CHEPPARD, PLACE: CYDNE? DATE : 2G AFRIL 1285 MINUTES THE COURT ORDERS THAT: - 1. The appeal be allowed. 2. The judgment of Davies J. No. G577 of 1987 wee TAN CONG HUZIH Appeliant SECRETARY, DEPARTMENT OF SOCIAL SECURITY Respondent MORLING and BURCHETT JJ. OF ORDER and the decision of the Administrative Appeals Tribunal dated 11 November 1986 be set aside. 3. The matter be remitted to the Administrative Appeals Tribunal to be heard and decided again. 1, The respondent pay the costs of the appellant of the proceedings before Davies J. and of the appeal. NSTE: Cettlement and cntr- =f the Federal Cource it) THE FEDERAL COURT OF ".UETROALIN NEW SOUTH WALES DISTRICT RECISTEY pt] ie) Oo 16)sal is) wy ra) 1o to CENERAL DIVICION BETWEEN : YAN CONG HUYNH Appeilant ANE: SECRETARY, DEPARTMENT OF SOCIAL SECURITY Respondent CORAM: CHEPPARD, MORLING and BURCHEIT JJ. DATE : 20 APRIL 1988 REASONS FOR JUDGMENT SHEPPARD J.: In this matter I have had the advantage of reading the judgments to be delivered by Morling and Burchett JJ. I agree in the orders which they propose and generally with their reasons therefor. It seems to me that the Administrative Appeals Tribunal fell into error when it failed to have regard to the provisions of s. 96 of the Social Security Act 1947 when construing s. 95 thereof. The Tribunal said that the "threshold qualification question" could not be read down or limited by the provisions of s. 96. The Tribunal also said that an applicant must be first qualified by s. 35 before consideration of the actual entitlements under s. "a" 3 can occur. But, in my respectful opinion, the Tribunal overlooked the aunflucnce which =. 96 has on the proper censtruction of 95. This conclusion led the Tribunal to treat ui the fact that the appellant had been unable, during the whole of the relevant period, to obtain exit visas for his children to leave Vietnam and come to Australia as determinative of the outcome of the appeal. In my opinion the fact that exit visas had not been issued was a relevant factor, but it was not a determinative factor. It needed to be considered along with the other matters which were the subject of findings by the Tribunal in relation to the care and control of the children, albeit from Australia, which the Tribunal found the appellant to have exercised. A mumber of Judges of this Court have said from time to time that decisions of the Tribunal are not to be read hypercritically with a view to detecting statements which may suggest errors or misunderstandings of the law. I have adopted that approach in this case. But, regrettably, I think the matters to which I have referred reflect a fundamental misunderstanding of the task which the Tribunal had with the consequence that the matter must go back for a further hearing. | certify thatthis and the — preceding page are. a true copy of the reasons for judgment herein of The Honourable Mr Justice Sheppard. A ges A Associate Dated 20 APRIL /72F IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G577 of 1987 ) ) GENERAL DIVISION BETWEEN: VAN CONG HUYNH Appellant AND: SECRETARY DEPARTMENT OF SOCIAL SECURITY Respondent CORAM: SHEPPARD, MORLING and BURCHETT JJ. DATE: 20 APRIL 1988 REASONS FOR JUDGMENT MORLING J.: This 1s an appeal from a decision of a judge of the Court (Davies J.) dismissing an appeal from _ the Administrative Appeals Tribunal. The decision of the Tribunal was given on an application for review of a decision of the Secretary of the Department of Social Security to cancel family allowance in respect of three of the appellant's children who reside in Vietnam. The Tribunal decided that the Secretary's decision should be affirmed. An appeal from a decision of the Tribunal lies only on a question of law - see s.4 of the Administrative Appeals Tribunal Act 1975. Davies J. was of the opinion that there was no error of law in the Tribunal's decision and accordingly dismissed the appeal. 2. The crucial question which arose for consideration in the Tribunal was whether, in terms of s.95({1) of the Social Security Act 1947 ("the Act") the appellant had the custody, care and control of his children in respect of whom he sought family allowance. At all relevant times s.95{1) was in the following terms: "95. (1) Subject to this Part, a person who has the custody, care and control of a child (not being a child who is an inmate of an institution) or an institution of which children are inmates 1s qualified to receive a family allowance in respect of each such child in accordance with this section." Substantially the same question arose under s.6(1) of the Act in respect of the period after amendments were made to the Act by Act No. 95 of 1985. After these amendments took effect, the right to receive family allowance was granted to a person who has a "dependent child" (s.95(1)), that expression being defined in s.6({1) as meaning a child under the age of 16 years who 1s in the custody, care and control of the person. The entitlement of the appellant to receive family benefit was afforded by transitional provisions contained in the 1985 amending Act but for present purposes it is unnecessary to consider these provisions. There was no dispute before the Tribunal as to the facts upon which the appellant's claim for family allowance fell to be determined. They are compendiously referred to in the judgment under appeal from which the following account of them 1s taken. 3. The appellant is a native of Vietnam. His wife and three of his children still reside in that country. After the unification of Vietnam in 1975 he was sent to a re-education centre where he was detained for three years. During that time some of his children stayed with his parents in Sadet, his home village. The other children stayed with their mother at her parents' residence in another town. Upon his release from the re-education centre, the appellant was united with his family and thereafter they lived for a number of years in Sadet. In 1983 the appellant and his two eldest children fled Vietnam by small boat arriving in Australia in October of that year. His wife and three younger children remained in Vietnam because of the danger of the voyage. He and his wife hoped they would be reunited. They retain that hope. However, his wife and the three youngest children have been unable to obtain permits entitling them to leave Vietnam. In October 1984, Mrs Huynh and the three youngest children attempted to flee Vietnam but were arrested. The children were retained in custody for one month and then released into the custody of their mother's parents. Mrs Huynh was kept in custody for about twelve months. Since the appellant's escape from Vietnam, his three youngest children and their mother have resided with her parents, save for periods when they were kept in custody. 4. The appellant has regularly sent parcels of medicine and goods to his family at a cost of $1,000 to $1,200 per annum. He 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 concluded that the appellant was a concerned and caring father who was doing his best to bring about a reunification of his family in Australia. It also found that the appellant's wife and children were substantially supported by him, and that they also rece1zved some support from the appellant's family and his wife's family in Vietnam. Upon these facts the Tribunal made findings which it expressed in the following terms: - "I find that the applicant has not had factual custody, care and control of his three children resident in the DRVN (i.e. Democratic Republic of Vietnam) since the time of his departure in 1983. In the absence of valid exit visas from the DRVN he is not able to resume such custody care and control, Accordingly, he has not and does not meet the threshold qualification for receipt of family allowances set by section 95(1) of the Act." In reaching its decision the Tribunal expressed the view that the reference in s.95(1) of the Act to "custody, care and control" was a reference to factual, rather than constructive custody, care and control. Adopting this approach, it affirmed the Secretary's decision to cancel payment of family allowance to the appellant because although he contributed significantly to the maintenance of his children and was doing his best to be reunited with them, he had no real 5. control over their movements. In 1ts reasons the Tribunal said: "In the circumstances of this 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 decision the applicant can take, namely a decision to bring his wife and the three children to Australia. Whilst ever the Government of Vietnam 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." Before the trial judge, counsel for the appellant did not challenge any, save the ultimate, findings of fact made by the Tribunal. The ultimate finding that the appellant did not have the custody, care and control of his three youngest children was attacked on two grounds. First, it was submitted that the finding was based upon the erroneous view that the test to be applied in determining the application was whether the applicant had the "factual custody, care and control" of the children, and that constructive custody, care and control was insufficient for this purpose. Secondly, it was submitted that the Tribunal's statement that it would have no difficulty in finding that the applicant had custody, care and control of 6. the children once exit visas were issued to them disclosed an error of law in the Tribunal's decision, It was submitted that the fact that exit visas had not been issued to the children was erroneously regarded by the Tribunal as being conclusive and that 1t fazled to determine the application by reference to a survey of all the facts as to the applicant's relationship with his children and the circumstances in which they were living. Davies J. rejected both these arguments. He reiterated the view, which he had expressed in Secretary to the Department of Social Security v Ho (Federal Court, 27 October 1987), that the criteria for entitlement to a family allowance 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. I agree with this view. It is, of course, destructive of the submission that constructive custody, care and control of a child suffices for the purposes of the legislation. Indeed, on the hearing of the appeal it was not contended that Davies J. erred in rejecting this argument. However, counsel for the appellant pressed the argument that the Tribunal had erred in law in reaching its decision. It was submitted, in effect, that it could be discovered from its reasons that it had construed s.95(1) of 7. the Act as requiring a finding that the appellant's children were not within his custody, care and control because exit permits had not been issued to them permitting them to leave Vietnam. The submission continued that when regard is had to the whole of the Act, and in particular to s.96(5), 1t 1s apparent that family allowance may be payable to a claimant whose children cannot join him in Australia because of their unabilaty to leave the country in which they are residing. It is plain that family allowance may be payable toa claimant in respect of children who are living overseas and who are experiencing difficulty in obtaining exit permits permitting them to travel to Australia. Section 96(5) contemplates that family allowance may be payable where the child to whom the claim relates 1s living outside Australia and the Director-General is satisfied that the claimant intends to bring the child to live in Australia as soon as it is reasonably practicable to do so. Moreover, s.103 of the Act fixes a period of four years during which a family allowance may be payable in respect of a child by virtue of s. 96(5). The critical question is whether the Tribunal construed s.95(1) as requiring it as a matter of law on the facts of the present case, to make a finding that the applicant did not have the custody, care and control of his children. I have come to the conclusion that there are statements in the Tribunal's reasons from which it can be inferred that it did, indeed, place this construction upon the sub-section. The Tribunal observed that "an applicant must be first qualified by 8. section 95 before consideration of actual entitlement under section 96 can occur". After recognizing that there may be a delegation by a parent of the custody, care and control of his child to a third person, the Tribunal further observed that "any such delegation presupposes the on-going possibility of restoration of direct factual 'custody, care and control'". In my opinion these observations, coupled with the Tribunal's statements that it "would have no difficulty in finding such 'custody, care and control' once the exit visas are 1ssued" and that "no entitlement could exist prior to the time that exit visas are issued" sufficiently demonstrate that it took the view that the mere inability to obtain exit visas was of itself destructive of the claim for family allowance. My conclusion that the Tribunal took this view is reinforced by the form of words used by the Tribunal in expressing its ultimate finding, viz: "I find that the applicant has not had factual custody, care and control of his three children resident in ... (Vietnam) since the time of his departure in 1983. In the absence of valid exit visas ... he is not able to resume such custody care and control. Accordingly, he has not and does not meet the threshold qualification for receipt of family allowances set by section 95(1) of the Act." I see the force of the argument that, taken as a whole, the Tribunal's reasons should be taken as conveying that there were many factors which might have supported a finding that the appellant had the custody, care and control of his children in Vietnam but that, absent their ability to obtain exit visas, it was not persuaded on the whole of the evidence a or nn 9. that such a finding should be made. But that 1s not the way in which the Tribunal expressed its conclusion. The Tribunal is an administrative body whose decisions should not be too closely scrutinized for the purpose of searching for errors of law in what may be imprecise language. However, it erroneously treated the inability to obtain exit visas as conclusively demonstrating that the appellant did not have the custody, care and control of his children. In my opinion that was an error of law. The appellant was entitled to have his application considered upon the basis that the Tribunal was not constrained to reject it by reason of the unability of his children in Vietnam to obtain exit visas. Accordingly the appeal should be allowed and the application should be remitted to the Tribunal to be determined according to law. The respondent should pay the appellant's costs before Davies J. and on appeal. I certify that this and the eight (8) preceding pages are a true copy of the Reasons for Judgment of His Honour Mr Justice Morling. Associate: u/ Counsel for applicant: D.M. Bennett Q.C. with I. Khan instructed by: John C. Cooke Legal Aid Commission Counsel for respondent: R.B. Wilson instructed by: Australian Government Solicitor Date of Hearing: 22 February 1988 Date of Judgment: April 1988 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G577 of 1987 wwe ww GENERAL DIVISION BETWEEN: VAN CONG HUYNH Appellant AND: SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY Respondent CORAM: Sheppard, Morling & Burchett JJ. DATE: 20 April 1988 REASONS FOR JUDGMENT BURCHETT J. The question on which this application turns is whether, in rejecting the appellant's case, the Administrative Appeals Tribunal gave effect to an (as the appellant contends) erroneous understanding of the law, or to a view of the facts. Similar questions not infrequently arise in appeals from the Tribunal. Because in a particular case the Tribunal reasons by stating propositions, it does not follow that they are propositions of law. See Minister for Immigration and Ethnic Affairs v. Pochi (1980) 31 ALR 666 at 683-4; Minister for Community Services and Health v. Chee Keong Thoo (unreported, Davies, Wilcox and Burchett JJ, 9 March 1988), per Davies and Wilcox JJ. at 14, per Burchett J. at 13-14. 2. In the present case, assistance 1s provided by the careful way in which the Tribunal's reasons are broken up into sections: paragraphs 1-3 are introductory, paragraphs 4-18 fall under the heading "The Facts", paragraphs 18-25 (there is a second paragraph 18) are then headed "The Law", and finally there is paragraph 26, "Findings". The propositions challenged by the appellant appear in the section headed "The Law", and in the ultimate conclusion derived therefrom. Those propositions, whether they should be characterized as propositions of law or of fact, do form the basis of the decision. Confirmation that the Tribunal not only stated them under the heading "The Law", but also did see itself as rejecting the appellant's case upon a point of law, is to be found in an observation made in the course of discussion of the facts bearing upon the extent to which the appellant's children in Vietnam are dependent upon him for their support. The Tribunal pointed to a lack of precision in the evidence, unchallenged though it was in cross-examination, and added: "In light of the view of the relevant law I have reached this lack of precision is of no real consequence." (Emphasis added.) Under the heading "The Law", the Tribunal referred to sections 95,96 and 103 of the Social Security Act 1947, as it stood until 5 September 1985, and to the amendments which applied from that date by virtue of the Social Security and Repatriation Legislation Amendment Act 1985. The particular provisions that are relevant depend on the circumstances of the case, which are very briefly outlined in what follows. (For a more full n 3. statement, I am content to accept the account given by Morling J.) The appellant fled Vietnam by boat in 1983, arriving in Australia in October of that year. He promptly completed sponsorship documents in respect of his wife and three youngest children, who had remained in Vietnam because of the notorious dangers facing those who fled by sea. He also sought payment of family allowance in respect of the three children, for whose support from the first month of his arrival in Australia he was sending substantial amounts to his wife in Vietnam, totalling from $1000 to $1,200 per annum. The allowance was paid from 15 March 1984 until 14 August 1984, as at which date it was cancelled. Since the question raised by the appeal was the entitlement of the appellant from 14 August 1984, primary attention was focused on the legislation which was in force at that time and until 5 September 1985. The amending legislation included a transitional provision designed to cover the position of persons entitled under the pre-existing law. The legislation prior to 5 September 1985 included the following provisions: Section 95 (1) "Subject to this Part, a person who has the custody, care and control of a child (not being a child who is an inmate of an institution) or an institution of which children are inmates is qualified to receive a family allowance in respect of each such child in accordance with this section. Section 96 (1) "Subject to section 104 [a provision concerned with persons employed by government stationed outside Australia, or members of the Defence Force out of Australia, or other persons usually resident in Australia but temporarily absent] a family allowance shall not be granted unless - (a) (b) (5) (6) 4. the claimant (not being an institution) - (1) ais in Australia; and (i1) if not born in Australia, has, during the period of 12 months immediately preceding the date on which the claim was lodged, had his usual place of residence in Australia; and the child in respect of whom the family allowance 1s claimed - (i) is living in Australia, whether or not he is temporarily absent from Australia; and (ii) if not born in Australia, has, during that period of 12 months immediately preceding the date on which the claim was lodged, been resident in Australia. Paragraph (1)(b) does not apply in relation to a claim for a family allowance where - (a) the child to whom the claim relates is living outside Australia; and (b) the claimant is living in Australia and the Director-General is satisfied that the claimant intends to bring the child to live in Australia as soon as it is reasonably practicable to do so. A family allowance shall not be granted or paid to a person by virtue of sub-section (5) in respect of a child for any period for which a payment, similar to a family allowance has been, or is being, paid to or in respect of that child under the law of some other country... ." Section 103(3) "Where a family allowance is payable in respect of a child by virtue of sub-section 96(5) and - (a) the child has not been brought to live in Australia within a period of 4 years commencing on the first day in respect of which the family allowance became payable; or (b) at any time within that period of 4 years, the Director-General is satisfied that the person to whom the family allowance was granted does not intend to bring the child 5. to live in Australia as soon as it is reasonably practicable to do so, the family allowance ceases to be payable." In the reasons of the Tribunal, there are also set out comparable provisions which applied after 5 September 1985. It is unnecessary to reproduce those provisions here, but reference should be made to the fact that they are affected by the terms of a transitional provision contained in the amending legislation, the Social Security and Repatriation Legislation Amendment Act 1985. Section 124(4) of that Act provides as follows:-~ "Where, immediately before the day (in this sub-section referred to as the "relevant day") on which this section comes' into operation, a family allowance under Part IV of the Principal Act was payable to a person in respect of a child (being a dependent child of the person) living outside Australia by virtue of sub-section 96 (5) of that Act as in force immediately before the relevant day, the family allowance is, subject to the Principal Act as amended and in force on and after the relevant day, but notwithstanding the amendments of that Act made by paragraphs 106(b) and (c) and section 107 of this Act, payable to the person in respect of the child if - (a) the period of 4 years commencing on the first day in respect of which the family allowance became payable has not expired; and (b) the Secretary continues to be satisfied that the person intends to bring the child to live in Australia as soon as it is reasonably practicable to do so." The Tribunal proceeded to refer to the requirement in section 95(1), that the person qualified "has the custody, care ~ Aes oe 6. and control of a child", as "" the essential threshold qualification for entitlement" which, it said, "cannot be read down or limited by the entitlement provision of section 96". That is a proposition of law, and on the face of it incorrect, since one provision of a statute can be read down or limited by the context provided by another. The Tribunal went on to discuss this "threshold question of 'custody, care and control'" in the light of the minister's speech made at the time section 95(1) was introduced, in 1947. The Tribunal described it as "a practical and comprehensive criterion", and said it must take account of delegation by a parent, as, for example, when children are sent to schools or child care centres or stay away from home on holiday. A significant comment was added: "Some other circumstances of delegation are implied in section 96(5) in relation to children living outside Australia. Yet any such delegation pre-supposes the on-going possibility of restoration of direct factual 'custody, care and control'." It was on the basis of that proposition that the Tribunal said, in the immediately ensuing sentences, that in this case "factual 'custody, care and control' does not and cannot for the present exist." The Tribunal referred to the failure of the Vietnamese government to issue exit visas. Plainly, the reasoning is that the absence of what is described as "the ongoing possibility of restoration of direct factual 'custody, care and control'", by virtue of the absence of exit visas, exposes a fatal failure to measure up to the legal requirements of section 95(1). It is in this context of a failure in "the essential threshold qualification for entitlement" because, as 7. the Tribunal sees it, a delegation of parental responsibility not inconsistent with the retention of "custody, care and control" Must be one where "the ongoing possibility of restoration of direct factual custody, care and control" continues to be present, that the Tribunal goes on to state concerning the ties shown in the present case between the appellant and the children: "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'." It seems to me that, in this context, the whole argument depends upon the Tribunal's view of the true construction of the statutory phrase. The Tribunal sees it as demanding that any parental delegation must be in circumstances preserving an immediate capacity to restore the direct parental role. An "ongoing possibility", as the expression is used by the Tribunal, is to be contrasted with a possibility which may be realized only in the future. The reasoning does not deny that exit visas will issue in the future, but insists that, whilst ever they have not issued, there is no ongoing possibility of restoration of the appellant's position in his family. That this is the Tribunal's view is confirmed by its final remarks: "Provided these other factors are maintained [i.e. provided the appellant continues to maintain the children, and exercise controls over them by correspondence, as he has been doing in such matters as decisions concerning medical treatment, education, and activities such as obtaining bicycles] I merely express the view that I would have no difficulty in finding such 'custody, care and control' once the exit visas are issued. At that time section 96(5) would become relevant so as to entitle the applicant... . Since it is my view that no entitlement could exist prior to the time that exit visas are issued the transitional provision, section 124(4) of the 8. Social Security and Repatriation Legislation Amendment Act 1985, has no relevance." There is an assumption in this passage that exit visas will be issued at some time, but until then section 96(5) 1s not regarded as relevant, and until then the Tribunal's view is that no entitlement could exist. It is because of the Tribunal's view of the narrow limits within which delegation is consistent with section 95(1) that it regards the issue, or non-issue, of exit visas as determinative of the appeal. In my opinion, there is no escaping from the conclusion that the Tribunal did indeed, as the heading under which it set out its reasoning indicates, treat the absence of exit visas as, in the circumstances, fatal to the appellant's claim, as a matter of law. At the conclusion of the Tribunal's reasons, its finding was stated as follows: "I find that the applicant has not had factual custody, care and control of his' three children resident in the DRVN [i.e. Vietnam] since the time of his departure in 1983. In the absence of valid exit visas from the DRVN he is not able to resume such custody, care and control. Accordingly, he has not and does not meet the threshold qualification for receipt of family allowances set by section 95(1) of the Act." (Emphases added) This is to treat the tie as cut even before the application for exit visas met with indefinite delay. Since it is common knowledge that some exit visas have been granted from Vietnam, 9. the Tribunal's view must mean that the vital factor is the inability to resume at will and promptly personal custody, care and control - that is, failure of what the Tribunal had earlier called "the ongoing possibility of restoration of direct custody, care and control". The question then is whether the Tribunal's construction of section 95(1) of the Act is correct. Senior counsel for the appellant points out that the ministerial speech made in 1947, to which the Tribunal referred, was made at a time when section 96(5) was not part of the Act, and at a time when the full impact of the post-war migration was still far from being reflected in the laws of Australia. The minister was concerned with questions of custody as between husband and wife. But it is quite clear that section 96(5) contemplates, as falling within the qualification stated in section 95(1), a case where a claimant is living in Australia, with a child living outside Australia who will not be coming to Australia in the immediate future. The provision obviously has migrants in mind. Section 103(3) makes it clear section 96(5) will continue to apply, although the child remains out of Australia for a period which may extend right up to the end of 4 years, unless the intention to bring the child to live in Australia as soon as it is reasonably practicable to do so is abandoned. It is important that section 103 does not make the test of termination of the allowance that it is not practicable to bring the child to Australia, but only that there is a failure of the intention to do so. It is quite possible for someone to intend 10. to do something which, objectively, is beyond his capacity. History, from Hannibal to Hitler, abounds with such intentions. If the legislative plan had been to make the continuance at all times of the possibility of bringing the child promptly to Australia the criterion, it would have been natural for Parliament to have stated the establishment of impracticability as the basis for cutting off the benefit; but it has eschewed any such test, and adopted instead a failure of intent. It is also important to note that, both in section 96(5) and section 103, the limiting phrase is "as soon as it is reasonably practicable to do so", not "as soon as reasonably practicable", which might have assumed a present capacity and related the question of reasonable practicability only to the time of the journey. The expression actually used implies that it is not reasonably practicable, or may not be reasonably practicable, for the present to bring the child to Australia, but there is an intention to do so as soon as it is reasonably practicable. The length of the period of 4 years emphasises the same point quite considerably. It is true that, if section 95(1) stood alone, it would be susceptible of a construction similar to that which the Tribunal has given it. Of course, the Tribunal asserted that it should not be construed by reference to section 96(5). However, it is a commonplace of statutory construction to take into account the setting, within the Act, in which a section appears {a good example is Brayson Motors Proprietary Limited (In Liquidation) v. The Commissioner of Taxation for the Commonwealth of Australia (1985) 156 CLR 651 at 658-660, where the context of ll. @ provision was powerful enough to wrest it away from a clear literal effect), and to permit another section to cast light upon its meaning. Section 15 of the Acts Interpretation Act 1901 provides: "Every Act amending another Act shall, unless the contrary intention appears, be construed with such other Act and as part thereof." When section 96(5) was inserted, although it is expressed in negative terms, there was plainly indicated a legislative intention that the situation which it contemplated should fall within the qualification expressed by section 95(1). Otherwise, the width of section 96(5) would say a great deal, yet signify nothing. (Cf. Grain Elevators Board (Victoria) v. President, Councillors and Ratepayers of the Shire of Dunmunkle (1946) 73 CLR 70 at 86, per Dixon J; Federal Commissioner of Taxation v. Bill Wissler (Agencies) Pty. Ltd. (1985) 16 ATR 952 at 956; Amalgamated Wireless (A/sia) Limited v. Philpott (1961) 110 CLR 617 at 624; Hunter Resources Ltd. v. Melville (1988) 77 A.L.R. 8 at 22, per Dawson J.). That it was intended to have a positive effect is also implicit in sub-section 6, which refers to a family allowance "granted or paid to a person by virtue of sub-section 5" (emphasis added), and in the opening words of section 103(3), which again speak of an allowance payable "by virtue of sub-section 96(5)". The language of those provisions shows an awareness that section 96(5) has in fact a substantial operation. The provision made by section 96(5) requires that section 95(1) be construed as referring to a person who has the custody, care and control of a child in a sense capable of application to a case where the child is living in a different country, and it is and remains not reasonably practicable for the 12. parent to bring the child to Australia for a period which may persist for a number of years. Given the significance of the problems of migration for the Australian community, the chief examples Parliament 1s likely to have contemplated relate to migrants (as 1s confirmed by Senator Guilfoyle's speech when the Senate considered section 96(5), reported in Senate Hansard for 18 Oct. 1978 at pp 1431-2, and see also House of Representatives Hansard for 28 September 1978 at pp 1524-5). Those examples must involve delegation by the parent to others willing to act on his behalf in a foreign country, and must involve that there is in practical terms a break in any ongoing capacity to restore the personal performance of the parent's functions. The Act 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 section 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 - on the contrary, it is one of the facts bringing into operation section 13. 96(5), because, if 1t were reasonably practicable to bring the child to Australia at that time, an applicant who was not doing so might not be able to show the requisite intention. If this view involves a different understanding of the words "custody, care and control" from that reached in cases where those words were construed in other contexts (such as divorce law or the law of limitations of actions), that is an insufficient reason to deny the words the meaning which the present context requires. I have therefore found it unnecessary to discuss the cases which are analysed in Secretary to the Department of Social Security v. Van Luc Ho (unreported, Davies J., 27 October 1987). Although I cannot, with respect, accept all of the reasoning in that case, as will be apparent from the foregoing, the decision is not inconsistent with these reasons. In my opinion, the Tribunal erred in law in its construction of the vital provisions of sections 95 and 96. The Tribunal itself noted that the view it took prevented it applying the transitional provision in section 124(4) of the amending Act. It is plain that the error was critical to the finding that was made, since the Tribunal said: "I would have no difficulty in finding such 'custody, care and control' once the exit visas are issued." An ultimate finding is, of course, for the Tribunal to make, provided it directs itself correctly in law. But the facts on which it must be based have been found, and were almost entirely uncontested. As senior counsel for the appellant 14. pointed out, although some questions were asked in cross-examination of the appellant, there was no challenge to the veracity of his account. According to that account, physical separation has not destroyed the mutual acceptance of the ties and responsibilities between members of the appellant's family. Immediately upon his arrival in Australia in October 1983, as has been said, he commenced sending support to his wife for the family, his wife being unable for political reasons to obtain work, except farming. In November 1983, he lodged sponsorship documents with the Department of Immigration and Ethnic Affairs. He has maintained support for his children to the extent of between $1,000 and $1,200 per annum. When one of the children suffered tonsillitis, his wife told him so by letter, and he consulted a doctor in Australia, relaying advice to his wife and sending medicines. The advice was accepted, as have been the appellant's views, also communicated to his wife by letter, in respect of the education of the children and such matters as whether a child has been permitted to obtain a bicycle. Reference was made in the Tribunal to the appellant's unjustified optimism, expressed in 1984, that his wife and children would come to Australia within a year. However, the fact is that they did attempt to flee Vietnam in late 1984, unfortunately only to be arrested. The incident at least attests the reality of the intention asserted by the appellant. His uncontradicted evidence was that such incidents have not been treated by the Vietnamese authorities as a bar to the issue of exit visas. If, at the time, it could have been said that it was impossible visas could be obtained within the period of 4 years referred to in the legislation, no doubt the respondent was in a position to adduce =~ -~ = - Wweeeee = 15. evidence of that impossibility. Not only did the respondent not do so, it was not suggested in cross-examination there was any such impossibility, though attention was drawn to the inability of the appellant to obtain the issue of visas up to the time of the hearing, or any assurance about their issue. That, of course, is a different matter, and is not at all inconsistent with the intention specified in section 96(5). On the evidence, as accepted by the Tribunal, the link between the appellant and his children in Vietnam is sustained by communication, sacrifice and the determined provision of support. It is not just a "floating bridge of dreams", to borrow the expressive phrase with which (as translated by Seidensticker) Murasaki ended the Tale of Genji. It is substantial enough, the Tribunal found, to support the existence of custody, care and control in the appellant, "once the exit visas are issued". In view of the fact that the Tribunal's rejection of the appellant's application was so explicitly put upon a point of law, as to which it erred, I have been troubled by the submission of senior counsel for the appellant that this Court should substitute a decision for the appellant. However, there may perhaps be room for a further finding of fact under section 124(4) of the amending Act. For these reasons the appeal should be allowed, and the application should be remitted to the Tribunal for determination in accordance with law. The respondent should pay the 16. appellant's costs of the appeal and of the hearing at first instance. I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. Au Associate Dated: 20 how \49% Counsel for the Appellant: Solicitor for the Appellant: Counsel for the Respondent: Solicitor for the Respondent: Date of hearing: Mr. D.M.Jd. Bennett QC Mr. I. Khan Legal Aid Commission Mr. R.B. Wilson Australian Government Solicitor 22 February 1988