Chan v Secretary, Department of Family & Community Services

The decision of the AAT 5 The appellant has not provided appeal books in this matter for the Full Court, nor even the reasons for decision of the AAT. The primary judge provided an extensive summary of the AAT's reasons in the course of his judgment and that has sufficed for the Full Court's purposes. His Honour observed that the AAT had identified two issues arising. The first was whether the appellant had been entitled to be paid PPS, PES and FTB which he received in respect of the relevant periods of time. The amounts of PPS, PES and FTB so paid to the appellant, and which the Department subsequently contended to have been paid to him without justification and therefore constituted debts owed by him to the Commonwealth, are set out by the primary judge and may be summarised as follows: s $1730.58 due to overpayment of PPS for the period from 18 June 2001 to 15 August 2001;

s $262.97 due to overpayment of PES for the period from 18 June 2001 to 15 August 2001; and

s $966.00 due to overpayment of FTB for the period from 1 July 2001 to 15 August 2001.

The Department contends that the appellant has been overpaid, yet retained, social security benefits in an amount totalling $2959.55 in the absence of any entitlement thereto. 6 Given the appellant was not entitled to receive and retain those benefits, the second issue identified by the primary judge was whether the same were recoverable by the Department as debts owing to the Commonwealth. In order fully to understand the implications of this issue, it is appropriate first to consider the legislative provisions that provide for the accrual of debts in favour of the Commonwealth and for the waiver thereof. The primary judge extracted those provisions in full and it therefore suffices to summarise them.

Statutory basis for imputation of the PPS, PES and FTB debts to the appellant in favour of the Department 7 The PPS and PES debts were said by the Department to arise and crystallise under two provisions of the Social Security Act 1991 (Cth) ('the Act'), the second whereof replaced the first during the period when the presently asserted indebtedness of the appellant to the Department was said to have accrued. Section 1224(1) of the Act originally applied to the contentious amounts, to the extent that they were paid prior to 1 July 2001 and provided that, where a social security amount is paid to a recipient in circumstances where that recipient had made a false statement or false representation, or had failed to comply with a provision of the social security law, the amount so paid constituted a debt owing to the Commonwealth. The successor provision, s 1223(1) of the Act, applied in respect of the contentious amounts to the extent paid subsequently to 1 July 2001 and provides that a social security payment made to a recipient, not entitled thereto for any reason, becomes a debt payable by the recipient to the Commonwealth. Similarly s 71(1) of A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ('the FAA Act') provides that an amount paid by way of family tax benefit to a recipient, who was not entitled to receive assistance in respect of that period, becomes a debt payable to the Commonwealth.

Statutory basis for waiver of the PPS and PES debts 8 In respect of the social security debts thus arising, s 1236(1) of the Act allows the Secretary to write off so much as is 'recoverable' by the Commonwealth in relation to a specified period of time. Pursuant to s 1236(1A), a 'recoverable debt' may be written off if the debt has become irrecoverable at law, or if the debtor has no capacity to repay the debt, or if the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor, or it is not cost effective for the Commonwealth to take action to recover the debt. Section 1236(1B) defines the circumstances when a debt is taken to be irrecoverable at law, that being the focus of the proceedings before the primary judge. Thus the Secretary has power to waive the Commonwealth's right to recover the whole or part of a debt from a debtor when any one or more of the circumstances described in ss 1237A, 1237AA, 1237AAA, 1237AAB, 1237AAC or 1237AAD (inter alia) of the Act has or have crystallised. In particular, s 1237AAD only allows the Secretary to waive his or her right to recover all or part of a debt if the Secretary is satisfied that the debt did not result wholly or partly from the debtor or another person having knowingly made a false statement or a false representation, or having failed to comply with a provision of the Act. Moreover where special circumstances (other than financial hardship alone) exist, the Secretary may exercise the s 1237AAD power to waive the Department's right to recover a debt. In the present case, it was the Secretary's view that no such circumstances permitting of writing-off applied. It appears that because of the alleged falsity of the appellant's claims for the benefits in question, any alternative factor of financial hardship should not be entertained.

Statutory basis for the waiver of the FTB debt 9 Section 97 of the FAA Act provides that the Secretary must waive the right to recover a debt when the debt is attributable solely to an administrative error made by the Commonwealth and then only when the specific conditions enumerated in subsections 97(2) and (3) are met. Error of that kind is not alleged to be the reason here for the accrual of, at least, the FTB debt.

The AAT's conclusions 10 The AAT found that, during the relevant period of time, the appellant did not have the care and control of the child. That finding was effectively determinative of the first issue, namely, whether the appellant was entitled to PPS, PES and FTB during that period of time. The AAT also found that each of the alleged debts was recoverable from the appellant and that there were no grounds available to the appellant under relevant provisions of the legislation for those debts to be waived. The primary judge summarised the findings and reasons of the AAT, at [21] to [32] of his reasons for judgment: '[21] The AAT considered documentary evidence lodged pursuant to s 37 of the [AAT Act], including extracts from [the appellant] and Ms Vu's Family Court proceedings. [22] The AAT also considered oral evidence. The AAT's Reasons for Decision noted (at [19]) that "[the appellant] and Ms Vu gave evidence and were cross-examined. I also asked them questions." [23] The AAT's findings in relation to these questions are summarised below. (a) Was the applicant entitled to PPS, PES and FTB? [24] The AAT noted (at [14]) that there was "no dispute that this [issue] turned, in respect of each type of benefit, on whether [the child] was in [the appellant's] care, and if so to what extent, and during what period." [25] The AAT set out the relevant evidence at [22] - [54] of its Reasons for Decision. [26] The AAT considered (at [21]) that the applicant and Ms Vu gave "very different accounts" of the [child's] care during the relevant periods. By way of summary, the AAT noted (at [43]) that the [appellant's] position was that he had care of the [child] from 26 April 2001 until 20 July 2001, whereas Ms Vu's evidence was that he did not. [27] The AAT noted (at [44]) that it had sought assistance from such contemporaneous material as was available including, in particular, extracts from the Family Court proceedings. However, the AAT found that "far from assisting, this material confirmed that the parties have been in dispute in relation to this very issue for quite some time." [28] At [45], the AAT noted that it had "some difficulties with some aspects of [the appellant's] evidence" and detailed the matters that led it to have these "difficulties" and "reservations" at [45] - [53] of its Reasons for Decision. [29] By contrast, the AAT considered (at [54]) that there was "some thread of consistency" in Ms Vu's evidence. [30] The AAT preferred Ms Vu's account "on the balance of probabilities". The AAT found that the [child] was not in the [appellant's] care during the period for which the [appellant] was paid PPS, PES and FTB, the benefits the subject of this application. (b) Were the respective debts recoverable? [31] The AAT found that the overpaid amounts, totalling $2959.55 are debts as defined in s 1223(1) of the Act. In the AAT's view, the only waiver which may have any application to the [appellant] is s 1237AAD. [32] The AAT found 'on balance' that the applicant did not contact Centrelink and that, therefore, relief was available (pursuant to subs 1237AAD(a)(i)) as the payments to the applicant were based on 'false representations'. Moreover, the AAT stated (at [63] - [64]): "Even [if] this was not the case, I am not satisfied that there are special circumstances that make it desirable to waive the debt [as required by subs 1237AAD(b)]. Although [the appellant] gave evidence of being of fairly limited financial means, there was no evidence of other circumstances which are 'special'. In any event, I note that [the appellant] has apparently been able to finance an overseas trip recently. For this reason I also find that [the appellant's] circumstances do not attract the benefits of section 97 of the FAA Act in relation to his FTB." For the same reason I do not consider the debts should be written off under any provision of section 1236 of the Act.' It is apparent that the AAT's decision was based upon its findings of facts and inferences to be drawn from such facts and upon its preference for the credibility of the evidence of Ms Vu, at least to the extent that it conflicted with that of the appellant. The facts thus involve a fundamental obstacle to the appellant on appeal. That has proved to be no deterrent to the appellant, whether in the proceedings conducted by the appellant in person before the primary judge, or on the present appeal.

Outline of the grounds of appeal placed before the primary judge 11 The appellant sought to raise for consideration by the primary judge six questions of law and nine so-called grounds of appeal. His Honour found that not one of those six questions should be resolved in favour of the appellant and that not one of those nine grounds of appeal had been established. Accordingly the primary judge dismissed the appeal and ordered the appellant to pay the Department's costs of the appeal. In the light of the factual findings of the AAT, the primary judge's conclusion was soundly conceived in principle and the appellant's obstacles in the way of a successful appeal virtually insurmountable. Nevertheless it is expedient in the circumstances of this appeal to recount the detail of the grounds of appeal before the primary judge and to endeavour to address the same, so far as is reasonably and adequately achievable. 12 The appellant first contended that the AAT had erred in finding that the child had resided with Ms Vu between 26 April 2001 and 20 July 2001, on the basis that there was 'no evidence' to support any such finding. The primary judge made the preliminary observation that the appellant had failed to adduce even a transcript of the AAT proceedings by way of purported substantiation of that contention. His Honour accepted the Department's submission that the AAT's findings of fact were in any event 'clearly based on the evidence before it', namely the oral testimony of Ms Vu. His Honour extracted a portion of the AAT's reasons for decision where the oral evidence both of Ms Vu and the appellant was at least paraphrased and observed that the AAT had found that Ms Vu's evidence was to be preferred to that of the appellant, since it had 'some thread of consistency' that the appellant's evidence lacked. 13 The primary judge further rejected the appellant's claim that Ms Vu's testimony was unreliable, accepting the Department's submission that the decision to accept Ms Vu's evidence and the weight to be accorded to it were matters for the AAT alone to determine. 14 The primary judge referred next to the assertion that the AAT had denied the appellant the opportunity to testify in person or to adduce additional evidence in the proceedings. The primary judge found no basis for those claims and pointed out that the same were in direct conflict with [19], and [20] to [55] of the AAT's reasons for decision, which had summarised material aspects of the appellant's oral evidence at the hearing conducted by the AAT. Furthermore, his Honour accepted the Department's submission that there was no evidence proffered by the appellant to the effect that the AAT had deprived him of any opportunity to testify personally, or to call any other witness to testify, at the hearing of the AAT proceedings. 15 The appellant claimed that the AAT member had 'cited some documents from Family Court Appeal Book, but they are not evidence'. The appellant did not particularise the documents which he asserted had not been placed in evidence before the AAT. His Honour considered each purported instance in the AAT's reasons where reliance purportedly was placed upon documentation produced in the course of the Family Court proceedings, and concluded that the AAT was entitled to have placed reliance upon those documents. His Honour observed that the appellant had tendered documents from those same proceedings. His Honour thus held that this claim also lacked substance. 16 The appellant next submitted to the primary judge that the AAT member made her decision in bad faith. The primary judge accepted the Department's submission that such an allegation was a serious one indeed, which necessarily required the support of adequate evidentiary material, which the appellant had failed to distil or identify. That claim was thus also dismissed by the primary judge. 17 Furthermore, the appellant in effect asserted to the primary judge that the AAT's decision infringed the Wednesbury principles, though yet once more in the absence of particularisation of that assertion. Understandably, the primary judge dismissed this ground. 18 His Honour concluded by addressing the various subjects of purported appeal from the AAT decision appearing under the heading of 'Grounds'. These matters involved various factual claims reflecting the appellant's recollection as to the history of the proceedings, yet once more did not constitute grounds of appeal as properly and fairly understood. The appellant referred to various passages of the AAT's decision and disputed the same. The primary judge accepted the Department's submission however that those 'grounds', at their highest, constituted merely an attempt to challenge the merits of the AAT's decision and were thus not a source of appealable legal error. Finally, the appellant contested the AAT's finding of fact that he was not in a position of financial hardship. Yet again this did not disclose or reveal any error of law on the part of the AAT. 19 In summary, the primary judge rejected each and every purported ground of the appeal raised by the appellant, concluding, in most instances, that no legal ground or basis was evinced at all by the appellant's notice of appeal and that the appellant had not established that any error of law was committed by the AAT.

The appeal to the Full Court - the appellant's failure to comply with the Court's directions 20 In written submissions, the solicitor for the Department set out a litany of instances of non-compliances and other procedural defaults or shortcomings that had attended the progress of this appeal to the ultimate hearing before the Full Court. While those matters are merely collateral to the viability of this appeal, we will record the same for completeness. 21 At the call-over of the appeal before Sackville J on 27 October 2004, the appellant was directed to file and serve five copies of an outline of submissions by no later than 4pm on a day being at least five clear working days prior to the hearing of the appeal. That did not occur. On 28 February 2005, two days prior to the hearing, the appellant filed and served purported submissions. 22 At the appointment fixed by the Registrar on 16 November 2004 to settle the index to the appeal papers, the appellant was directed by the Court to file and serve seven copies of the appeal books by 7 January 2005. That did not occur, nor was any explanation ever proffered for that non-compliance. 23 On 25 November 2004 the appellant filed a notice of motion that, in essence, sought an order that the Department be responsible for obtaining a transcript of the hearing before the AAT which, although not placed by him before the primary judge as has been earlier mentioned in these reasons, he wanted to be included in the appeal books for the Full Court. He also sought an order that the Department prepare the appeal books. The appellant's motion came before a Deputy Registrar of the Court on 30 November 2004 and was dismissed with costs. At the hearing of the appeal, the appellant was permitted to tender that transcript pursuant to the discretion conferred by s 27 of the Federal Court Act 1976 (Cth). 24 The Department submitted at the outset of the hearing of the appeal that it was open to the Full Court to dismiss the appeal on the basis of the appellant's failure to comply with directions of the Court and that it should do so, referring to s 25(2B)(bb)(i) of the Federal Court Act 1976 (Cth) (being failure to comply with a direction of the Court exercising the appellate jurisdiction). That course was said to be open to the Court because of the appellant's failure to file and serve even a single copy of an appeal book and his failure to provide the Department with written submissions five clear working days prior to the hearing before the Full Court. Despite the non-compliance with Federal Court Rules, the view of the Full Court was that it should proceed to hear the appellant's submissions, which were presented in person.

Procedural matters on the appeal 25 The notice of appeal filed by the appellant on 19 October 2004 contained 19 numbered paragraphs. In a structure similar to the notice of appeal considered by the primary judge, [2] to [13] appeared under the heading 'Grounds' and [14] to [19] under the heading 'Questions of Law'. Those paragraphs purporting to be 'Grounds' were in substance little more (if at all) than a restatement of the appellant's purported summary of facts and other contextual matters as presented to the primary judge. They largely included assertions of fact not supported by evidence and disputed by the Department. 26 Written submissions in reply to the Department's submissions were provided by the appellant on 9 March 2005, pursuant to the Court's direction made at the request of the appellant at the close of the hearing of the appeal. The reason for allowing the appellant to provide additional written submissions post-hearing was that he claimed to the Full Court that he had not been provided with a copy of the Department's outline submissions filed with the Court on 25 February 2005. When questioned as to whether the Department's written submissions had been received by post at his earlier nominated address for service, the appellant conceded that, although his formally notified address for service had subsequently been changed, he had failed to notify either the Court Registry or the Department of that change. 27 The appellant made oral submissions during the Full Court hearing as did the legal representative of the Department. The child did not appear in person, nor was he legally represented before the Full Court. No written submissions were filed on behalf of the child.

A summary of the appellant's notified grounds of appeal 28 It is next appropriate to outline the purported grounds of appeal. Paragraph [2] stated that the appellant is Cantonese and did not understand English 'well'. As the Department stated in its written submissions, that is of course not a ground of appeal. Paragraphs [3] to [9] and [11] to [12] of the notice of appeal merely set out the appellant's outline of the facts and, once more, did not constitute grounds of appeal. As was evident from his written and oral submissions made to the Full Court, the appellant was unwilling to accept that his opportunity for merits review had long since expired or that he was required to establish viable grounds of appeal according to law. 29 Paragraph 10 of the notice of appeal was framed in the following terms: 'At AAT, this case for hearing set on 16 January 2004 and 25 February 2004, but in these two days hearing, the AAT Member Ms N Isenberg only let Ms Vu gave evidence in witness box, then closed hearing, the Appellant lost the right to give evidence. The AAT Member Ms N Isenberg affirms that SSAT decision under review on 30 April 2004.' The Department submitted that '…insofar as [the ground contained in [10] of the Notice of Appeal] raises any issue for consideration of the Full Court, the first respondent notes that the assertions contained in that paragraph were dealt with by the primary judge at [47] to [52] of his judgment.' We will shortly address the grounds of appeal encapsulated in this paragraph, which were further articulated in the appellant's written and oral submissions. 30 Paragraph [13] of the notice of appeal set out the appellant's belief as to the correctness of the orders made by the primary judge and did not identify any error in his Honour's judgment. 31 Paragraphs [14] to [19] of the notice of appeal appeared under the heading 'Questions of Law'. They contained in some instances lengthy extracts from the primary judge's reasons and a number of repetitious statements. We will essay a summary of them. 32 Paragraph [14] asserted an alleged failure of the primary judge to 'make correction' of the AAT's decision as a ground of appeal and then set out three matters, in sub-paragraphs (a) through to (c), in alleged support of that purported ground. Since those matters took up most of the time of the Full Court hearing and appeared to provide the basis for the appellant's written submissions, we will consider those 'grounds' in more detail, before addressing the other purported grounds of appeal comprising [15] to [19]. 33 In sub-paragraph 14(a), the appellant contended that the primary judge was in error because he did not accept evidence of the so-called 'Declaration' signed by Ms Vu, which allegedly stated that the child lived with the appellant during the relevant period. We will refer to this ground as the 'Declaration ground'. 34 In sub-paragraph 14(b), the appellant asserted that he 'lost the right to give evidence at the AAT hearing', that the AAT member 'did not allow the Appellant to give evidence in the witness box' and further that the AAT member did not give the appellant the opportunity to provide other evidence to prove that he had custody and care of the child during the contentious period from 26 April 2001 to 20 July 2001. That theme reiterated the appellant's complaint made in [10] of the notice of appeal. Precisely what other evidence the appellant might have had in mind was not particularised. In addition, the appellant contended thereby that the primary judge took into account a 'wrong consideration' because his Honour found that the appellant had not provided evidence to the effect that he had requested the AAT to hear testimony from some witness (not identified to the Full Court) and that the AAT had refused this request. Finally, the appellant asserted that the primary judge was wrong to hold that [19] of the AAT's reasons for decision directly contradicted the appellant's claim that he did not give evidence at the hearing. That was said to be because the AAT was said to have only allowed the appellant to ask questions of Ms Vu, rather than to allow the appellant to provide testimony himself. In short, the appellant claimed that the primary judge was in error because his Honour had failed to accept his arguments that the AAT had not allowed him to give evidence of some kind or specification. We will refer to this ground as the 'Inability to give evidence' ground. 35 Next, the appellant asserted in sub-paragraph (c), a failure of the primary judge to take into account the receipt by Ms Vu of 'Special Benefit' and the subsequent impact that this alleged failure had upon the probity of her oral testimony to the AAT. We will refer to this ground of appeal as the 'conflict of interest ground'. 36 By [15], the appellant appeared to dispute the primary judge's reference to the appellant's failure to tender any transcript from the AAT hearing in support of his assertion that there was no evidence to the effect that the child was not in the care of Ms Vu. The appellant contended that, because the proceedings constituted a so-called 'social security payment case', the Department was subject to an obligation to provide to him and to the Court a copy of the transcript of the AAT hearing. As correctly pointed out in written submissions of the Department, there is no such obligation contained in either the AAT Act or the Federal Court Rules. That the present dispute relates to social security benefits per se is plainly immaterial to the imputation of any such obligation. The primary judge was not in error by failing to require the Department to provide the appellant with any such transcript. Nor was the primary judge in error by emphasising that the appellant had made no apparent attempt to adduce evidence of the AAT proceedings. 37 The appellant contended by [16] that the decision of the primary judge to make an adverse costs order against him constituted an error of law, once more on the basis that the proceedings involved social security benefits. Again, it suffices to adopt the succinct submissions of the Department's solicitor, as follows: 'There is no category of cases that are excluded at common law from the ordinary rule that costs should follow the event. In the present case, the appellant was seeking a personal benefit, was unsuccessful in the action commenced by him, and the first respondent was put to costs in defending decisions held to have been lawfully made'. 38 The appellant next contended by [17] of the notice of appeal that he did not know that he was required to file submissions in addition to the notice of appeal. The appellant did not address or expand upon this ground in either his written or his oral submissions. The suggestion was made by the solicitor for the Department in his written submissions that this ground involved a reference to the primary judge's observation in [34] of his reasons for judgment that the 'applicant has not provided any written submissions in support of his claims…'. The Department rightly pointed out that nothing seems to have turned on this observation for the purposes of the reasoning and decision of the primary judge. This ground also fails to disclose any error in the primary judge's reasons. 39 In [18], the appellant asserted that the joinder of Ms Vu as a respondent in the proceedings before the SSAT had occurred at the request of the SSAT. That assertion became the basis for the appellant's contention that the proceedings were unfair because the appellant had not been allowed to testify in the witness box, whereas Ms Vu had been allowed to do so. It is not apparent why that had occurred, from the submissions of the parties, the documents on file, or from Allsop J's decision on the competency of the appellant's appeal against the AAT's joinder of the child. In any event, it appears from the transcript of hearing before the AAT that the decision to join the child, instead of Ms Vu, had been occasioned by the purported rationale that the 'special benefit' paid by Centrelink had been so paid in respect of the child and had only been paid to Ms Vu in some nominal sense. The issue of joinder has already been addressed and nothing further need be said. Whatever else might be said to emanate from the ground articulated in [18] has been canvassed by what has been observed in relation to [14] of the appeal. 40 Finally as to the ground contained in [19], the appellant stated that he would provide more information through a Cantonese interpreter during the Full Court hearing; no further observation in that regard need be made.

(i) The 'Declaration' Ground 41 The appellant did not ultimately press this ground of appeal during the hearing. As the primary judge described succinctly at first instance, what the appellant seeks under this ground, put at its highest, is an impermissible merits review of the decision of the AAT not to accept evidence tendered by the appellant in the form of a declaration allegedly made by Ms Vu to the effect that the child was at the material times in Mr Chan's care and control. Paragraph [45] of the AAT's reasons, referred to by the primary judge in [66] of his reasons, stated that the member found it 'unlikely' that the declaration had been made by Ms Vu, because it referred to the child by a name that she did not commonly use. We would add that there was substantial evidence given at the AAT hearing to the effect that at the time the declaration was alleged to have been made, there was a dispute between Ms Vu and the appellant about the appropriate name of the child. For the reasons given by the primary judge, we would reject this ground of appeal.

(ii) The 'inability to give evidence' ground 42 During the hearing and subsequently from the second set of written submissions of the appellant, it became apparent that this ground of appeal consisted of three discrete complaints. The first was that the appellant was not permitted to provide the AAT with certain documents ('the conversation documents') that he claimed could prove that he, rather than Ms Vu, had care of the child during the relevant period. The second arose from a query to the appellant by a member of the Full Court to the effect that, contrary to what had been alleged in his notice of appeal and written submissions, yet as the primary judge and the AAT member had duly recorded, the appellant had given evidence in the AAT proceeding. According to the appellant, the interpreter had confused him as to the meanings respectively of 'evidence' and 'submissions', the appellant explaining that there was no direct translation of the word 'submissions' in Cantonese. The third complaint was said to arise from that realisation and appeared to be that the appellant was not given an opportunity by the AAT member to make submissions, or else was not aware of the availability of that opportunity, if it in fact arose, because of translation difficulties experienced during the hearing. We will address each of those three complaints in turn below. 43 In [14] of the appellant's first set of written submissions, he alleged that the AAT member 'rejected the appellant to give documents at the hearing'; he referred to page 13 of the transcript of 16 January 2004, where references are made to 'conversation documents'. These documents appear to bear on the matter as to whether or not Ms Vu was working during a specific part of the relevant period and to be some of a number of documents that came into existence during protracted Family Court proceedings involving the appellant and Ms Vu (see transcript of 16 January 2004 page 7.9). We observe that no mention was made of those documents in the appellant's notice of appeal. 44 The AAT member asked the appellant to explain the nature of the conversation documents and it emerged that they had been used as evidence in the Family Court proceedings that Ms Vu may have left the child in someone else's care for certain periods of time during some days within the relevant period. The appellant asserted that the failure of the AAT member to admit the conversation documents into evidence amounted to an error of law. However we think that it is sufficiently apparent from any reading of the transcript that the reason proffered by the AAT member for not taking the documents into account was a soundly practical one, rather than a reason based on any evidentiary finding. The appellant's written submissions neglected to mention that the AAT member had read the documents in question, as had Ms Vu, who was examined as to the contents thereof, extensively by the appellant and additionally by the member herself. Furthermore, the AAT member said to the appellant 'I don't need the documents… and you no doubt will tell me more of your understanding' (transcript of 25 February 2004, page 13.4), thereby inviting submissions from the appellant as to their supposed significance. 45 There is therefore no basis for any conclusion that the AAT did not take into account the documents, or that the appellant did not have the opportunity to put to Ms Vu any of the content or effect thereof. Furthermore the AAT member gave access to the entire Family Court file (of which these documents formed a part) to the parties, along with the direction that each should provide written submissions as to any inconsistencies they might find between the evidence of the appellant and that of Ms Vu given at the earlier Family Court proceeding. It is made clear at page 36.8 of the transcript of 25 February 2004 of the AAT proceedings that the appellant was thereby given a further 14 days to respond to the submissions of Ms Vu. Thus the appellant would not only seek impermissibly to amend his notice of appeal but also to do so in a manner that ignored material that did not assist his present case. 46 The appellant contended in any event in [14(b)] of his notice of appeal that the AAT deprived him of an opportunity to provide evidence to it during the hearing. There is no reason to disturb the findings of the primary judge on this ground, as set out in [47] to [52] of his Honour's judgment. The claim is without any supportable basis. As the primary judge pointed out, [19] of the AAT's reasons for decision contradicted the appellant's claim that he did not give evidence, the same recording unequivocally that '[the appellant] and Ms Vu gave evidence and were cross-examined'. Moreover a review of the transcript of the AAT proceedings does not reveal any instance where the appellant was denied the right to adduce evidence, at least of any potential significance, from another person. 47 The notice of appeal indicated a distinction drawn by the appellant between his providing evidence in chief and evidence in cross-examination; thus he claimed that he was permitted to provide the latter but was prevented from adducing the former. On close analysis, what this claim seemingly amounted to was an assertion that he was deprived of the opportunity to make submissions, making any statements about his version of events, the evidence generally or the factual and legal issues. This confusing formulation of a ground of appeal became more apparent in the course of the appellant's written and oral submissions to the Full Court. After first reproducing a long tract of what purported to be the transcript of the AAT hearing, the appellant alleged in his first written submissions to the Full Court that '[the AAT member] did not give the appellant a chance to provide this evidence' ([12]). Earlier in [10] of the same document, the appellant claimed that when '… at witness box, [he] was asked questions only, the appellant have no chance to give other evidence'. In his second written submission, the appellant reiterated his claim that 'the AAT member did not give [a] chance to the appellant to give evidence at witness box'; that complaint was repeated at the hearing before the Full Court when the appellant stated that his answers on cross-examination were 'only confined to the questions asked' and 'the question[s] they asked [me] are not relevant to my submissions that I was prepared to say'. 48 We found the appellant to be evasive to the point of being knowingly misleading during the hearing before the Full Court. Initially the appellant claimed that he was not given a chance to make submissions to the AAT. He then retracted that claim by conceding that he had been able to make verbal submissions to the AAT. The passage merits reproduction from pages 9-11 of the transcript of the Full Court hearing: 'THE INTERPRETER: Only is the question they asked are not relevant to my submissions that I was prepared to say. Wasn't aware that the time given for the question session, or do they have any special session further to allow me to make a submission. BENNETT J: How long did the hearing take before the AAT? THE INTERPRETER: Altogether, 2 days. The first day I was being questioned and then Ms Wu's evidence was given on the first day as well, and the next day also a session for evidence given by Ms Wu and after Ms Wu's evidence and they closed the hearing, that's it. GRAY J: Is that right, no opportunity to make submissions [at] all? THE INTERPRETER: I did give my submission. Day one, then day two was - it was the second day. I point out that what the witness say was inaccurate. I also pointed out the conflict of interest between - in the status of the witness. GRAY J: So you made those submissions to the AAT? THE INTERPRETER: Verbally. GRAY J: And on those issues the AAT didn't decide in your favour? THE INTERPRETER: That's right. GRAY J: Those decisions on those issues are decisions on the facts. Do you understand that when you appealed to Beaumont J, you were only allowed by the law to appeal on a question of law, not on a question of fact? So that Beaumont J was not allowed to say that he disagreed with the AAT's conclusions on the facts, and we are not allowed to say that we disagree with the AAT's conclusion on the facts. … THE INTERPRETER: The problem is that I wasn't allowed to submit my evidence - such as this lot of evidence that evidence my son was residing with me and I didn't even have the chance to submit that. GRAY J: So you didn't show those things to the AAT? THE INTERPRETER: Was not able to submit to the Court. And also a witness from the child-care, also evidence there is 2 months that my son was within - with the child-care. GRAY J: Well, are you saying that you told the AAT you had these things and the AAT refused to accept them? Or, are you saying that you simply didn't tell the AAT you had these things? THE INTERPRETER: Actually, there was a submission that I would like to submit evidence and documents and they refuse. It is point number 14 of - - - GRAY J: Yes. THE INTERPRETER: - - - that's not my submissions. GRAY J: What were the conversation documents referred to? THE INTERPRETER: There's some evidence that the son was being looked after by a third party at 12 hours per day and this could prove the witness was lying in Court. GRAY J: Which witness, Ms [Vu]? MR CHAN: Ms [Vu]. GRAY J: What about the photos and the other documents you have there did you tell the AAT you wanted to show them to the AAT and did the AAT say: no, you weren't allowed to? THE INTERPRETER: I had no chance to say these things. At that time they said they - they just finish off me by saying that they - the questions they ask has - is - is finished and then they continued to ask Ms [Vu]'s questions.' 49 It is sufficiently apparent from the extracted passage that the appellant disavowed his initial contention that he was not given the opportunity to make submissions by maintaining instead that he was not able to provide evidence to the AAT. The presiding judge then asked the appellant whether the AAT member actively prevented him from adducing that evidence, being, apparently, evidence in the form of testimony from the alleged childcare teacher, Ms Elizabeth Pahor. The appellant had annexed to his second written submissions what purported to be a page of transcript from an unspecified proceeding, said to be a portion of the transcript from a hearing before the Family Court on 13 July 2001. However it was not made clear by the appellant what was the nature of those proceedings. The evidence given by Ms Pahor had been that she had seen the appellant 'dropping off' the child at childcare on more occasions than she had seen Ms Vu in a similar context. Thus the evidence was equivocal at best on the issue as to whether the appellant or Ms Vu had the care and control of the child during the relevant period. When asked by the presiding member of the Full Court '… [are] you saying that you told the AAT you had these things and the AAT refused to accept them? Or, are you saying that you simply didn't tell the AAT you had these things?', the appellant did not squarely address the issue so raised, and moved instead to discuss the 'conversation documents' to which we have already referred. We should record however for completeness that when the presiding judge asked the appellant again whether the AAT had refused to allow him to tender the various pieces of evidence he was discussing, the appellant replied: 'I had no chance to say these things. At that time they said they - they just finish off me by saying that they - the questions they ask has - is - is finished and then they continued to ask Ms [Vu]'s questions.'

50 However as earlier indicated or foreshadowed, the appellant was unable to draw the Full Court's attention to any passage in the transcript where the AAT member actually refused a request by him to adduce evidence, including any further evidence from Ms Pahor. Moreover the appellant ignored entirely the numerous statements made by the AAT member about the opportunities she afforded him to provide evidence or other statements bearing on the issues to hand. Those statements merit reproduction. 51 First, at the beginning of the hearing, when the member explained the procedures to be followed, the Tribunal member said the following (at page 4 of the transcript of 16 January 2004, with emphasis added): 'As you have heard, Ms Buckley [solicitor for the first respondent] is going to call your wife to give some evidence and both you and Ms Finlay [solicitor representing the second respondent] will have the opportunity to ask her questions as well. Okay. Now, I want to be absolutely sure that you have got the material that we will be looking at today and if there is anything else that you want me to - any other documents that you want me to have…'

The appellant told the Full Court however that he had not been informed of this lengthy passage by his interpreter and pointed to the absence of any reply from him as supportive of that explanation. It is evident however that this foregoing passage does not stand alone as the only explanation given to the appellant of his rights to make submissions to the AAT or to provide the AAT with evidence. Even if it was, it is not apparent why the appellant's interpreter at the AAT would fail to translate the text of that opportunity to him. The appellant told the AAT at the beginning of the second day of the hearing that he only needed partial translations of some things and had a degree of competence in English (see transcript of 25 February 2004, page 2). All that did not measure well with what he informed the Full Court, in the terms that 'I am totally not knowing any English'. 52 In any event at the conclusion of the first day of the ATT hearing, the member reminded the appellant of his entitlement to make submissions in the course of the following day (transcript of 16 January 2004, page 83, emphasis added): 'So when you come back the next time, you can take up from here. Try and remember what has happened today and ask Ms Vu some more questions and then as necessary, Ms Buckley and Ms Finlay might want to just go over a couple of things as well and you will have the opportunity to tell me your position, your final position. Ms Buckley and Ms Finlay will have the opportunity to do the same. Okay?'

53 Moreover the appellant was specifically informed during the first day's hearing at the AAT that he had an opportunity to ask Ms Vu questions (see page 74 of the transcriptof 16 January 2004). Furthermore, during the appellant's cross-examination of Ms Vu, the member endeavoured to bring the appellant to issue by reminding him that: '[m]y job today, is to look at whether those payments should have been made to you, Mr Chan. That is the first thing. I told you at the outset, that is the first thing I have to decide. Now, this is your opportunity to ask Ms Vu questions about where the child was when you had the child; when she had the child; what the arrangements between you were at that relevant period - that period in June to August.'

(Transcript of 16 January 2004, page 80, emphasis added).

It was thus made additionally clear to the appellant that he was being afforded the opportunity to challenge the evidence that was being given by his former wife. It is apparent that he was left in no doubt by the AAT as to his ability to put conflicting evidence to her, including material of the kind he contended to the Full Court that he was prevented from adducing to the AAT. The transcript manifests elsewhere the appellant's presentation of other matters supposedly material to Ms Vu's testimony (such as her payment of a hearing fee to the Refugee Review Tribunal: see transcript of 16 January 2004 page 74), being a further example of his likely understanding of the need to put to the witness matters material to the issues. 54 Indeed on the second day of the AAT hearing, the member further told the appellant directly that he would have an opportunity to provide evidence (transcript of 25 February 2004, page 3): 'This is your opportunity to ask Ms Vu questions. Then later you will have the opportunity to go over the evidence and tell me as you see the evidence. So then you can comment on what she has said, what your view is, what her view is. But now is the time to put things to her if you want to do that.' This passage serves to contradict directly the various submissions made by the appellant as to the denial of an adequate opportunity to put his case, in any relevant respect, to the AAT. Not only does it establish that the AAT member informed the appellant of his rights to question Ms Vu and to put his version of events to her, but it also makes it unequivocally clear that he would be given the opportunity to put to the AAT his version of events and any corroborative evidence in relation thereto. 55 Following the conclusion of the cross-examination of Ms Vu on the second day of the AAT hearing, the member further told the appellant: 'Alright. Mr Chan, this is your opportunity.' The appellant thereafter made submissions to the AAT about supposed flaws in Ms Vu's testimony. That left the appellant in the uncomfortable position of being required to address the following queries raised by members of the Full Court, which are reproduced below:

'BENNETT J: … I don't understand how you can say that you were not given the chance to make submission? THE INTERPRETER: But I believe - I don't understand I should give evidence and provide evidence while I am giving the submission? BENNETT J: Sorry, let me just take this one step at a time just to try and work out what you say the point of your appeal is here to us. You are not saying that you were denied the opportunity to make submissions to the AAT, are you? THE INTERPRETER: No, I am talking about I have no chance given to provide evidence. BENNETT J: Well, I am just reading the transcript that I referred to, the part where, at the end of the hearing, the AAT member said, "This is your opportunity." As I read it, some of what you said there was in the form of evidence by you as well as submission and the AAT member simply said to you, "This is your opportunity." I don't understand how you say that the AAT was in error in denying you an opportunity to say what you wanted and at the end, I see that the AAT also said that you could have a further - there would be an opportunity for further written submissions. So I am trying to understand exactly where you say the AAT was in error? THE INTERPRETER: Obviously, I am not aware of the difference in Cantonese and English between submission and evidence and probably the interpreter at that time hasn't clarified that to me between submissions and evidence. I was thinking that submission is the conclusion of the whole procedure after the Court - and there wasn't an opportunity to provide new, fresh evidence. GRAY J: Let me ask you this, Mr Chan? I am looking at page 83 [of the transcript of 16 January 2004], at the very end of the first day of the hearing. The AAT was explaining to you the arrangements for coming back to resume the hearing and the AAT member said to you: "And you will have the opportunity to tell me your position, your final position." So again, I find it hard to understand why when you were told that at the end of the first day, if you had documents you wanted to present to the AAT, you didn't attempt to do so at any time? THE INTERPRETER: I have no remembrance of that part and I don't actually aware of how I replied and it is often the case that the interpreter cannot interpret by word of what the judge said and there are inaccuracies in the transcript that it has been wrongly interpreted. One of the example is that according to the transcript it stated that on 15 March 2001 I did attend RRT for Ms [Vu]'s review in Refugee AAT - Review AAT but I understand that that was impossible, so it was inaccurate, so it must be an interpretation error.' 56 In the light of the abundance of material we have reproduced above, the appellant's contention that the AAT did not provide him with an adequate opportunity to adduce additional evidence, whether physical or oral, from himself or from other persons and, additionally, did not give him an adequate opportunity to put his case, or otherwise to make submissions is entirely unfounded. As has been seen, the record of proceedings before the AAT, which extends over 70 pages of transcript, paints an entirely clear picture as to the appellant having been informed, at various stages of the AAT hearing, that he would be given the opportunity to: (i) cross-examine Ms Vu on any of her evidence and in so doing to put to her any evidence actually or intended of his own (which the appellant did, for a considerable portion of the AAT hearing); (ii) provide the AAT with any documentation or other evidence as he saw fit; and (iii) make final submissions as to his case in respect of the issues in dispute. The attempts by the appellant to agitate these issues took up numerous pages of very extensive written submissions and, moreover, consumed two hours of the Full Court's hearing time, additionally to the hearing time afforded by the primary judge.

(iii) The 'conflict of interest' ground 57 In order fully to comprehend this ground of appeal, yet further background material needs to be explained. It appears from the earlier reasons for decision of Allsop J, as well as from the lengthy transcript of proceedings in the AAT that, during part (if not all) of the relevant period, Ms Vu had been at least nominally receiving payments of 'special benefit' from Centrelink on behalf of the child. No submissions were made in that regard on behalf of the Department during the present hearing. It would appear that the 'special benefit' provided for the child was in the nature of a payment of money made to a person in need who did not qualify for any other social security benefit. At the same time as payment of the special benefit in respect of the child, Centrelink was additionally making the PES, PPS and FTB payments, the subject of this appeal, to the appellant. The transcript from the AAT hearing seems to suggest that Centrelink was making the 'double payment' in respect of the same child because of some difference in the name under which benefits were being claimed in respect of the child. From what we can deduce from the appellant's submissions, he had attempted through his questioning of Ms Vu at the AAT proceedings to discredit her as a witness on the basis that she had a financial interest in the outcome of proceedings. This seemed to be designed to ensure that if the AAT were to find that the appellant had care of the child, Ms Vu would be subjected to recovery proceedings by Centrelink of the payments made of the special benefit. There is we think confusion in the evidence as to whether Centrelink would have brought any such action against Ms Vu but in any event, whether or not Ms Vu had a conflict of interest inherent in the resolution of the issues to be resolved by the AAT, and if so, the significance thereof, was a matter for the AAT. 58 In his reasons for judgment, the primary judge observed that the decision to accept or reject Ms Vu's evidence and the weight to be attached to it, were matters solely within the discretion of the AAT member as the arbitrator of fact. The appellant's endeavours to reverse his Honour's findings and those of the AAT amounted to the seeking of merits review. The primary judged considered furthermore whether the appellant's case gave rise to an issue as to whether the AAT's decision to allow Ms Vu to testify at all was somehow infected by legal error. His Honour referred to s 33 of the AAT Act, which provides that the procedure of the AAT to be implemented is within its discretion and to s 40 of the AAT Act which empowers the AAT to summon a person to appear before it to give evidence and concluded that the decision to receive and consider the evidence from Ms Vu did not amount to an error in law. Indeed, it would be an enigmatic conclusion were the situation to be otherwise, given that the issue of fact in this litigation was whether Ms Vu or the appellant had care and custody of the child at the times in relation to which the appellant was paid the monetary benefits in question. 59 There is no good reason to disturb the findings of the primary judge in respect of this further ground of appeal.

Other issues raised on appeal 60 It became apparent throughout the hearing before the Full Court and after receipt of the further written submissions of the appellant, that he was seeking to agitate other issues that had not been specifically identified in his notice of appeal. The first was articulated at [15] of the appellant's first segment of written submissions and was to the effect that the appellant suffered procedural unfairness because he had not been given notice of the evidence that would be adduced by Ms Vu at the AAT hearing. The appellant asserted that the outcome was that he was unable to object to Ms Vu's evidence at the time. However, if leave were to be granted to the appellant to amend his notice of appeal in order to incorporate that contention, the same would not affect the outcome of this appeal. It is beyond credulity for the appellant to assert that he had no idea of the scope of the likely testimony of Ms Vu. Many of the issues raised before the AAT were debated during the lengthy Family Court proceedings to which the appellant and Ms Vu were the parties and much of the documentary evidence emanating from those proceedings was produced or referred to in these proceedings or before the primary judge. The appellant was not able to distil from the transcript of the proceedings below any evidence, testimonial or documentary, of which he had no prior notice. The flurry of objections made by the appellant during the course of AAT hearing indicates that he had no difficulty in discerning and articulating objections which he though might be sustainable. Yet again, this present issue was one which the appellant seemingly devised as an ad hoc ground of appeal further designed to delay the inevitable reclamation of his debts to the Department. 61 Finally we should record that in [15] of the appellant's second written submissions provided to the Full Court, the appellant contended that the AAT member made her decision in bad faith. This is a serious allegation. As in the case of the appellant's claim of bias made to the primary judge, that serious allegation was unsubstantiated and is therefore rejected.

Conclusion 62 For these reasons, no error on the part of the primary judge has been demonstrated. We would dismiss the appellant's appeal and order that the appellant pay the Department's costs. It is unnecessary for us to consider whether such an order should be made also upon the footing of s 25(2B)(bb)(i) of the Federal Court Act 1976 (Cth). I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gray, Conti and Bennett.

Associate: Dated: 20 May 2005 The appellant appeared in person

Solicitor for the Respondent: Australian Government Solicitor