“Argumentative and defensive” expert witness

Federal Court: AAT found that a forensic psychologist "was argumentative and defensive ... and did not present as an impartial witness". Although "it will usually be necessary for a decision maker to give reasons for an adverse credit finding", does the same principle apply to expert witnesses? Further, FCA held that the AAT's failure to take into account a claim about a consideration was not material because the Tribunal had already accorded that consideration "considerable weight" in favour of the Applicant. With respect, did that not involve impermissible merits review?

The Minister mandatorily cancelled the Applicant's visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) and refused to revoke that cancellation under s 501CA(4), which read as follows (emphasis added):

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

The Applicant then applied to the Tribunal for merits review of the non-revocation decision. As it was not in dispute that the Applicant did not pass the character test, the question to the Tribunal was whether "there [was] another reason why the original decision should be revoked".

The Applicant's submissions to the Tribunal included claims about the emotional and financial consequences that would flow from his deportation to one of his minor children.

The Tribunal's decision record referred, at [70], to the claim about the emotional consequences, but not to the claim about the financial consequences, as follows (emphasis added): 

Taking all of these matters into account, I am satisfied that it would be in [the child's] best interests for the Applicant’s visa cancellation to be revoked. While there would be opportunities for ongoing contact with the Applicant if he were deported to Italy and while [the child] would have strong support from her family and access to counselling by [a psychologist], I am satisfied that the impact on [the child] would be significant at this stage of her life. I accord this factor significant weight.

Further, the Applicant called evidence from a "a psychologist with extensive experience working with children". The Tribunal's decision record included the following passage about that expert witness at [56]:

... I give less weight to the opinion of [the expert witness]regarding the Applicant’s actual circumstances. Her opinion was based on a single telephone interview and review of a limited number of documents. In giving her evidence, [the expert witness] was argumentative and defensive at times during cross-examination and did not present as an impartial witness.

The Tribunal affirmed the non-revocation decision and the Applicant eventually applied to the Federal Court (FCA) for judicial review of the Tribunal's decision. 

The questions to the FCA were as follows:

Question 1: Although "it will usually be necessary for a decision maker to give reasons for an adverse credit finding", does the same principle apply to expert witnesses?

Question 2: Was the Tribunal's failure to take into account the Applicant's claim about the financial consequences of his deportation to his child not material on the basis that the Tribunal had already accorded the child's best interests "considerable weight" in favour of revocation?

The FCA answered those questions as follows:

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