Expert evidence is difficult to deal with at the best of times, but it always seems to me that it’s more difficult to deal with in the context of administrative decision making because decision makers seem to be able to readily disregard it.

Mr Kahlil’s latest (he has quite a long immigration history) case in the Full Court illustrates the point. He was endeavouring to have the decision to refuse his partner visa on character grounds revoked. He obtained expert evidence from a clinical psychologist who concluded in her oral evidence that the applicant had only a remote chance of reoffending and a good chance of rehabilitating. You might think that was quite persuasive. Apparently not, with the member saying he was unable to accept the opinion that the applicant only has a remote chance of reoffending and remained very concerned by the seriousness of his offending and his oral evidence. That was the end of ground 1.

However, luckily the psychologist also gave evidence of behavioural or emotional disorders in children that are associated with “paternal incarceration” and that the children are at greater risk if their father were to be deported. This was an argument not raised at the first trial but leave to raise it in the appeal was (begrudgingly) given (see [34]-[37]).

That new ground succeeded and the crux of the judgment is at paragraph 73:

  1. Although the Tribunal might ultimately have placed little weight on Dr Pattni’s evidence for any one of a number of reasons, “a Tribunal acting fairly and reasonably, with a mind open to persuasion”, could conceivably have come to a different conclusion if it had taken the evidence into account.  That is because the evidence could have affected the weight it attached to the primary consideration of the best interests of the children and therefore the weight it attached to the other considerations…. By failing to take it into account, the Tribunal failed to complete its statutory task and so fell into jurisdictional error.

You can find the judgment at Khalil v Minister [2022] FCAFC 26.

Creative commons acknowledgment for the photograph.

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