Best interests of minor children in Australia
44 Particular (e) challenges the weight placed by the Tribunal on the representations made in relation to the best interests of the applicant's minor child. The Originating Application advanced five sub-particulars under this heading. This was not the approach taken in the written submissions for the applicant, nor in oral argument. It is unnecessary to deal with each sub-particular.
45 The Tribunal determined that 'An overall consideration of Primary Consideration B weighs in favour of the granting of the visa application' (Reasons [183]) and that 'To the extent that Other Considerations weigh in favour of approving the visa, they cannot, even when combined with Primary Consideration B, outweigh Primary Considerations A and C' (Reasons at [213]).
46 The applicant criticises the 'glib and shallow words' of the Tribunal at paragraphs [175]-[179]. The Tribunal said:
175. In the present case, there is only one relevant child who will be under the age of 18 years at the expected time of decision. That Child G was born in September 2018. The Applicant is her father. They have not been in each other's physical presence since October 2019 around the time the Applicant was imprisoned. The Tribunal accepts that the Applicant played the asserted role in the child's life up to the time of his imprisonment. For the purposes of paragraph 11.2(4)(a), consideration of the relationship weighs in favour of the Applicant.
176. In regard to paragraph 11.2(4)(b), it will be some sixteen years before the child turns 18. Whether the Applicant is to play a positive role in her future would be very much dependent on his capacity to abstain from criminal activity, and whilst his prospects of re-offending has been assessed as low, it nevertheless remains to be seen. If the Applicant did not abstain from criminal activity, the consequences for the child might or might not be significant. There are no present court orders relating to parental access and child care. The Tribunal gives this consideration some limited weight in favour of the Applicant.
177. In regard to paragraph 11.2(4)(c), the Tribunal considers that provided the Applicant abstains from further offending, which is a matter of some uncertainty, his prior and future conduct would be unlikely to have a negative impact on the child. The Tribunal gives this consideration some limited weight in favour of the Applicant.
178. In regard to paragraph 11.2(4)(d), the Tribunal accepts that should the Applicant's visa be refused this would likely result in his separation from the child, and this in turn would have an adverse impact on the child, particularly in consequence of absence of physical contact, for which technology presently provides no suitable substitute. The Tribunal gives this consideration weight in favour of the Applicant.
179. In regard to paragraph 11.2(4)(e), the Tribunal notes that the Applicant's partner already fills a parental role in relation to the child. The Tribunal gives this consideration neutral weight.
47 The applicant contends that the Tribunal 'utterly failed to engage with [Dr Chan's] predictions on the effect of the visa refusal on the daughter. Dr Chan's evidence was touched upon at [206], but only to "accept" Dr Chan's evidence in relation to the child'. The applicant submits that, having accepted Dr Chan's evidence in so far as it relates to the possible impact of visa refusal on the child, the Tribunal was required to engage with the 'horrendous consequences' for the child (emphasis added). The applicant submits that the finding at [178] is legally unreasonable given, so it is argued, that (at [206]) the Tribunal 'accepted the whole of Dr Chan's evidence without reservation.
48 The Tribunal referred to Dr Chan's report at [39]-[47] and to Dr Chan's oral evidence at the hearing at [71]-[83]. In summary, the Tribunal:
said it had regard to the Confidential Psychological Report dated 23 October 2020 as prepared by Dr Chan who described himself as a senior clinical psychologist;
noted that Dr Chan had contact with the applicant, with the assistance of an interpreter, totalling approximately six hours;
recorded that Dr Chan did not consult with the applicant's partner and did not have any statement from her nor any medical reports. His sole source of information appeared to be the applicant, whose reports Dr Chan accepted;
noted the applicant's family history, academic history, and studies in Australia;
noted the applicant had reported to Dr Chan that he had never used any illicit drugs but became involved in the offences while trying to resolve his financial difficulties now that they [the applicant and his first wife] had decided to marry;
noted Dr Chan's assessment of the applicant's psychological profile;
noted Dr Chan's assessment of the applicant for malingering and deception, being that his profile was healthy and his responses likely to be honest and valid and Dr Chan's assessment that the applicant suffered from depression, unspecified anxiety and stress at a severe level;
noted Dr Chan's opinion that the applicant's prospects of recidivism as low and that the applicant had very few risk factors;
noted Dr Chan's report of the applicant's comparison of the differences between the quality of life for his wife and daughter living in Australia and living in Vietnam;
set out in full Dr Chan's opinion of the impact of the applicant's visa rejection on the applicant's daughter, observing that the opinion was 'notwithstanding that he had neither seen nor interviewed the Applicant's wife and daughter nor viewed any medical records pertaining to either' (Reasons at [47]);
recorded that, in oral evidence, Dr Chan confirmed that his evidence regarding the applicant's wife and daughter came from the applicant and the literature;
recorded that Dr Chan gave evidence that in terms of attachment, he considered how much the applicant was involved with his daughter during the first 395 days of her life and whether he was the primary care giver during that time, and whether he did the nappy changing, the feeding, providing care and safety etc.;
recorded that Dr Chan's evidence was that if the applicant was heavily involved the baby would be attached emotionally even though at that stage the baby did not have verbal memory. Emotional memory would include attachment to her father. A father's absence by itself could negatively affect the girl's development throughout her life. Both physical and emotional absence would be there. Dr Chan's evidence was that the applicant was actively involved with the baby but was unable to comment definitively on the significance of the attachment;
recorded that Dr Chan opined that absence could not be replaced with communication via telephone or video link; in a child's development it is very important for a child to seek physical comfort in the event of emotional distress;
noted that Dr Chan confirmed that he always draws conclusions based on information and that in this case he had relied on the documents given to him and the history reported by the applicant and assumed that what he was told was accurate. It was assumed that inaccuracies were quite minor. Dr Chan testified that his assessment was not based 100% on the information but was also based on the literature.
49 Dr Chan's opinion as to the impact of visa refusal on the applicant's partner and daughter comprised three paragraphs in a thirteen and a half page report. Although Dr Chan refers to the applicant's partner as his wife and asserts that they are married, there is no evidence of a marriage having taken place and counsel confirmed in oral argument that the applicant and his partner are not married but are de facto spouses. Dr Chan's opinion was based solely on the literature he had referred to in his report. In particular, he relied on several academic papers, largely based on research conducted outside Australia to draw the conclusion that, 'The impact of [the applicant's] visa rejection on [his daughter] would be very significant'. He referred to the literature which indicates that 'fathers' involvement in children development is very important' and that 'Father absence may affect girls' development more than boys'. Dr Chan opined that:
Father absence in girls' life would lower their self-esteem, academic achievement; impair their emotional development, relationship formation; cause mental health problems; increase risking behaviours, and is related to teenage pregnancy, promiscuity, poverty, and rate of violence… [The applicant's daughter] will become vulnerable to developing serious emotional, social, psychological and sexual problems in the future.
50 In oral evidence before the Tribunal, Dr Chan confirmed that he had not interviewed the applicant's partner, 'so all the information is based on those sources [the applicant's report and the literature], and therefore we - we could have (indistinct) generalised from those information to - you know, to expect what might happen' (Transcript .2020/7684 22/01/21, P- 44 Line 45 - P45 Line 2). When asked about the reference in his report to father absence, and whether in his view, the detriments would still apply if a baby had never met her father, Dr Chan said:
Yes. As I said, the - you know, the possibility is still there. To what extent and, you know what type of impact might be - you know, might be, you know, based on the individual cases but in general, yes, it does apply to some extent (Transcript .2020/7684 22/01/21 P - 46 Line 33-39).
51 In answer to a question of clarification by the Tribunal Member, Dr Chan said:
To my understanding, my clinical experiences and the literature, my understanding is that impact would still be there but the severity and extent of the impact might be subject to, you know, multiple factors in the girl's, you know, development. Like for example, biological make-up, like temperament, genetic make-up. (Transcript .2020/7684 22/01/21 P - 47 Line 13-17).
52 After a line of questioning about the likely attachment of the daughter to the applicant in the first 395 days of her life before the applicant was incarcerated, counsel for the applicant asked, 'You are saying, Doctor, that it could be quite significant. You're not saying that it necessarily is, is that right?' Dr Chan responded:
Yes, that's right because I'm given third-party information. I didn't do the interview, I didn't observe that, I, you know I did interview the mother as far as her - so based on the information I'm given, I could only say, yes, it could be quite significant. Yes. If I was able to interview him, as well as the mother, and saw the interactions between those three parties, then I could be able to provide more, you know - give stronger - more ideas' (Transcript .2020/7684 22/01/2, P - 52 Line 24-31).
It was common ground that Dr Chan had never interviewed the mother.
53 This submission is without merit. The Tribunal's 'acceptance' of Dr Chan's evidence in so far as it related to the possible, as to opposed to probable or certain, impact of visa refusal on the child was a conclusory statement, reached after the Tribunal's engagement with and assessment of Dr Chan's evidence. It is apparent from a consideration of Dr Chan's report and oral testimony that he was not giving an opinion as to likely detriment to be suffered by this particular child. Rather, Dr Chan was speaking in general terms about what the academic literature, and his clinical experience, told him about the most severe consequences for a female child who grows up without a father. The Tribunal was entitled to accept Dr Chan's evidence as to the possibility of consequences arising from the applicant's visa rejection on his daughter whilst at the same time determining to give that consideration weight, but not any greater weight.
54 The Tribunal engaged with, and construed fairly, the evidence provided in relation to the best interests of the child. Whether a tribunal differently constituted might have come to a different conclusion in weighing the matters required to be considered by Direction 79 is not to the point. The Tribunal's finding on this issue is not so illogical nor irrational that no reasonable decision-maker could have made the same findings on the same evidence