Sasawatpan, Narapan v Minister for Immigration & Multicultural Affairs

[1998] FCA 1754

NARAPAN SASAWATPAN v. MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No. NG 379 of 1998
FED No. 1754/98
Number of pages - 6

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

TAMBERLIN J

SYDNEY, 16 September 1998 (hearing), 24 December 1998 (decision)

#DATE 24:12:1998

Counsel for the Applicant: Mr Andrew Rayment

Solicitor for the Applicant: Corby Levingston

Counsel for the Respondent: Mr Robert Beech-Jones

Solicitor for the Respondent: Australian Government Solicitor

THE COURT ORDERS THAT:

1. The application is dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

TAMBERLIN J

Before the court is an application for an order of review of a decision of the Immigration Review Tribunal ("the IRT"), refusing to grant a Class AO subclass 802 (child) visa to Ms Narapan Sasawatpan ("the Visa Applicant"). The IRT reasons for decision are dated 31 March 1998. The application for review was filed on 27 April 1998.

For a subclass 802 (child) visa to be granted, the requirements set out in the Migration Regulations ("the Regulations") must be met. The relevant requirements are as follows:

802.21 Criteria to be satisfied at the time of application

802.211 (1) If: (a) The applicant: (i) was in Australia on 1 September 1994; and (ii) was, immediately before 1 September 1994, a person to whom Section 37 of the act as in force immediately before that date applied; and (iii) has not been granted a substantive visa on or after 1 September 1994; or .... The applicant: (c)... (d) has become a dependent child of an Australian citizen, of an Australian permanent resident or of an eligible New Zealand citizen since last applying for an entry permit or a substantive visa.

802.212 The applicant is: (a) a dependent child of a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and (b) nominated for the grant of the visa by that person.

The issue before the IRT was whether the visa applicant was a dependent for the purpose of regulation 802.21. The terms "dependent" and "dependent child" are defined in Regulation 1.03 as follows:

" 'dependent', in relation to a person, means wholly or substantially dependent on another person for financial, psychological or physical support; 'dependent child' means the natural or adopted child of a person (other than a child who is a spouse or engaged to be married), being a child: (a) who: (i) has not turned 18; and (ii) is wholly or substantially in the daily care and control of that person; or (b) who: (i) has turned 18; and (ii) is dependent on that person;..."

In the present case, the IRT found that the visa applicant was not a dependent child as defined in the Regulations, and it is from this finding that the visa applicant now seeks review. The grounds of review specified in the application for review are as follows:

2.1 The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law.

Particulars 2.1.1 The Respondent, in determining as a question of fact the "dependency" of the applicant as required by clause 802.212 set out in Part 802 of the Second Schedule of the regulations and Regulation 1.03 erred in determining that the applicant was not dependent by reason of her age and secondly, the fact that she presented to the Tribunal as "healthy, intelligent, and self assertive...working and living on her own".

3. The decision involved an error of law being an incorrect application of the law to the facts as found by the Respondent.

Particulars 3.1 The Respondent, in determining as a question of fact the "dependency" of the applicant as required by clause 802.212 set out in Part 802 of the Second Schedule of the Regulations and Regulation 1.03 erred in determining that the applicant was not dependent by reason of her age and secondly, the fact that she presented to the Tribunal as "healthy, intelligent, and self assertive...working and living on her own".

4. There was no evidence or other material to justify the making of the decision. Particulars 4.1 The Respondent in determining that the applicant was in his opinion not a dependent necessarily went behind the opinion of an expert witness whose evidence was before him.

5. The procedures that were required by this Act arising under Section 420(2)(b) were not observed in connection with the making of the decision.

Particulars

5.1 The Respondent in determining that the applicant was not a dependent in terms of the requirements of subclause 802.212 and Regulation 1.03 did not act according to substantial justice and the merits of the case. 5.2 The Respondent in substituting his opinion for that of an expert opinion did not give the applicant substantial justice or a genuine consideration of her case on its merits.

Background

The evidence on the file before the IRT shows that the Visa Applicant's mother ("the nominator") came to Australia in 1983 on a temporary visa. She left behind four children in Thailand, one of who is the Visa Applicant.

The nominator married Mr Fred Fitzgerald, an Australian citizen in 1982 and in 1989 she applied for permanent residency. In that application she stated that none of her four children were dependent on her. This application was approved.

The Visa Applicant came to Australia on a temporary student visa on 7 April 1994. She attended an English course for four months, which commenced on 26 April 1994. She worked in a restaurant in Randwick owned by her aunt and has lived either with her aunt in Randwick or with her mother in Katoomba. The IRT was unable to reach any definitive conclusion in this respect.

The Visa Applicant was twenty-eight years old at the date when the decision of the IRT was handed down but was twenty-four at the time when the application was made. She claimed before the IRT that she was psychologically dependent on her mother and by reason of her dependency was entitled to a sub-class 802 visa.

At an interview between the Visa Applicant and Departmental Officers on 23 February 1996, the Visa Applicant stated that she had undertaken English language courses between April and September 1994, during which time she worked two days a week in her aunt's restaurant. After September 1994, she worked five days a week in the restaurant. The Visa Applicant said that for the previous twelve months she had been living with her aunt in Randwick and visited her mother at weekends in Katoomba.

At the IRT hearing on 25 March 1998, the Visa Applicant, her mother and her mother's husband gave evidence. The IRT member found that the witnesses' were "vague, evasive and quite reluctant to answer questions" in relation to answers which may not have been favourable to the Visa Applicant. The IRT concluded that the witnesses would say anything, which they believed would help the Visa Applicant's application and, therefore, it gave no weight to this evidence.

The Visa Applicant consulted a psychologist, Ms Robilliard, on 25 February 1998 and on 7 March 1998 and obtained a report from her to support her visa application. She had not visited a doctor or psychologist since coming to Australia and conceded that she told the psychologist that she had lived with her mother since her arrival in Australia. The report is based on two session that the Visa Applicant had with the psychologist.

The psychologist concluded that the Visa Applicant was "very dependent on her mother" and "the ongoing closeness and support offered through that relationship is imperative."

The IRT quoted extensively from the report. However, it came to the view that the applicant was not a person who was wholly or substantially dependent on her mother for support.

Submissions

The first submission advanced on the hearing was that the IRT had acted in such an unreasonable way that it failed to act in accordance with substantial justice and the merits of the case: see s 353 of the Migration Act 1958 ("the Act"); Eshetu vMinister for Immigration and Multicultural Affairs (1997) 71 FCR 300.

This submission was largely directed at the way in which it is claimed the IRT dealt with the psychological report of 24 March 1998 provided by the consulting psychologist, Ms Robilliard.

The IRT did not reject the report. However, it did not rely on those parts of the report which were based on information furnished by the applicant and witnesses on her behalf. This was due to serious inconsistencies in their evidence. The IRT had found that they lacked any credibility. Indeed, the credibility finding was in the strongest terms. The IRT said:

"Having heard and observed the three witnesses I found them vague, evasive and quite reluctant to answer questions the answers to which may not have been favourable.

In summary I found them prepared to say anything which they saw as helpful to the success of this application irrespective of the truth thereof. I put no weight on their evidence in the areas of the visa applicant's usual place of residence and her working hours and place of work."

In making its findings on credibility, the IRT did not simply rely on inconsistencies as to the period of residence with the mother. The reasons refer to a claim of financial dependence which was not pursued. Reference was also made in the reasons to the applicant's presentation on the IRT hearing and to the vague, evasive and guarded approach to answering questions by the applicant and the other two witnesses. As the authorities point out, questions of credibility depend to a large extent on impressions and appearance and therefore such findings should not be lightly set aside. In the present case there is no basis offered for setting aside the credibility findings.

As a consequence of its credibility findings, the IRT considered that the substance of those parts of the report which were based on erroneous and self serving information should be ignored. In adopting such an approach, I do not consider that the IRT was in error. The report makes it quite apparent, on a fair reading of the whole decision, that the question as to the duration of the applicant's co-habitation with her mother at Katoomba was of importance in reaching a conclusion, as a matter of fact, that the applicant was dependent on her mother for emotional or psychological support. The question as to the credibility of the witnesses played an important role in the present case because the question at issue was the nature and strength of the relationship between the applicant and her mother.

The second submission is that although the IRT reasons quote at length from that part of the report dealing with a Test Assessment, it did not properly take into account statements in the report that the applicant demonstrated psychological and emotional disturbance in her responses to the personality test. It is said that when this material is considered together with the evidence of self-mutilation, a conclusion should have been reached that the applicant was psychologically and emotionally dependent on her mother. It is pointed out that the later evidence as to mutilation was elicited in questions from the IRT members. The IRT quoted from the conclusions of the psychologist but did not agree without them because of what it found to be exaggerations and contradictions in the evidence of the applicant and those who gave supporting evidence; namely, her mother and her step-father.

On consideration of the reasons as a whole, it is apparent that the psychological report and the test assessment were at the forefront of the applicant's case and that the IRT had regard to this material, although it did not accept it for reasons given earlier. The IRT is not bound to accept an expert opinion in circumstances where important facts, which provide the basis for the conclusions of the expert are founded on evidence which is discredited. It may be that in some cases where there was only one expert opinion and nothing to contradict it by way of other expert opinion or surrounding circumstances, a tribunal or court might normally be expected to accept the expert opinion. However, that is not the situation in the present case where the report itself incorporates, on a fair reading, a version of the facts which has been rejected by the IRT. The ultimate decision whether to accept an expert opinion is one for the court or tribunal to make.

I do not perceive any error of law or legal principle as submitted by the applicant on this aspect of the case. It by no means follows that because a twenty-eight year old woman suffers psychological and emotional distress and disturbance that she is dependant on her mother for emotional support.

A third submission advanced was that the IRT acted unreasonably in not calling the psychologist and questioning her as to what her views would be if the history of the living arrangements of the applicant with her mother were different from those rencountered to her. The psychologist had been told that the mother and daughter were living together for a period of three years at Katoomba. However, there was contradictory evidence to the effect that the period of co-habitation may have been in the order of eighteen months. In essence this submission is that before the IRT rejected important parts of the report it should have made further inquiries of the psychologist. It is said that such inquiries could have readily been made and the question of the degree of contact between the applicant and her mother was of central importance.

I do not accept this submission. There was no evidence before me as to what the psychologist might have said if she was asked to make assumptions, nor was the nature or terms of the assumptions spelt out in any way. Indeed, the position was by no means clear because of the finding that the three witnesses lacked any credibility on this aspect of the case. In view of this, it is difficult to see that any credible material could have been advanced on the basis of which the psychologists could have expressed an opinion. Moreover, it is difficult to see, in these circumstances, what useful purpose could have been served by contacting the psychologist and asking questions based on an indeterminate range of possibilities.

Unless there are very special circumstances, the IRT should not be required to re-open proceedings and question experts who have furnished reports on the grounds that an expert report is based, to a significant extent, on untruthful assertions, which cannot be accepted.

Quite often a final view on credibility of witnesses cannot be reached until after the hearing when all the evidence is properly reviewed. In this case the finding of non-credibility undermined the validity of any such interrogation as a useful source of information or expert opinion. A number of further submissions were made. These included submissions that there had been a failure to consider relevant factors and that there had been an error of l aw.

The submissions made on these matters are essentially that the IRT failed to give adequate consideration or proper weight to the evidence on the question of dependency. I am not satisfied that the matters raised by the applicant, which are essentially those referred to above, were not considered by the IRT. Insofar as any claim of error of law is concerned I reject it, for the reasons given above.

My conclusion is that the application should be dismissed with costs.