AXM15 v Minister for Immigration; and Anor

This matter concerned an application for judicial review brought by AXM15, a citizen of Sri Lanka, against the Minister for Immigration and Border Protection and the Administrative Appeals Tribunal. The applicant sought to challenge the Tribunal's decision of 1 May 2015, which affirmed the delegate's refusal to grant him a Protection (Class XA) visa. The applicant had entered Australia illegally on 18 July 2012 and subsequently applied for the visa on 10 December 2012. The Federal Circuit Court of Australia heard the application for judicial review.

The primary legal issues before the Court were whether the Tribunal had committed jurisdictional error in its conduct of the review process. Specifically, the applicant raised grounds concerning the Tribunal's alleged breach of natural justice obligations under sections 424AA and 424B of the Migration Act 1958, including allegations that the Tribunal improperly continued the hearing despite the applicant's emotional distress, failed to put relevant documents and its views on their authenticity to the applicant for comment, and did not adequately consider the impact of trauma and time delays on the applicant's recall of events. The applicant also contended that the Tribunal failed to consider relevant considerations, including documentary evidence provided by the applicant, and that it lacked empathy in its handling of the applicant's disclosure of a suicide attempt.

The Court dismissed the application, finding no jurisdictional error. Regarding the applicant's emotional state during the hearing, the Court applied principles from *Minister for Immigration and Citizenship v SZNCR* [2011] FCA 369 and *SZMSA v Minister for Immigration and Citizenship* [2010] FCA 345, holding that mere emotional upset is insufficient to establish unfitness to participate; the applicant must demonstrate an inability to give evidence, present arguments, or answer questions. The Court noted the applicant was assisted by a migration agent, answered questions, and neither sought an adjournment nor a break, and that no medical evidence was presented. The Court also found that the Tribunal's consideration of documents was permissible under section 424A of the Migration Act, as the documents were provided by the applicant and thus excluded from the operation of that section. Furthermore, applying *SZBYR v Minister for Immigration and Citizenship* (2007) 96 ALD 1, the Court held that a tribunal is not required to put its subjective thought processes to an applicant. The Court also found that the Tribunal was entitled to ask questions to satisfy itself of the applicant's claims, as per *SZQDU v Minister for Immigration and Citizenship* [2011] FCA 1389, and that the applicant's complaints about the Tribunal's findings on credibility and the impact of trauma were attempts at impermissible merits review.

The Court ordered that the name of the Second Respondent be amended to Administrative Appeals Tribunal, that the affidavit of Laura Worsley dated 7 September 2016 be disregarded, and that the applicant's application be dismissed. The applicant was also ordered to pay the First Respondent's costs in the sum of $7,206.