1606341 (Migration)

The applicant, Mr. K. S. (referred to as "the applicant"), sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs (the "Minister") to refuse to grant him a protection visa. The applicant, who arrived in Australia on 10 March 2019, claimed to fear persecution in his home country due to his membership of a particular social group. The Minister's delegate had previously refused the protection visa application, and this decision was affirmed by the Administrative Appeals Tribunal (AAT). The applicant then sought review of the AAT's decision in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the AAT had erred in law in its assessment of the applicant's claims regarding his membership of a particular social group and the real chance of him suffering harm if returned to his country of origin. Specifically, the Court was required to consider whether the AAT had properly applied the principles established in *K v Minister for Immigration and Ethnic Affairs* (1996) 136 ALR 571 and subsequent case law concerning the definition of a "particular social group" for the purposes of the *Migration Act 1958* (Cth). The applicant also contended that the AAT had failed to adequately consider certain evidence presented in support of his claims.

Justice Mercer found that the AAT had made a jurisdictional error in its assessment of the applicant's claim. The AAT had failed to properly engage with the evidence concerning the applicant's alleged membership of a particular social group, and in doing so, had not adequately considered whether the group met the criteria for recognition under the relevant provisions of the *Migration Act*. The Court held that the AAT's reasoning on this point was insufficient and did not demonstrate a proper understanding of the legal test applicable to such claims. Consequently, the AAT's decision was set aside.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.