ACE15 v Minister for Immigration

ACE15 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who had arrived in Australia by boat, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the protection visa application, a decision that was affirmed on review by the Administrative Appeals Tribunal. The applicant then brought proceedings in the Federal Court of Australia.

The primary legal issue before the Court was whether the Tribunal had erred in law in its assessment of the applicant's claim to be a member of a particular social group for the purposes of the *Migration Act 1958* (Cth). Specifically, the Court had to consider whether the Tribunal had correctly applied the principles established in *Applicant S v Minister for Immigration and Border Protection* [2021] FCA 1066 regarding the identification and assessment of particular social groups in the context of protection visa claims. The applicant argued that the Tribunal had failed to properly consider the nexus between their alleged fear of persecution and their membership of the identified social group.

Judge McNab found that the Tribunal had made an error of law. Her Honour reasoned that the Tribunal had not adequately engaged with the evidence presented by the applicant regarding the characteristics of the alleged social group and the reasons why members of that group would face persecution. The Court reiterated the principle that a particular social group must be identifiable and possess a common characteristic that binds its members together, and that this characteristic must be the reason for the persecution feared. The Tribunal's failure to properly consider the evidence in light of this legal framework constituted an error.

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