Acosta v MIBP

Acosta (the applicant) sought judicial review of a decision made by the Minister for Immigration, Border Protection and Citizenship (the Minister) to refuse to grant her a protection visa. The applicant, who is from El Salvador, claimed to fear persecution in her home country due to her membership of a particular social group, specifically, women who have been victims of domestic violence and who have reported their abusers to the police. The application for judicial review was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's delegate had erred in law by failing to properly consider the applicant's claim that she belonged to a particular social group for the purposes of the *Migration Act 1958* (Cth). Specifically, the Court had to determine if the delegate's assessment of the applicant's fear of persecution was based on a correct understanding of the relevant legal principles concerning the definition of a "particular social group" within the framework of international refugee law, as applied in Australia.

Judge Street found that the delegate had made an error of law. The delegate's reasoning, which focused on the applicant's individual circumstances rather than the characteristics of the group she claimed to belong to, failed to properly engage with the established legal test for identifying a "particular social group." The Court reiterated that membership in a particular social group can be based on shared immutable characteristics, past experiences, or a common fundamental characteristic that binds the group together and distinguishes them from the rest of the population. The delegate's failure to assess whether the applicant's claimed group met this threshold constituted a reviewable error.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.