AEK16 v Minister for Immigration

AEK16 (the applicant) sought judicial review of a decision made by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who arrived in Australia without a visa, 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 subsequently affirmed on internal review. The applicant then brought the matter before the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the applicant contended that the delegate failed to properly consider and assess the evidence relating to their claims of persecution, thereby failing to satisfy the requirements of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The applicant argued that the delegate's assessment of the 'particular social group' criterion was flawed and that the delegate had not adequately addressed the real chance of harm the applicant claimed to face.

Judge Smith found that the delegate had indeed made a jurisdictional error. The Court reasoned that the delegate's assessment of the 'particular social group' was overly narrow and failed to engage with the evidence presented by the applicant in a meaningful way. The delegate's reasons did not demonstrate a proper understanding of the applicant's asserted social group and the nexus between membership of that group and the feared persecution. Consequently, the Court concluded that the delegate's decision was not based on a correct understanding of the law or a proper consideration of the facts, leading to a jurisdictional error.

The Court ordered that the decision of the delegate be set aside. The matter was remitted to the Minister for Immigration to be determined by a different delegate according to law.