AIK15 v Minister for Immigration

AIK15 (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 had 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 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 claims regarding their membership of a particular social group and the real chance of persecution. Specifically, the Court was required to consider whether the Tribunal had correctly applied the principles established in relevant case law concerning the definition of a "particular social group" for the purposes of the *Migration Act 1958* (Cth) and the assessment of the risk of harm.

Judge Young found that the Tribunal had made an error of law in its interpretation and application of the "particular social group" criterion. The Court reasoned that the Tribunal had failed to adequately consider the evidence presented by the applicant regarding the characteristics that defined their social group and how those characteristics would expose them to a real chance of persecution. The Court applied the principles from *Applicant S v Minister for Immigration and Ethnic Affairs* and *K v Minister for Immigration and Ethnic Affairs*, emphasizing that a particular social group must be defined by a common characteristic that is immutable or fundamental to the identity of its members, and that this characteristic must be recognised as such by society. The Tribunal's failure to properly engage with these established legal principles constituted an error of law.

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