ALR16 v Minister for Immigration

ALR16 (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 central legal issue before the Court was whether the Tribunal had erred in law in its assessment of the applicant's claims regarding membership of a particular social group and the risk of persecution. Specifically, the Court was required to consider whether the Tribunal had correctly applied the principles established in *Love v Commonwealth* [2020] HCA 3 and *Thomsen v Minister for Immigration and Border Protection* [2021] FCA 1065 in determining whether the applicant was a member of a particular social group for the purposes of the *Migration Act 1958* (Cth). The Court also had to determine if the Tribunal had adequately considered all relevant evidence when assessing the risk of harm.

Judge Riley found that the Tribunal had made an error of law in its approach to identifying the particular social group. The Court held that the Tribunal had failed to properly consider the applicant's asserted characteristics as a cohesive whole when determining membership of a particular social group, instead dissecting them in a way that was inconsistent with the established legal principles. Furthermore, the Court determined that the Tribunal had not adequately engaged with the evidence presented by the applicant concerning the potential for harm upon return to their country of origin.

Consequently, the Court quashed the decision of the Administrative Appeals Tribunal and remitted the matter to the Tribunal to be heard and determined afresh according to law.