ANA18 v Minister for Home Affairs

The applicant, ANA18, sought judicial review of a decision by the Minister for Home Affairs to refuse to grant a protection visa. The applicant, who arrived in Australia on 10 March 2019, 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 on 18 December 2020, finding that the applicant did not meet the criteria for a protection visa. The applicant subsequently sought review of this decision in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate's decision was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claims regarding their membership of a particular social group and the risk of persecution. The applicant argued that the delegate had misunderstood or misapplied the legal test for establishing membership of a particular social group and had failed to adequately assess the real chance of harm.

In reaching its decision, the Court analysed the delegate's assessment of the applicant's claims against the requirements of the *Migration Act 1958* (Cth) and relevant case law concerning protection visas and the definition of a "particular social group." The Court found that the delegate had made a jurisdictional error by failing to properly consider the evidence presented by the applicant regarding their fear of persecution and by applying an overly narrow interpretation of the criteria for membership in a particular social group. The Court emphasised that a delegate must engage with the applicant's subjective fear and assess the objective likelihood of harm based on the available evidence.

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