BAF15 v Minister for Immigration

BAF15 (the applicant) sought judicial review of a decision 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 affirmed on internal review. The applicant then brought proceedings in 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 Court was required to determine if the delegate had failed to properly consider the applicant's claims regarding their membership of a particular social group and the real chance of persecution they faced on that basis, as required by the *Migration Act 1958* (Cth) and relevant international conventions. The applicant argued that the delegate had misunderstood or misapplied the concept of a "particular social group" and had not adequately assessed the subjective and objective elements of their fear of persecution.

In his reasoning, Judge Street considered the evidence presented by the applicant and the delegate's assessment of that evidence. His Honour emphasised that the assessment of whether a group constitutes a "particular social group" for the purposes of the Refugee Convention requires an examination of whether the group is defined by a common characteristic that is either innate, unchangeable, or so fundamental to the identity of its members that they should not be required to shed it. Furthermore, the Court reiterated that the assessment of a real chance of persecution involves considering both the subjective fear of the applicant and the objective likelihood of harm. Judge Street found that the delegate had failed to properly engage with the applicant's evidence concerning the defining characteristics of the social group and the specific reasons for fearing persecution, thereby committing a jurisdictional error.

Consequently, the Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.