BBB17 v Minister for Immigration

BBB17 (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 sought review of the Tribunal's decision in the Federal Circuit and Family 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 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 *Applicant A v Minister for Immigration and Border Protection* [2017] FCA 1766 and *K v Minister for Immigration and Border Protection* [2019] FCA 1000 concerning the definition and identification 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 real chance of harm to the applicant.

Judge Street found that the Tribunal had made a jurisdictional error by failing to properly consider the applicant's evidence regarding their membership of a particular social group. The Court held that the Tribunal had applied an overly narrow interpretation of the concept, failing to engage with the specific characteristics that defined the applicant's group and the nexus between those characteristics and the feared persecution. The Court reiterated that a particular social group must be defined by a characteristic that is immutable or fundamental to the identity of its members, or by a characteristic that is so fundamental to their identity that they should not be required to change it. The Tribunal's failure to adequately assess these elements constituted an error of law.

Consequently, the Court quashed the decision of the Administrative Appeals Tribunal and remitted the application for a protection visa to the Tribunal to be heard and determined according to law.