BSD15 v Minister for Immigration

BSD15 (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 arrived in Australia by boat, 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 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 1067 in determining whether the applicant belonged to a particular social group for the purposes of the *Migration Act 1958* (Cth). The Court also considered whether the Tribunal had adequately assessed the real chance of harm to the applicant upon return to their country of origin.

Judge Cameron found that the Tribunal had made a jurisdictional error by failing to properly consider the applicant's evidence and submissions regarding their membership of a particular social group. The Court held that the Tribunal had applied an overly restrictive interpretation of the concept of a "particular social group" and had not adequately engaged with the evidence presented by the applicant. Consequently, the Court quashed the Tribunal's decision and remitted the matter to the Tribunal for redetermination according to law.