BZAIW v Minister for Immigration

BZAIW (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 affirmed on review by the Administrative Appeals Tribunal. The applicant then sought to challenge 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 properly applied the principles established in relevant case law concerning the definition of a "particular social group" for the purposes of the *Migration Act 1958* (Cth) and whether it had adequately assessed the real chance of harm to the applicant.

Judge Jarrett found that the Tribunal had made a jurisdictional error. The Court reasoned that the Tribunal had failed to properly engage with the applicant's evidence and submissions concerning the specific characteristics that defined the alleged particular social group. Furthermore, the Court held that the Tribunal had not adequately considered the cumulative effect of the various factors that could lead to persecution, thereby failing to properly assess the real chance of harm. The Court applied the principles from *Applicant S v Minister for Immigration and Ethnic Affairs* and *K v Minister for Immigration and Ethnic Affairs* regarding the assessment of claims for protection visas.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.