CDQ15 v Minister for Immigration

CDQ15 (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 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 on internal review. The applicant then brought proceedings in the Federal Circuit and Family Court of Australia.

The primary legal issue before Judge Harland 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 risks of persecution they faced on that basis. This involved an assessment of whether the delegate had applied the correct legal test for establishing membership of a particular social group and whether the delegate's findings of fact were reasonably open on the evidence before them.

Judge Harland found that the delegate had made a jurisdictional error by failing to adequately assess the applicant's claims concerning their membership of a particular social group. The delegate's reasoning was found to be insufficient in explaining why the applicant's asserted group did not constitute a particular social group for the purposes of the *Migration Act 1958* (Cth). Consequently, the delegate had not properly considered the real risks of persecution faced by the applicant. The court applied the principles established in cases concerning the assessment of protection claims and the definition of a "particular social group" under international and domestic law.

The court ordered that the decision of the respondent be set aside and remitted to the respondent for reconsideration according to law.