CHH16 v Minister for Immigration

The applicant, CHH16, sought judicial review of a decision by the Minister for Immigration 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 asked to consider whether the Tribunal had properly applied the principles established in *K v Minister for Immigration and Multicultural Affairs* [2004] HCA 70 and *SZSSJ v Minister for Immigration and Multicultural Affairs* [2010] FCA 1344 concerning the definition and identification of 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 if returned to their country of origin.

Judge Smith found that the Tribunal had made a jurisdictional error in its assessment of the applicant's claims. The Court held that the Tribunal had failed to adequately consider the evidence presented by the applicant regarding the formation and characteristics of the alleged particular social group. Furthermore, the Court determined that the Tribunal had not properly applied the legal test for assessing the real chance of harm, leading to an erroneous conclusion. The Court quashed the decision of the Administrative Appeals Tribunal and remitted the matter to the Tribunal for redetermination according to law.