CIH16 v Minister for Immigration

The applicant, CIH16, 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 Circuit and Family Court of Australia seeking to challenge the Tribunal's decision.

The central 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 likelihood 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 1065 in its determination of the applicant's claims. The applicant argued that the Tribunal had failed to adequately consider the evidence presented and had applied an incorrect legal test in assessing the particular social group criterion.

Judge Street found that the Tribunal had indeed erred in law. The Court held that the Tribunal had failed to properly consider the evidence relating to the applicant's alleged membership of a particular social group, particularly in light of the High Court's decision in *Love*. The Tribunal's reasoning was found to be insufficient and did not demonstrate a proper understanding of the legal test for establishing membership of a particular social group. Consequently, the Court concluded that the Tribunal's decision was vitiated by an error of law.

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