CKZ15 v Minister for Immigration

The applicant, CKZ15, 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.

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 risk of persecution. Specifically, the Court was required to consider whether the Tribunal had properly applied the principles established in *Love v Commonwealth* [2020] HCA 3 and *Thomsen v Minister for Immigration and Border Protection* [2021] FCA 1065 in determining whether the applicant was a non-citizen for the purposes of s 5 of the *Migration Act 1958* (Cth) and therefore owed a non-refoulement obligation.

Judge Riethmuller found that the Tribunal had made an error of law. The Tribunal had failed to adequately consider the applicant's evidence and submissions concerning their membership of a particular social group, and had not properly engaged with the legal test for establishing such membership. Furthermore, the Court held that the Tribunal had not correctly applied the principles from *Love* and *Thomsen* in assessing whether the applicant was a non-citizen for the purposes of the *Migration Act*, which was a prerequisite for the application of the non-refoulement obligations.

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