DMV17 v Minister for Immigration

DMV17 (the applicant) sought judicial review of a decision made by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who had arrived in Australia without a visa, 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 their membership of a particular social group and the real chance 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 determining whether the applicant's asserted group constituted a "particular social group" for the purposes of the *Migration Act 1958* (Cth). The Court also had to determine if the Tribunal had adequately considered all relevant evidence when assessing the risk of harm.

Judge Jarrett found that the Tribunal had made a jurisdictional error by failing to properly consider the applicant's evidence and by applying an incorrect legal test when assessing the "particular social group" criterion. The Court held that the Tribunal had not adequately engaged with the applicant's submissions regarding the nexus between their asserted characteristics and the feared persecution. Consequently, the decision of the Tribunal was set aside. The matter was remitted to the Administrative Appeals Tribunal to be heard and determined by a different member.