DONA v Minister for Immigration and BORDER PROTECTION

The applicant, Dona, sought judicial review of a decision by the Minister for Immigration and Border Protection to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as required by the *Migration Act 1958* (Cth). The matter came before Judge Emmett of the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law by failing to properly consider the applicant's claims of persecution based on membership of a particular social group. Specifically, the Court was asked to determine if the delegate had applied the correct legal test in assessing whether the applicant's alleged social group was a "particular social group" for the purposes of the *Migration Act*.

Judge Emmett reasoned that the delegate had misapplied the established legal principles for identifying a "particular social group" under the *Migration Act*. The delegate had incorrectly focused on the subjective characteristics of the applicant rather than the objective criteria for defining a social group that is recognised as distinct within the relevant society. The Court affirmed that a particular social group must be defined by characteristics that are common to its members and that distinguish them from the rest of the population, and that these characteristics must be capable of being recognised as such by the relevant society. The delegate's failure to apply this correct legal test constituted an error of law.

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