DXP16 v Minister for Immigration

DXP16 (the applicant) sought judicial review of a decision 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 membership of a particular social group and the risk 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 1067 in determining whether the applicant's claimed 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 the evidence before it when assessing the real chance of harm.

Judge Riley found that the Tribunal had made a jurisdictional error by failing to properly consider the applicant's evidence and submissions concerning their membership of a particular social group. The Court held that the Tribunal had applied an overly narrow interpretation of the concept of a "particular social group" and had not adequately engaged with the evidence that supported the applicant's claim. Consequently, the Court quashed the Tribunal's decision.

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