DZAEU v Minister for Immigration

DZAEU (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 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 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 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 determining whether the applicant belonged to a particular social group for the purposes of the *Migration Act 1958* (Cth). The Court also considered whether the Tribunal had adequately considered all relevant evidence when assessing the risk of harm.

Judge Jarrett found that the Tribunal had made an error of law in its approach to identifying the applicant as a member of a particular social group. The Court held that the Tribunal had failed to properly consider the applicant's subjective fear and the objective circumstances that might lead to that fear, particularly in light of the High Court's decision in *Love*. The Tribunal's reasoning was found to be insufficient in demonstrating how it had applied the legal test for membership of a particular social group, leading to an erroneous conclusion. The Court determined that the Tribunal had not adequately engaged with the evidence presented by the applicant concerning the potential for persecution.

Consequently, Judge Jarrett ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.