DZAFB v Minister for Immigration

DZAFB (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 affirmed on review 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 *K v Minister for Immigration and Border Protection* [2016] FCAFC 166 and other relevant authorities concerning the definition of a "particular social group" for the purposes of the *Migration Act 1958* (Cth) and the Refugee Convention. The Court also considered whether the Tribunal had adequately considered all the evidence before it when making its findings on the real chance of harm.

Judge Jarrett found that the Tribunal had made an error of law in its characterisation of the applicant's claimed social group. The Tribunal had, in the Court's view, applied an overly narrow interpretation of the criteria for a particular social group, failing to properly consider the nexus between the applicant's asserted characteristics and the feared persecution. The Court held that the Tribunal's reasoning on this point was not open to it on the evidence and that it had failed to engage with the applicant's submissions in a meaningful way. Consequently, the Court concluded that the Tribunal's decision was vitiated by jurisdictional error.

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