EEG18 v Minister for Home Affairs

EEG18 (the applicant) sought judicial review of a decision by the Minister for Home Affairs (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 sought to challenge this decision in the Federal Court.

The primary legal issue before the court was whether the Tribunal had erred in law in its assessment of the applicant's claims. 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* [2017] FCA 1577 concerning the assessment of claims of membership of a particular social group for the purposes of the *Migration Act 1958* (Cth). The applicant argued that the Tribunal had failed to properly consider the evidence before it and had applied an incorrect legal test in determining whether they belonged to a particular social group that would warrant the grant of a protection visa.

Judge Young found that the Tribunal had indeed made an error of law. The judge reasoned that the Tribunal had not adequately engaged with the evidence presented by the applicant regarding the formation and nature of the alleged particular social group. The court reiterated the principle that a particular social group must be defined by a characteristic that is common to its members and that is immutable or fundamental to their identity, and that the group must be capable of being identified as distinct from the general population. The Tribunal's failure to properly consider the applicant's evidence in light of these established legal principles constituted an error.

Consequently, the court set aside the decision of the Administrative Appeals Tribunal and remitted the matter to the Tribunal for redetermination according to law.