EXP18 v Minister for Home Affairs

EXP18 (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 without a visa, claimed to fear persecution in their country of origin due to their membership of a particular social group. The respondent had refused the protection visa application, finding that the applicant did not meet the criteria for a protection visa under the *Migration Act 1958* (Cth). The matter came before Judge Egan in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the respondent had erred in law in refusing the protection visa. Specifically, the Court was required to determine if the respondent had properly considered the applicant's claims of persecution, particularly in relation to the definition of a "particular social group" as contemplated by the *Migration Act* and relevant international conventions. The applicant contended that the respondent had failed to adequately assess the evidence supporting their claim and had misapplied the legal test for establishing membership in a particular social group.

Judge Egan found that the respondent's decision contained an error of law. The Court reasoned that the respondent had failed to properly engage with the evidence presented by the applicant regarding their fear of persecution. In particular, the respondent had not adequately considered the specific characteristics that defined the applicant's claimed social group and how those characteristics would expose them to a real chance of persecution. The Court applied the principles established in *K v Minister for Immigration and Multicultural Affairs* [2004] HCA 44, which emphasise the need for a thorough and objective assessment of an applicant's claims and the characteristics of any claimed particular social group.

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