MAKO v Minister for Immigration

The applicant, Mako, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as required by the *Migration Act 1958* (Cth). The matter came before Judge Street in the Federal Court of Australia.

The central legal issue before the Court was whether the Refugee Review Tribunal (RRT) had erred in law in its assessment of the applicant's claims for protection. Specifically, the Court was required to determine if the RRT had failed to adequately consider all relevant evidence, including the applicant's subjective fear and the objective country information, when assessing the likelihood of persecution. The Court also considered whether the RRT had applied the correct legal test in determining whether the applicant belonged to a "particular social group."

Judge Street found that the RRT had failed to properly engage with the applicant's evidence regarding his fear of persecution. The Tribunal had not adequately explained why it rejected certain aspects of the applicant's testimony, nor had it sufficiently considered the implications of the country information in relation to the applicant's specific circumstances. The Court reiterated the principle that a subjective fear, if genuinely held and not inherently improbable, must be given due weight, even if the objective evidence does not conclusively establish its likelihood. The Court also noted that the definition of a "particular social group" requires careful consideration of the common characteristic that binds the group and whether that characteristic is recognised as a basis for persecution.

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