SBNC & Ors v MIMIA

SBNC and others (the applicants) sought judicial review of a decision by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) to refuse their applications for protection visas. The applicants were citizens of the People's Republic of China and claimed to be members of the persecuted Falun Gong movement. The Minister had refused their applications on the basis that they did not satisfy the criteria for a protection visa under section 417 of the *Migration Act 1958* (Cth), finding that they did not have a well-founded fear of persecution for reasons of membership of a particular social group. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Minister's decision was affected by an error of law, specifically concerning the interpretation and application of the definition of "particular social group" within the framework of the Refugee Convention and the *Migration Act*. The applicants contended that the Minister had erred in failing to properly consider their claims as members of the Falun Gong movement as a "particular social group" and that the assessment of their fear of persecution was based on an incorrect understanding of this concept.

Gummow and Heydon JJ, in their joint judgment, affirmed that the concept of a "particular social group" under the Refugee Convention requires the group to be identifiable and to share common immutable characteristics or a shared past. Their Honours found that the Minister's delegate had not made an error of law in assessing the applicants' claims. The delegate had considered the Falun Gong movement, but concluded that the evidence did not establish that membership of this group, in the circumstances presented by the applicants, constituted membership of a "particular social group" for the purposes of the Convention. The court held that the delegate's reasoning, which focused on the lack of evidence of systematic persecution of all members of the Falun Gong movement by the Chinese authorities, was a permissible approach and did not demonstrate an error of law.

The High Court dismissed the application for judicial review, upholding the Minister's decision.