Sekhon v Minister for Immigration

Sekhon (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a visa. The applicant had applied for a Protection Visa (Class XA) under s 36(2)(aa) of the *Migration Act 1958* (Cth), alleging that they feared persecution in their country of origin. The Minister's delegate had refused the application, a decision that was affirmed by the Refugee Review Tribunal (RRT). The applicant then sought review of the RRT's decision in the Federal Court.

The primary legal issue before the Court was whether the RRT had erred in law by failing to adequately consider the applicant's claims of persecution based on their membership of a particular social group. Specifically, the applicant argued that the RRT had not properly assessed the risk of harm they faced due to their perceived association with a particular political organisation in their home country, and whether this association constituted membership of a particular social group for the purposes of the *Migration Act*.

Judge Hartnett found that the RRT had indeed made an error of law. The Tribunal had approached the assessment of the applicant's fear of persecution by focusing too narrowly on whether the applicant was an active member of the political organisation. The Court held that the RRT should have considered whether the applicant was perceived by persecutors to be a member of such a group, even if they were not an active participant. This perception, coupled with the risk of harm arising from that perception, could be sufficient to establish membership of a particular social group for the purposes of the *Migration Act*. The Court therefore quashed the RRT's decision.