Song v Minister for Immigration & Border Protection

The applicant, Song, sought judicial review of a decision by the Minister for Immigration and Border Protection 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 Emmett J of 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. Specifically, the court was required to determine if the RRT had failed to properly consider all the evidence before it, including evidence relating to the applicant's alleged membership of a particular social group and the potential for persecution based on that membership. The court also considered whether the RRT had adequately addressed the risk of harm the applicant might face upon return to their country of origin.

Emmett J found that the RRT had failed to adequately consider the evidence presented by the applicant regarding their membership of a particular social group and the potential for persecution on that basis. The court held that the RRT's reasoning was flawed because it did not engage with the specific evidence that supported the applicant's claim of belonging to a particular social group and the associated risks. Consequently, the RRT's decision was found to be affected by an error of law.

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