SZSBR v Minister for Immigration

In the Federal Court of Australia, SZSBR (the applicant) sought judicial review of a decision made by the Minister for Immigration (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 Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then brought the matter before the Federal Court.

The primary legal issue before the Court was whether the Tribunal had erred in law in its assessment of the applicant's claims regarding their membership of a particular social group and the real chance of persecution. Specifically, the Court was asked to consider if the Tribunal had correctly applied the principles established in *K v Minister for Immigration and Border Protection* [2017] FCAFC 145 and other relevant authorities concerning the definition of a "particular social group" for the purposes of the *Migration Act 1958* (Cth) and the Refugee Convention. The Court also considered whether the Tribunal had adequately assessed the risk of harm to the applicant should they be returned to their country of origin.

Judge Nicholls found that the Tribunal had made a jurisdictional error in its assessment of the applicant's claim. The Court reasoned that the Tribunal had failed to properly consider the evidence presented by the applicant regarding the characteristics that defined their alleged particular social group and how those characteristics would expose them to a real chance of persecution. The Tribunal's reasoning was found to be insufficient and did not adequately engage with the specific factual matrix of the applicant's case, thereby failing to apply the correct legal test for establishing membership of a particular social group.

Consequently, the Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.