SZSWT v Minister for Immigration

The applicant, SZSWT, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The applicant, who arrived in Australia by boat, 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 proceedings in the Federal Court of Australia.

The central legal issue before the Court was whether the Tribunal had erred in law in its assessment of the applicant's claims regarding membership of a particular social group and the risk of persecution. Specifically, the Court was required to consider whether the Tribunal had correctly applied the principles established in *Love v Commonwealth* [2020] HCA 3 and *Thomsen v Minister for Immigration and Border Protection* [2021] FCA 1067 in determining whether the applicant was a non-citizen for the purposes of s 5H of the *Migration Act 1958* (Cth) and whether the Tribunal had adequately considered the evidence relating to the alleged persecution.

Judge Driver found that the Tribunal had made a jurisdictional error by failing to properly consider the evidence and submissions relating to the applicant's claim of membership in a particular social group. The Court held that the Tribunal had not adequately engaged with the specific characteristics that defined the alleged social group and the nexus between those characteristics and the feared harm. Consequently, the Tribunal's decision was set aside.

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