SZTRU v Minister for Immigration

The applicant, SZTRU, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The applicant had arrived in Australia without a visa and 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 affirmed by the Administrative Appeals Tribunal (AAT). The applicant then sought review of the AAT's decision in the Federal Court.

The primary legal issue before the Federal Court was whether the AAT had erred in law in its assessment of the applicant's claims regarding membership of a particular social group and the real chance of persecution. Specifically, the court considered whether the AAT had properly applied the principles established in *K v Minister for Immigration and Border Protection* [2019] FCA 1966 and *SZSSJ v Minister for Immigration, Citizenship and Multicultural Affairs* [2020] FCA 1000 concerning the definition and identification of a "particular social group" for the purposes of the *Migration Act 1958* (Cth). The court also examined whether the AAT had adequately considered all relevant evidence when assessing the risk of harm.

Judge Nicholls found that the AAT had made a jurisdictional error by failing to properly consider the applicant's evidence and by applying an incorrect legal test when assessing membership of a particular social group. The AAT had, in the court's view, unduly narrowed the scope of what constituted a particular social group, thereby failing to engage with the applicant's case in accordance with the established legal framework. The court reiterated that a particular social group must be defined by a characteristic that is common to its members and that is either immutable or so fundamental to their identity that they should not be required to change it. The AAT's failure to properly apply this principle constituted an error of law.

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