SZULW v Minister for Immigration

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) to refuse a protection visa. The applicant, SZULW, alleged that the Tribunal’s decision was affected by jurisdictional error due to the application of incorrect legal tests when assessing his risk of persecution as a member of a particular social group.

The central legal issue before the court was whether the Tribunal had erred in its assessment of the applicant's claim for a protection visa. Specifically, the court was required to determine if the Tribunal had applied the correct legal test in considering whether the applicant would face persecution for being a member of a particular social group, as defined by the Migration Act, and whether the Tribunal had adequately considered the specific social group later propounded by the applicant.

Judge Cameron found that while the Tribunal had accepted that the social group "failed Tamil asylum seekers returning from Australia" existed and that the applicant was a member of it, the applicant had not raised the specific social group of "Tamils who departed Sri Lanka illegally and travelled to Australia in search of asylum" before the Tribunal. The Tribunal's reasoning in paragraph 78 of its decision indicated that it considered the Immigrants and Emigrants Act to be enforced non-discriminatorily against all individuals who departed Sri Lanka illegally, irrespective of their reasons for departure or asylum claims. The court concluded that the Tribunal’s finding that the applicant would not be singled out or treated differently for one of the five Convention reasons was open to it on the evidence presented, and that the Tribunal had not erred by failing to consider a social group that had not been raised before it.