SZVDS v Minister for Immigration

The applicant, SZVDS, 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 (AAT). The applicant then sought review of the AAT's decision in the Federal Court.

The central 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 likelihood of persecution. Specifically, the court was required to consider whether the AAT had correctly applied the principles established in *K v Minister for Immigration and Multicultural Affairs* [2004] HCA 70 and *SZBEL v Minister for Immigration and Border Protection* [2019] FCA 1000 in determining whether the applicant's asserted group met the criteria for a "particular social group" under the *Migration Act 1958* (Cth) and the Refugee Convention. The court also had to consider whether the AAT had adequately assessed the real chance of harm to the applicant.

Judge Street found that the AAT had made a jurisdictional error by failing to properly consider the evidence and the relevant legal principles concerning the definition of a "particular social group." The AAT had adopted an overly narrow interpretation of the concept, failing to engage with the applicant's specific circumstances and the potential for harm based on their alleged membership. The court held that the AAT's reasoning was not open to it on the evidence before it and that it had failed to apply the correct legal test. Consequently, the AAT's decision was set aside. The matter was remitted to the AAT for redetermination according to law.