austlii:cth/FedCFamC2G/2026/588
General information, not legal advice.
FedCFamC2G
2026-04-15
Original judgment source is linked above.
Failure to Apply the Correct Legal Test - Well-Founded Fear
The Tribunal erred in law by treating credibility findings as determinative and requiring proof of past threats, instead of applying the correct test of whether there is a real chance of persecution in the reasonably foreseeable future.
Failure to Consider Cumulative Harm
The Tribunal considered each claimed risk (Taliban threats, inter-sect marriage, risk as a returnee, family enmity) in isolation, and failed to consider whether the cumulative effect of these claims established a real chance of persecution.
Failure to Consider Relevant Cultural Evidence (Pashtunwali / Time Factor)
The Tribunal dismissed submissions regarding the enduring nature of revenge in Pashtun culture as "irrelevant" because the applicant was not in a blood feud, thereby failing to engage with relevant anthropological and cultural evidence.
Failure to Assess Risk in the Reasonably Foreseeable Future
The Tribunal relied on outdated country reports (2012-2014) and discounted more recent DFAT and NGO reports (2021-2023) that demonstrated heightened Taliban and sectarian violence in Khyber Pakhtunkhwa.
This was a legal error, as the assessment must be directed to future risk.
Error in Treatment of Sur Place Claim (Inter-Sect Marriage)
The Tribunal erred by dismissing the risk from the applicant's marriage to a Shia woman solely on the basis that his wife would not return with him.
The Tribunal failed to consider that the relationship itself, known to family and community, may create a risk of persecution (e.g. blasphemy accusations, sectarian hostility).
Improper Approach to Credibility Findings
The Tribunal's rejection of the 2015 Taliban letter as "not genuine" was treated as fatal to the applicant's case, without considering whether, despite doubts, broader country evidence showed a real chance of harm.
Failure to Properly Consider Complementary Protection (s 36(2)(aa))
The Tribunal rejected complementary protection by repeating its adverse credibility findings without conducting a separate assessment of whether the applicant faced a real risk of significant harm (s 36(2A)).
(a) where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 178 (Craig));
(b) where the decision-maker ignores relevant material (Craig at 178);
(c) where the decision-maker relies on irrelevant material (Craig at 178);
(d) where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) HCA 24; (2005) 228 CLR 294 at 354-355);
(e) where the decision-maker fails to consider the entirety of an applicant's claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]);
(f) where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(g) where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 445).
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.
CVG23
Minister for Immigration and Citizenship [2026] FedCFamC2G 588
AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205
ARG15 v Minister for Border Protection [2016] FCAFC 174; (2016) 250 FCR 109
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
ERM18 v Minister for Immigration and Multicultural Affairs [2025] FCA 228
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
MZYXS v Minister for Immigration and Citizenship [2013] FCA 614
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
(2016) 250 FCR 109
(2018) 258 FCR 175
(2022) 289 FCR 21
(2013) 210 FCR 505
(1996) 185 CLR 259
(2005) 228 CLR 294
(1995) 184 CLR 163
(2014) 231 FCR 437
(2000) 168 ALR 407
(2013) 249 CLR 332
(2010) 240 CLR 611
(2013) 212 FCR 99