//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2002] FCA 464
respondent. The application was dismissed. The applicant was ordered to pay the respondent's costs.
The Court did not rehear whether the applicant had really been threatened or whether the RRT's view of the evidence was correct. It considered whether the RRT had made a kind of legal error that could support judicial review. The RRT was not required to follow earlier decisions about other Russian Jehovah's Witnesses. It had referred to the particular earlier decision the applicant relied on and explained why it saw the facts as different. The applicant's disputes about credibility and evidence were merits complaints, not jurisdictional error. The application was dismissed with costs.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,177 words · generated 01/10/2026
In NABW v Minister for Immigration & Multicultural Affairs [2002] FCA 464, Sackville J considered an application for judicial review of a Refugee Review Tribunal (RRT) decision. The RRT had affirmed a delegate's refusal to grant NABW a protection visa. The Federal Court dismissed the application and ordered NABW to pay the Minister's costs.
3 cited instruments linked from this judgment.
NABW was a Russian citizen who arrived in Australia as a temporary business entrant in December 1998. He applied for a protection visa on 7 January 1999. His claim was that he had become committed to the teachings of Jehovah's Witnesses in late 1997 and feared persecution in Russia because of his religious beliefs ([2]).
He told the RRT that Jehovah's Witnesses in Russia faced “genocide and a violent extermination”. He claimed he had received threats at his home in Vladivostock and had been attacked and beaten by unknown people. He also said police had refused to help, as part of a policy aimed at eradicating unconventional religious organisations. He linked the threats to a visit to a Russian Orthodox Church on 13 November 1998 ([7]).
The RRT considered country information indicating that Jehovah's Witnesses could practise their religion in Russia and that reported discrimination or harassment was isolated. It did not find NABW credible in relation to his claims of threats and attack. The RRT accepted that he had begun attending Jehovah's Witness meetings in Vladivostock in late 1997, but rejected his account of the church visit and subsequent threats. It found that the photographs of threatening fliers and other supporting documents were fabrications ([8]–[10]).
NABW's Federal Court application was filed on 19 November 2001 and framed under s 476 of the Migration Act 1958 (Cth), which had been repealed on 2 October 2001. He argued, among other things, that the RRT had wrongly assessed his evidence and failed to take account of earlier RRT decisions concerning Jehovah's Witnesses from Russia ([3], [11]).
The judgment distinguishes a disagreement with the RRT's assessment of the evidence from a legally reviewable jurisdictional error. NABW challenged the RRT's conclusions about the photographs, the logic of its reasoning, and the weight given to information supporting his account. Sackville J treated these as attempts to revisit the merits. The Court said that none of the factual issues raised could constitute jurisdictional error capable of supporting relief under s 39B(1) of the Judiciary Act 1903 (Cth) ([12]).
The principal legal issue was the RRT's treatment of its earlier decisions about co-religionists. The Court stated the general principle that the RRT was not bound to refer to earlier decisions merely because they raised similar issues. Its task was to decide whether it was satisfied, on the material before it, that this applicant had a well-founded fear of persecution if returned to his country of nationality ([13]). The RRT was not bound by conclusions reached in earlier cases and could regard those decisions as irrelevant ([13]).
The judgment also considered a more qualified argument drawn from Soboleva v Minister for Immigration and Multicultural Affairs [2001] FCA 528. The passage referred to there suggested that an earlier decision might raise a reviewable issue if it was factually similar and close in time, had been relied on by a party, but was not considered or referred to by the RRT. Sackville J observed that the passage concerned the law before the repeal of former Part 8 of the Migration Act and referred to authorities on s 430 that had since been overruled by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 ([14]–[15]).
The Court did not need to decide whether that qualified argument remained part of the law. Even assuming it could apply, it did not assist NABW. His representative had referred the RRT to a recent decision involving a successful claim by a family of Russian Jehovah's Witnesses. The RRT expressly referred to that decision and noted that the circumstances were different ([15]). The complaint therefore did not show that the RRT had ignored the earlier decision.
NABW also contended that the RRT had failed to act in good faith. Sackville J understood the basis for that contention to be the alleged failure to consider earlier RRT decisions. Since that alleged failure did not establish error in the circumstances, it could not establish lack of good faith ([16]).
The Court approached the procedural question on the assumption that NABW could amend the application to seek relief under s 39B(1) of the Judiciary Act, despite the Minister's reliance on NACA v Minister for Immigration and Multicultural Affairs [2002] FCA 63 and the time limit in s 477(1) of the Migration Act ([5]). The Court said that leave to amend would depend on showing jurisdictional error. As none was shown, amendment would be futile ([6], [17]). It consequently did not determine the effect of the privative clause in s 474(1) ([6], [17]).
The judgment records a procedural transition in migration judicial review. NABW's application invoked s 476 of the Migration Act, but that provision had been repealed on 2 October 2001 by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). The application was filed on 19 November 2001 ([3]).
Sackville J noted that, if the application had been framed under s 39B(1) of the Judiciary Act, the Court would have had jurisdiction to issue certiorari and prohibition in respect of the RRT decision and to grant consequential relief ([4]). The Minister relied on NACA for the proposition that an application under repealed Part 8 could not be amended to invoke s 39B outside the time limit in s 477(1), described in the judgment as 28 days from notification of the RRT decision ([5]). Sackville J expressly did not decide that procedural issue, instead assuming amendment was possible so the substantive jurisdictional-error arguments could be addressed ([5]–[6]).
On the treatment of earlier RRT decisions, the judgment states that the RRT was not generally required to refer to or follow similar decisions. The decision-maker's task remained an individual assessment on the material before it ([13]). The Court also described the more qualified Soboleva passage as arising under the earlier statutory framework and noted the subsequent High Court decision in Yusuf concerning s 430 ([14]–[15]). It did not undertake a comprehensive account of the law after Yusuf, and the judgment should not be read as resolving every possible duty to consider material put before the RRT.
The decision's immediate result was that this application failed for want of demonstrated jurisdictional error. It did not decide whether s 474(1) barred relief in this case, because there was no need to reach that question ([17]). The supplied judgment does not establish any later development in the law beyond the authorities it cites and discusses.
At [13], Sackville J said: “The question for determination by the RRT is whether it is satisfied on the materials before it that the applicant has a well-founded fear of persecution if returned to his or her country of nationality.” In plain English, the Tribunal had to decide this applicant's claim from the material before it. A different result in another applicant's case did not determine NABW's case.
At [12], the Court said: “None of the issues of fact that the applicant raised is capable of constituting a jurisdictional error”. This meant that disagreement about the RRT's factual conclusions, the photographs, and the weight of supporting information was not enough, without more, to justify judicial review on the ground relied on.
At [15], the judgment notes that the RRT “expressly referred to” the earlier successful family case and considered its circumstances different. This mattered because the possible concern identified from Soboleva involved an earlier decision not considered or mentioned by the Tribunal. On the facts described by Sackville J, the RRT had not simply overlooked the decision NABW relied on.
At [17], Sackville J concluded that NABW had failed to establish jurisdictional error that might attract relief under s 39B(1). That conclusion disposed of the application. The Court did not then decide the separate question about s 474(1).
The judgment is most directly relevant to a judicial review argument that an administrative tribunal should have referred to, followed, or treated as determinative its earlier decisions involving people said to be in a similar position. The case indicates that similarity alone does not require the RRT to follow an earlier outcome. The tribunal's task remains focused on the particular application and the material before it ([13]).
The decision also addresses a narrower pattern: a party relies on an earlier decision that may be factually similar and close in time, but the tribunal does not mention or consider it. Sackville J recounted the Soboleva passage describing that situation as one that might arguably raise an error, while noting the statutory and authority context in which that passage arose ([14]–[15]). In NABW's case, this possible issue did not arise in the same way because the RRT expressly referred to the prior decision and distinguished its circumstances ([15]).
The decision is also relevant where a judicial review applicant's grounds principally challenge credibility findings, the treatment of documents, the logic of factual reasoning, or the weight assigned to evidence. It illustrates that such complaints may amount only to merits disagreement and will not, by themselves, establish jurisdictional error ([12]). It does not say that every complaint involving evidence is necessarily outside judicial review; its stated conclusion is about the factual issues raised in this case.
Finally, the judgment may be relevant to applications filed during the transition away from former Part 8 of the Migration Act. It records the interaction between a proceeding framed under repealed s 476, possible amendment to invoke s 39B of the Judiciary Act, and the s 477(1) time limit. However, the Court assumed amendment was available and did not decide the contested limitation point ([5]–[6]).
The supplied judgment contains no account of later courts treating NABW itself. It therefore does not support a claim that the case was later followed, distinguished, approved, or overruled. Establishing that history would require later judgments or other legal sources, which are not included in the material provided.
The judgment does identify authorities that Sackville J considered relevant to the issues before him. It cites Vassilieva v Minister for Immigration and Multicultural Affairs [2001] FCA 733 and Eloujenko v Minister for Immigration and Multicultural Affairs [2001] FCA 980 for the proposition that the RRT's task was to assess the individual applicant's well-founded fear ([13]). It notes that leave to appeal in Eloujenko was refused in Eloujenko v Minister for Immigration and Multicultural Affairs [2001] FCA 1791 ([13]). It cites Soboleva for the position that the RRT was not bound by earlier decisions and could disregard them if irrelevant, as well as for the qualified argument about an earlier decision being used to raise material factual questions ([13]–[14]).
Sackville J also referred to Yusuf, stating that the authorities interpreting s 430 of the Migration Act had been overruled by the High Court ([15]). The judgment does not set out the full reasoning in Yusuf or assess the later treatment of NABW. Its account is confined to why the passage from Soboleva did not assist this applicant.
Several matters were expressly left unresolved. First, the Court did not decide whether an application framed under repealed Part 8 could be amended to invoke s 39B(1) after the time limit in s 477(1). It referred to NACA as authority for the Minister's proposition, but proceeded on the assumption that amendment could be permitted ([5]–[6]).
Second, the Court did not determine the effect of s 474(1), which described privative clause decisions as final and conclusive and restricted forms of review. Because NABW had not established jurisdictional error, there was no need to address that issue ([6], [17]).
Third, the judgment did not decide the reach of the qualified argument recounted from Soboleva after the statutory changes and Yusuf. Sackville J said that the passage arose under the former Part 8 framework and that the authorities about s 430 had been overruled, then held that the argument would not help NABW in any event because the RRT had referred to the earlier decision ([14]–[15]). The judgment leaves open how a later case with materially different facts, especially one where a party relied on a similar earlier decision that the RRT did not mention, would be analysed.
Finally, the Court did not determine the truth of NABW's account of threats, the genuineness of the photographs, or whether Jehovah's Witnesses in Russia faced persecution as a general matter. It reviewed whether a jurisdictional error had been demonstrated, rather than substituting its assessment of the evidence for the RRT's conclusions ([8]–[12]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
REASONS FOR JUDGMENT 1 There is an application for review of a decision of the Refugee Review Tribunal ("RRT") made on 30 October 2001. The RRT affirmed a decision of a delegate of the respondent ("the Minister") not to grant a protection visa to the applicant. 2 The applicant is a Russian citizen who last arrived in Australia as a temporary business entrant in December 1998. He applied for a protection visa on 7 January 1999. In substance, the applicant claimed that he had become committed to the teachings of Jehovah's Witnesses at the end of 1997 and that he feared persecution in Russia by reason of his religious beliefs. 3 The applicant gave evidence before the RRT and was represented at the time by a migration agent. The application to this Court is expressed to be made pursuant to s 476 of the Migration Act 1958 (Cth)("Migration Act"). It identifies several grounds by reference to the terms of s 476(1) as it stood prior to its repeal on 2 October 2001 by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). 4 Since the application to this Court was filed on 19 November 2001 the grounds relied on by the applicant, who appeared without representation in this Court, are no longer available as a basis for relief. Had the application been framed as one made pursuant to s 39B(1) of the Judiciary Act 1903 (Cth) ("Judiciary Act"), the Court would have had jurisdiction to issue writs of certiorari and prohibition in respect of the RRT's decision and to grant consequential relief. 5 Mr Lloyd, who appeared for the Minister, pointed out that there is authority for the proposition that an application which purports to be made pursuant to the repealed Part 8 of the Migration Act cannot be amended so as to invoke s 39B(1) of the Judiciary Act outside the time limitation now imposed by s 477(1) of the Migration Act (that is, twenty-eight days from notification of the RRT's decision): NACA v Minister for Immigration and Multicultural Affairs [2002] FCA 63. If that proposition is correct, the application must fail. I propose, however, to address the application on the basis that the applicant seeks to amend his application so as to claim relief under s 39B(1) of the Judiciary Act and that there is no impediment to his being granted leave by reason of the delay in the application being made. 6 On this approach, I would grant leave to amend the application if the applicant can demonstrate that the RRT committed a jurisdictional error in respect of which the Court has power to grant relief notwithstanding s 474(1) of the Migration Act. Section 474(1) provides as follows: "(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account." The RRT's decision is a privative clause decision: Migration Act, s 474(2). 7 The applicant claimed before the RRT that Jehovah's Witnesses in Russia faced "genocide and a violent extermination". He claimed that he had received threats at his home in Vladivostock and that he had been attacked and beaten by unknown people. Some of the threats had been contained in fliers taped to the wall and door of his apartment. The applicant supported his case by producing photographs of the fliers. The police had refused to assist as part of a policy aimed (so he claimed) at the eradication of unconventional religious organisations. The applicant claimed that the threats had been made following a visit by him to a Russian Orthodox Church on 13 November 1998, in the course of which he had asked the priest why the Church hated Jehovah's Witnesses. 8 The RRT considered that the most significant factor casting doubt on the applicant's credibility was the independent country information which suggested, contrary to his claims, that Jehovah's Witnesses in Russia enjoy the freedom to practise their religion. While the RRT accepted that the Russian Orthodox Church was antagonistic towards sects such as Jehovah's Witnesses, the country information indicates that there had only been isolated instances of discrimination or harassment of Jehovah's Witnesses in Russia. In view of the inconsistencies between the country information and the applicant's claims, the RRT did not find him to be a credible witness. 9 The RRT nonetheless accepted that the applicant began attending meetings of Jehovah's Witnesses in Vladivostock in late 1997. It rejected, however, his claims that he had visited a Russian Orthodox Church in November 1998 and had subsequently been threatened as he had described. Moreover, the RRT found that the photographs of the fliers were fabrications, in that the same flier had been photographed in one location and then been photographed in the second location. The applicant's suggestion, made at the hearing, that the police may have fabricated the photographs was characterised as "completely fanciful". The RRT found that other documents produced by the applicant to support his case were also fabrications. 10 The RRT did not accept that the applicant had been threatened in Russia by reason of his religion. While it accepted that he would continue to attend meetings of Jehovah's Witnesses if he returned to Russia, it did not accept that there was a real chance that his life would be threatened or that he would otherwise be persecuted by reason of his religion. Accordingly, the RRT was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason in Russia. 11 The applicant filed a written submission in this Court. He disputed the RRT's finding that Jehovah's Witnesses did not face persecution in Russia. The submission referred to several decisions of the RRT which, so he claimed, supported the view that Jehovah's Witnesses had been targeted by local or regional authorities in Russia and were subjected to arbitrary harassment and restrictions. The applicant also took issue with the RRT's finding that the photographic evidence had been fabricated by him. 12 To the extent that the applicant challenged findings of fact made by the RRT, he was attempting to canvass the merits of the RRT's decision. For example, he disputed the findings made in relation to the photographs and criticised the logic of the RRT's reasoning. He also contended that the RRT had not taken into account, or had given insufficient weight to, factual information that supported his case. None of the issues of fact that the applicant raised is capable of constituting a jurisdictional error that might support a claim for relief in this Court under s 39B(1) of the Judiciary Act. 13 So far as the applicant's complaint relating to the RRT's failure to refer to its earlier decisions is concerned, the general principle is that the RRT is not bound to refer to such decisions merely because they raise similar issues to those presented by the particular application for review. The question for determination by the RRT is whether it is satisfied on the materials before it that the applicant has a well-founded fear of persecution if returned to his or her country of nationality: Vassilieva v Minister for Immigration and Multicultural Affairs [2001] FCA 733; Eloujenko v Minister for Immigration and Multicultural Affairs [2001] FCA 980, at [23], per Hely J (leave to appeal refused: Eloujenko v Minister for Immigration and Multicultural Affairs [2001] FCA 1791). The RRT is not bound by conclusions reached in previous decisions and is entitled to disregard those decisions if it considers them to be irrelevant: Soboleva Minister for Immigration and Multicultural Affairs [2001] FCA 528, at [21]-[25], per Moore J. 14 The highest that the matter can be put for the applicant is suggested by another passage from the judgment in Soboleva v Minister, at [26]. "where an earlier decision is both factually similar and temporally proximate to the circumstances of the application before the Tribunal and the earlier decision has been referred to and relied on by a party but not considered and referred to by the Tribunal, it may arguably give rise to error reviewable in this Court. That arguably is the position not because the Tribunal should, prima facie, follow earlier decisions but because an earlier decision of this type might be viewed as a vehicle used by a party to raise material questions of fact about which the Tribunal should, as required by s 430, make findings and set out the evidence in support thereof". 15 This passage refers to the law as it was prior to the repeal of the former Part 8 of the Migration Act and, in particular, by reference to the authorities interpreting s 430 of the Migration Act (which, in any event, were overruled by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1). Even if the passage represents the current law relating to jurisdictional error it would not help the present applicant. It is true that the applicant's representative referred the RRT to a recent decision of a differently constituted RRT concerning a successful application by a family of Jehovah's Witnesses from Russia. But the RRT in the present case expressly referred to this decision and noted that the circumstances in that case were different from those of the applicant. 16 In the course of oral submissions, the applicant contended that the RRT had not acted in good faith. The basis for this contention appeared to be the RRT's failure to take into account its earlier decisions. As I have already explained, this does not amount to an error on the RRT's part and cannot establish a failure on its part to act in good faith. 17 It follows in my opinion that the applicant has failed to establish any jurisdictional error that might attract relief under s 39B(1) of the Judiciary Act. Any application for leave to amend his application to claim such relief would be doomed to failure. It is not necessary to consider the effect of s 474(1) of the Migration Act. Accordingly, the application should be dismissed, with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE.
The applicant was unrepresented Counsel for the Respondent: Mr S Lloyd
NABW
Minister for Immigration & Multicultural Affairs
The application was dismissed. The applicant was ordered to pay the respondent's costs.