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[2002] FCA 954
respondent. Application dismissed, with the applicant ordered to pay the respondent Minister’s costs.
2 cited instruments linked from this judgment.
The Court dismissed the applicant's challenge to the Tribunal's refusal of a protection visa. The applicant disagreed with the Tribunal's findings about his claimed religious membership and the evidence of persecution affecting him and his family. Hill J explained that judicial review is not a fresh hearing of the facts. Because the Court could not identify an error of law in the Tribunal's reasons, it had no basis to grant relief. It did not decide whether the Migration Act's privative clause excluded the Court's jurisdiction.
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2,317 words · generated 01/10/2026
In Nace v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 954, Hill J considered an unrepresented applicant's challenge to a Refugee Review Tribunal decision affirming refusal of a protection visa. The applicant was a citizen of the People's Republic of China. His central claim was that he had become a member of Yi Guan Dao, also called Tien Tao, in China and would face persecution because of that religious association if returned ( [7]).
The case had an earlier procedural history. The applicant had initially appealed the refusal of his protection visa to the Tribunal in 1997. The Tribunal decided the matter in October 1998, but a Federal Court judge set that decision aside because of an interpretation problem at the hearing and remitted the matter for reconsideration. A differently constituted Tribunal then made the decision challenged in this proceeding ( [6]).
The applicant said he had been initiated into Tien Tao and practised it secretly. He claimed to have learned that he was on a blacklist, possibly as a spy, and feared arrest. He also said that his wife had been dismissed from her teaching job and had attempted suicide because of his religious involvement, and that his child had been refused hospital admission. He relied on two documents concerning his wife and child, and called a witness who gave evidence about alleged arrests in Shanghai ( [7]–[10]).
The Tribunal rejected his account. It considered information suggesting that the religion was unknown in China, did not find the applicant's account of worship plausible, and did not regard the witness's evidence as useful because the witness lacked direct knowledge of mainland China. It did not accept that the documents established the claimed connection between the family's circumstances and the applicant's religion. The Tribunal found that the applicant had not been a member of Yi Guan Dao before leaving China, had not been of adverse interest to the Chinese authorities, and was unlikely to face adverse treatment on return because of events in Australia ( [9]–[12]).
Before Hill J, the applicant argued that the Tribunal had treated him unfairly, had been biased against the religion, had preferred external information over his and his witness's evidence, and had not wanted to investigate the religion properly. He also challenged the conclusions concerning his wife and child. Hill J recognised that the applicant was unrepresented, had difficulty distinguishing legal error from factual disagreement, and was assisted by an interpreter ( [13]–[15]).
The application was dismissed. The formal orders also required the applicant to pay the Minister's costs. Hill J did not decide whether s 474(1) of the Migration Act 1958 (Cth), the privative clause, excluded the Court's jurisdiction. The application failed because the Court could discern no error of law in the Tribunal's reasons ( [2]–[4], [16]–[17]).
The central reasoning was about the limits of judicial review. Hill J distinguished a legal challenge from an invitation to reconsider the facts. The applicant's objections principally concerned whether the Tribunal should have believed his account, accepted his witness's evidence, or drawn different conclusions from the documents and information about Tien Tao. The Court did not decide whether those factual conclusions were correct. Its task was to ask whether the Tribunal had made an error of law ( [15]–[16]).
Hill J expressly acknowledged the practical difficulty facing an unrepresented litigant, particularly one whose first language was not English. He said he had read the Tribunal's reasons carefully for that reason. But that acknowledgement did not change the nature of the proceeding: factual questions such as whether the religion existed in China, whether the applicant belonged to it, whether meetings occurred, and whether people were persecuted were matters for the Tribunal. The Court was not a further fact-finding tribunal ( [15]).
The applicant's point that an expert or the Tribunal might not have heard of a religion did not, by itself, show legal error. Hill J accepted that the observation might be logically sound, but said it did not demonstrate a relevant legal error in the Tribunal's decision ( [14]). That passage is important because it shows the distinction between identifying a possible weakness in reasoning and establishing an error that permits judicial relief. The Court did not say that the applicant's criticism was necessarily factually wrong. It said that the criticism, as presented, did not establish the required legal error.
The Tribunal's conclusions about the wife and child were likewise treated as factual assessments. The applicant disagreed with the Tribunal's view of the medical documents and of the reasons for the family's circumstances. Hill J found no error of law discernible in the Tribunal's reasons and did not substitute his own view of what the documents proved ( [8], [10]–[11], [16]).
A separate issue concerned s 474(1) of the Migration Act. The Tribunal decision was a “privative clause decision” as defined by that section. Hill J noted that the section's effect had been considered differently by individual Federal Court judges and that a five-judge Full Court had heard appeals raising the issue, with a decision awaited ( [2]). He therefore considered it inappropriate to decide either the meaning of s 474(1) or its constitutional validity in this case. In his view, the issue did not need resolution if the applicant had shown no error that could support relief ( [3]–[4], [16]).
Hill J described s 39B of the Judiciary Act 1903 (Cth) as the relevant basis for relief following legislative amendments. Although the application had been filed under s 476 of the Migration Act, he treated it, for the hearing, as an application under s 477 of that Act for the relevant writ or other relief ( [1]). The decisive point was that no ground for such relief had been demonstrated.
This judgment is cautious about the privative clause question rather than a decision resolving it. At the time, s 474(1) stated that a “privative clause decision” was final and conclusive and was not subject to challenge or to specified forms of relief in any court. Hill J recorded that first-instance judges had taken different views about the provision's effect and that a five-judge Full Court had heard appeals on the issue. The judgment says that a decision from that Full Court was awaited ( [2]).
The reasons therefore do not establish a “before and after” change in the law on s 474(1). Hill J deliberately left its meaning and constitutional validity open. Nor does the judgment report what the Full Court later decided or how subsequent courts treated the case. Any account of later developments would require sources beyond the judgment supplied here.
What the reasons do state is the approach Hill J applied to the application before him: under the judicial review framework discussed in the judgment, relief required an erroneous decision, and factual disagreement alone was not enough. The judgment identifies jurisdictional error and possibly failure to give natural justice as examples of ways an error might arise, while not deciding a specific doctrinal question about either category ( [3]). Its operative explanation is narrower: the Court could intervene only if the Tribunal had erred in law, and Hill J could discern no such error in the reasons before him ( [15]–[16]).
Accordingly, the judgment's contribution on its own terms is best understood as an application of the distinction between review for legal error and reconsideration of facts. It should not be read as a ruling on the ultimate reach of s 474(1), because the Court expressly avoided that issue.
At [14], Hill J addressed the applicant's argument that the Tribunal's lack of familiarity with Tien Tao did not prove that the religion did not exist. He said: “That may be so but it does not demonstrate a relevant legal error on the part of the Tribunal.” In plain English, even if a criticism of the Tribunal's factual reasoning might have merit, it still needs to connect to a legal error before it can support judicial review.
At [15], Hill J explained: “Judicial Review ... is not about the Court making its own factual findings. The Court can only intervene if the Tribunal has erred in law.” This is the judgment's clearest statement of the boundary the Court applied. The Court was not deciding for itself whether the applicant belonged to the religion or whether persecution had occurred.
At [16], he said there was “nothing in the Tribunal's reasons” that demonstrated legal error. The applicant's disagreement with the findings did not supply that missing basis. Hill J therefore concluded that there was no foundation for relief under s 39B and dismissed the application.
Also at [16], Hill J said the application had to be dismissed “whether or not this court's jurisdiction is excluded under s 474(1)”. In plain English, because the applicant had not shown an error warranting relief, the Court could decide the case without ruling on whether the privative clause barred review.
These passages should be read together. The decision did not affirm that every Tribunal factual finding is immune from scrutiny, nor did it determine the limits of s 474(1). It states that the applicant's particular complaints did not demonstrate legal error and that the Court's role was not to replace the Tribunal's factual assessment with its own.
The reasoning is relevant to judicial review proceedings where an applicant's challenge is, in substance, that the decision-maker should have believed different evidence, drawn different factual inferences, or reached a different conclusion on disputed events. In this case, those disputes concerned the applicant's claimed religious membership, the existence and treatment of Tien Tao in China, the weight given to a witness's evidence, and whether events affecting his wife and child were connected to his claimed faith ( [7]–[14]).
The judgment is also relevant where a party invokes judicial review but presents disagreement with credibility findings or evidentiary weight as unfairness or error. Hill J looked at the substance of the complaints and concluded that they did not reveal an error of law. The judgment's point is not that factual findings can never be relevant to a legal error. Rather, a party's disagreement with factual conclusions does not, by itself, establish one ( [15]–[16]).
The judgment provides a further procedural example where a privative clause issue is raised but the Court considers it unnecessary to resolve because the application fails on another ground. Here, Hill J left open the meaning and validity of s 474(1) because there was no demonstrated basis for relief independently of that question ( [2]–[4], [16]).
The judgment does not set out a comprehensive test for identifying legal error, nor does it decide a detailed claim of jurisdictional error or denial of natural justice. Those subjects appear as general observations, not as issues resolved on the facts before Hill J ( [3]). The case should therefore be used for the propositions it actually applies, rather than as a complete account of judicial review doctrine.
The supplied judgment identifies one earlier decision: Ratumaiwai v The Minister for Immigration & Multicultural Affairs [2002] FCA 311. Hill J described it as his own first-instance decision concerning the effect of s 474(1), and noted that individual judges had taken different views about that provision ( [2]). The reasons do not state that Nace applied or followed Ratumaiwai on the privative clause question. Instead, Hill J declined to decide that question.
The judgment also records that a five-judge Full Court had heard appeals from several first-instance decisions about the effect of s 474, and that a decision was awaited when Hill J gave judgment ( [2]). It does not provide the names or citations of those appeals or their eventual outcomes.
No later judicial treatment of Nace is included in the supplied judgment. It is therefore not possible, on this source alone, to say whether later courts followed, distinguished, explained, or otherwise treated it. The judgment itself supports only the account above: it referred to Ratumaiwai, noted disagreement among judges on s 474(1), and left the issue unresolved in this case.
The most obvious open question in the reasons is the meaning and constitutional validity of s 474(1). Hill J expressly declined to resolve either issue because the applicant had not shown a ground for relief and because a Full Court decision on the provision was awaited ( [2]–[4], [16]). The judgment therefore cannot be cited as settling the scope of that privative clause.
The reasons also do not determine whether any particular aspect of the Tribunal's assessment could have amounted to legal error if supported by a different argument or evidentiary record. The applicant's complaints were rejected as failing to demonstrate such error, but the judgment does not formulate a broader test for when credibility or evidentiary reasoning crosses that line ( [13]–[16]).
Nor does the judgment decide a specific natural justice claim. Hill J said, in general terms, that an error might arise from a failure to give natural justice, but the reasons do not identify such a failure as having been established in this proceeding ( [3]). Similarly, although jurisdictional error is mentioned as a possible source of legal error, the Court does not make a finding that the Tribunal committed jurisdictional error.
Finally, the supplied reasons do not describe subsequent appellate or later-court treatment. The judgment's own procedural account says only that Full Court appeals concerning s 474 were awaiting decision at the time. Any view about later developments or current law would need to be checked against sources not included here.
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REASONS FOR JUDGMENT 1 Before the Court is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") confirming a decision of the respondent Minister to refuse to grant to the applicant a protection visa. The application as filed sought relief under s 476 of the Migration Act 1958 (Cth) ("the Act"). As a result of amendments made to that Act, any application that is permitted to be made to the Court is required to be made under s 39B of the Judiciary Act 1903 (Cth). The applicant is not legally represented and, for the purposes of the hearing, it is appropriate to treat his application as being one made under s 477 of the Act for a prerogative writ or other relief as mentioned in that section. 2 The Tribunal's decision is a "privative clause decision" as defined in s 474 of the Act. Subsection 1 of the section provides that such a decision is final and conclusive and it is not subject to challenge or to prohibition, mandamus injunction, declaration or certiorari in any Court. The effect of s 474 has been the subject of a number of first instance decisions in this court including a decision of my own in Ratumaiwai v The Minister for Immigration & Multicultural Affairs [2002] FCA 311. Different views have been taken by individual judges. In the result the Chief Justice convened a Full Court comprising five judges of the Court to consider a number of appeals from a number of the first instance decisions. Those appeals were argued in June and a decision is awaited. 3 In these circumstances it is not appropriate that I decide the matter by reference to the question of the meaning of s 474(1) or for that matter its constitutional validity. On any view of the matter relief to which an applicant would be entitled under s 39B of the Judiciary Act 1903 (Cth) requires the applicant to show that the decision of which review is sought is in some way erroneous. It is a matter of law whether that arises as a result of a jurisdictional error or perhaps as a result of the failure to give natural justice. 4 If no ground of relief can be demonstrated to support the making of an order under s 39B of the Judiciary Act 1903 (Cth) then it will be irrelevant whether this Court has jurisdiction to deal with the matter because it is one falling within the definition of "privative clause decision". 5 Before dealing with the matters put to me by the applicant, who had the assistance of an interpreter, it is convenient to say something shortly about the Tribunal's reasons and the case that was put by the applicant to the Tribunal. 6 The applicant is a citizen of the People's Republic of China. His application for a protection visa was refused and he appealed to the Tribunal initially in 1997. The decision was given in October 1998. That decision was set aside by a Judge of this Court and the matter remitted to the Tribunal to be determined in accordance with law. Suffice it to say that the reason the initial decision was set aside related to a problem of interpretation which arose during the course of the initial hearing. The matter was then heard by a Tribunal differently constituted. It is that second decision which is now the subject of the present application. 7 It was the applicant's case that he had become a member of a religion which is referred to as Yi Guan Dao or Tien Tao while he was in China. He said that he was initiated into this religion and practised it secretly before he learned that he was listed in a black list, possibly as a spy, and was under threat of arrest. He said that he believed he would be persecuted in China because he was a worshipper of Tien Tao. In the result he obtained a travel document illegally and went to Hong Kong and thence to Australia. 8 It was also part of the applicant's case that his wife had been dismissed as a teacher because of the applicant's involvement in the Tien Tao faith and that ultimately, because of pressure, she had attempted to commit suicide. He said also that his child had been refused entry to a hospital, also as a consequence of his religious association. In support he produced two documents which he claimed to substantiate these matters. The one relating to the wife indicated that she had had treatment as described in the certificate and the one relating to the son showed that he suffered from asthma and hospitalisation was recommended. 9 The applicant claimed also that a number of persons in China were imprisoned or otherwise persecuted as a result of their participation in the religion. The Tribunal rejected the applicant's case and in so doing it took into account evidence before it which suggested that the religion in question was unknown in China at the present time. It noted that the applicant had called a witness who had no direct knowledge of matters in mainland China. In particular the Tribunal said that it found the applicant's account of worship in China implausible. 10 The Tribunal did not accept a great deal of the evidence which the applicant gave. It did not accept that the medical certificates supported the applicant's case, nor did it accept the evidence of the witness (concerning arrests in Shanghai which the applicant claimed to have taken place) as useful. The Tribunal further did not accept that the Tien Tao movement faced any serious problems in Shanghai as the applicant claimed. 11 The Tribunal took the view that the applicant had fabricated his account and rejected the suggestion that if the son had been refused entry to hospital this arose because of the applicant's religious belief. Indeed the Tribunal expressed the view that the applicant's child was in fact given treatment as recommended by the doctor. Further it took the view that if the applicant's wife had indeed attempted suicide or had been dismissed as a teacher, these events had nothing to do with the applicant's alleged membership of Yi Guan Dao in China. 12 The Tribunal found further that on the basis of material before it that Tien Tao did not exist in China. In summary the Tribunal made findings that the applicant was not a member of Yi Guan Dao prior to his leaving China and that he was not of adverse interest to the Chinese authorities prior to that time. It also took the view that he was unlikely to be adversely treated if he returned to China in the light of anything that may have happened in Australia in the meantime. 13 The applicant complained that he had not been treated fairly by the Tribunal. Not surprisingly, he complained about the findings relating to his wife and child. He said, although there is no support for this in the Tribunal's written reasons, that the Tribunal was biased towards the religion. He complained that the Tribunal had preferred information which it gathered concerning human rights matters in China, which it took as suggesting that the Tien Tao movement did not exist in China, to the evidence which the applicant gave and the witness the applicant called. 14 With some logic perhaps the applicant said that the mere fact that the Tribunal or an expert had not heard about a religion did not mean it did not exist. That may be so but it does not demonstrate a relevant legal error on the part of the Tribunal. Additionally, the applicant complained that the Tribunal did not want to investigate the true nature of the religion. He complained that he had provided sufficient evidence to the Tribunal but that the Tribunal did not want to believe that evidence. 15 Generally the applicant claimed that the Tribunal's decision was unfair to him. I have read the Tribunal's reasons carefully because I am conscious of the fact that the applicant is not legally represented and has difficulty in distinguishing between mistakes of law and non-acceptance of facts. I appreciate the difficulty that an unrepresented litigant has in seeking to argue an appeal in this Court. That difficulty is greatly aggravated when English is not the appellant's first language. Findings of fact, for example, whether such a religion exists or whether the applicant was a member of it or whether meetings were held as he suggests or whether persons were persecuted in China, are all matters for the Tribunal. Judicial Review, as is the essential substance of the relevant writs referred to in s 477, is not about the Court making its own factual findings. The Court can only intervene if the Tribunal has erred in law. 16 There is nothing in the Tribunal's reasons, which I am able to discern, which demonstrates that it erred in law. I repeat that while no doubt it made decisions of fact which the applicant does not accept that is not an error of law. In these circumstances there is no foundation for any relief of the kind referred to in s 39B of the Judiciary Act and in consequence, whether or not this court's jurisdiction is excluded under s 474(1) of the Act, the application must be dismissed. 17 The orders I will make will be that the application is dismissed and that the applicant pay the respondent minister's costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.
NACE
Minister for Immigration & Multicultural & Indigenous Affairs
Application dismissed, with the applicant ordered to pay the respondent Minister’s costs.