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[2003] FMCA 314
respondent. Application dismissed; the applicant was ordered to pay the respondent’s costs, assessed at $4,250.
The Court did not rehear Nahu's protection claim or decide whether his account was true. It reviewed whether the Tribunal's decision was affected by a legally reviewable error. The Court considered the Tribunal's credibility reasoning open on the evidence and found that Nahu's written allegations of procedural and statutory error lacked the particulars or evidence needed to establish them. It therefore dismissed the review application and ordered costs against him.
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2,390 words · generated 01/10/2026
In Nahu v Minister for Immigration [2003] FMCA 314, Raphael FM considered an application for judicial review of a Refugee Review Tribunal decision that had upheld the refusal of Nahu's protection visa application. Nahu was a Bangladeshi citizen who arrived in Australia on 14 September 2000 and applied for a protection visa on 4 October 2000. A delegate refused the application on 29 December 2000, and Nahu sought Tribunal review on 19 January 2001 [1].
No linked legislation citations have been extracted yet.
Nahu's account linked his claimed fear of returning to Bangladesh with his atheism, his stamp-collecting activities and alleged assaults in 1999. He said he had been targeted by members of the Awami League and Muslim fundamentalists, and feared retribution from a government minister who was also a local member of parliament and an Awami League organising secretary [3]. He connected the alleged hostility to an exhibit called “Man and Religion”, which he said included nude figures and conveyed a political message critical of Islam [4]-[5].
The Tribunal accepted some aspects of Nahu's account. It accepted his Bangladeshi nationality, stamp collecting, prize-winning at exhibitions, participation in an international exhibition in India, the theme of his display and that he did not believe in or practise Islam. But it rejected his claimed notoriety and found important aspects of his evidence unreliable. In particular, it was not satisfied that he had been assaulted because of the exhibition or his atheism, or that the exhibition was identified as the reason for an attack. It concluded he did not have a well-founded fear of persecution for a Convention reason [6].
Nahu appeared in person before Raphael FM and relied on written submissions prepared by a friend. The judgment records that Nahu spoke very little English, had no funds to employ a legal representative, and said he had given his friend information about his personal situation for use in the submissions [8]. The submissions raised, among other things, country information, a procedural-fairness argument based on Muin, s 420(2)(b) of the Migration Act 1958 (Cth), challenges to the Tribunal's findings, and allegations that the Tribunal had not considered all the facts or given an opportunity to comment on information [9]-[14].
The Court dismissed the application. It ordered Nahu to pay the respondent's costs, assessed at $4,250 [15]. There is a chronology inconsistency in paragraph 1: it says the Tribunal heard evidence on 13 November 2002 and decided the matter on 19 November, but also says the decision was handed down on 12 September 2002. The judgment excerpt does not resolve that inconsistency.
The judgment turns on the difference between reviewing for legal error and reconsidering the merits of the protection claim. The Court did not itself decide whether Nahu's account of the assaults, his profile or his fear was true. It examined whether the Tribunal's decision or process disclosed an error within the Court's judicial-review role.
First, the Court considered the Tribunal's treatment of the evidence and credibility. It said that its reading of the court book and supplementary court book supported the view that the Tribunal's comments on the evidence were ones it was entitled to draw [7]. The written submissions attacked the Tribunal's findings, but the Court said that this type of challenge did not assist an applicant seeking judicial review under s 39B of the Judiciary Act 1903 (Cth). It was the Tribunal's “duty and responsibility” to form its own view about the facts and witness credibility; the Court was not to interfere in that process [12].
Second, the Court rejected the Muin procedural argument because the required evidentiary foundation was missing. It explained that Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 60 had been decided on a particular set of agreed facts. A later applicant relying on that decision would need to establish the relevant facts in their own case, and that required evidence. The Court stated that no evidence had been provided here, and referred to NADR v Minister for Immigration [2002] FCAFC 293 for what was required [10]. The reasoning is specific: invoking the earlier case was not enough without proof that the relevant circumstances were present.
Third, the Court found the s 420(2)(b) contention insufficient. The submissions attempted to interpret that provision, but did not give particulars explaining how the Tribunal had failed to do substantial justice or consider the merits of the case [11]. The Court referred to Minister for Immigration v Eshetu [1999] HCA 21, stating that even if the alleged failure had occurred, it would not constitute jurisdictional error [11]. The judgment therefore did not treat a general allegation of non-compliance with that provision as enough to establish a reviewable error.
Fourth, the Court addressed the country-information and procedural allegations. It said that failure to deal with general evidence about country conditions would not constitute jurisdictional error where the evidence was not directly relevant to the claims being made [9]. As to the particular allegation that the Tribunal had ignored human rights conditions, the Court's reading of the Tribunal's reasons was that it had considered Bangladesh's human rights situation. It had concluded that Nahu could obtain police assistance after what it regarded as a random physical assault [14]. The Court also noted that the further allegations about failure to consider the totality of the facts and failure to provide an opportunity to comment lacked particulars and evidence, and were not readily apparent from the record [14].
Finally, the Court addressed a submission relying on Chan v Minister for Immigration [1989] HCA 62 and a passage from Goodwin-Gill's The Refugee and International Law. The passage treated fear of persecution and lack of protection as interrelated elements. Raphael FM said the Court had no quarrel with that proposition, but could not see how it advanced Nahu's case [13]. The judgment's point was not to reject the proposition, but to explain that citing it did not identify an error in the Tribunal's decision on the evidence before the Court.
The judgment presents its legal propositions as an application of existing authorities, not as a change in the law. It describes Muin as a decision based on a particular set of agreed facts and says that another applicant relying on it would have to establish those facts with evidence [10]. The judgment does not set out the full facts or reasoning of Muin, so the extent of that case's rule cannot be reconstructed from this text alone.
For judicial review, the judgment emphasises that a challenge to factual or credibility findings is not, by itself, a reason for the Court to substitute its assessment for the Tribunal's. The Court stated that the Tribunal was responsible for making its own findings and that it was not for the Court to interfere with that process [12]. This is the judgment's account of the judicial-review boundary as it applied to Nahu's challenge.
On s 420(2)(b), the judgment records an allegation that the Tribunal failed to do substantial justice or consider the merits, but says that the allegation was not particularised. It then states, relying on Eshetu, that even if such a failure had occurred, it would not constitute jurisdictional error [11]. The excerpt does not provide a detailed analysis of the section or of Eshetu, so it supports reporting the proposition as the Court expressed it, rather than expanding it into a broader account of statutory review.
The decision also says that general country information not directly relevant to an applicant's particular claims need not be addressed in a way that creates jurisdictional error [9]. It does not supply a general test for relevance or describe how that observation applies across different protection claims. The Court's actual treatment of Nahu's country-information allegation was that the Tribunal had considered the human-rights situation and assessed his particular circumstances [14].
As for what changed after the decision, the supplied judgment text contains no later judicial treatment of Nahu and no information about subsequent legislative amendments. It therefore does not provide a basis for describing later changes in the law or later courts' acceptance, limitation or rejection of its reasoning.
At paragraph 10, the Court said that a person relying on Muin must establish the relevant facts in their own case, and that this requires evidence. In plain English, the Court treated the earlier decision as fact-dependent for the procedural argument being made. Merely citing the case did not establish that Nahu had experienced the same relevant procedural circumstances.
At paragraph 12, the Court said it was the Tribunal's responsibility to form its own view of the facts and a witness's credibility, and that the Court should not interfere in that process. In plain English, the Court would not decide the protection claim afresh simply because Nahu disagreed with the Tribunal's conclusions. The judgment does not say that Tribunal fact-finding is immune from review for legal error; rather, it says that the attack made here did not supply a basis for the Court to take over the fact-finding task.
At paragraph 14, the Court observed that no particulars or evidence showed how the remaining allegations could be made out, and that the alleged errors were not readily apparent on the face of the record. In plain English, broad assertions of error did not identify what the Tribunal did wrong or provide material from which the Court could find the alleged error.
At paragraph 15, the Court stated that it was “obliged to decline to review” the Tribunal decision, dismissed the application and assessed the respondent's costs at $4,250. This records the outcome and the consequential costs order.
The judgment is most directly relevant to a judicial-review challenge where an applicant disputes a Tribunal's credibility findings but does not identify a separate reviewable error. The Court's explanation at paragraph 12 addresses that type of challenge: the Tribunal forms its own view of the evidence, and disagreement with that view is not a reason for the Court to reassess credibility.
It is also relevant where an applicant relies on Muin to allege a procedural defect but provides no evidence of the facts said to bring their own case within that decision. Paragraph 10 states the evidentiary requirement in the context of Nahu's submissions. The decision does not establish that every Muin-based allegation must fail; its reasoning is that the necessary facts must be shown and were not shown in this case.
The judgment may also be relevant where a party alleges non-compliance with s 420(2)(b) but does not specify what the Tribunal failed to do. Paragraph 11 records the lack of particulars and the Court's reliance on Eshetu. It should not be read, on this source alone, as a complete analysis of every possible s 420(2)(b) argument.
For country information, the decision concerns a submission referring to general human-rights observations without showing whether the material was before the Tribunal or how it bore on Nahu's individual claims [9]. The Court's observation is expressly tied to general evidence that is not directly relevant to the claims. The judgment also records the Court's view that the Tribunal did consider Bangladesh's human-rights situation [14]. The source does not define the boundary between general and directly relevant evidence in other factual settings.
The supplied judgment contains no citations to later decisions that considered Nahu, and no later treatment is included in the materials provided. It is therefore not possible, on this source alone, to state whether subsequent courts followed, distinguished, limited or questioned the decision.
The judgment itself refers to cases decided after Muin, saying those cases had clarified that Muin was decided on agreed facts and that another applicant would need evidence establishing the relevant facts [10]. However, it does not name those intervening cases in that sentence. It separately cites NADR v Minister for Immigration [2002] FCAFC 293 as indicating what was required [10]. Those references describe the authorities Raphael FM relied on at the time; they do not reveal how courts treated Nahu after 24 July 2003.
The relationships recorded in the judgment are correspondingly limited. It explains its understanding of Muin [10], refers to NADR [10], invokes Eshetu on jurisdictional error [11], and discusses the proposition from Chan and Goodwin-Gill [13]. It does not cite or describe any later decision treating Nahu as a precedent.
The judgment does not give enough detail to assess the full evidence underlying the Tribunal's credibility findings. Paragraph 7 says the Tribunal's comments appeared to be ones it was entitled to draw from the material in the court book and supplementary court book, but the excerpt does not reproduce the whole Tribunal decision or that evidence. Readers should therefore distinguish the Court's summary from an independent assessment of the underlying protection claim.
The source also does not specify the exact procedural facts alleged under Muin. The Court says no evidence was provided and refers to NADR, but does not set out a complete checklist of facts needed for every such allegation [10]. The judgment supports the proposition that evidence was missing in Nahu's case, not a comprehensive procedural-fairness framework.
There is similarly limited explanation of the s 420(2)(b) issue. The judgment records the absence of particulars and its reliance on Eshetu, but does not reproduce the provision's full text or analyse different forms of alleged non-compliance [11]. The scope of that reasoning beyond the contention before Raphael FM cannot be determined from this excerpt.
The treatment of general country evidence is brief. Paragraph 9 refers to evidence not directly relevant to the applicant's claims, and paragraph 14 says the Tribunal had considered Bangladesh's human-rights situation. The judgment does not specify the particular reports or information, what was before the Tribunal, or how the Tribunal assessed it. Those details would matter to evaluating the reasoning in another case.
Finally, the judgment contains the chronology inconsistency noted above in paragraph 1, and the supplied text contains no later-treatment material. These are limits in the available source, not findings about the merits of Nahu's protection claim.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
MIGRATION - Review of RRT decision - whether the applicant has a well founded fear for a convention reason - where the applicant fails to provide particulars or evidence to support allegations - where applicant relies on written submissions prepared by another - whether there was any jurisdictional error in the Tribunal's decision.
Migration Act 1958 (Cth), s.420(2)(b)
Judiciary Act 1903 (Cth), s.39B
Goodwin-Gill The Refugee and International Law (1983)
Muin v Refugee Review Tribunal, Lie v Refugee Review Tribunal (2002) 190 ALR 60
NADR v Minister for Immigration [2002] FCAFC 293
Minister for Immigration v Eshetu [1999] HCA 21
Chan v Minister for Immigration [1989] HCA 62; (1989) 169 CLR 379
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
(2) Applicant to pay the respondent's costs assessed in the sum of $4,250.
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
1. The applicant is a Bangladeshi citizen. He arrived in Australia on
14 September 2000. On 4 October 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 29 December 2000 a delegate of the Minister for Immigration refused to grant him a protection visa and on 19 January 2001 the applicant applied for review of that decision. The Refugee Review Tribunal heard oral evidence from the applicant on 13 November 2002 and decided the matter on 19 November. The decision was handed down on 12 September 2002. The Tribunal's decision was to uphold the original finding of the delegate.
2. The applicant is well educated. His family owns a philately and antique business which it carries out in the district of Sirajgonj but the applicant has relatives, including sisters, living in Dhaka. The applicant himself is a philatelist of some note. He has participated in a number of competitions for stamp collectors. He has won prizes. The applicant is also an atheist.
3. The applicant's claim to have a well founded fear of persecution for a Convention reason arises out of his fear of returning to Bangladesh following certain assaults which he claims were made upon him in 1999. He also fears retribution from the State Minister and Local Member of Parliament who is the organising secretary of the Awami League. The applicant claims that he was attacked by members of the Awami League and targeted by Muslim fundamentalists and high ranking Awami League leaders.
4. The applicant claims that the reason for these attacks arose from his known rejection of the religion of Islam and in particular because of his entry into a stamp exhibition in New Delhi in 1987 of a series of 64 A4 sheets of stamps held together in four large frames and referred to as "Man and Religion". The applicant told the Tribunal that these stamps depicted persons in the nude and he also claimed that there was a political message in the entry which was intended to show that Islam stopped people from doing good deeds and should be rejected as a religion.
5. The applicant claims that he won a prize for this exhibit and that when he was attacked in July 1999 it was because of what had occurred. He claimed that he had become a celebrity in Bangladesh as a result of his stamp collecting activities, that there had been newspaper articles about him and that this had antagonised the local state minister who was also concerned that he was an atheist.
6. All these matters were considered in some detail by the Tribunal and were rehearsed in its decision. At [CB 78] the Tribunal gives its finding in the following form:
" I accept that the applicant is a national of Bangladesh. I accept that he is a stamp collector and that he has won prizes for his stamps at various exhibitions including an international exhibition held in India in December 1997. I accept that the theme of the applicant's display at this particular exhibition was man and religion. I accept that some of the stamps the applicant showed at this exhibition showed figures in the nude. I accept that the applicant does not believe in or practice Islam.
However, I am of the view that the applicant has significantly exaggerated his profile and has claimed a notoriety he did not in fact have in Bangladesh. I am of the view that the applicant did so in order to create for himself the profile of a refugee. I am of the view that significant aspects of the applicant's evidence cannot be relied on. In particular, I am not satisfied that the applicant was assaulted either because of his entry into the stamp exhibition or because of his atheism. I am not satisfied that if the applicant was assaulted he was told that the stamp exhibition was the reason for the attack. I am not satisfied that the applicant has a well-founded fear of persecution for a Convention reason."
7. There then follows between [CB 78] and [CB 82] justification for the Tribunal's finding as expressed above. The Tribunal points out the problems with the evidence that it foreshadowed and then makes a number of observations upon the applicant's credibility and upon the credibility of some of the documents which he produced. These comments appear to me from my reading of the court book and the supplementary court book to be ones that the Tribunal was entitled to draw from the evidence which was then before it.
8. At the hearing before me the applicant sought to rely upon a set of written submissions filed in court on 21 July 2003 but dated 17 July 2003. The applicant himself speaks very little English. He advised me that these submissions had been prepared by a friend who he says he did not pay. He indicated that he had told the friend of his personal situation and that was used in the submissions. There are 11 paragraphs to the submissions which are contained in the court file. The first paragraph identifies the applicant. The second paragraph informs the court that the applicant is not familiar with the procedures of the court and that although at first he thought he could conduct his case himself he has discovered that he cannot do so but because he does not have the funds to employ a legal representative he is asking the court to take into account the submissions which are being made.
9. The third paragraph of the submissions suggests that the Tribunal did not take into account current observations by human rights organisations about the situation in Bangladesh. It makes reference to an article but it does not say whether that article was provided to the Tribunal. In any event there is no jurisdictional error by a Tribunal in failing to deal with a piece of general evidence concerning the situation in a country which is not directly relevant to the claims being made by the applicant.
10. Paragraph 4 of the submissions refers to a procedural error of the type considered by the High Court of Australia in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 60. Cases which have been heard since Muin have made it quite clear that that case was decided on a particular set of agreed facts and that in order for another applicant to succeed on the basis of the decision in Muin, the second applicant would have to be able to establish those facts for himself. This would require the provision of evidence. No evidence has been provided in the matter before me. I need only to refer to the statement of Keifel J at [26] in NADR v Minister for Immigration [2002] FCAFC 293 to indicate what was required and what was not provided.
11. Paragraph 5 of the submissions is a political statement concerning the current regime in Bangladesh. Paragraph 6 of the statement is an attempt to interpret s.420(2)(b) of the Migration Act 1958 (Cth) ("the Migration Act"). There are no particulars provided of how the Tribunal has failed to do substantial justice or consider the merits of the case. In any event, as Mr Lloyd has stated, the decision of the High Court in Minister for Immigration v Eshetu [1999] HCA 21 makes it clear that even if this had occurred it would not constitute a jurisdictional error.
12. Paragraphs 7 and 8 of the applicant's submissions are an attack upon the findings of the Tribunal. But this type of attack, whilst understandable, is of no assistance to an applicant who seeks judicial review under s.39B of the Judiciary Act 1903 (Cth). It is clearly the duty and responsibility of a Tribunal to come to its own view as to the facts of a case and the credibility of a witness and it is not for this court to interfere in that process.
13. Paragraph 9 of the submissions makes reference to the decision of the High Court in Chan v Minister for Immigration [1989] HCA 62; (1989) 169 CLR 379 and McHugh J's approval of a passage from the book by Professor Goodwin-Gill entitled The Refugee and International Law (1983) which states that fear of persecution and lack of protection are themselves inter-related elements. This court has no quarrel with that quotation but is unable to see how it advances the applicant's case.
14. Paragraph 10 of the submissions makes reference to continuing human rights violations in Bangladesh and states that the Tribunal did not take them into consideration. My reading of the reasons for the decision of the Tribunal indicate that it did take into account the human rights situation in Bangladesh, but it came to the conclusion that in the case of this particular applicant, he was able to draw upon the assistance of the police force when he had been the subject of what the Tribunal considered to be a random physical assault. Finally the submission says that the Tribunal had made a jurisdictional error not to consider the totality of the facts and failed to provide an opportunity to comment on information which the Tribunal relied on in its decision. No particulars are provided and no evidence is put forward to show how these allegations might be made out. They do not appear to be readily discernible upon the face of the record.
15. In all the circumstances, I am obliged to decline to review this decision of the Tribunal. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate's Court Rules.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM
NAHU
Minister for Immigration [2003] FMCA 314
(2002) 190 ALR 60
(1989) 169 CLR 379
Application dismissed; the applicant was ordered to pay the respondent’s costs, assessed at $4,250.