Ming Lin Qiu v Minister for Immigration and Multicultural Affairs

[1997] FCA 903

FEDERAL COURT OF AUSTRALIA

Migration Act 1958 - s 476

MING LIN QIU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

No. NG 275 of 1997

JUDGE:        BEAUMONT J
DATE:          15 AUGUST 1997
PLACE:        SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 275 of 1997

BETWEEN:	MING LIN QIU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BEAUMONT J
DATE OF ORDER:	15 AUGUST 1997
WHERE MADE:	SYDNEY

ORDERS:

1. Application dismissed, with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 275 of 1997

BETWEEN:	MING LIN QIU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BEAUMONT J
DATE:	15 AUGUST 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) which, for the reasons given in Mahboob v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 693, affirmed in substance by the Full Court in Dai Xing Yao v Minister for Immigration and Ethnic Affairs, unreported, 18 September 1996, is made under s 476 of the Migration Act 1958. The applicant appears in person.

By her application for an order of review, the applicant has sought, in substance, to challenge the decision of the Tribunal. The Tribunal refused to determine that the applicant had refugee status, by reference to what are essentially factual grounds. As I have indicated in the course of argument, the powers and jurisdiction of the Court to intervene in such matters are limited by virtue of the provisions of s 476 to what are essentially errors of law. As I further noted in the course of argument, recent decisions of the High Court, in particular, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and Minister for Immigration and Ethnic Affairs v Guo and Pan (1997) 144 ALR 567, make it clear that this Court has no power, in effect, to second guess the Tribunal on essentially factual questions. At the same time, it is necessary that I be satisfied that the Tribunal directed itself to the correct legal question. In my opinion, a perusal of the reasons given by the Tribunal indicates that it did, in truth, address the correct legal issue to be determined.

It is true that the applicant's case before the Tribunal may have established a foundation for a finding that the applicant had been "persecuted" by some individual.  However, for the reasons given by Burchett J in Ram v Ministerfor Immigration and Ethnic Affairs (1995) 130 ALR 314 at 317, even if such a persecution were to be made out, it does appear that any harmful acts were done purely on an individual basis, and this is not a Convention reason for declaring a person a refugee. The reasons of the Tribunal indicate that it understood the true issue to be determined in this connection and that the Tribunal then proceeded to resolve it on the facts.

In my view, as has been said, what is now attempted on behalf of the applicant is really an invitation to the Court to review the factual determination of the Tribunal.  This Court, in my opinion, has no jurisdiction to embark upon that undertaking.  It must follow that the application be dismissed and I so order.  Costs will, in the circumstances, follow the event so that the application is dismissed with costs. 

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated:            15 August 1997

The Applicant:	The applicant appeared in person
Solicitor for the Respondent:	A Markas, Australian Government Solicitor
Date of Hearing:	15 August 1997
Date of Judgment:	15 August 1997