Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1813

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 1813

APPLICATION – application for a protection visa – appeal from decision of Refugee Review Tribunal – whether decision involved an error of law – consideration of use of "what if I am wrong?" test Migration Act 1958 (Cth) s 476(1)(e) Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 followed Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 considered Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 followed Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, 575-576 followed KULDIP SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 343 OF 2000 STONE J 12 DECEMBER 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 343 OF 2000

BETWEEN: KULDIP SINGH

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 12 DECEMBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. 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 N 343 OF 2000

BETWEEN: KULDIP SINGH

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE: 12 DECEMBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction

1 The applicant, Mr Kuldip Singh, applied to the respondent ("the Minister") for a protection visa to remain in Australia. The Minister's delegate ("Delegate") refused his application. The Refugee Review Tribunal ("Tribunal") upheld this refusal. Mr Singh now applies under s 476(1) of the Migration Act 1958 (Cth) ("the Act") for review of the Tribunal's decision. 2 After considering a valid application for a visa and being satisfied that the criteria in s 65 of the Act have been met, the Minister may grant visas to remain in Australia. One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied. 3 Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as "amended" by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, "the Convention"). As a party to the Convention, Australia has undertaken protection obligations to a person who is a "refugee" as defined in the Convention. 4 Article 1A(2) of the Convention provides that a refugee is any person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 5 Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application include the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994, which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention. 6 The Tribunal's decision is a "judicially reviewable decision" (s 475(1)(b) of the Act); the Applicant was entitled to apply to this Court for review of it on certain grounds (s 476); and the Court has the jurisdiction provided by Part 8 of the Act, but no other jurisdiction with respect to it (ss 485, 486).