FEDERAL COURT OF AUSTRALIA Singh v The Minister for Immigration and Multicultural Affairs [2001] FCA 505 JAGDEV SINGH v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S 121 of 2000 FINN J 4 MAY 2001 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S121 OF 2000 BETWEEN: JAGDEV SINGH APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: FINN J DATE OF ORDER: 4 MAY 2001 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S121 OF 2000 BETWEEN: JAGDEV SINGH APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: FINN J DATE: 4 MAY 2001 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This application by Jagdev Singh for an order for review under Part 8 of the Migration Act 1958 (Cth) ("the Act") is quite misconceived. 2 Mr Singh is an Indian national who, allegedly as a refugee, departed India in January 1992 for the Philippines. He there acquired permanent residence status. In April 1999 he travelled to Australia. His application for a protection visa was made on 13 May 1999. He seeks to avoid being returned either to India or to the Philippines on account of events that occurred to him in each country and which result in his claim to be a refugee from both. 3 His application for a protection visa was rejected by a delegate of the respondent Minister, the delegate finding that Mr Singh did not have a well-founded fear of persecution in India and that he could relocate within India. The delegate went on to indicate that there was, in consequence, no need to make any findings in relation to Mr Singh's fears of persecution in the Philippines although the delegate went on to suggest that his Philippines claim was "implausible". 4 The Refugee Review Tribunal ("the Tribunal") when considering Mr Singh's review application, affirmed the delegate's decision and in so doing it adopted a like approach to that of the delegate save that it did not consider at all whether Mr Singh faced persecution in the Philippines. The Tribunal's consideration of Mr Singh's India claims resulted in its concluding both that he did not have a well-founded fear of persecution for a Convention reason (ie the 1951 Convention Relating to the Status of Refugees amended by the 1967 protocol Relating to the Status of Refugees) and that, if he had a subjective fear of persecution in the Punjab (where he previously resided), it would not be unreasonable for him to relocate elsewhere in India. 5 The principal challenge made to the Tribunal's decision related to its failure to make findings and to reach a conclusion on the Philippines claims. It is said that this failure was itself an error of law (s 476(1)(2)) and, moreover, it involved a failure to observe a required procedure (s 476(1)(a)) ie to set out in the reasons for decision findings in relation to material questions of fact (s 430(1)(c)). The Philippines claims were said to raise such "material questions". 6 Both grounds of challenge to the decision are without foundation. First, if the applicant's visa application is properly to be characterised (as it was by the Tribunal) as one requiring a determination as to whether Mr Singh had a well-founded fear of persecution in relation to his country of nationality, ie India, then, in light of the Tribunal's finding, it is clear that Australia does not have protection obligations in relation to him: see s 36(2) of the Act. 7 Secondly, if as the applicant's counsel contends, the visa application is properly to be characterised as one by a person with dual nationalities ie India and the Philippines - a large assumption - a like conclusion of there being no protection obligations would follow because of the terms of the definition of a "refugee" contained in Art 1A(2) of the Convention as it applies to a person with dual nationalities when considered in light of the Tribunal's India findings. That Article, insofar as presently relevant, defines a refugee to be a person who: "owing to a 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 … In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national." To the extent that Mr Singh's claim was related to the Philippines, it was defeated by his failure to avail of the protection of India. 8 Thirdly, if the visa application, itself raised the question whether, assuming Mr Singh to have a well-founded fear of persecution in the Philippines he nonetheless has effective protection in, or a right to enter and reside in, a third country, ie India (as counsel for the respondent suggested might be the case) Mr Singh has on the Tribunal's findings a right to re-enter and reside in India as an Indian national with a current Indian passport (s 36(3) of the Act); and, furthermore, he would, in light of the Tribunal's findings, have no claim to a well-founded fear of persecution in India: see s 36(4) of the Act. Australia would not owe him protection obligations. While the Tribunal did not address the provisions of s 36(3) and (4) of the Act directly, the findings that the Tribunal actually made would necessitate a finding under s 36(3) adverse to his application. 9 Irrespective, then, of which of the above three approaches provided the most appropriate basis upon which to deal with Mr Singh's application they all converge (in the India findings) upon a common point which is fatal to his application. Australia does not owe Mr Singh protection obligations. In the light of that conclusion it was unnecessary for the Tribunal to have considered whether or not Mr Singh had a well-founded fear of persecution in the Philippines. A positive finding on that question could not alter the effect on his application of the Tribunal's India findings. For that reason, the Tribunal's failure to make findings on the Philippines claim involved no error of law. And its failure to reflect such findings in its reasons involved no non-compliance with the procedures of s 430(1) of the Act. 10 Both grounds of challenge to the Tribunal's decision must be rejected. 11 In written submissions, the applicant challenged two "findings" made in relation to India on the basis that there was no evidence to justify the findings made: see s 476(1)(g) of the Act. At the hearing, while not formally abandoning this ground of review, counsel for the applicant positively eschewed defending his submissions in any way. As the respondent's written submissions demonstrated - and I accept those submissions - they are indefensible. I do not regard the no evidence challenge as arguable and, given the course taken by counsel for the applicant, I will not burden these reasons with any account of it. I will reject this ground. 12 The order of the Court will be that the application be dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 3 May 2001 Counsel for the Applicant: Mr M Clisby Solicitor for the Applicant: Mark Clisby Counsel for the Respondent: Ms S Maharaj with Ms K Southcott Solicitor for the Respondent: Sparke Helmore Date of Hearing: 1 May 2001 Date of Judgment: 4 May 2001