Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 714

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 714

GURMIT SINGH ALSO KNOWN AS PARAMJIT SINGH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 316 OF 2001 LINDGREN J 6 JUNE 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 316 OF 2001

BETWEEN: GURMIT SINGH ALSO KNOWN AS PARAMJIT SINGH

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 6 JUNE 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. 3. The applicant have leave to apply for an order setting aside orders 1 and 2 by notice of motion filed by 27 June 2001. 4. Orders 1 and 2 not be entered if such a notice of motion is filed by that date.

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 316 OF 2001

BETWEEN: GURMIT SINGH ALSO KNOWN AS PARAMJIT SINGH

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 6 JUNE 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION 1 Section 29 of the Migration Act 1958 (Cth) ("the Act") provides that subject to the Act, the respondent ("the Minister") may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia or to remain in Australia or to do both. 2 The applicant, ("Mr Singh") applies under subs 476(1) of the Act for review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision of the Minister's delegate ("the Delegate") not to grant him a protection visa permitting him to remain in Australia. It is not in dispute that the Minister delegated all relevant powers to the Delegate pursuant to s 496 of the Act. 3 Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa. The validity of Mr Singh's application for the protection visa is not in question. 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. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it 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"). Australia is a party to 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 The criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criteria specified in clause 866.221 of Schedule 2 to the Migration Regulations 1994, one of 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 was a "judicially-reviewable decision" (par 475(1)(b) of the Act); Mr Singh was entitled to apply to this Court for review of it in 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). 7 Mr Singh's case is that he is outside the country of his nationality, India, and is unwilling to return to it because of a well-founded fear of being persecuted for reason of political opinion.