FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1739 JAGDEV SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S 62 OF 2001 HILL, TAMBERLIN & EMMETT JJ 28 NOVEMBER 2001 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 62 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: JAGDEV SINGH APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HILL, TAMBERLIN AND EMMETT JJ DATE OF ORDER: 28 NOVEMBER 2001 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the respondent. 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 S 62 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: JAGDEV SINGH APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HILL, TAMBERLIN AND EMMETT JJ DATE: 28 NOVEMBER 2001 PLACE: ADELAIDE REASONS FOR JUDGMENT HILL J: 1 Before the Court is an appeal from a judgment of a judge of this Court, Finn J, dismissing an application brought by the appellant, Jagdev Singh, for review under Part 8 of the Migration Act 1958 (Cth) ("the Act"). 2 Mr Singh is a national of India who claimed to have departed that country in 1992 as a refugee and moved to the Philippines. He acquired permanent resident status there and later claimed that he had a well-founded fear of persecution in the Philippines for Convention reasons by virtue of events which happened there. It was on this basis, and on the basis that he had a well‑founded fear of persecution in India, that in due course, on arriving in Australia with his wife, he lodged an application for a protection (class AZ) visa with the Department of Immigration and Multicultural Affairs. A delegate of the Minister refused to grant to him or his wife a protection visa and he applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision on behalf of himself and his wife. 3 So far as appears from the material in the appeal book the case before the Tribunal proceeded on the basis that Mr Singh was a national of India with permanent resident status in the Philippines. His case to be a refugee turned upon his claim that he had a well-founded fear of persecution in the country of his nationality, namely India. 4 For reasons not presently relevant, the Tribunal found that Mr Singh did not have a well-founded fear of persecution for Convention reasons in India and that, accordingly, he was not a person to whom Australia owed protection obligations. It is from that decision of the Tribunal that Mr Singh sought judicial review in this Court. The learned primary judge appears to have assumed, for the purposes of the review but without considering the question, that Mr Singh was a national of both India and the Philippines. It was submitted before his Honour, as indeed it was submitted before us, that the Tribunal had erred in law in failing to consider whether Mr Singh had a well-founded fear of persecution in the Philippines, being the country of second nationality, notwithstanding that it had found he did not have a well-founded fear of persecution in India, which country was, on any view, the primary country of nationality. 5 A second ground of review was said to be a failure by the Tribunal to observe a procedure pursuant to s 476(1)(a) of the Act by failing to comply with the requirements of s 430 of the Act in not making a finding or reaching a conclusion whether the appellant had a well-founded fear of persecution in the Philippines as well as India. 6 The learned primary judge dismissed the application for judicial review. In his Honour's view, where an applicant for a protection visa had dual nationality but did not have a well-founded fear of persecution in one of the countries of nationality in which that person was able to avail himself of protection, that person was not a refugee within the meaning of the 1951 Convention Relating to the Status of Refugees as affected by the 1967 Protocol Relating to the Status of Refugees commonly referred to as the United Nations Convention on Refugees. 7 It is conceded by counsel for the appellant, and rightly, that both of the arguments put to his Honour and repeated in this Court depend upon it being the case that Mr Singh was a national of both India and the Philippines. However, there was no evidence before the Tribunal that Mr Singh was other than a permanent resident of the Philippines. No evidence suggested he was a national of that country. 8 His application to be considered as a person entitled to protection by virtue of being a refugee proceeded in the Tribunal on the basis that his only country of citizenship was India; that he did not have citizenship in the Philippines, but merely permanent residency in that country. 9 It does not appear that Mr Singh ever sought to argue before the Tribunal that he was a national of the Philippines or request the Tribunal to consider the question whether he was a refugee not only with respect to India but also with respect to the Philippines or to make the necessary findings of fact which would enable the question to be considered. Shortly, therefore, it can be said that the basis or foundation for the submission that the Tribunal erred in law - namely that the applicant was a national of the Philippines - was not made out as a matter of fact. It follows that the Tribunal can hardly be criticised for not having considered the issue or, for that matter, not having made findings of fact, assuming that a failure to make factual findings would enliven the Court's jurisdiction. 10 In these circumstances it is inevitable that the appeal must fail and I would accordingly propose that the Court order that the appeal be dismissed and that the appellant pay the respondent's costs of it. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill. Associate: Dated: 7 December 2001 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 62 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: JAGDEV SINGH APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HILL, TAMBERLIN AND EMMETT JJ DATE: 28 NOVEMBER 2001 PLACE: ADELAIDE REASONS FOR JUDGMENT TAMBERLIN J: 11 I agree with the reasons and orders of the presiding Judge. I would simply like to add that I do not think that the appellant in the present case, having regard to the findings of the Tribunal, is a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees, within the meaning of s 36 of the Migration Act 1958 (Cth), having regard to the provisions of Article 33 of the Convention, which sets out the basic protection obligations. 12 My reason for this is that the appellant, on the findings, can be returned to a territory, namely India, of which he is a citizen and where his life or freedom would not be threatened on account of a Convention reason. Accordingly, the appellant is not a person to whom Australia has protection obligations under the Convention. 13 Accordingly, I would dismiss the appeal with costs. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 7 December 2001 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 62 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: JAGDEV SINGH APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HILL, TAMBERLIN AND EMMETT JJ DATE: 28 NOVEMBER 2001 PLACE: ADELAIDE REASONS FOR JUDGMENT EMMETT J: 14 I agree with the orders proposed by Hill J for the reasons advanced by Hill and Tamberlin JJ. There is no suggestion that the authorities are threatening to return the appellant to the Philippines. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 7 December 2001 Counsel for the Appellant: M Clisby Solicitor for the Appellant: Mark Clisby Counsel for the Respondent: S Maharaj Solicitor for the Respondent: Sparke Helmore Date of Hearing: 28 November 2001 Date of Judgment: 28 November 2001