Naqati v Minister for Immigration & Multicultural Affairs [2000] FCA 1373

FEDERAL COURT OF AUSTRALIA

Naqati v Minister for Immigration & Multicultural Affairs [2000] FCA 1373

MIGRATION – protection visa – decision of the Refugee Review Tribunal – whether failure to make a material finding of fact – whether burden of proof too high Migration Act 1958 (Cth) s 430(1)(c), 476(1)(a)

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 applied Abebe v Commonwealth of Australia (1999) 162 ALR 1 applied Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 applied PARVEZ NAQATI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 87 of 2000 HEEREY J 14 AUGUST 2000 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 87 of 2000

BETWEEN: PARVEZ NAQATI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 14 AUGUST 2000

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 87 of 2000

BETWEEN: PARVEZ NAQATI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE: 14 AUGUST 2000

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This application for review of a decision of the Refugee Review Tribunal has as its primary base the contention that there was a failure by the Tribunal to set out the findings on any material questions of fact as required by section 430(1)(c) of the Migration Act with the consequence that there has been a failure to follow a procedure required by the Act which is a ground for review by the court under section 476(1)(a): see Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845. 2 The applicant is a citizen of India. He is a Muslim who was brought up in Kashmir until he went to New Delhi for university studies. He there completed a degree in civil engineering. He arrived in Australia in February 1997 on a student visa. He claimed that in early 1990 he witnessed a massacre and that a teacher subsequently influenced him into joining a militant Kashmiri group known as Al‑Jahid. He spent four months in a training camp with Al-Jahid during which time he handled guns and grenades. He engaged in one trek to the border area in a party of about a dozen people. He left Al-Jahid after this period and stayed with his sister so as to avoid danger. Soon afterwards his family sent him to New Delhi. After leaving Kashmir he only returned there occasionally, again staying at his sister's home. 3 He claimed that his brother was kidnapped by militants for a few hours in 1992 or 1993. He said that although he was not engaged in any political activity while in New Delhi he was well known as a former Kashmiri freedom fighter. He was never arrested while in New Delhi, although on one occasion he was assaulted by students who knew of his association with militants. He said that he often associated with a cousin who had a high profile as general secretary of the Indian Youth Congress and also with a prominent women's group. Also he became a close friend of a Hindu member of parliament. The decision of the Tribunal reported the following claim: "He claims that members of Al-Jahid who had sought him before he fled to New Delhi demonstrated a renewed interest in him some years later, probably out of concern that his associations in New Delhi with persons with a high political profile indicated that he was operating as a government agent. He said that militants went to his father's house in 1995 or 1996 and made threats against the applicant's life."