Prashar v MIMA

[2001] FCA 57

FEDERAL COURT OF AUSTRALIA

Prashar v Minister for Immigration & Multicultural Affairs [2001] FCA 57

IMMIGRATION – application for review of decision of Refugee Review Tribunal – well-founded fear of being persecuted for reasons of religion under the Convention is not limited to people holding a religious belief but extends also to those persecuted because they do not hold a religious belief.

Shahzad Gul Awan v Minister for Immigration & Multicultural Affairs [1998] FCA 435, doubted

POOJA PRASHAR & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N1165 of 2000

MADGWICK J
7 FEBRUARY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1165 of 2000

BETWEEN:	POOJA PRASHAR, VIKAS PRASHAR & KARAN PRASHAR APPLICANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	7 FEBRUARY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicants pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1165 of 2000

BETWEEN:	POOJA PRASHAR, VIKAS PRASHAR & KARAN PRASHAR APPLICANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	7 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. This is an application for the limited form of judicial review available under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”). By that decision the Tribunal affirmed a decision of a delegate of the respondent Minister not to grant protection visas to the applicants who are husband, wife and an infant child. No separate case was mounted before the Tribunal or before me based on the circumstances of the applicant who is the infant child. It is convenient therefore, to refer to the husband and wife as the applicants or, as the case may be, as the husband or the wife.

2. The case ultimately depends upon whether the applicants, or any of them, fall within Article 1A(2) of the Convention Relating to the Status of Refugees 1951 as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”) which provides that a person is a refugee if:

   “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 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.”

   Factual background and applicants’ claims

3. The applicants are nationals of India who adhere, although apparently with no immense level of devotion, to the Hindu religion and are of the Brahmin cast.  The applicants had before their marriage the same ancestral name, "Prashar".  They both come from the city of Jalandhar which is in the state of…