Mohammad Shahiduszaman v Minister for Immigration and Multicultural Affairs

[2000] FCA 817

FEDERAL COURT OF AUSTRALIA

Mohammad Shahiduszaman v Minister for Immigration & Multicultural Affairs [2000] FCA 817

Migration Act 1958 (Cth)
Federal Court Rules O 20

MOHAMMAD SHAHIDUSZAMAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N181 OF 2000

FRENCH J
13 JUNE 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES  DISTRICT REGISTRY	N181 OF 2000

BETWEEN:	MOHAMMAD SHAHIDUSZAMAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	FRENCH
DATE OF ORDER:	13 JUNE 2000
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application is discontinued by leave.

2.        The Applicant is to pay the Respondent’s costs of the application.

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	N181 OF 2000

BETWEEN:	MOHAMMAD SHAHIDUSZAMAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	FRENCH
DATE:	13 JUNE 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

Factual Background

1. Mohammad Shadiduszaman is a citizen of Bangladesh who arrived in Australia on 1 October 1997.  He made application for a protection visa on 29 October 1997, claiming that he was liable to persecution in Bangladesh by reason of his political involvement with an organisation known as Jamaat e Islami.  On 19 November 1997 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant him a protection visa and on 8 December 1997 he applied to the Refugee Review Tribunal for a review of that decision.  It appears that no hearing of his application for review actually took place until nearly two years after he lodged the application with the Tribunal, that is to say, on 10 December 1999.

2. In the event, on 9 February 2000, for reasons which it published, the Tribunal affirmed the decision not to grant him a protection visa.  The substance of the decision turned on questions of credit.  Overall the Tribunal found Mr Shahiduszaman not to be a truthful or credible witness and found after reviewing the materials before it and what he had said in the course of the oral hearing that he did not have a well-founded fear of persecution for any of the reasons set out in the Refugees Convention.

3. On 6 March 2000, Mr Shahiduszaman filed an application for an order of review of the decision of the Tribunal.  The application set out that he was aggrieved by the decision because he is a leading activist and general secretary of the Naria Thana Jamaat e Islami.  He was a political leader as well as social worker which he says was not taken into account in deciding the fate of his case and that false charges had been framed against him.  He alleges that the Tribunal’s decision was not fair and that he was in real fear of persecution which was not considered by the Tribunal.

4. The grounds of the application were said to be that as a leading activist he would be persecuted if he returned home, that the Tribunal exercised its power in bad faith, which ground is not particularised; that the Tribunal did not consider any of the documents which he submitted; that there was failure to take into account relevant considerations, again not particularised; and that the Tribunal having admitted that Mr Shahiduszaman did not understand the Tribunal member, completed the hearing without that understanding. It was said also there were errors of law in the Tribunal’s decision but these were unparticularised.

5. A consent order was made by way of direction on 23 March for the filing of documents by the Minister and the filing and service of any affidavits and any amended application by the applicant to be done on or before 20 April.  The matter was listed at that time for hearing on 14 June 2000 by video conference from Sydney and Mr Shahiduszaman was required to file and serve written submissions five working days before the hearing of the application.

6. On 6 June 2000 a letter was sent to the Court from Mr Shahiduszaman and it was addressed to the Registrar in Sydney.  The letter said:

   “I refer to your letter dated 23 March 2000.  I tried to find a counsel to act on behalf of me but there is high cost involvement.  As such I am in a position to withdraw my matter from the Federal Court.

   Therefore, request you to consider my above circumstances and withdraw my case.  I will be most grateful if you exempt me from paying the respondent’s legal cost for this matter.

   Looking forward to hearing from you.”

   The letter was signed by Mr Shahiduszaman.  The application came on for hearing today.  It was called and there was no response for Mr Shahiduszaman.  I have considered whether or not I should dismiss the matter or deal with it otherwise.  I think that although he has not used the appropriate form what he has in fact indicated to the Court is a notice of intention to discontinue, which does require leave under O 22 of the Federal Court Rules.  In the circumstances, I propose to treat the letter of 6 June as a discontinuance of the application.  I will accede to the application of the Minister for a costs order, although, no doubt, there will be very little prospect of recovering it.  There is nothing shown to indicate why costs should not follow the event in this case.  The orders will be:

   1.        The application is discontinued by leave.

   2.        The Applicant is to pay the Respondent’s costs of the application.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:             13 June 2000

Counsel for the Applicant:	No appearance for the Applicant
Counsel for the Respondent:	Ms D. Watson (by video)
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 June 2000
Date of Judgment:	13 June 2000