AAS15 v Minister for Immigration

[2018] FCCA 2930

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAS15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2930

Catchwords:
MIGRATION – Application for judicial review – protection application – whether the Tribunal denied the applicant procedural fairness – application granted.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA, Pt.7AA.

Migration Regulations 1994 (Cth).

Cases cited:

BMV16 v Minister for Home Affairs [2018] FCAFC 90

WZARV v Minister for Immigration and Border Protection [2015] HCA 22

Applicant: AAS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 441 of 2015

Judgment of: Judge Riethmuller

Hearing date: 20 July 2018

Date of Last Submission: 17 August 2018

Delivered at: Melbourne

Delivered on: 18 October 2018

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Ambi Associates

Counsel for the First Respondent: Ms Campbell

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 31 January 2015.

2. A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine, according to law, the application for review.

3. The First Respondent pay the Applicant’s costs fixed in the sum of 7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

SYG 441 of 2015

AAS15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 31 January 2015.  That decision affirmed the decision of a delegate not to grant the applicant a Protection (Class XA) visa (“protection visa”).

2. The applicant is of Tamil ethnicity and his native language is Tamil.  He requires the assistance of a Tamil interpreter. 

3. The applicant arrived in Australia on 16 July 2012 by way of unauthorised maritime arrival.  The applicant applied for a protection visa on 23 November 2012.  On 22 August 2013, a delegate of the Minister refused to grant the applicant a protection visa.  The applicant attended the Tribunal hearing to give evidence and present arguments, assisted by his migration agent.  On 31 January 2015, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

The Applicant’s Claims

1. The Tribunal summarised the applicant’s claims at [4] of the decision as follows:

   4. In summary the applicant claimed he worked as a bus driver for two years. He was asked to transport 25 Tamil and Singhalese passengers from Kaluwanchikudy to Vaharai and a week later someone came to his home and asked about the passengers but he knew nothing about them. A week after that he was questioned about them slapped, punched and threatened with a pistol by someone on an army bike. They visited his house in May 2012 and spoke to his mother. After that he did not stay at home at night and stayed at his aunt’s house until he left Sri Lanka by boat. He fears he will be killed or vanished, like his neighbour a year ago who was accused of supplying the LTTE. He fears ha[r]m from the authorities or their friends or allies.

The Tribunal’s findings

1. The Tribunal considered the relevant issues in the case in three categories (at [7]):

   a. Is the applicant credible?

   b. Does Australia have protection obligations under the Refugee Convention?

   c. Does Australia have protection obligations under the complementary protection criteria?

A - Credibility

1. On the question of credibility, the Tribunal found the applicant’s evidence was ‘vague, lacking in details’ (at [18]) and did not accept that the applicant ‘faces any real chance of harm from the CID, army, police, Karuna group or authorities or anyone else’: see [57].

2. The Tribunal had regard to the applicant’s evidence at [18] and [56] as follows:

   18. The tribunal found the applicant’s evidence was vague, lacking in details. The tribunal spent some time prompting the applicant for more information but the applicant’s evidence was repetitive, rather than providing more information. Further, the tribunal found when pressed to describe key events, he spoke about the motivations or irrelevant periphery issues, rather than describe the event or answer the question put to the applicant. The tribunal found his evidence was given in a piecemeal fashion and not told in a coherent manner. The tribunal considers he was not recalling events as if they happened to him but making it up. In addition, some of his claims lacked credibility for instance that immediately after he was assaulted he drove the bus on its normal 12.30 bus run. Further, he added two major late claims late in the hearing about his family’s LTTE connection and his father signing at the police station. In addition his account was inconsistent with his 2012 statement of claims. Further, his account lacked credibility in a number of respects. Also when tribunal concerns were raised he changed his story and sometimes the explanations also lacked credibility. For the reasons set out below the tribunal finds the applicant has fabricated his claims and is not a witness of truth.

   …

   56. …vague, piecemeal, hesitant and evasive evidence, that some key events were not mentioned until late in the application process or were forgotten until prompted by the tribunal and his inconsistent evidence the tribunal does not accept he was telling the truth. The tribunal does not accept he was questioned, threatened, assaulted, or harmed by the army, Karuna group or anyone else or that they were looking for him at his house. The tribunal does not accept his cousin was arrested, detained as LTTE and escaped or that his mother [w]as arrested for LTTE. The tribunal does not accept he is suspected of LTTE, Karuna or antigovernment sentiment.

B – Protection obligations

1. The Tribunal identified four different basis for the possible protection obligations.

2. The Tribunal considered whether Australia has protection obligations under the Refugee Convention and considered the applicant’s ‘risk of harm not only currently but into the reasonably foreseeable future’: see [58].

Tamil race/ethnicity, or PSG, Tamil male

1. The Tribunal outlined the applicant’s claims at [59]:

   59. The applicant claims relate to his Tamil race; his imputed political opinion of support for the Liberation Tigers of Tamil Eelam (LTTE) and opposition to the Sri Lanka government because of his Tamil race, he applied for asylum in Australia and suspected transport of people or weapons for the LTTE and his cousin or mother’s arrest as LTTE and; his membership of a particular social group being failed asylum seekers returning to Sri Lanka and young Tamil males, or young Tamil males suspected of LTTE support.

2. The Tribunal accepted the applicant is Tamil (at [66]) and considered DFAT country information that since 2009, the harassment of Tamils ‘in day to day life has generally eased’: see [68]. The Tribunal considered the UNHCR eligibility guidelines released in July 2010 and in 2012 that there was ‘no longer a need for group based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north’: see [69].

3. On this basis, the Tribunal concluded the applicant did not face ‘a real chance of serious harm’ (at [76]) or ‘persecution because of Tamil race or ethnicity or membership of a particular social group as Tamil from the east or male Tamils…’: see [77].

Imputed political opinion – pro LTTE, anti-government, failed asylum seeker

1. The Tribunal considered the UNHCR position ‘that protection should no longer be presumed as being needed for Sri Lankan Tamils’ and the UNHCR ‘guidelines of who is at risk’ which includes ‘those suspected of LTTE links, involvement with media, political and human rights activists, lesbian and gays and women and children in certain circumstances’: see [79].

2. The Tribunal further considered the applicant’s position and that, following the government’s victory in 2009, ‘the applicant was not detained, arrested, or sent for rehabilitation at any time’ and further that ‘even if he was questioned about passengers (though it is not accepted), he would not have been released if authorities suspected him of being LTTE or transporting weapons, but would detain him’: see [81].

3. The Tribunal concluded on this topic that because the applicant did not fall within the UNHCR’s risk profile he did not face ‘a real chance of harm or being tortured’ (at [84]) and the Tribunal was not satisfied that there were ‘other circumstances that put him at risk’: see [85].

Failed asylum seeker and political opinion

1. The Tribunal considered the risk to the applicant of returning to Sri Lanka as a failed asylum seeker. The Tribunal recognised that there is ‘some evidence in more recent times’ of Tamils returning whereby they have reportedly suffered ‘torture and abuse from the authorities’: see [89]. Although the Tribunal noted that this was in cases where those returning ‘had some reasonably substantial form of connection with the LTTE or who are suspected of such linkages, or persons who have criminal connections’: see [89].

2. The Tribunal did not accept ‘the applicant will be interrogated about what he said about the government or what he said in his asylum claim’ as DFAT country information records that returnees are ‘not mistreated’: see [91].

Illegal departure

1. The Tribunal found the applicant did not face ‘a well-founded fear of persecution due to his illegal departure from Sri Lanka’: see [113].

2. The Tribunal accepted the applicant departed the country illegally (at [102]) and considered the applicant’s claim ‘that the illegal departure laws are not laws of general application because they were applied discriminately and were enforced in a haphazard way”: see [103].

3. The Tribunal considered that ‘ordinary returnees (not involved in people smuggling or criminal offences) face a fine’ in Negombo of 50,000 rupees: see [104]. Further, based on country information, the Tribunal did not accept that the applicant ‘would be denied bail because of his ethnicity, any actual or perceived support for the LTTE or opposition to the current Sri Lankan government or for any other reason’: see [107].

4. The Tribunal considered whether the applicant being placed in prison upon his return ‘constitutes serious and significant harm’: see [108]. The Tribunal considered media reports and country information of prison conditions and accepted they can be ‘poor due to overcrowding and unsanitary conditions’. The Tribunal was ‘not satisfied that any problems the applicant may face as a result of questioning, charges, cramped and uncomfortable and unsanitary conditions in remand are aimed at the applicant for any convention reasons’: see [110].

5. Although the Tribunal concluded at [128]:

   128. Having regard to the definition of significant harm, the tribunal is not satisfied that the applicant faces a real risk of significant [harm] upon arrival, being questioned, if remanded, bailed, for payment of the fine and upon return to his home or in Sri Lanka.

Discrimination

1. The Tribunal considered at [120] as follows:

   120. …The tribunal has had regard to whether that harassment and discrimination amounts to significant harm.  The applicant has been educated, has been employed as a driver and bus driver since he left school.  The tribunal does not accept that he has in the past suffered discrimination of any significant harm in connection as defined.  Further, the trend of monitoring and harassment has eased particularly since the end of the conflict and forced registration of Tamil. (citation omitted).  The Tribunal does not accept he faces a real risk of significant harm in terms of accessing employment or livelihood, monitoring or any other ground.

2. Having considered the independent evidence and the applicant’s personal circumstance, the Tribunal concluded on this topic (at [117]):

   117. Having regard to the applicant’s circumstances and country information, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any Convention reason now, or in the reasonably foreseeable future if he returns to Sri Lanka.  Even considering all of the relevant circumstances cumulatively, it is not satisfied that there is any real chance that he would be persecuted in Sri Lanka for reason of his race, religion, imputed political opinion, membership of a particular social group or any other Convention ground. Therefore he does not satisfy the requirements of s.36(2)(a).

Grounds of Application

1. The applicant relies on his Further Amended Application filed on 7 June 2018 which includes the following grounds:

   1. The [Tribunal] fell into jurisdictional error in that it failed to provide the Applicant with a “real and meaningful” opportunity to comment on adverse information or otherwise denied the Applicant procedural fairness.

   2. The [Tribunal] erred in that the [Tribunal] failed to properly undertake its legislative duty to review in that it failed to enquire about whether the Applicant still intended to file submissions to the Tribunal.

   3. The [Tribunal] demonstrated apprehended bias in its conduct of the Applicant’s review.

   4. The [Tribunal] failed to have regard to a relevant consideration, namely the claim or submission that the laws relating to illegal detention were applied differently depending on where in Sri Lanka a person came from.

   5. The [Tribunal] failed to have regard to a relevant consideration, namely the circumstances of the Applicant’s solicitor’s instructions and legal representation.

   6. The [Tribunal] fell into jurisdictional error in that it denied procedural fairness to the Applicant.

   7. The [Tribunal] fell into jurisdictional error in that it was unreasonable.

Ground 1

1. Ground one is framed with detailed particulars, which were more in the form of an outline of argument.  That ground is in the following terms:

   The [Tribunal] fell into jurisdictional error in that it failed to provide the Applicant with a “real and meaningful” opportunity to comment on adverse information or otherwise denied the Applicant procedural fairness.

2. In substance, the issue is that the post hearing submissions by the applicant’s advisor arrived one day after the decision was made.  There is no question that the submissions were outside the seven days granted orally by the Tribunal at the hearing, for lodging the further submissions.

3. The applicant mounts two arguments to attempt to overcome these difficulties:

   a)That the Tribunal’s conduct amounted to an invitation under s.424A of the Migration Act 1958 (‘the Act’), thus the applicant should have been given 14 days to provide the response, in accordance with the Migration Regulations 1994; and

   b)That the Tribunal should have enquired as to whether submissions were coming, before determining the matter.

4. The first of these arguments is covered by Ground 1, and the second, Ground 2.

5. At the time, the Tribunal, put the relevant information to the applicant.  The information was versions of events given by the applicant at other interviews that the applicant had participated in at the department around 20 months earlier, which the member had concluded may be the reason or part of the reason for making their decision.  The applicant was told ‘that is obviously all subject to your comment and you can respond or comment and you can seek additional time if you wish.’  Unfortunately this was not fully interpreted for the applicant, the interpreter only telling the applicant words to the effect of ‘After that we may take more information from you and you can give more information.’ (Transcript p.27). 

6. This course of action appears to squarely fall within the provisions of s.424AA, which provides:

   (1)  If an applicant is appearing before the Tribunal because of an invitation under section 425:

   (a)  the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)  if the Tribunal does so--the Tribunal must:

(i)  ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)  orally invite the applicant to comment on or respond to the information; and

(iii)  advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)  if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

(2)  A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

1. Section 424A does not apply, if the Tribunal utilises s.424AA: see s.424A(2A). Unfortunately the applicant did not have the information in s.424AA(1)(b)(iii) of the Act interpreted for him. This was through no fault of the member, who gave the advice in English – it was just not properly interpreted into the applicant’s language, which the member could not have known at the time. Prima facie the section has not been complied with as a result of these circumstances.

2. At the end of the interview the applicant’s representative had an interaction with the member that is not entirely clear from the transcript (see p.50) where the representative says that there will be a further statement from the applicant to ‘update details’.  The member says:

   Well, I can wait for 7 days for submissions also, I’ll make sure that you get the, I can send the interview notes to you via email today.

3. This exchange with the representative does not appear to have been interpreted for the applicant.

4. Importantly, s.424AA(1)(b)(iv) provides for the member to adjourn the interview if more time is requested, not simply make provision for written submissions. Presumably the member did not think that the applicant reasonably needed more time to comment upon the material, or otherwise the interview would have been adjourned.

5. Putting interview material to an applicant long after the initial interview (in this case around 20 months) presents many challenges for an applicant.  This issue is discussed by the Full Court in BMV16 v Minister for Home Affairs [2018] FCAFC 90, where the Full court said (with respect to a similar issue that arose under Pt.7AA):

   88.  As to the third matter, for the reasons which follow, the decision to require an immediate response was legally unreasonable in the particular circumstances of this case.

   89. The starting point is to recognise that the power in s 473DF(2) to specify “a period” in which to give comments was being exercised for the purpose of affording the applicant the statutorily mandated opportunity to comment contemplated by s 473DE.

   90. A number of circumstances are relevant.  First, the Authority had information which was not before the delegate. It considered that the new information was, or would be, a reason for affirming the delegate’s decision: s 473DE(1)(a)(ii). The delegate had not relied upon the “new information” or the “particulars” that the Authority considered significant. The new information was being deployed, or would be deployed, as a new basis for disbelieving the appellant on credibility grounds with the result that even fewer of his claims as to the events which occurred in Sri Lanka were to be accepted than had been accepted by the delegate.

   91. Secondly, the appellant had no advance warning that he would be challenged at the interview by reference to an audio recording of things he allegedly said, in no doubt very difficult circumstances, over three years earlier, in an interpreted conversation. 

   92. Thirdly, the appellant was not provided with the “new information” at the interview and therefore had no opportunity to consider the new information. Rather, the appellant was informed by the Authority that the audio recording was to a particular effect. That is, he was given “particulars” of the new information: s 473DE(1)(a). The “new information” was of a nature (an audio recording of over three years earlier) that it could not be expected that the appellant would in fact have a recollection of the content of it.

   93. Section 473DE(1)(a) only required the Authority to give “particulars” of the new information and not the new information itself. Nevertheless, its decision not to provide the appellant with the audio recording, or to play back the relevant excerpt of it at the interview, is a relevant circumstance in determining whether the decision to require an answer immediately was legally reasonable. (It is not known what the appellant may have heard if he had been provided with the audio recording; he presumably would have heard precisely what he had said at the entry interview and potentially had the opportunity to see whether the interpretation of what he said was accurate. The audio recording was not before the Federal Circuit Court, it being marked as not reproduced in the index to the relevant court book.)

   94. Fourthly, at the interview, the appellant was without representation or assistance, legal or otherwise.  He was being questioned in Melbourne via video-link, with the interpreter being present in Sydney with the Authority. 

1. The only significant difference in this case (aside from the relevant statutory provisions) was that the applicant was represented and the transcript indicates that the member took a five minute break at around 11.00am (Transcript p.36). The break was so short that I am not prepared to infer that the representative told the applicant of his rights to seek an adjournment of the hearing under s.424AA(1)(b)(iv). In this respect the applicant was in a far worse position than the applicant in BMV16, as he was never given the advice required under s.424AA(1)(b)(iv), nor does it appear that his representative had time to tell him of this option to seek an adjournment, nor did the representative seek an adjournment of the interview rather than simply the opportunity to put further submissions.

2. It cannot be overlooked that BMV16 concerned Pt.7AA of the Act, and not s.424AA. However, whilst the technical process of each provision may differ, the purpose is the same: to ensure that an applicant has a reasonable opportunity to respond to the information. If anything, s.424AA is more fulsome in the procedural rights that it provides to an applicant as a result of the requirement in s.424AA(1)(b)(iv). On the facts the section has not been complied with, and the breach denied the applicant a procedural right that may have been significant for the same reasons as set out in BMV16.

3. The first respondent argues that the material did not fall within the definition of ‘information’ used in the section, and therefore the departure from s.424AA has no effect. However there were inconsistencies with the department interview (see Exhibit ‘1’), which were relied upon by the Tribunal in [33], [48] and [50] where the Tribunal said:

   33. The tribunal also noted his interview account (pursuant to s424AA) was vague and inconsistent as he did not mention that Karuna group and said the people who questioned him were a party out of the LTTE. The applicant said he meant the Karuna group was with the LTTE before. The agent submitted the Karuna group was the party that came out of the LTTE. The tribunal accepts the explanations regarding the Karuna group. However, the tribunal considers the applicant’s interview account like his hearing account of the assault was vague and lacked details.

   …

   48. The tribunal considers the applicant added this LTTE connection claims in response to tribunal doubts about his lack of LTTE profile. He had not mentioned any of this in his 2012 statement and only mentioned it in the late stages of the hearing. There is no mention that he claimed this in the delegate’s record either. Further his evidence came out in a hesitant and piecemeal way as if he was thinking about it and making it up as he went along. In addition he had no details or information about the claimed detentions or escape.

   …

   50. At the end of the hearing after the tribunal was taking submission from the agent, the applicant added that six months after he arrived in Australia, his father had to report to police monthly because they knew the applicant was abroad. The tribunal spent some time trying to establish how they knew he was abroad and the applicant said they caught the people smuggler agent who had their details. The tribunal asked for details but he said he did not have any but his father would know. That the applicant would not know more details about this or have obtained more information for his father, given it affects him lacks credibility.

4. I am satisfied that s.424AA has not been complied with as a result of the failure to interpret the member’s statement under the section. The reasons of the Tribunal, as set out above, show reliance was placed on the information as part of the reasons for rejecting the application. I am persuaded that this ground is established.

Grounds 2 and 3

1. As a result of my finding in respect of Ground 1, it is not necessary for me to deal with the alternative arguments as to the same factual circumstances.

Grounds 4 and 5

1. Grounds 4 and 5 of the Amended Application are drawn as follows:

   4. The [Tribunal] failed to have regard to a relevant consideration, namely the claim or submission that the laws relating to illegal detention were applied differently depending on where in Sri Lanka a person came from.

   5. The [Tribunal] failed to have regard to a relevant consideration, namely the circumstances of the Applicant’s solicitor’s instructions and legal representation.

2. It is difficult to see how these grounds can succeed as the Tribunal did consider these issues, as set out in [62] to [65] of the decision:

   62. The agent submitted the illegal departure laws were not a law of general application because the monetary penalty was applied differently in Negombo and other parts in terms of SL, so the law applied in a haphazard manner. If the applicant was held in detention on remand prison conditions are such as to amount to cruel and inhuman treatment and paragraph 4.17 of DFAT report refers to torture of civilians and he is at risk of that if detained. Further, while there is no custodial sentence being given, the law allows for imprisonment for 5 years. Further the agent doubts the DFAT report that things are as transparent as claimed in monitoring and questioning.

   63. The applicant said there are things in his area that happen but never come out about how people are treated. He said people can pay the fine but there will be trouble because he has family issues with the LTTE. He does not know what will happen to him when he goes back but he thinks about when they said they would shoot him.

   64. The Tribunal acknowledges the agent submission the DFAT reports should be treated with caution as they lack independence, and questioning and monitoring is not as transparent as claimed in practice a significant degree of racially discriminatory conduct occurs in practice. However the tribunal is satisfied that the DFAT reports are complied with the greatest degree of scrutiny of information, independence and verification, with adequate research and a great degree of accuracy. Further, the DFAT report refers to and acknowledges discrimination in practice and the UNHCR risk profiles and other independent information and sources. The Tribunal is also mindful that the DFAT report is considerably more recent and more detailed than many of the reports on which the applicant relies and gives the former more weight.

   65. The tribunal does not accept adverse events are not reported as it is evident from the country information and newspaper reports that they are reported. As discussed above the tribunal does not accept the applicant has family issues with LTTE connections as the tribunal does not accept his cousin was arrested, detained or escaped as an LTTE member in 2004 or that [his] mother was arrested on suspicion in 1991 or the family has LTTE links or problems as claimed.

3. In light of the Tribunal findings, and the decision of the High Court in WZARV v Minister for Immigration and Border Protection [2015] HCA 22, I am not persuaded that these grounds can succeed.

Ground 6

1. In support of Ground 6 the applicant alleges that the standard of interpreting generally at the hearing resulted in him not receiving a real and meaningful hearing.  The applicant particularises six examples of inadequate interpreting (in Exhibit ‘2’) as follows:

   1)At T 13.7 the interpreter omitted the applicant’s reference to being threatened with a pistol during an assault

   2)At T 22.9 the reference to the gun was again omitted by the interpreter.

   3)At T 23.7 the word ‘gun’ is omitted, but the incident is translated as including a threat to shoot.

   4)At T 27.2 the mistranslation of the advice as to the right to seek additional time (discussed above) appears.

   5)At 27.10 the members comment that the information being given is ‘very vague’ is translated as ‘the information you gave is not proper information’

   6)At T 28.8 considerable licence is used in the translation, again using the complaint of information not being ‘proper’.

   7)At T29.9 and 30.6 the references to the 2012 statement translated as a reference to an interview

2. The first two transcript points show interpretations that omit a significant feature of the version of events – the pistol or gun. 

3. The third complaint does omit the word ‘gun’ but includes the threat to shoot: I am not persuaded that this omission goes to show a misinterpretation.  However, with respect to the third complaint, the quality of the interpretation (being a very brief summary) does leave one with a qualitatively different impression of the veracity of the evidence on the incident.

4. The fourth point relates to the advice under s.424AA(1)(b)(iv) and is dealt with above. The lack of advice is made more problematic by the interpreter mistranslating the reference to an interview as a statement at item seven, however that appears to go to the procedural point rather than whether the applicant had a real and meaningful hearing.

5. Finally items 5 and six go to the qualitative nature of the translation creating considerable looseness in language and introducing concepts of what is ‘proper’ rather than a focus on veracity or reliability of evidence.

6. I note that in this case a close analysis has been made of the various statements of the applicant. However, the variations from most clear translations other than with respect to s.424AA appear to be modest in nature and few in number in this case, particularly given that they are taken from over 50 pages of transcript.

7. I am not ultimately persuaded that the applicant has made out this ground, save in respect of the matters covered by ground 1.

Ground 7

1. This ground is nothing more than a catchall of the preceding grounds, which have already been dealt with above.

Conclusion

1. As I have found that the applicant has made out a ground, I will therefore make orders for the applicant to be granted relief.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 18 October 2018