Eup17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1149
•4 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EUP17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1149
File number(s): MLG 2340 of 2017 Judgment of: JUDGE MANSINI Date of judgment: 4 December 2023 Catchwords: MIGRATION – protection visa – application for judicial review of decision of Immigration Assessment Authority – whether the Authority was legally unreasonable in its reasons – jurisdictional error not established – application dismissed with costs. Legislation: Migration Act 1958 Act (Cth) ss.5H, 36, 65, 474, 476 Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109
ASB17 v Minister for Home Affairs (2019) 268 FCR 271
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Border Protection v SZVFW [2018] 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of last submission/s: 16 October 2023 Date of hearing: 25 September 2023 and 19 October 2023 Place: Melbourne Counsel for the Applicant: Ms Ballard Solicitor for the Applicant: Ersoy Kamil Pty Ltd Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2340 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EUP17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
4 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application as amended on 9 October 2023 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the amount of $6,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Mansini
IN SUMMARY
The Applicant is a citizen of Sri Lanka who sought a protection visa on the basis of claims to fear harm on return because of his profile as a young Tamil male with prior political connections.
The Applicant now seeks judicial review of a tribunal decision to affirm an administrative decision to refuse him a protection visa.
For the reasons that follow, the application must be dismissed with costs.
CONTEXT
Application for a protection visa
On 3 October 2012, the Applicant arrived in Australia as an unauthorised maritime arrival.
On 16 February 2016, the Applicant applied for a Safe Haven Enterprise (Class XE) (subclass 790) visa (SHE visa).
On 21 February 2017, a delegate of the Minister refused to grant the visa.
On 24 February 2017, the delegate’s decision was referred to the Immigration Assessment Authority (Authority) for review.
On 24 October 2017, the Authority affirmed the delegate’s decision (Reasons).
Authority’s Reasons
The Authority’s Reasons commence with a summary of the material that was considered by the Authority. Pertinent to the present application:
(a)The Authority had invited the Applicant to attend an interview in order to obtain further information about events that were outlined in his SHEV statement but were not discussed with the delegate at the SHEV interview. Specifically, regarding events that the Applicant claimed had occurred on or after 12 July 2012. The Authority decided that the Applicant’s responses at the interview before the Authority about these events, including his new claim to have been sexually abused, were “new information” and that there were “exceptional circumstances” as to justify consideration of this information and certain photographs produced during the interview: paragraphs [15] and [17] of the Reasons.
(b)The Authority also considered new country information in the form of a report from the International Truth and Justice Project titled “Unstopped: 2016/17 Torture in Sri Lanka” dated 26 July 2017 (which post-dated the delegate’s decision) and the then most recent Department of Foreign Affairs and Trade (DFAT) country report for Sri Lanka which was published on 24 January 2017 (even though the delegate had relied on the earlier 2015 report but where the updated report was available at the relevant time as it pre-dated the delegate’s decision) paragraphs [18] to [19] of the Reasons.
Throughout the Reasons, the Authority recorded its acceptance of certain elements of the Applicant’s claims. The accepted claims included those at paragraph [26] – tragically, in relation to his immediate family, that:
(a)The Applicant’s father had been a paid employee of the Liberation Tigers of Tamil Eelam (LTTE), had carried their weapons and ammunition and on occasion fought for them. And, after his father’s paid employment for the LTTE ended, the father continued to provide food, money and shelter to LTTE combatants – for which he was rewarded with a house given to him by the LTTE: paragraph [26] of the Reasons.
(b)The Applicant’s brother KTH had been a “black tiger” suicide bomber who was killed in an attack against an Sri Lankan Army (SLA) base in Jaffna. The Applicant’s family obtained a fake death certificate of his brother KTH as to disguise what had really happened to him.
(c)The Applicant’s mother was killed by shelling (see also at [31]).
The Authority also accepted the Applicant’s claims:
(a)to have worked for the LTTE in an administrative role in which he had some contact with senior LTTE figures ([28], [29]), until early 2009 when the war intensified in the north and he and his family left for Mullaitivu ([30]);
(b)that the Applicant, his father and brother KGN were put in an IDP camp where other Tamils informed the authorities at the camp about his previous LTTE involvement and his father was interrogated and beaten on several occasions ([31]);
(c)that, at the time of the family’s release from the IDP camp, the authorities in Kilinochchi considered them to be an “LTTE family” ([57]);
(d)that the authorities regularly questioned the Applicant and his brother KGN but they were never taken away for interrogation ([33]);
(e)that the authorities knew that the Applicant’s family home was gifted by the LTTE and confiscated by the authorities and that the Applicant’s family was targeted more than others ([35]);
(f)that the Sri Lankan authorities discovered weapons buried on the Applicant’s family land ([36]) and, after so discovering, the SLA took the Applicant to their camp, where they seriously mistreated and sexually abused him ([37] (this finding was reiterated at [51] – where the Authority also accepted that the SLA may have accused the Applicant of LTTE links during the interrogation given the discovery of the weapons and the fact that the authorities knew that his father and brother KTH had been with the LTTE; the detention and mistreatment in July 2012 again referred to at [55]));
(g)that the SLA had established a security checkpoint on the road next to his farm in Kilinochchi (at [60]).
Having proceeded through that course, the Authority then identified and made findings:
(a)as to what it considered were certain inconsistencies in the Applicant’s claimed accounts: at [38], [39], [47], [48] and [49];
(b)rejecting the Applicant’s claims that: the authorities planted weapons near his house in order to detain and interrogate him; that they did so on account of information supplied by a “Mr M”; that they interrogated him about brother KTH or the Applicant’s previous work; that he admitted to such work; and/or that he was told that he would be let go in exchange for a USB with the LTTE’s secret information on it ([50], see also [54]);
(c)why, despite its findings about the serious treatment he had received at the camp, it did not consider he was of further interest to the authorities and the evidence did not indicate that that the authorities had a reason to interrogate brother KGN or the Applicant’s father about him or that they did so ([52]);
(d)having regard to earlier findings and the passage of time, that the Authority did not consider the Applicant’s claim that brother KGN had moved to Jaffna in 2016 to escape adverse attention to be credible ([52]);
(e)that it was satisfied that the authorities did not have any interest in the Applicant on his departure from Sri Lanka in September 2012 ([55]) and would not have any ongoing interest in the Applicant: at [57];
(f)that it was not satisfied that the presence of the security checkpoint increases the harm for the Applicant, including because the Authority had earlier rejected the claims that the authorities had sought him because of his employment and claimed possession of sensitive information and that he escaped the authorities in the circumstances claimed: at [60]; and
(g)having made those findings above, that it was not satisfied that the Applicant is or will be of interest to the Sri Lankan authorities because of his status as a Tamil male, his origins in the north, his familial LTTE links, his LTTE employment or support, or the discovery of weapons near his family land – and further – based on the Applicant’s personal circumstances and the greatly improved country information, that it was not satisfied that the Sri Lankan authorities have an adverse interest in him because of their previous interactions with him or his family and overall that he does not face a real chance of harm on return for any of these reasons: at [61] of the Reasons.
The Authority specifically referred to certain country information about the situation in north Sri Lanka and in reasoning as to the above findings: at [34]-[35], [53], [54], [56], [58] and [59] of the Reasons.
There was then an assessment of the Applicant’s status as a returning asylum seeker, having illegal departed Sri Lanka, which is not presently relevant to the grounds of review: [62]-[70] of the Reasons.
Ultimately the Authority concluded that the Applicant did not meet the requirements of the statutory definition of “refugee” under s.5H(1) as relevant to the criterion at s.36(2)(a) or the criterion for complementary protection assessment under s.36(2)(aa) of the Migration Act 1958 Act (Cth) No. 62 (Act) and affirmed the decision not to grant the protection visa: [71] and [78] of the Reasons.
THIS APPLICATION FOR JUDICIAL REVIEW
Procedural context
On 31 October 2017, an application for judicial review was filed accompanied by an affidavit deposed by the Applicant.
On 8 December 2017, a response was filed on behalf of the First Respondent contending that the decision of the Tribunal was not affected by jurisdictional error.
On 31 May 2018, the Applicant filed a notice of address for service nominating a legal representative.
On 10 July 2018, procedural orders were made by a Registrar of this Court listing the matter for a hearing on a date to be advised, which the parties were directed to file and serve: any amended application, affidavit evidence a court book and written submissions.
On 25 July 2018, the First Respondent filed a court book.
On 16 August 2023, further procedural orders were made by which the parties were directed to file and serve: any amended application, additional evidence, a court book, written submissions and authorities to be relied upon. The matter was listed for final hearing on 25 September 2023.
On 28 August 2023, the solicitor for the Applicant filed a notice of intention to withdraw a lawyer.
On 11 September 2023, the First Respondent filed an outline of written submissions.
On 25 September 2023, the matter was due to be heard. The Applicant attended with the assistance of a Tamil interpreter and the First Respondent was represented by Counsel. An adjournment was sought, and granted, to allow the Applicant the opportunity to obtain new legal representation having had his solicitor recently withdraw.
On 5 October 2023, the Applicant filed a notice of address for service nominating a legal representative.
On 9 October 2023, the Applicant filed an amended application accompanied by an outline of written submissions.
Grounds of judicial review
The two grounds of review were expressed in the amended application, with particulars, in the following terms:
1.The IAA acted in a way that was legally unreasonable when it found inconsistencies which led to adverse credibility findings.
PARTICULARS
A.The IAA relied upon purported inconsistencies between the SHEV application and the IAA interview to make an adverse credibility finding: decision at [39]-[40]; [47]-[49].
B.Where a person has been perceived to have given inconsistent evidence, the decision maker is required to assess the degree and significance of that inconsistency, and the weight to be given to it: AVQ5 v Minister for Immigration and Border Protection [20I8] FCAFC 133; ASB17 v Minister for Home Affairs (2019) 268 FCR 271.
C.The purported inconsistencies were not in fact inconsistent, and therefore the IAA was legally unreasonable and fell into jurisdictional error.
2.The IAA acted in a way that was legally unreasonable by forming the conclusion that the Applicant was subject to human rights abuses by reason of weapons being found near his home, rather than the fact that his brother KTH was a suicide bomber, and his family, including himself, was employed by the LTTE, and therefore would not be subjected to further human rights abuses if returned to Sri Lanka.
PARTICULARS
A.The IAA made a finding of fact, that the sole reason that the Sri Lankan authorities had an adverse interest in the Applicant, resulting in his torture, was because they found weapons near his home: decision at [55], [60]-[61].
B.The IAA made other findings of fact that were consistent with the Sri Lankan authorities adversely interested in the Applicant for other reasons: decision at [26], [29], [31], [34]-[35], [51], [57].
C.Such a finding is one that no rational or logical decision-maker could arrive at on the same evidence, and therefore a jurisdictional error: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
On 16 October 2023, the First Respondent filed an outline of written submissions.
On 19 October 2023, the matter proceeded to hearing. The Applicant was represented by counsel and the First Respondent was represented by a solicitor advocate on that occasion.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s.474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 at [76].
The task on judicial review is not to undertake a general review of the decision or substitute it with a decision which the Court considers ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia (1995) 184 CLR 163, 175 as cited in BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 at [19]-[20].
The grant of a protection visa is (and at the relevant times, was) confined by the criteria at s.36 of the Act. Relevant to the present application, ss.36(2)(a) and 36(2)(aa) provides (and, at the relevant times, provided) that “a” criteria for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
An administrative decision-maker is required to refuse to issue a visa absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Act.
Division 3 of Part 7AA of the Act governs the conduct of a review by the Authority of a “fast track reviewable decision” which, relevantly, includes a decision to refuse to grant a protection visa to a “fast track applicant”.
Both grounds refer to the notion of “legal (un)reasonableness”.
“Legal unreasonableness” may be found where a decision maker comes to a conclusion that no reasonable decision maker could have reached, or makes a decision that is devoid of an “evident and intelligible justification”: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225 at [68] and [76] per Hayne, Kiefel and Bell JJ (Li). It may also be found “if there is no logical connection between the evidence and the inferences or conclusions drawn”: Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; (2022) 96 ALJR 464 at [43]. However, the test has been described as “necessarily stringent”: Minister for Immigration and Border Protection v SZVFW [2018] 264 CLR 541 at [11] per Kiefel CJ. It is not met where reasonable minds could have come to different conclusions: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]-[131] per Crennan and Bell JJ (SZMDS).
GROUND 1
Respective contentions
In contending that the Authority acted unreasonably in identifying inconsistencies in the Applicant’s evidence, which lead to adverse credibility findings, the Applicant said:
(a)The matters identified at [39] and [47]-[49] were not inconsistencies at all; and, in any event,
(b)The Authority did not assess the weight and significance of the identified inconsistencies to the Applicant’s claims,
(for completeness, the Applicant did not formally amend the pleadings but at hearing said the particulars related to paragraph [40] of the Reasons were not pressed).
For its part, the First Respondent said that the Authority was entitled on the facts to make these findings of inconsistency and there was no error of jurisdiction in these respects. Were such error established (contrary to the First Respondent’s submission) I did not understand the question of materiality to be contentious.
Applicable principles
The Applicant pointed to the consideration of the Full Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 (AVQ15) wherein it was held that the term “inconsistency” should be used with appropriate caution, noting there may be a distinction between raising a claim for the first time at a late stage and an inconsistency correctly described: at [27].
Further, the Full Court in ASB17 v Minister for Home Affairs (2019) 268 FCR 271 acknowledged that some true “inconsistencies” may be objectively irrelevant to the fact finding of a decision maker, in that some may (but not necessarily) reflect on credibility or reliability of an applicant” at [44]. Also, the Authority should consider whether there is an acceptable explanation for the inconsistent accounts such that it be given little weight: AVQ15 at [27].
It was accepted that, even where it is reasonably open to find that a person has given inconsistent evidence, the decision maker needs to assess the significance of that inconsistency and the weight to be given to it: AVQ15 at [28].
Jurisdictional error can arise in findings of credit, notwithstanding that matters of credit are usually for the administrative decision maker: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [37]-[38]. Such error of jurisdiction may occur on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83]. The Court was taken to the decision in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT), in which Robertson J held that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. The nature of the inquiry on judicial review is case specific and there is no checklist or formula to be applied.
Consideration
The relevant findings of inconsistencies in the Applicant’s evidence were made at [39] and [47]-[49], addressed in turn below.
At [39] of the Reasons, the Authority referred to the Applicant’s evidence about what the SLA wanted from him which it said was “vague and inconsistent” when his response in the written SHEV statement was compared with his response at interview before the Authority. The differences were analysed in summary form. Whilst there may be some correlation between the earlier claim about the USB (which presumably contained documents) being sold and the later claim of documents being hidden, that could perhaps have been explained, the Authority has identified a number of distinctions between the Applicant’s accounts which represent entirely different accounts. In any event, having identified those inconsistencies, the Authority assessed and attributed “relatively minor” significance to them including with reference to the Applicant’s claimed circumstance of being under significant physical and mental duress at the time.
In relation to [47] to [49] of the Reasons:
(a)The Authority did not identify inconsistency in the Applicant’s time of release from camp (3.00pm) as was submitted – rather, it identified consistency in the time of release provided in the SHEV application and arrival interview response. However, the Authority identified no mention made by the Applicant of being taken to hospital or going into hiding upon release.
(b)The Authority identified that the response given at arrival interview was that he was living at his home address and working as a railroad construction supervisor in Kilinochchi, not in hiding at his cousin’s house in Vavuniya as he said at interview before the Authority.
(c)The Authority also identified that the Applicant was inconsistent at arrival interview in respect of Brother KGN also being under investigation and required to report to the authorities when compared with responses given in his subsequently filed written SHEV application.
After making those findings, at [49] of the Reasons, the Authority reasoned:
The applicant responded that his journey to Australia was his first time out of Sri Lanka; that the Australian authorities, who he feared, had told him he would be returned to Sri Lanka anyway; and that there was a Sinhalese asylum seeker nearby during his arrival interview. While I have had regard to the applicant’s explanation, and accept he may have been initially apprehensive when dealing with the Australian authorities, I do not consider this to be a convincing explanation for the significant contradictions in his evidence, and not he divulged other claims for protection during his arrival interview.
As the aforementioned authorities confirm, the Authority was required to appreciate the nature of its task and to perform it reasonably and fairly including to weigh and evaluate that the Applicant, as an asylum seeker, faced challenges in giving accounts of why he feared persecution. On the face of the Reasons, there is no indication that the Authority failed to perform its task in this respect or that it did so unreasonably or unfairly.
The Applicant’s explanations as to “what the SLA wanted” from him, whether he was in hiding immediately prior to departure (or living at his home address) and whether Brother KGN was of interest to the authorities are all directly relevant to the Applicant’s claims for protection to the extent he claimed to have a profile with and/or was of interest to the SLA or authorities. The Authority was therefore entitled to find that these matters reflected on the Applicant’s credit.
The matter(s) of the Applicant’s hospitalisation on release from the camp may well have been explicable by the fact that the Applicant’s claim to have been seriously assaulted and sexually abused at the camp was raised for the first time at interview before the Authority and that he had not disclosed this earlier because of his deep shame. The Authority traversed these sensitive matters at [15]-[16] and [24] of its Reasons. There, the Authority accepted that these matters were not disclosed earlier for the reasons given and accepted the Applicant’s claim that the Sri Lankan authorities seriously mistreated, and sexually assaulted him during an interrogation and accepted that he suffers psychological vulnerabilities on account. However, at [24], the Authority also found that these matters did not overcome its serious concerns with the Applicant’s evidence in relation to his claimed profile with the Sri Lankan authorities on account of his LTTE employment, the purpose of his interrogation at the SLA camp, the circumstances of his release and the events which purportedly occurred after it. When read as a whole, the Authority did not err in its task and was entitled to find as it did in this respect.
For these reasons I am not persuaded that the high threshold for this ground is capable of being met in the present case.
GROUND 2
Respective contentions
The Applicant contended that the Authority was wrong and legally unreasonable in:
(a)Finding that the sole reason that the Applicant was tortured by the Sri Lankan authorities was that weapons were found near his home; and
(b)Its conclusion that the Applicant was not a person of interest to the Sri Lankan authorities which was unintelligible and/or illogical in light of the raft of claims it had accepted (including, not limited to, its acceptance of his family’s known affiliations with the LTTE and his role in managing highly sensitive LTTE information as an LTTE employee).
The First Respondent submitted that there was no finding of a “sole reason” as the Applicant contended and the Authority’s findings were open to it and not without logical basis. Further, that the contention of a “far more compelling explanation” for the authorities’ interest in the Applicant and that it was otherwise irrational for the Authority to contemplate that the Sri Lankan authorities would lose interest in him amounted to no more than a submission that equally reasonable minds may differ.
Applicable principles
The relevant principles are derived from Li and SZMDS and are extracted above.
Consideration
With regard to paragraph [50] of the Reasons, it may be accepted that the Authority found that a reason the Sri Lankan authorities were interested in the Applicant was because the SLA discovered weapons near his farm. There, the Authority accepted the Applicant’s claim of such discovery and following which the authorities took the Applicant to the SLA camp where he was interrogated, seriously mistreated, sexually abused and then released. However, the proposition that this was a “sole” reason the Applicant was found to be of interest does not resonate with the express consideration that follows at paragraph [51] of the Reasons. There, the Authority took into account what it described as the fact that the authorities knew that the Applicant’s father and Brother KTH had been with the LTTE before accepting that given this and the discovery of the weapons, the Sri Lankan Army may have accused the Applicant of LTTE links during the interrogation.
The Authority rejected the series of other reasons by which the Applicant claimed to be of adverse interest to the Authority. For example, the Authority did not consider it plausible that the authorities would plant weapons near his farm in order to detain and interrogate him if they already knew of his LTTE employment and believed he held sensitive LTTE information: [50]. The Authority considered the Applicant’s account to have been released on the same day he was taken to the camp was indicative that he was of no further (ongoing) interest to the authorities: [52]. The Authority considered that the Applicant’s claim that his father and Brother KGN continued to live in Kilonochchi until Brother KGN relocated to Jaffna in 2016 did not support a finding that his father or brother had suffered any adverse consequences in relation to the familial involvement with the LTTE: [57]. The Authority also relied on country information as to the improvements in Sri Lanka, including in relation to individual monitoring and freedom of movement.
In my view, the Authority’s Reasons disclose that the decision maker’s findings were open to be made and were reasoned with logic. That the Applicant contended for another outcome is beside the point. On what is before the Court, I am not persuaded that the high bar is met as argued in this second ground.
CONCLUSION
For the above reasons, the application must be dismissed. I will order accordingly and as to costs in the fixed amount of $6,500.00.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 4 December 2023
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