SZTAN v Minister for Immigration

[2014] FCCA 438

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTAN v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 438

Catchwords:
MIGRATION – Practice and procedure – application for leave to re-open case – whether evidence sought to be led if re-opening granted is fresh evidence – whether the interests of justice will be better served by granting leave to re-open case – leave to re-open granted.

Legislation:

Migration Act 1958 (Cth), s.425

Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142

Applicant: SZTAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1551 of 2013

Judgment of: Judge Manousaridis

Hearing date: 24 February 2014

Date of Last Submission: 24 February 2014

Delivered at: Sydney

Delivered on: 7 March 2014

REPRESENTATION

Counsel for the Applicant: Ms Rao

Counsel for the Respondents: Mr Reilly

Solicitors for the Respondents: DLA Piper

ORDERS

1. Subject to order 2, the first respondent is granted leave to re-open his case by filing on or before 21 March 2014 the affidavit of Rana Sharif affirmed on 17 December 2013.

2. The leave granted under order 1 shall be revoked if by 14 March 2014 the applicant, by his counsel, notifies in writing counsel for the first respondent and the associate to Judge Manousaridis that the applicant does not rely on the further amended application filed on 13 December 2013.

3. If a notification under order 2 is not given, the parties have liberty to apply on reasonable notice to bring the matter before the Court for further directions.

4. If a notification under order 2 is given, judgment in this matter will be reserved.

5. The costs of the application for leave to re-open are reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1551 of 2013

SZTAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application in a case filed by the first respondent (Minister) seeking leave to re-open his case. The application relates to the hearing of an application for judicial review of a decision of the second respondent (Tribunal) which I heard on 6 December 2013.

2. To understand the grounds on which the application to re-open is made, and the issues that arise, it will be necessary to set out the grounds on which the applicant sought a protection visa, the reasons for the Tribunal affirming the decision of a delegate of the Minister to refuse the claim, the grounds on which the applicant sought judicial review at the hearing, and what occurred at and after the hearing before me on 6 December 2013.

Background

1. The applicant, a citizen of Bangladesh, applied for a protection visa on the ground that he has a well-founded fear of being persecuted because of his religious beliefs, and his involvement with a social organisation known as “Mahamandal Kallyan Sangsta” (MKS). The elements of the applicant’s claims for protection are as follows:

   a)The applicant is a Buddhist, and MKS is a welfare organisation whose goal is to protect local Buddhists from oppression, discrimination and harassment. The MKS was associated with a Buddhist temple.

   b)During the 2008 parliamentary elections in Bangladesh, local BNP/Jamaat leaders approached the applicant and his guru to encourage members of the Buddhist community to vote for the BNP/Jamaat, but the MKS did not involve itself in politics.

   c)After the BNP/Jamaat lost the elections to the Awami League (AL), BNP/Jamaat thugs targeted the Buddhist community, including the applicant in particular, because they believed that the community had supported the AL members, and supporters of BNP/Jamaat were angered by the applicant’s refusal to work for the BNP/Jamaat.

   d)In 2009, in response to threats and assaults on Buddhists, the applicant organised a meeting to protest. That resulted in the applicant and his family receiving more threats.

   e)On 1 December 2009 the applicant was attacked by four BNP/Jamaat thugs, and was told he had to leave the area within twenty four hours. The applicant left that night and went to a temple.

   f)On 21 September 2010 the applicant heard that BNP/Jamaat thugs had occupied lands belonging to the MKS temple. The applicant organised a protest in response, and this involved him returning to the area of the MKS temple. That led to BNP/Jamaat thugs hunting him down which, in turn, resulted in the applicant fleeing his home on 24 October 2010.

   g)The applicant left Bangladesh for China on 22 March 2011.

2. The applicant gave evidence before the Tribunal over two days. The evidence he gave is set out in the Tribunal’s decision, as are concerns the Tribunal raised with the applicant about a number of aspects of the applicant’s evidence. Relevant to the application for judicial review, and also to the Minister’s application to re-open, is the evidence the applicant gave about the person with whom he travelled to China after he left Bangladesh.[1]

   [1] CB195, [62]

3. The applicant said he travelled to China on a student visa to study a course on Buddhist religion;[2] he spent the first four months studying the Chinese language;[3] he received some financial support organised by Upanunda Tero;[4] Upanunda Tero did not help any other person at the place the applicant was studying in China; but when he applied for a visa in the embassy of the Peoples Republic of China (PRC) at Dhaka, he met another young man at the gate of the embassy;[5] and at the time the applicant met the young man, both he and the young man were wearing robes.[6]

   [2] Spencer transcript, T6

   [3] Spencer transcript, T7

   [4] Spencer transcript, T8

   [5] Spencer transcript, T8

   [6] Spencer transcript, T9

4. In response to the Tribunal’s asking how it happened that the applicant and another person happened to be at the gate of the embassy on the same day at the same time and ended up studying the same course in China, the applicant said that it had all been arranged by his guru and he knew nothing about how the other young man was at the embassy gate.[7]

   [7] Spencer transcript, T9

5. The applicant told the Tribunal he went to the embassy of the PRC at Dhaka on the recommendation of his teacher. At the embassy gate, the applicant met another young man who was applying for a visa to undertake the same course in China as the applicant. The applicant and this young man travelled to China together, and shared accommodation. At the conclusion of this part of the applicant’s evidence, the Tribunal indicated that it found it difficult to believe that it was only coincidence that accounted for the applicant’s meeting the young man at the embassy. The Tribunal said:[8]

   I’ll explain why this is, this is not your refugee or your protection claim’s all about but it’s very important because I may get the impression that someone in Bangladesh has planned like a long time, a long time for two young Buddhist men to get visas to China and then get… to Australia and also prepare a story so it really is important that you be frank and honest with me now so that I . . . don’t think that there is some scheming or planning and . . . you’re not being honest with me.

   [8] Spencer transcript, T10

6. This evidence was given during the first hearing. At the second hearing, the Tribunal raised with the applicant concerns it had with a number of aspects of the applicant’s evidence, including the evidence he gave about the meeting with the young man at the PRC embassy. As to that, the Tribunal said:[9]

   Now we also talked about . . . the way . . .  you told me that you met another young man at the Chinese Embassy in . . . Dhaka. And . . . I won’t make too much of this but I want to just flag with you I . . . don’t get the sense that you are completely . . . open and frank with me about how the two of you met and why it’s such a big coincidence. Now that’s . . . a little bit in my mind although I may not . . . mention that in the decision.

   [9] Spencer transcript, T14

7. The Tribunal referred in its reasons to what the Tribunal indicated to the applicant at the hearing about the evidence the applicant gave regarding the meeting with the young man at the PRC embassy. The Tribunal said:[10]

   The Tribunal alerted the applicant to a number of concerns about his claims and evidence. . . . The Tribunal also indicated its disquiet about the applicant’s guarded evidence about his contacts with the other Buddhist monk whom he claims to have met at the PRC Embassy, but advised that it would likely not rely on this to draw any adverse inferences.

   [10] CB197, [74]

8. The Tribunal did not accept the applicant’s claim for a protection visa. It did not do so, principally because it did not accept the applicant’s evidence. First, the Tribunal was concerned the applicant exaggerated and misconstrued the nature and profile of his religious and social work in his community and had given an unreliable account of his activities as a whole.[11] Second, although the Tribunal accepted the applicant acted as a Buddhist monk from time to time, it found the applicant’s account of his own monastic commitments disjointed and sometimes uncertain.[12] One of the matters to which the Tribunal referred in relation to that conclusion was the applicant’s evidence of his meeting the young man at the Chinese embassy gate in Dhaka. The Tribunal said:[13]

   The applicant told the Tribunal that in early 2011, he went to the Chinese Embassy in Dhaka wearing his Buddhist robes, to apply for a visa to attend a course in China. Another Buddhist monk was at the Embassy gates, applying for a visa to the same course in China. He has since travelled to Australia with this person. The Tribunal found the applicant’s evidence about whether he had discussed this coincidence with his travel companion, for instance to enquire whether he had been assisted or sponsored by the same Buddhist group in Bangladesh, repetitive and evasive.

   [11] CB204, [102]

   [12] CB206, [103]

   [13] CB207, [103]

9. Third, the Tribunal had significant doubts about the applicant’s claimed social and political activism. One of the matters to which the Tribunal referred in relation to that conclusion was the applicant’s evidence about the funding and travel arrangements to China. The Tribunal said:[14]

   The Tribunal found the applicant’s evidence about the funding and arrangements for his travel to China, then Australia, to be guarded and unforthcoming. He variously indicated that his family, the temple membership as a whole and the whole Buddhist community raised funds for him, adding at one point that the villagers made individual contributions towards his travel costs. He also mentioned in passing that Upananda Thero, the abbot in Hoarapara, raised some funds. The Tribunal formed the impression that the applicant was reluctant to reveal the actual travel arrangements, and in particular the role of the abbot in Hoarapara or other person who organised his travel to China and then Australia. . . .

   [14] CB209, [104]

10. Fourth, the Tribunal found “wholly unreliable” the applicant’s claims that he initiated, led, or played any key role in protesting the kidnapping and rape of some local girls in August 2009; that the prominence this gave to the applicant led to more threats to him and his family; or that BNP/Jamaat thugs assaulted the applicant or his father or threatened to kill him, or forced him to leave his village.[15]

    [15] CB210, [111]

The application for judicial review

1. In his amended application for review, the applicant claims the Tribunal made a jurisdictional error because:

   a)at the hearing, the Tribunal represented to the applicant that it was not likely that the Tribunal would rely on what it considered to be the coincidence of the applicant meeting the young man at the PRC embassy gate in Dhaka;

   b)contrary to the representation referred to in (a), the Tribunal did materially rely on what the Tribunal considered to be the coincidence issue;

   c)by making the representation, the applicant was denied the opportunity to make additional submissions about the issue and hence, the Tribunal did not do what it was required to do under s.425 of the Migration Act 1958 (Cth), namely, to give the applicant an opportunity to “give evidence and present arguments relating to” one of the issues “arising in relation to the decision under review”.

Course of hearing on 6 December 2013

1. At the hearing, counsel for the applicant sought to read an affidavit of the applicant made on 15 November 2013. Counsel for the Minister objected to paragraph 5 of the affidavit. Because paragraph 5 should be read with paragraph 4, I set out both paragraphs of that affidavit:

   4.I recall that on the second day of the hearing the Tribunal member informed me that he was concerned about my evidence of that meeting with the other Buddhist monk, but that he was not likely to rely on it.

   5.I understood that to be the case as I recall that the interpreter said words to me in Bengali to the effect of:

   You have told me that you met one young person in Chinese Embassy. I am trusting you, but it is getting hard to trust how you met such a person. I am not likely to rely on it in my decision but I am wondering.

2. The ground of the Minister’s objection to paragraph 5 was that it was inadmissible opinion evidence. The opinion which the Minister’s objection asserted was conveyed by paragraph 5 of the applicant’s affidavit was a translation into English of what was said to the applicant in Bengali. And the reason it was said to be inadmissible was that the applicant did not have expertise to translate words spoken in Bengali into English.

3. I ruled against the objection. I held that the applicant did not purport to give in English a translation of what was said to him in Bengali. The affidavit was a translation into English of what a qualified interpreter had read to the applicant in Bengali. That, in turn, implied that the English contained in the affidavit was a translation of what the applicant must have said to the interpreter in Bengali. Paragraph 5 is simply evidence of a translation into English of what the applicant says the interpreter at the hearing said to the applicant in Bengali.

4. I indicated to counsel for the Minister that I would be prepared to adjourn the hearing, if the Minister so applied, to enable the Minister to put on an affidavit in response to paragraph 5 of the applicant’s affidavit. Counsel indicated that it might be possible to arrange for an interpreter to appear that day. I adjourned the matter to determine whether an interpreter, competent to interpret Bengali into English, could be made available. One was found, and the hearing resumed at 12.30 pm.

5. Counsel for the Minister called the interpreter. The interpreter said she was a NAATI accredited interpreter, but was not accredited for Bengali. She said, however, that she has been translating Bengali into English since 1996. The relevant section of the audio recording of the hearing before the Tribunal was played a number of times, and the interpreter was asked to interpret into English a short section of what the interpreter at the hearing (Tribunal Interpreter) said to the applicant in Bengali. The passage (relevant passage) that was the specific point of attention was the translation by the Tribunal Interpreter of words that were spoken by the Tribunal member in English, and of which there are two versions. One is that transcribed by Ms Spencer as follows:[16]

   . . . how the two of you met and why it’s such a big coincidence. Now that’s, that’s a little bit in my mind although I may not, I may not um mention that in the decision.

   [16] Spenser transcript, T14

6. The other version is that transcribed by Auscript:[17]

   . . . how the two of you met and why such a big coincidence – yes, that’s – that’s a little bit in my mind, although I may not – I may not mention that in the decision I make.

   [17] Auscript transcript annexed to affidavit of Ms Carr made on 20 November 2013, T14.45

7. At the end of her evidence in chief, the interpreter interpreted into English the Tribunal Interpreter’s translation of the relevant passage in Bengali as follows:[18]

   “Now you - you met with him and it is of – is this a coincidence?” That’s what he said. And then he said, “I will consider all this in my decision now,” and then the last two words are very fast.

   [18] T26.20

8. The interpreter was then cross-examined by counsel for the applicant. Towards the end of the cross-examination, the interpreter gave the following evidence of her translation into English of what the Tribunal Interpreter said to the applicant (emphasis added):[19]

   “You had said this, that you had met this young man at the time he was – when you were at Chinese Embassy.” (foreign language spoken) means, “while you were there”. And then the next one is (foreign language spoken) – “well if you want to give anything else now”, and (foreign language spoken) could be any statement, any information, anything. I am satisfied. Then, like I said, a few words missing. Then he says, “I’m not disbelieving you, but it is hard to believe that – it’s hard to believe that you . . . . . communication and then he uses the word, “meeting this fellow is a coincidence.” “How did you meet this fellow?” “That it was a coincidence.” And then the last one, “I will not mention it in the decision” (foreign language spoken), “but”, and then he rushes through a few words, and then he says “Did this work.”

   [19] T39.10

9. Although there were gaps in what the interpreter translated, counsel for the applicant was content with the interpreter’s evidence.[20] I then invited counsel for the Minister to ask any questions of the interpreter, which he did. The audio recording of the relevant passage was played again, which counsel asked the interpreter to again translate, after which counsel said he wanted “the interpreter to tell us one more time what she says is the Bengali and the English”.[21] The interpreter gave this evidence[22]:

   . . . what I heard was that, “I will not mention this in the decision. But - ” And then, like I said, I really couldn’t hear. I tried a couple of times. And then what I heard was, “this work – this work with him – with this work.” Something to that effect.

   [20] T39.25

   [21] T41.5

   [22] T41.15

10. Counsel for the applicant then addressed the Court. Her submissions stayed within the bounds of the amended application and the written submissions that counsel filed before the hearing. After counsel for the applicant completed her address, however, she informed the Court that during lunchtime, counsel for the Minister had pointed out to her that she did not “dwell in any detail on the misinterpretation cases”. Counsel suggested that this could be dealt with by a short note after the hearing. I suggested that counsel for the Minister should deal with it in his address.

11. I should here note that no part of the applicant’s case, as set out in the amended application, and in the applicant’s counsel’s written submissions, was based on mistranslation. It appears that counsel for the Minister considered that the applicant was relying on misinterpretation as a ground for jurisdictional error. And counsel for the Minister addressed on that topic. He referred to the Full Federal Court decision in SZRMQ v Minister for Immigration and Border Protection,[23] submitting on the basis of that decision that mistranslation can affect a Tribunal’s decision only where the mistranslation is material. Counsel further submitted that the mistranslation in this case was not material.

    [23] [2013] FCAFC 142

12. After counsel for the Minister completed his address, I asked whether he wished to submit a short note after the hearing. Counsel for the applicant, however, said that perhaps she ought to because she had not read any of the cases on mistranslation to which counsel for the Minister had referred. Counsel for the Minister suggested that the application be further amended. Counsel for the applicant said she accepted she needed to amend the application. Although not stated, I understood counsel agreed that the amendment that needed to be made was in relation to any alleged mistranslation into Bengali of what the Tribunal had said. I made no directions for the filing of submissions, but noted that counsel for the applicant was to provide counsel for the Minister with submissions and a proposed further amended application, and counsel for the Minister was to provide a submission in reply within a further seven days. I also noted that if the Minister consented to the proposed amendment, the parties should indicate that it has been consented to and that I would at some point deal with the amendment.

Events after the hearing

1. On 13 December 2013 the applicant filed a further amended application. It states that it was filed pursuant to leave given on 6 December 2013. I gave no such leave. I indicated that if the proposed amendment was consented to, I would deal with that in my reasons for judgment. By that I implied that if the Minister was to consent to the proposed amendment, I would deal with the application on the basis of the proposed amendment.

2. The further amended application amended the previous application by adding the following particulars to ground 1:

   Further or alternatively, by reason of what was said to the applicant in Bengali during the hearing, the Applicant was informed that the Coincidence Issue would not be relied on adversely to him in the decision.

3. Although added as a particular, this is the addition of a substantive ground. And it appears it relies solely on the evidence given by the interpreter at the hearing before me.

4. On 20 December 2013, the Minister filed an application in the case seeking an order that the Minister have leave to re-open his case by filing and serving an affidavit of Rana Sharif made on 17 December 2013. According to her affidavit, Ms Sharif is fluent in the languages of English and Bengali, and holds the accreditation of NAATI Level 3. She says that on 17 December 2013 the solicitor for the Minister played what appears to be that part of the audio recording that was played to the interpreter at the hearing on 6 December 2013, and Ms Sharif was requested to translate a portion of it. Ms Sharif translated what she heard as follows:

   I may not disclose in my decision this thing came to my mind and working in my mind.

5. Thus, the leave to re-open which the Minister seeks is leave to adduce Ms Sharif’s translation (Sharif translation).

Principles regarding re-opening of case

1. It is common ground that a useful statement of the principles governing the exercise of the discretion to permit a party to re-open a case is that given by Kenny J in Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24]. Her Honour said:

   The authorities indicate that, broadly speaking, there are four recognised classes of case in which a Court may grant leave to re-open, although these classes overlap and are not exhaustive.  These four classes are:

   (1)    Fresh evidence.

   (2)    Inadvertent error.

   (3)    Mistaken apprehension of the facts.

   (4)    Mistaken apprehension of the law.

2. At paragraph 26, her Honour said:

   The overriding principle requires that the Court consider whether, taken as a whole, the justice of the case favours the grant of leave to re-open.

3. The parties also relied on other authorities which I do not propose to refer to.

Parties’ submissions

1. Counsel for the Minister submitted that leave to re-open should be granted for a number of reasons. First, counsel submitted that it was a mistake for him to decide to call the interpreter rather than asking for the matter to be adjourned, although he also submitted that his decision did have some basis, and he did not anticipate that the interpreter would not be accredited in Bengali. Secondly, it is in the interests of justice that the Court should make its decision on the correct factual basis. Thirdly, the proposed evidence is fresh evidence. It was not evidence which the Minister could reasonably have been expected to obtain before the hearing because the applicant did not claim mistranslation as a ground of review or as a particular to the ground of review set out in the amended application. Fourth, no prejudice will be suffered by the applicant if leave is granted.

2. Counsel for the applicant submitted that leave should not be granted. First, the Sharif evidence is not “fresh evidence” because the evidence was available and could have been obtained by the Minister before the trial.[24] Second, counsel for the Minister had the opportunity to have the matter adjourned to obtain evidence such as the Sharif evidence, but he declined to take that opportunity. Therefore, the Minister should be bound by the forensic decisions of his counsel.[25] Third, there is no basis to impugn the competence or integrity of the interpreter that gave evidence at the hearing.[26] And, fourth, the Sharif evidence is not of sufficient significance to warrant re-opening.[27]

   [24] Applicant’s outline submissions, [28]

   [25] Applicant’s outline submissions, [31]-[33]

   [26] Applicant’s outline submissions, [34]-[38]

   [27] Applicant’s outline submissions, [39]-[42]

Should leave to re-open be granted?

1. The starting point to resolving this application is to identify the relevance or potential relevance of the evidence the interpreter gave at the hearing. The need for evidence of the sort given by the interpreter arose after I allowed the applicant to read paragraph 5 of his affidavit. That was evidence of the applicant’s recollection of what the Tribunal Interpreter said to him in Bengali when translating what the Tribunal had said in English. The interpreter’s evidence was potentially relevant to the accuracy of the applicant’s recollection of what was said to him by the Tribunal Interpreter. As events turned out, the interpreter interpreted what she heard the Tribunal Interpreter say to the applicant differently from what the applicant recalled the Tribunal Interpreter said. That, then, leaves as an issue of fact, to the extent it is relevant, of what was said in Bengali to the applicant by the Tribunal Interpreter. Is it what the applicant recalls was said to him? Or is it what the interpreter at the hearing before me said was said to him?

2. The interpreter’s evidence, however, became relevant to something which was not an issue at the time she was called to give evidence but which became an issue after she gave evidence. And that is whether at the Tribunal hearing there had been a mistranslation. As I note earlier in these reasons, it was not part of the applicant’s case that there was a mistranslation. And the applicant obviously did not rely on the translator’s evidence because the evidence only became available at the hearing. It became an issue after counsel for the Minister addressed on whether there was a mistranslation and if so whether the mistranslation was material, and after counsel for the applicant accepted that the applicant had to amend the application. And this is what occurred after the hearing when the application was amended to add a particular which squarely relies on the evidence given by the interpreter at the hearing.

3. These two different ways in which the interpreter’s evidence is relevant in the proceedings have a bearing on whether leave to re-open should be granted. In my opinion, it is not appropriate that leave be granted to the Minister to file the Sharif evidence for the purpose of showing that the applicant’s recollection to which he deposes in paragraph 5 is not accurate. The Minister had an opportunity to obtain evidence on that issue before the hearing. The Minister also had an opportunity to obtain that evidence after the hearing, because I was willing to grant the Minister an opportunity to obtain that evidence after I ruled that paragraph 5 of the applicant’s affidavit was admissible. And counsel’s calling the interpreter was not a mistake, but a conscious decision. It must have been done with full knowledge by him and those instructing him that there was a risk that the interpreter may give evidence favourable to the applicant.

4. Different considerations apply, however, if the purpose of the Minister’s seeking leave is to meet the additional particular included in the further amended application. Counsel for the applicant acknowledged what is obvious, namely that this ground “emerged out of the evidence that” the translator gave.[28] For that purpose, the Sharif evidence is not evidence that was reasonably open for the Minister to have obtained at or before the hearing on 6 December 2013. That is so because the issue to which it is relevant was not part of the applicant’s case; it became an issue only after the translator gave evidence. And the precise way in which it became an issue was only disclosed when the applicant filed the further amended application. Accordingly, the Sharif evidence is “fresh evidence” in the relevant sense.

   [28] T17.30 (24 February 2014)

5. Nor can it be said that the giving of evidence by the interpreter was the result of a conscious decision by counsel for the Minister, at least not relevantly. It is true that counsel for the Minister called the interpreter. But he did not consciously decide to elicit from the interpreter evidence which would ground a new case against the Minister. The only risk counsel took by calling the interpreter was that she would give evidence that would assist the applicant’s case to the extent that it would support what the applicant said he recalled was said to him in Bengali at the hearing before the Tribunal. He did not undertake the risk that the interpreter would give evidence which would support a new case which he would be bound to meet on the day of the hearing.

6. In my opinion the interests of justice will be better served by granting the Minister leave to file the Sharif evidence for the purpose of meeting the new claim raised in the further amended application. It would be manifestly unjust for the Minister not to have a proper opportunity to meet a case which was formulated in a further amended application which was filed after the hearing on the basis of evidence which first appeared at the hearing.

Conclusion and disposition

1. I propose to grant the Minister leave to re-open his case by filing the affidavit of Ms Sharif for the purpose of meeting the additional ground introduced by the further amendments. The natural consequence of this will be to render that evidence also relevant to the issue of whether the applicant’s recollection of what was said to him by the Tribunal Interpreter is to be accepted. This consequence, however, can be averted if the applicant decides he does not wish to proceed with the new ground.

2. Accordingly, I propose to order that the leave I propose to grant to the Minister will be revoked if, within seven days of the granting of leave, the applicant, through his counsel, notifies counsel for the Minister and the Court through my associate that the applicant does not intend to rely on the further amended application.

3. I will reserve the costs of this application.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  7 March 2014