BBK15 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs, as taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BUCHANAN J: 1 The appellant is a Pakistani Sunni, a member of the Mangal tribe. He and his family lived in Boghra village in Upper Kurram Agency, Pakistan but, in 2008, relocated to Pirqayum village in the Central Kurram Agency, near Sadda. 2 The appellant arrived at Christmas Island on 17 July 2012. He lodged an application for a protection visa dated 9 January 2013, which was refused by a delegate of the Minister on 5 March 2014. 3 The appellant applied to the Refugee Review Tribunal ("the Tribunal"), whose earlier functions are now performed by the second respondent, for review of the delegate's decision but, on 13 May 2015, the Tribunal affirmed the decision not to grant a protection visa. 4 An application for judicial review of the decision of the Tribunal was dismissed by the Federal Circuit Court of Australia ("the FCCA") on 3 December 2015 (BBK15 v Minister for Immigration & Anor [2015] FCCA 3220) and, from the orders of the FCCA, the appellant has now appealed to this Court. 5 The appeal in this Court is complicated by the fact that, in answer to attacks made on the judgment of the FCCA, the Minister (while not conceding the validity of the challenges) filed a notice of contention seeking to support the orders of the FCCA on grounds other than those disclosed by the reasons of the FCCA. 6 Underlying the question of whether the FCCA made an appealable error which requires correction in this Court is the question of whether the Tribunal made a jurisdictional error which should have been recognised by the FCCA. In those circumstances, it is more efficient to concentrate directly on the fundamental issue of whether the Tribunal committed a jurisdictional error rather than being diverted to a discussion of the particular reasoning in the FCCA which may not be decisive in the final analysis. 7 The two bases for the claims to a protection visa were "refugee" grounds and "complementary protection" grounds. Those two bases are reflected by s 36(2)(a) and (aa) of the Migration Act 1958 (Cth) which, at the time of the application for a protection visa, provided: 36 (2) A criterion 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 under the Refugees Convention as amended by the Refugees Protocol; 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; … 8 After the application for a protection visa had been disallowed by a delegate of the first respondent, but before the decision of the Tribunal, s 36(2)(a) of the Migration Act was amended, and s 91R of the Migration Act (which is referred to later) was repealed. However, those amendments only applied to applications for protection visas made on or after 16 December 2014 and may be disregarded in the present case. 9 Section 36(2)(aa) is supplemented by s 36(2A) and (2B), as follows: 36 (2A) A non-citizen will suffer significant harm if: (a) the non-citizen will be arbitrarily deprived of his or her life; or (b) the death penalty will be carried out on the non-citizen; or (c) the non-citizen will be subjected to torture; or (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non-citizen will be subjected to degrading treatment or punishment. (2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that: (a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or (b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or (c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. (Emphasis in original.) 10 In the present case, s 36(2B)(c) requires particular attention. It is evident that, by contrast with s 36(2B)(a) and (b) (where it is deemed that a "real risk" will not exist in particular circumstances), s 36(2B)(c) accepts that a "real risk" may be faced by the population of a country generally but directs attention to the particular question of whether it is a "real risk" faced by the applicant personally. 11 The significance of those questions in the present case can only be understood in the context of the findings made by the Tribunal which, as to the merits of those findings, are not reviewable in either the FCCA or in this Court. 12 The background to the appellant's claims was set out by the Tribunal as follows: 9. The applicant was born in Boghra Village, Upper Kurram Agency, Pakistan, where he resided from his birth in 1988 until about 2008 when he relocated to Perqayum Village, near Sadda, Central Kurram Agency, Pakistan with his family. He remained living with his family until his departure for Australia in July 2012. The Tribunal finds that the applicant's home area is Kurram Agency. … 13. The applicant claims that the village he resides in is approximately 6 kilometres from the Pakistan/Afghanistan border, close to Teri Mangal and Parachinar. He states there is a walking route that passes through the village, leading into Afghanistan which the Taliban wanted to use to bypass border controls. In 2008 the Taliban asked the village elders for permission as they wanted the villagers to be co-operative as they did not want their movements reported to the government. They also wanted the villagers help and support. The village held a Jirga attended by the elders and decided not to agree to the request as the concern was that if they did agree, they would attract the adverse attention of the Pakistan Government and the United States bomber aircraft. The applicant claimed the Taliban subsequently destroyed about 25 houses in their village, including theirs. His family moved to Sadda. The applicant claims that the village head of the Jirga, [H] was killed by the Taliban in Peshawar in mid-2010. His father who was an elder and also participated in the Jirga was murdered by the Taliban when they took him from his car and shot him. In May 2012 when he was attending a wedding, the Taliban went to his house in Sada asking for him. They spoke to his younger brother [H]. As the Taliban had already killed his father in retaliation for non-co-operation with them and he is opposed to the Taliban, he knew his life was at risk and he had to flee Pakistan. The Pakistani authorities have not protected them so far and are unable to protect him. 13 It is clear from later material that the events in 2008 were said to have occurred before the family relocated from Boghra. Based on a submission to it, which addressed particular findings of the delegate, the Tribunal went on: 16. The submission indicates that the applicant's uncle was chief elder of the village and his father was appointed as an elder about 1996. In about 2001 the applicant's father purchased a small shop to support the family in which the applicant worked as well as working on the family farm and for which he was not paid and is consistent with the information in the applicant's Form 866. As the applicant is able to read and write in both Urdu and Pashto he would assist his father in his duties as an elder accompanying his father to village events. About 2008 the Taliban approached the village elders and asked for their support in their fight against the Pakistani Government and to use the walking route that passed through the village to avoid border posts. They asked for the co-operation of the village so that no-one reported their movements. The village held a Jirga (meeting of village elders) at which the applicant's father participated and it was agreed not to accede to the request as they did not want to attract the attention of the Pakistani and American bombers. About one month later the Taliban attacked the village in retaliation for declining their request. The Taliban sent threatening letters, opened fire on the village and planted landmines close to the village that killed one person and seriously injured two others. As the villages became fearful for their safety they started to leave with the applicant's family one of the last to leave. They relocated to Pirqayam (close to Sadda) and travelled with the applicant's uncle who after a few nights moved to Peshawar. The applicant's father supported the family by working as a car salesman and bus driver with the applicant remaining at home. Shortly after their relocation they were told the Taliban torched their homes. About mid 2010 his uncle was killed by the Taliban in Peshawar when he was shot in the street while returning to his house from the mosque. On 19 July 2011 his father was killed by the Taliban in Sadda. As his elder brothers no longer lived at home he took on the role as head of the house. He went to the local police station to report the incident but nothing was done. Sometime in May 2012 the applicant was at a wedding about 5 minutes' walk from the family home. When he returned home his brother told him that people with beards and guns had come to the house looking for him and as his brother suspected they were from the Taliban he told them the applicant was not home so they left the house. He was worried about his safety as his uncle and father had been killed by the Taliban so he called his cousin, travelled to Islamabad and discussed his options. It was submitted that the inconsistencies referred to by the delegate were caused by the interpreter being speaking a different dialect (Afghani) to Pakistani. … 20. The applicant claims he will be harmed by the Taliban if he returns to Pakistan because he will be imputed to be opposed to the Taliban as his father and uncle were and they were killed by the Taliban. He claims that he will be unable to obtain protection from the authorities as they are not effective in providing protection and in some cases work with the Taliban. 14 It is apparent that the Tribunal had reservations about the veracity of the appellant's claims. It said: 35. Having considered all of the evidence before it, including the applicant's written claims and oral evidence at hearing, as well as the other evidence before the Tribunal, the Tribunal has formed the view that the applicant has not been truthful in relation to aspects of his claims for protection. 15 However, the Tribunal also based many of its findings on more objective evidence. For example, as to the likely reason for relocation from Boghra, the Tribunal found: 42. The applicant was consistent in his evidence that his father was a member of the village Jirga as was his uncle who he claims was killed in Peshawar in 2010. The applicant claims that the village Jirga decided to refuse the Taliban's request to use the walking route through their village to the Afghanistan border. He told the Tribunal that his family moved from their village to a village near Sadda in 2008 as a result of Taliban activity and the destruction of their village by the Taliban. 43. The applicant claimed in the submissions dated 19 November 2014 that the Taliban planted landmines close to the village, sent threatening letters to the villagers and opened fire on the village. He also claimed the village sought assistance from the Pakistani Government but this was declined. … 46. The Tribunal located information from April 2012 indicating that no family had returned to the applicant's village in Upper Kurram, which was a Sunni village in a Shia dominated area. While there is some information that indicates elders of the Mangal Tribe have stood up to the Taliban, there is also information that the Taliban supported the Sunni tribes in the sectarian violence against the Shia tribes. The over whelming evidence is that many Sunni families were displaced by the sectarian fighting, leaving the Upper Kurram and settling in Lower and Central Kurram where the majority of the population were Sunni Pashtuns. 47. The Tribunal accepts that the applicant's family relocated from Upper to Central Kurram in 2008. However the Tribunal does not accept that the family relocated because they opposed the Taliban. The family relocated to a village outside of Sadda which according to country information referred to below was a headquarters of the Taliban. The delegate also referred to Sadda and surrounding areas being home to the Taliban. The country information also indicates that when the Shia militia drove the Taliban from the Upper Kurram, the Taliban were forced to return to their bases in Sadda and Alizai. The country information referred to below indicates that there was a drone attack on a Taliban camp near Sadda in 2009. The Tribunal does not accept as plausible that a person in fear of the Taliban because they had come to the adverse interest of the Taliban for refusing them access through their village to the Afghanistan border, would relocate to an area known to be headquarters for the Taliban. 48. After considering the available evidence from the applicant as well as country information, the Tribunal does not accept that the applicant's family, his father, uncle or himself have been targeted by the Taliban. The Tribunal prefers the country information from established reputable sources over that based on blogs and finds that the reasons the applicant and his family fled to Perqayum Village, near Sadda, was because of the sectarian conflict between the Shia and Sunni tribes. The Tribunal also does not accept as plausible that a person in fear of the Taliban because they had come to the adverse interest of the Taliban, would relocate to an area known to be headquarters for the Taliban. 49. Based on the country information the Tribunal accepts that the Taliban as well as other militia planted landmines in the Kurram Agency but does not accept that the Taliban specifically planted landmines around the applicant's village because they opposed the Taliban. The Tribunal does not accept that the Taliban sent threatening letters to the villagers or opened fire on the village because the village opposed the Taliban. The overwhelming evidence is that at that time there was heavy sectarian violence in the area, affecting the whole population and resulting in the Sunni community moving to Central Kurram. The country evidence is and as referred to by the delegate, that the Mangal Sunnis were assisted in their fight against the Shia by the Taliban. (Footnote omitted.) 16 Those findings are important ones for the Tribunal's later conclusions. 17 The Tribunal went on and made further findings which rejected important elements of the appellant's claims. It rejected the claim that the appellant's father was targeted and shot by the Taliban, saying: 55. The applicant claims that in 2011 his father was killed by the Taliban in a targeted attack. In his statement accompanying his Form 866 the applicant claims that his father was taken from his car and shot by the Taliban. In contrast in the submissions dated 19 November 2014 it was claimed that the applicant's family was informed that the Taliban had killed his father and that his body was found outside the bus he was driving and that it had several bullet wounds. He told the Tribunal his father was killed while driving his bus just outside the village, near Sadda, that he knows it was the Taliban because witnesses told him, that the bus was empty with no passengers, witnesses saw a car drive up, shooting start, the witnesses were frightened and ran away and then the shooters drove away. The applicant's evidence was consistent that his father was shot. However the Tribunal does not accept that the applicant's father was targeted by the Taliban. The Tribunal does not accept that the applicant's father lived openly selling cars and driving buses as claimed in a known Taliban area, even at a reduced level following the claimed targeting of the applicant's uncle in Peshawar for several years if he was of adverse interest to the Taliban. The country information indicates that at that time the area (Sadda) was particularly affected by sectarian violence as well as violence by the Taliban, particularly in relation to the Thal-Parachinar Road connecting Parachinar with Peshawar and the applicant's father, according to the applicant's evidence, drove a bus. The Tribunal does not accept that the applicant's father would drive a bus in an area known to be a Taliban headquarters when he had been targeted by the Taliban. The Tribunal does not accept for the reasons discussed that the applicant's father, uncle, his family or himself were of adverse interest to the Taliban. The Tribunal finds on the basis of the available country information that the applicant's father was shot as a result of the violence in the area at that time. 18 The Tribunal did not accept that the appellant's uncle was targeted or assassinated by the Taliban, saying: 56. The applicant claims that his uncle was head of the village Jirga and was assassinated by the Taliban in Peshawar. The Tribunal notes from the applicant's statement attached to his application for protection that the applicant did not claim that the head of the village Jirga was his uncle and that it was at the interview with the delegate that he claimed to be a relative. While the Tribunal accepts on the basis of country information that tribal elders with a profile have been targeted in Peshawar, the Tribunal is unable to accept on the limited evidence provided that the head of the village Jirga was his uncle or that his uncle was targeted by the Taliban for being part of a Jirga refusing them access through the village. For the reasons as discussed, the Tribunal does not accept that the applicant and his family were targeted by the Taliban or were of any interest to the Taliban and does not accept that the applicant's uncle was targeted by the Taliban in Peshawar. 19 Then the Tribunal said: 57. After considering all the available evidence and for the reasons referred to above, the Tribunal does not accept that the applicant, his father or his uncle or any family member are of interest, adverse or otherwise, to the Taliban. The Tribunal finds the applicant does not face a real chance of serious harm by the Taliban or any other militant group because he is a member of the Mangal tribe or is a member of the family of Jirga members from his home village who opposed the Taliban or could be presumed to be opposed to the Taliban or is opposed to the Taliban if he returns to Pakistan now or in the reasonably foreseeable future. The Tribunal is not satisfied the applicant has a well-founded fear of persecution for any Convention reason or combination of reasons, if he returns to Pakistan. 58. The applicant gave evidence that he fears harm because of acts of terrorism, the targeting of people, sectarian violence and the general lack of security in Pakistan. The Tribunal acknowledges that the applicant fears harm because of the ongoing generalised/sectarian violence in his home area in Pakistan. The Tribunal acknowledges the information provided by the applicant as well as that referred to below that supports his fear as to the generalised/sectarian violence in his home area and in Pakistan and finds that generalised violence in Pakistan as a whole is rampant and indiscriminate and indicates that the various religious, political and militant groups are regularly involved in generalised violence. 59. Where harm occurs in a context of widespread conflict, it would be wrong to require the applicant to establish a risk of persecution over and above the risks faced by others caught up in the conflict - it is not the degree or differentiation of risk that determines whether a person caught in generalised violence is a refugee under the Convention definition. However, the risk must be related to a Convention reason. The Tribunal considers the risk to the applicant that he would be harmed in an act of terrorism by the Taliban or in sectarian violence is no more than harm from generalised violence and therefore is not for a Convention related reason. In respect of the threat the applicant may face from the various militia, ethnic, religious and political groups, the Tribunal finds the applicant would not be in a position different from the general population of Pakistan, that is, that the violence faced by the applicants is the same as that faced by all members of the population. The Tribunal finds that the violence referred to by the applicant is not harm involving "systematic and discriminatory conduct" towards him but indiscriminate violence faced by all members of the population. Therefore pursuant to s91R(l)(c) of the Act, the Tribunal finds that Article 1A(2) of the Convention does not apply to any such harm. (Footnote omitted.) 20 Section 91R(1)(a) of the Migration Act provided: 91R (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; … 21 Finally, as to the refugee grounds, the Tribunal said: 61. The independent evidence before the Tribunal indicates that since 2011 there has been some stabilisation in the region. In July 2014, the FATA Research Centre released its quarterly report on sectarian violence in the Federally Administered Tribal Areas (FATA) for the period April 2014 to June 2014. The report noted that the region had been stable over the reporting period and compared with the previous two quarters there had been visible signs of improvement. The country information referred to indicates that a peace agreement was negotiated between the Sunni and Shia tribes in 2011 and sectarian violence has reduced in the area. The overall country information indicates that violence from the Taliban and sectarian violence has decreased in the region since 2011. On the balance of the information, the Tribunal considers the Pakistani authorities, despite problems with resources, are taking active steps to reduce the threat of general violence. The Tribunal is not satisfied there is a real chance the applicant will suffer serious harm due to the Pakistani authorities withholding state protection to the applicant due to any Convention reason. (Footnotes omitted.) 22 The findings made by the Tribunal about the refugee grounds are relevant, in important respects, to its assessment of the complementary protection grounds. 23 The Tribunal dealt with the complementary protection grounds relevant to the present appeal by saying: 68. The Tribunal accepts that given the possible generalised and sectarian violence that may arise in the applicant's home area in Pakistan, there are some grounds to suggest the applicant may face 'significant harm'. The Tribunal has considered the applicant's claim that he faces a real risk of significant harm because of generalised/sectarian violence. The applicant has no profile, religious, political or otherwise, that would make him a target for sectarian or ethnic or political related violence. The country information provided supports that violence throughout Pakistan is rampant and related to many factors. The Tribunal accepts that there is a level of insecurity across Pakistan at present involving sectarian, political and generalised violence but does not accept that the applicant will be targeted or personally face a real risk of such harm in Pakistan. After considering all the available evidence and country information provided by the applicant, the Tribunal finds the applicant would not be in a position substantially different from the general population of Pakistan. 69. The Tribunal considers that section 36(2B)(c) provides that there is taken not to be a real risk of significant harm if the risk is faced by the population of the country generally and is not one faced by the applicant personally. The Tribunal considers that this is the situation in relation to the risk of the applicant being a victim of generalised violence in Pakistan. The Tribunal in any event is satisfied that there are no substantial grounds for believing that there is a real risk he will face significant harm for these reasons on their return to Pakistan. 70. For the reasons set out above, the Tribunal does not accept that there are grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Pakistan, there is a real risk he will suffer significant harm because he will be perceived to be of adverse interest to the Taliban or any other extremist group or because he opposes the Taliban or for any other reason. 24 I accept, as the Minister submitted, that not every error of law by an administrative tribunal will constitute a jurisdictional error. In particular, I take it to be settled that the error (if made) must be one which affects the exercise of power (see Craig v The State of South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]). However, before that assessment is required an error of law must first be identified. 25 I also accept that any challenge to the understanding and application of s 36(2B)(c) by the Tribunal must take into account relevant findings made by the Tribunal in relation to refugee grounds. 26 The grounds of appeal in this Court sufficiently identify the nature of the jurisdictional errors which, it is alleged, were made by the Tribunal. The relevant grounds of appeal are: 1. The court below erred in failing to find that the Tribunal engaged in jurisdictional error by misunderstanding or failing to correctly apply the law or by failing to apply the correct test in relation to s 36(2B)(c) of the Migration Act 1958 (Cth) (Act). Particulars a. Having regard to the Tribunal's findings as to the nature and extent of the risk of violence in the appellant's home area, such violence was not as a matter of law a real risk "faced by the population of the country generally and… not faced by the non-citizen personally". The Tribunal accordingly misconstrued the applicable law by finding that s 36(2B)(c) was satisfied; … 2. The court below erred in failing to find that the Tribunal engaged in jurisdictional error by failing to take into account a relevant consideration, being its findings as to the nature and extent of the risk of violence in the appellant's home area, when it found that it was satisfied that the risk faced by the appellant was a risk faced by the population of the country generally and not one faced by the appellant personally. 3. The court below erred in failing to find that the Tribunal engaged in jurisdictional error by finding that the risk faced by the appellant was a risk faced by the population of the country generally and not one faced by the appellant personally in that this finding was manifestly illogical or unreasonable having regard to the Tribunal's finds as to the nature and extent of the risk in the appellant's home area. (Bold and italics in original.) 27 Although, in written submissions for the appellant, it was argued that the "home area" referred to in those grounds of appeal was Boghra, at the hearing of the appeal it was accepted that the appellant and his family had relocated from Boghra some years before he left Pakistan and the home area must be the area around Sadda. That must be borne in mind in the discussion which follows. It substantially erodes the foundation for a number of the arguments advanced in writing, and the grounds of appeal themselves. 28 The grounds of appeal were advanced in written submissions first by proposing the following construction of s 36(2B)(c): 38. Section 36(2B)(c) provides that a risk was taken not to be a real risk where the decision maker was satisfied that "the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally". 39. Accordingly, for section 36(2B)(c) to apply, the Tribunal was required to be satisfied that the real risk of harm in question was "faced by the population of the country generally" and that "it is not faced by the Appellant personally". (Italics in original.) 29 I do not accept that construction. If the Tribunal was satisfied that there was a real risk of harm faced by the population generally which was not faced by a visa applicant personally then s 36(2)(aa) would not be engaged at all. There would be no need to refer to s 36(2B)(c). 30 In my view, s 36(2B)(c) draws attention to a circumstance where a real risk of harm faced by a visa applicant is a risk shared with the general population, rather than one to which the visa applicant particularly is exposed in some individual or personal sense (see also SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 at [11]). A risk shared with the general population is taken not to be a "real risk of harm" for the purpose of s 36(2)(aa). 31 In substance, the Tribunal found that the appellant did not face a particular, personal risk of harm in the Sadda area, if returned to Pakistan, and that any risk of harm he did face was one which arose from sectarian or generalised violence in Pakistan. In reaching those conclusions, the Tribunal explicitly rejected the appellant's claims that he would be targeted by the Taliban or was of interest to the Taliban. The Tribunal found, so far as the possibility of generalised and/or sectarian violence was concerned, that the appellant did not have a "profile, religious, political or otherwise, that would make him a target for sectarian or ethnic or political related violence". In substance, in my view, the Tribunal concluded that the appellant was not more exposed to a real risk of significant harm than other members of the general population. 32 I also reject the appellant's contention that s 36(2B)(c) only applies if a risk is faced by all members of the population of a country. In my view, the Tribunal was correct to understand that a reference to "the population of the country generally" is a reference to the commonly understood concept of the general population - i.e. there need not be a risk faced by all members of the population or by each citizen of a country for s 36(2B)(c) to apply. 33 The Tribunal did not, as alleged, fail to take into account its other findings. At the hearing of the appeal, once it was accepted that the home area was not Boghra, this ground was focussed on a suggested inconsistency between paragraphs 58/59 and 68/69 of the Tribunal's decision. I do not accept that there is any inconsistency. Those passages appear to me to be appropriately focussed on the particular issues arising from claims based on refugee grounds and claims based on complementary protection grounds, all the while bearing in mind the earlier discussion of the factual foundation for the claims and the factual findings made. 34 The Tribunal's findings were not "manifestly illogical or unreasonable". In large measure, as argued orally and by reference to the proper home area, this was effectively the same contention as Ground 2, but for similar reasons it cannot succeed. 35 Accordingly, I reject each of the grounds of appeal so far as they incorporate contentions of legal or jurisdictional error by the Tribunal. It is not necessary, in the present case, to separately discuss the basis for the conclusion by the FCCA that no jurisdictional error was made by the Tribunal. It is not necessary to separately discuss the Minister's notice of contention. 36 The appeal to this Court must be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.