SZQIQ v Minister for Immigration & Citizenship

factual background and the appellant's refugee claims 4 The Reviewer's reasons for decision give a detailed account of the appellant's claims. I will set out the appellant's claims and the background facts briefly. 5 The appellant is a citizen of Iraq and a Shia Muslim who was born in Najaf, Iraq, in 1954. The appellant married his wife in 1968 and has three children. His family remain in Iraq. 6 The appellant claimed that in March 2007, US forces searched the appellant's home for weapons. Although nothing was found during this search, the appellant claimed that he was detained by police for nine days, and that during that time he was only asked his name, date of birth, profession, where we went to school and details about his family. 7 The appellant claimed he was then transferred to another detention centre for two weeks where he was asked similar questions. The appellant claimed that at this detention centre he recognised two sheikhs from the mosque that he attended while he was living in Baghdad. Their names are Sheikh Ghaith and Sheikh Ali Abd. The appellant claimed that he always had his differences with the two sheikhs because they support Muqtada Al Sadr (Sadr) who is the leader of the Mahdi Army, whereas the appellant supports the Grand Ayatollah Ali Al Sistani (Sistani), a very well-known political leader from Najef. 8 The appellant claimed that he was transferred to Camp Bucca in March or April 2007. The two sheikhs, along with about 300 other people, were also transferred there. The appellant claimed that some of the Shia Muslims and some members of the Mahdi Army with whom he was transferred were "always causing trouble". He and others did not want to get involved and they requested that they be moved. The appellant claimed that this made the trouble makers angry. The appellant also claimed that after he refused to participate in a riot at the detention centre by the Mahdi Army, Sheikh Ali Abd became angry and told the appellant that he would be killed the moment he was released. The appellant claimed that Sheikh Ghaith's supporters then started to harass and threaten him. 9 The appellant claimed that he remained at Camp Bucca until he was released in January 2008. During the time that the appellant was in Camp Bucca, he claimed that his wife was attacked by a Sunni taxi driver because it became apparent that she was a Shia Muslim after she asked the taxi driver to take her to a well-known Shia shrine. The appellant claimed that his wife appeared as a witness in the prosecution of the taxi driver. The taxi driver was imprisoned for nine years. The appellant claimed that the taxi driver's relatives threatened him while he was in Camp Bucca and fired bullets into his home. 10 The appellant claimed that after his release, he returned to Baghdad, which is mainly populated by Sunni. The appellant claimed that a number of incidents occurred following his return to Baghdad. In particular, he claims his 13 year old nephew was hit ruthlessly by Sheikh Ali Abd's supporters after his nephew asked them not to insult the appellant. He also claimed that his son was dragged into a car as part of an attempted kidnapping. 11 The appellant claimed that he and his family moved to Najef for six months but they still felt unsafe. He claimed that it was then that he decided to travel to Australia. The appellant's wife and son returned to Baghdad where they lived in separate houses. The appellant claimed that after he left for Australia, he had a telephone conversation with his mother who told him that Sheikh Ghaith's mother had made threatening remarks in relation to the appellant. 12 The appellant claimed that if he returned to Iraq, he would be at risk of detention, torture and even death at the hands of pro Shia Badr militia and government forces because he is a supporter of Sistani and because Sheikh Ghaith remains angry at him for not participating in the riot at Camp Bucca. The appellant also claimed that he is fearful of Sunni gangs who wish to attack him because he is a Shia and because of his wife's involvement in the prosecution of the Sunni taxi driver. 13 In support of the appellant's claims, the appellant's representative provided to the Reviewer some text of an Arabic blog which had been translated into English, and extracts of the UK Border Agency Report dated 25 March 2011. It was submitted to the Reviewer that the blog contained posts which showed that Sheikh Ghaith was one of Sadr's former leader's "prominent collaborators and supports [sic] in crime" and that Sheikh Ghaith was detained by US forces until March 2009. 14 The UK Border Agency Report stated that the Badr organisation had become an "increasingly loosely-knit network of local militias that often serve local power-brokers and engage in freelance criminal and sectarian violence" and, despite Sadr seeking to re-centralise and politicise his disparate movement since mid 2007, "his success has been patchy" and that the "hard core anti-occupation and anti-Sunni elements will likely lay low and return… with their basic proclivities unchanged". 15 The appellant's adviser also referred to information from the US Congressional Research Service, which stated (inter alia) that "the Sadr faction is said to be using its fundraising ability to develop charity and employment networks that rival or displace those of the central government - employing a political model similar to that of Hezbollah in Lebanon". The appellant's adviser submitted to the Reviewer that the Sadr militia is "likely to emerge as a de facto Iraqi government, similar to the status of Hezbollah in Lebanon".

findings of the independent merits reviewer 16 The Reviewer found that the appellant and his adviser had "consistently exaggerated the power of Muqtada Al Sadr and his militia". The Reviewer referred to independent evidence and country information relevant to the Mahdi Army and to the current position of Sadr and Sistani. The Reviewer found that the appellant's interpretation of the US Congressional Research Service, namely that the Sadr militia was likely to emerge as a de facto government similar to the status of Hezbollah in Lebanon, was a "gross distortion of the report". The Reviewer also found that although Sadr is a significant political figure in Iraq, there are others who are more significant such as the Grand Ayatollah Sistani, whom the appellant supports. As such, the Reviewer did not accept that there is a real chance of the appellant suffering harm amounting to persecution by reason of his support for Sistani, whether the support is of a political, religious or some other nature. 17 The Reviewer asked the appellant why anyone would want to harm him in 2011 because he declined to participate in the demonstration at Camp Bucca in 2007. The Reviewer found the appellant's response unconvincing. The Reviewer did not accept that the appellant faced a real chance of suffering harm from any source as a result of any action or inaction at Camp Bucca. The Reviewer found only one report which confirmed the appellant's account that Sheikh Ghaith was detained in 2007 but none since. The Reviewer accordingly gave no weight to the blog (or the entries contained within the blog) that was provided by the appellant's adviser. 18 While the Reviewer accepted that Sheikh Ghaith is still associated with the appellant's hometown mosque in Palestine Street and that there is a difference in political opinions between the appellant and Sheikh Ghaith, the Reviewer did not accept that Sadr or his supporters would react violently towards the appellant for that reason. The Reviewer instead found that the country information suggested that Sadr's new objective is to assure the departure of the US troops and to achieve this he has to "clean up his image". 19 The Reviewer found that Palestine Street was not a Sunni area, as it was claimed by the appellant, but was in fact a Shia or mixed area. The Reviewer accepted that if the appellant's mother, brother and sisters had no security problems in Palestine Street then the appellant would have no security problems there either. As to the attempted kidnapping of the appellant's son, the Reviewer explained that there were too many uncertainties about the origin and purpose of the attempt to be definitive as to its implications. The Reviewer accordingly found that the appellant's claim lacked credibility because he had exaggerated the power of the Mahdi Army. 20 The Reviewer did not accept that there was a real chance of the appellant suffering harm from the Mahdi Army, Sheikh Ghaith or Sunni extremists which would amount to persecution under the Convention. As such, the Reviewer found that the appellant did not have a well founded fear of persecution in Iraq for a Convention reason.

proceeding in the federal magistrates court 21 The appellant relied on five grounds of review before the Federal Magistrate. Only grounds 1, 2 and 3 are relevant to the appeal, and they are as follows: 1. The second respondent made an error of law in that he asked himself the wrong question, namely, he asked whether there was a real chance of persecution by the Mahdi Army in light of its disarming, rather than asking whether the Applicant, in his particular circumstances and given his particular profile, history and actual and imputed political opinion, faced a real chance of persecution. Consequently, the consideration of the Minister pursuant to s 46A and s 195A of the Migration Act did not proceed by reference to correct legal principles correctly applied. 2. The second respondent made an error of law in that he failed to take into account relevant considerations in assessing whether the Applicant had a well-founded fear of persecution. Consequently, the consideration of the Minister pursuant to s 46A and s 195A of the Migration Act did not proceed by reference to correct legal principles correctly applied. 3. The second respondent made an error of law in that, based on the material before him, there was no evidence to support the findings: (a) at [47] that the Applicant "has, personally and through his advisor, consistently exaggerated the power of Moqtada Al Sadr and his militia"; and (b) at [54] that the Applicant "has so exaggerated the power and present policies of the Mahdi Army that his claim lacks credibility", or alternatively that those findings were so unreasonable that no reasonable reviewer could have made them. Consequently, the consideration of the Minister pursuant to s 46A and s 195A of the Migration Act did not proceed by reference to correct legal principles correctly applied. … [Particulars omitted] 22 As to the first ground, the Federal Magistrate found that the appellant's assertion that the Reviewer did not focus on his particular circumstances overlooked the true basis of the Reviewer's decision, which was founded upon the Reviewer's refusal to accept that the appellant's actions at Camp Bucca, the appellant's political differences and status in the community, or the actions of Sunni Muslims, Sadr and the Mahdi Army, exposed the appellant to a real chance of harm. The Reviewer recited all of the appellant's claims, and the Federal Magistrate inferred that the Reviewer had them in mind when reaching his conclusion. 23 In relation to the second ground, there were eleven particulars which the appellant contended were relevant considerations that the Reviewer was bound to, but did not, take into account. These considerations included only two of significance in the appeal namely: (l) although the Mahdi Army had disarmed, its members, and the members of various offshoot organisations, continued to perpetrate violence in Iraq; and (m) the Mahdi Army itself may be rearming. 24 The Federal Magistrate found (at para [35]) that none of the considerations referred to by the appellant, with the exception of the appellant's political opinion, were "relevant considerations" in the sense that the failure to consider them invalidated the review. His Honour found that they were matters of a factual nature that were said to support the appellant's claim that he feared political persecution. 25 As to the third ground, the Federal Magistrate made findings concerning the credibility of the appellant and the exaggerated claims that the Reviewer considered the appellant and his adviser had made regarding (inter alia) the power of Sadr and the Mahdi Army. The Federal Magistrate held that these were based on evidence and were not manifestly unreasonable in the relevant sense. 26 The Federal Magistrate also referred to the country information and reports provided by the appellant in support of his claims, and the independent country information which had been set out by the Reviewer in order to show that the appellant had exaggerated Sadr's power and policies. At para [51], the Federal Magistrate rejected a submission made to him on the appellant's behalf that it was incumbent upon the Reviewer to reconcile any inconsistent country reports before him. 27 The Federal Magistrate dismissed the appellant's application for review. The appellant appealed to the Federal Court.

grounds of appeal 28 In this Court, the appellant relies on four grounds of appeal contained in the Amended Supplementary Notice of Appeal: 1. His Honour erred in finding at [35] of the Reasons for Judgment that the considerations in sub paragraphs (l) and (m) of the Appellant's written submissions, being facts contained in country reports of the UK Border Agency on Iraq dated 25 March 2011 and the US Congressional Research service dated 1 March 2011, were not considerations relevant to the Second Respondent's determination of the Appellant's claims. 2. His Honour erred in failing to find that the Second Respondent had failed to address or determine a distinct claim or integer of the Appellant's claim, namely whether the Appellant had a well founded fear of persecution from groups other than the Mahadi [sic] Army, including factions or splinter groups of the Mahadi [sic] Army, or the group known as Badr. 3. His Honour erred in holding at [51] that: … the Second Respondent had no duty to seek to reconcile the facts contained in inconsistent country reports, including the facts referred to in sub paragraphs (l) and (m) of the Appellant's written submissions, or to give reasons for rejecting those country reports and preferring other country information over those reports. 4. His Honour ought to have found that: (a) the considerations referred to in sub paragraphs (l) and (m) of the Appellant's written submissions were references to facts contained in country reports and were considerations relevant to the Second Respondent's determination of the Appellant's claims; (b) the Second Respondent failed to take into account those considerations; (c) the Second Respondent had failed to consider or determine a distinct claim or integer of the Appellant's claim; and (d) the Second Respondent had a duty to attempt to reconcile inconsistent country reports or to give reasons for rejecting the country reports.

Notice of Contention 29 The Minister filed a notice of contention which contended that the Federal Magistrate ought to have found that the Reviewer did consider each of the matters referred to in para [23] above.

SUBMISSIONS 30 In support of the appeal the appellant advanced three principal submissions. The first was that the Reviewer committed jurisdictional error in failing to consider whether the appellant had a well-founded fear of persecution from groups other than the Mahdi Army or the Badr movement. The only other groups identified as relevant for this purpose are factions or splinter groups of the Mahdi Army or the Badr movement. According to the appellant's notice of appeal, this constituted a distinct claim or integer of a claim which the Reviewer failed to consider. 31 The second submission was that the Federal Magistrate should have found that the Reviewer committed jurisdictional error in failing to take into account the considerations referred to in para [23] above. 32 The third submission was that the Reviewer should have attempted to reconcile inconsistent country information or to give reasons for rejecting their contents. It was submitted that the Reviewer committed jurisdictional error in failing to do so. 33 I will consider each of these submissions in turn.

Did the Reviewer fail to consider a claim raised by the appellant? 34 It was not contended in the application for judicial review or the submissions to the Federal Magistrate that the Reviewer failed to deal with any of the appellant's claims. Accordingly, the point sought to be raised in this Court, not having been argued below, can only be raised with leave. 35 The test to be applied in a case in which it is suggested that a claim was raised but not considered in a matter such as this is well established though not always easy to apply. Ultimately, the question is whether the case put by the appellant before the Reviewer has sufficiently raised the relevant issue: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at para [60] in which the Full Court approved the statement of Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at para [18] concerning the obligations of the Refugee Review Tribunal (the Tribunal). The Full Court added (also at para [60]): This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it. The Full Court also noted (at para [61]) that earlier authority was consistent with the proposition that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. 36 In the appellant's written statement to the Reviewer, the appellant gave two reasons why he feared that he would suffer harm if he was to return to Iraq. The second of these related to threats from Sunni extremists and is no longer relevant. The first, which is directly relevant, was in these terms (at para [74]): I fear that if I were returned to Iraq, I would be at risk of detention, torture and even death at the hands of the pro-Shi'a Badr militia and government forces. This is because Sheik Gaith knows me personally and remains angry at my failure to participate on the attack in the Bucca detention centre. He also knows that I do not support Al Sadr rule and am influential in Baghdad. As I cannot live a life free from fear as an Al Ali Sustani [sic] supporter in Iraq. I ask the Australian government to grant me asylum. Thus, the appellant identified the source of the threat to his safety and the reason behind it. In particular, he claimed that he would be targeted by Badr militia and government forces because Sheikh Ghaith remained angry at the appellant for having failed to participate in the attack at Camp Bucca and because he is not a supporter of Sadr but a supporter of Sistani with influence in Baghdad. 37 The appellant's representative provided a written submission to the Reviewer which referred to the UK Border Agency Report on Iraq dated 25 March 2011 and which quoted the following passages: In the Shia community, the key armed bodies include the militant wing of the Supreme Iraqi Islamic Council or SIIC (formerly the Supreme Council for Islamic Resistance in Iraq or SCIRO [sic]), the Badr Organisation and Moqtada al-Sadr's Jaish al-Mahdi. It is increasingly difficult to characterise Shia militias as unitary blocs, particularly in the case of the loose confederation of militias that owe their spiritual allegiance to the martyred Mohammed Sadiq al-Sadr, the father of Moqtada al-Sadr. Although SIIC has a highly centralised party apparatus, the Badr Organisation has become an increasingly loosely-knit network of local militias that often serve local power-brokers and engage in freelance criminal and sectarian violence. The discipline that SIIC built during its years in exile has frayed to some extent since the organisation returned to Iraq and absorbed huge numbers of Iraqis into its ranks. In the case of the Jaish al-Mahdi [Mahdi Army], the organisation was never more than a loose confederation of highly autonomous local militias ... [and quickly grew beyond the direct control of Sadr's organisation and undermined the loose control he held over the Jaish al-Mandi [sic], resulting in uprisings with little centralised control. Individual chapters of the Jaish al-Mandi [sic] undertook violent crime, engaged openly in drug dealing and recruitment, striking deals with foreign agents or choosing to honour temporary truces with the Iraqi government … Since mid 2007, Sadr has sought to re-centralise and politicise his disparate movement by keeping Jaish al-Mahdi on ceasefire, but his success has been patchy. The movement's hard core anti-occupation and anti-Sunni elements will likely lay low and return - either from exile in Iran, areas outside Baghdad or from being embedded in Iraqi Army units - with their basic proclivities unchanged. Across the nine southern provinces, Sadrist and SIIC forces contend violently for local control [Following Iraqi government offensives against Jaish al-Mahdi in Basra and Baghdad in 2006 which undermined much of its local control] … (emphasis in original) 38 The appellant's written submission also referred to the following statement of the US Congressional Research Service: There are reports that the Sadrist and offshoot Shiite militias -for now still disarmed - may be planning to reactivate. If these reports are accurate, they could suggest that the Shiite militias see armed activity as a means to ensure political influence. In addition, the Sadr faction is said to be using its fundraising ability to develop charity and employment networks that rival or displace those of the central government-employing a political model similar to that of Hizballah in Lebanon. The appellant's written submission concluded: In this context of rising sectarian tensions and tense political struggles, we submit that [the appellant], a well-known moderate from Baghdad, will not be free from political persecution by Sadr or Mahdi army elements in the near future as a result of his refusal to support the Mahdi army against the US forces whilst in US military detention. He will also be targeted by Sunni extremists because of his religion. (emphasis added) It is apparent that the reference in the penultimate sentence to the appellant's refusal to support the Mahdi Army against the US forces whilst in US military detention is a reference to the attack on Camp Bucca. 39 The appellant now contends that the Reviewer should have considered and dealt with a more generalised claim based upon the existence of a well founded fear of persecution for a Convention reason from factions or splinter groups of the Mahdi Army or the Badr militia. 40 In my opinion, the appellant's claim was framed on the basis that he was a political moderate and a Sistani supporter who had come to the attention of Sheikh Ghaith (a supporter of Sadr) when he (the appellant) refused to participate in the attack at Camp Bucca. In particular, the claim was not expressed in general terms upon the basis that the appellant was a political moderate from Baghdad. Rather, it was expressed as a claim by a person who feared persecution because, as a political moderate and a supporter of Sistani, he had refused to participate in the attack at Camp Bucca. This claim was expressly rejected by the Reviewer, who did not accept that Sadr or his supporters would target the appellant on account of his political opinion. Leaving aside the claims based upon threats from Sunni extremists, no other claims arose out of the material before the Reviewer.

Did the Reviewer fail to take into account relevant considerations? 41 The particular considerations which the Reviewer is said not to have taken into account are referred to at para [23] above. They are recorded in that part of the Reviewer's reasons where he quotes at length from the appellant's written submissions. Whether these matters were relevant considerations which the Reviewer was required to consider depends upon the claims. 42 Both of the matters which the appellant says the Reviewer failed to take into account were relevant to the appellant's claims. But they were only relevant to the claim stemming from the appellant's fear of Sheikh Ghaith and the latter's antipathy toward the appellant based upon the appellant's refusal to participate in the attack at Camp Bucca. As I have explained, the Reviewer did not accept that there was a real chance of the appellant suffering harm as a result of anything the appellant did or did not do at Camp Bucca. In those circumstances, there is no reason why one would expect the Reviewer to give each of the matters referred to in para [23] specific or detailed attention. Both matters are referred to in the Reviewer's reasons in the extracts from the written submissions. 43 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at para [73], McHugh, Gummow and Hayne JJ referred to "the well known duty to take account of all relevant considerations." Their Honours were concerned with a decision of the Tribunal made as part of a review of the decision of the Minister or the Minister's delegate to refuse to grant a protection visa under s 36 of the Migration Act 1958 (Cth) (the Act). They said (at paras [73]-[75]): [73] … The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider [Abebe v Commonwealth (1999) 197 CLR 510] . In that regard it is important to recall, as Brennan J said in Attorney-General (NSW) v Quin [(1990) 170 CLR]: "The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison [(1803) 1 Cranch 137]: 'It is, emphatically, the province and duty of the judicial department to say what the law is.' The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." [74] This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts. [75] As was pointed out in argument, applicants for protection visas often, but not invariably, claim that they have been subject to persecution. In Minister for Immigration and Ethnic Affairs v Guo [(1997) 191 CLR 559], six members of the Court said: "In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events." If the Tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error. The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well-founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past) [O'Brien (1985) 155 CLR 422; Sullivan (1978) 20 ALR 323] . It is not accurate, however, to say that the Tribunal is, therefore, under a duty to make all material findings of fact, if, as seems probable, that formulation of the duty is intended to extend the ambit of judicial review beyond accepted and well-established limits. If it is not intended to have that effect, it is not useful to formulate the duty in that way. Rather, the relevant inquiry remains whether the Tribunal has made an error of law, has failed to take account of relevant considerations, or has taken account of irrelevant considerations. 44 In the present case it was not suggested that the Reviewer misunderstood what might constitute "a well founded fear of persecution". The considerations relevant to that question are to be determined by reference to the relevant provisions of the Convention and the Act as interpreted and applied by the Courts and as considered in light of the claims advanced by the appellant. In deciding whether or not the Reviewer made an error of law by reason of his (alleged) failure to take into account relevant considerations, it is necessary to do so having regard to the appellant's claims. A consideration may or may not be relevant depending upon how the claims are framed and what view the decision-maker forms in relation to them. Here the Reviewer was not satisfied that the appellant would be targeted by Sadr or his supporters because the appellant had refused to participate in the attack at Camp Bucca. In these circumstances, it is not open to conclude that the two particular matters relied upon by the appellant were "relevant considerations" that the Reviewer was bound to take into account.

Was the Reviewer under a duty to attempt to reconcile conflicting country information? 45 I agree with the Federal Magistrate that the Reviewer was not under a duty to reconcile conflicting country information. The failure of a decision-maker to attempt to reconcile conflicts in evidence or material relevant to his or her decision may indicate that his or her decision is affected by reviewable error. In a particular case it might even indicate that a decision was illogical or irrational in the sense discussed in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] per Crennan and Bell JJ. But it is quite another thing to say that a decision-maker is under a duty of the kind postulated by the appellant. It will depend upon the circumstances of the particular case whether the decision-maker may or may not be required to attempt to reconcile conflicts in the evidence or material upon which the decision is based. 46 Neither the notice of appeal nor the appellant's submissions identified any obvious or clear conflict in the country information which the appellant says the Reviewer should have attempted to reconcile. The purported inconsistency apparently relied upon by the appellant in oral submissions concerns the two matters referred to in para [23] above which I have previously discussed. I am not satisfied that there was any true conflict or, if there was one, that it was of any real significance to the review having regard to the claims under consideration.

DISPOSITION 47 It is not necessary for me to decide the question raised in the notice of contention. For the reasons I have given, the appeal must be dismissed with costs. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.