SZOXJ v Minister for Immigration and Citizenship
[2011] FCA 922
•3 August 2011
FEDERAL COURT OF AUSTRALIA
SZOXJ v Minister for Immigration and Citizenship [2011] FCA 922
Citation: SZOXJ v Minister for Immigration and Citizenship [2011] FCA 922 Appeal from: SZOXJ v Minister for Immigration and Citizenship [2011] FMCA 355 Parties: SZOXJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 810 of 2011 Judge: GREENWOOD J Date of judgment: 3 August 2011 Catchwords: MIGRATION – consideration of an appeal from the Federal Magistrates Court of Australia on grounds of illogicality, irrationality, no evidence, lack of good faith, inappropriate consideration of country information, and incorrect characterisation of applicant’s ability to avoid harm by relocating internally within their country of origin Cases cited: Minister v Immigration and Citizenship v SZMDS (2010) 240 CLR 611
NBKT v The Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419
NAHI v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10Date of hearing: 3 August 2011 Date of last submissions: 3 August 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 52 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondents: Ms L Clegg Solicitor for the Respondents: Sparke Helmore
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 810 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZOXJ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
3 AUGUST 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The applicant pay the respondents’ costs of and incidental to the appeal, to be taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 810 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZOXJ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GREENWOOD J
DATE:
3 AUGUST 2011
PLACE:
SYDNEY
EX TEMPORE REASONS FOR JUDGMENT
This is an appeal from a judgment of the Federal Magistrates Court of Australia, constituted by Smith FM, dismissing an application for the issue of the constitutional writs in relation to a decision of the Refugee Review Tribunal made on 8 December 2010. In that decision, the Tribunal affirmed the decision of the first respondent’s delegate, and I will describe the first respondent as the Minister, rejecting the appellant’s application for a Protection Visa under the provisions of the Migration Act1958 (Cth).
The appellant is a citizen of Nepal who arrived in Australia on 25 February 2010. On 25 March 2010 the appellant lodged an application for a Protection Visa. That application was supported by a statutory declaration in which the appellant made these contentions.
He says he is a citizen of Nepal who arrived in Australia on 25 February 2010. He was born on 15 April 1976 in a remote area in one of the most Maoist affected remote areas of Nepal. He says he fled Nepal because he is a homosexual and he cannot reveal his homosexuality to his family, relatives, and the society at large, because of the strong homophobic reaction of such people.
He says that homosexuals in Nepal are discriminated against and verbally abused on sight. He says that as a homosexual he would have to either disappear or commit suicide, having regard to cultural and social attitudes to homosexuality. He says that Nepal is a very traditional society and men are expected to marry within their caste to women selected by their parents. He says it was impossible for him to find a male partner because homosexuality is illegal in Nepal and it is difficult to identify gay individuals.
He says that he feels at great risk, including expulsion from his family and the society of his family, and he feels in danger in terms of his own physical wellbeing. He says he is at a high risk if identified as a homosexual within Nepal. He says that he will face tremendous stigmatisation, isolation and neglect from Nepalese society. He also says that he will be a victim of oppressive behaviour and serious harassment at the hands of police and civilian authorities. All of these matters are matters of fact, recited in the statutory declaration in support of the application.
On 27 August 2010 the appellant attended an interview before the delegate and at AB 44 the delegate notes that the appellant did not provide any documentary or other evidence in support of his claims, and nor did the appellant produce any country information. He pressed the truth of his written claims recited in the statutory declaration. On 2 September 2010 the delegate refused the Protection Visa and on 29 September 2010 the appellant applied to the Tribunal for a review of the delegate’s decision.
On 3 December 2010 the Tribunal conducted an oral hearing, and at AB 62 and AB 63 the Tribunal notes that the appellant appeared before the Tribunal on 3 December 2010 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages (see [20]). At [27] of the Tribunal’s reasons, the Tribunal notes that the appellant was interviewed by the delegate on 27 August 2010 and the Tribunal listened to that interview. At [32] of the Tribunal’s reasons, the Tribunal further notes that the appellant attended the hearing alone, although of course, assisted by the interpreter.
At AB 63 and AB 64 the Tribunal notes that the appellant pressed the claims made in the statutory declaration and notes that the appellant’s difficulties in Nepal appeared to centre around his family and the village where he lived, especially in terms of the social and cultural dislocation that would flow from disclosing his homosexuality. The Tribunal asked the appellant whether he found conditions more favourable in Kathmandu, and the appellant said that he did not do anything in Kathmandu except stay at his uncle’s house and wait for the broker, to arrange his journey to Australia. He stated that he did not want to live there because should he express his sexuality he would be killed, either by the authorities, or by persons who objected to homosexuals.
The appellant told the Tribunal that he lived in a very isolated village which is two days walk from a place called Beni Bazar, which is the nearest town to his village. At AB 64 and AB 65, the Tribunal then begins its analysis of information obtained by it, with a view to making a forensic assessment of the facts put to it, so as to determine what findings of fact it would make upon which its state of satisfaction would rest. Having regard to the criticisms made of the Tribunal’s decision on the footing that it is said to reflect jurisdictional error related to “irrationality and illogicality”, it is necessary to identify some of the analysis undertaken by the Tribunal.
The Tribunal notes that it discussed with the appellant information the Tribunal had obtained from external sources, expressly related to the treatment of homosexuals in Nepal. The Tribunal notes that the information it had obtained indicated that homosexuals in Nepal are not commonly mistreated by either society or the authorities. The Tribunal notes that since the 2008 Supreme Court decision in a case called Sunil Baba Pant & Ors v Nepal Government & Ors, (the Pant decision) which effectively prohibited discrimination against homosexuals, conditions have been improving for homosexual men in Nepal.
At [37] the Tribunal notes that the 2008 Supreme Court decision has been described by a United Nations Development Program as having provided a protective legal environment for Nepal’s homosexual community, which is an exceptional outcome in South Asia. Those observations come from a document (published on a website) described as “legal environments, human rights, and HIV responses among men who have sex with men, and transgender people in Asia and the pacific”. It is attributed to John Godwin in 2010. The Tribunal notes that, following the Supreme Court decision, a task force drafted a new “civil code”, and the Prime Minister has indicated that a civil code incorporating the findings of the Supreme Court in the Pant decision will be implemented. That observation comes from a document described as ‘Civil Code Draft Proposal submitted to the Prime Minister 2010’, referred to in an FN News Network website on 11 August 2010.
At [38], the Tribunal notes that a provision for same sex marriage is expected to be included in the new Constitution in Nepal, and that observation comes from an article in the Kathmandu Post on 2 April 2010 by Kamal Raj Sigdel. The Tribunal, at [39], refers to a prominent gay activist in Nepal, Sunil Baba Pant, who established an organisation called the Blue Diamond Society in 2001. The Tribunal notes that Mr Pant was elected to Parliament as an openly gay man. The Tribunal notes that the appellant told the Tribunal that he had not heard of that man or the Blue Diamond Society. The Tribunal notes that the society’s current work includes the improvement of human rights for all sexual minorities in Nepal.
The Tribunal notes that Mr Pant has an international reputation due to his work relating to the treatment of sexual minorities, and that he has addressed the United Nations General Assembly and represents Nepal in the Asia Pacific Coalition on Male Sexual Health (APCOM). Those observations come from an entry on a website under the heading “Gays Without Borders” from 19 December 2008. The Tribunal notes at [40] that the 2008 Supreme Court decision decriminalised homosexuality, when it was decided that “Article 16 of the Criminal Code, which referred to an ‘unnatural sex act’, did not apply [as a matter of law] to male to male sex or sex involving transgender people”. That observation comes from an Amnesty International website from 2008.
The Tribunal notes that the Supreme Court ruling prohibited discrimination on the basis of sexual orientation and/or gender identity in the areas of employment, education, health care, inheritance, mobility, travel, and political and social participation. That observation comes from a website entry entitled “Nepal to recognise a third gender’?” authored by Sylvia Tan on 24 November 2008. The Tribunal further notes that the Blue Diamond Society has indicated that gay men continue to experience difficulties in some private situations, but Mr Pant has said that Nepal “in general, has always been tolerant”, and changes were “quite easily embraced”. Mr Pant has said that the situation in Nepal is improving, “especially after the legal and political recognition” and has said that community acceptance of homosexuality has been growing. Those observations come from an article in the Asia Pacific Business, Radio Australia, “Nepal Leads on gay rights With International Parade”, by Helene Hoffman on 27 August 2010. The Tribunal notes, at [43], that some homosexuals are moving to the cities and making contact with the Blue Diamond Society. The Tribunal also notes that the Blue Diamond Society is concentrating its efforts in urban areas, but is attempting to facilitate the opening of more offices in rural areas. That observation comes from an article entitled “Nepal’s Blue Diamond Society: Hopes for High LGBTI Rights”, by Ben Peterson, 17 March 2009.
At [44] the Tribunal comments that five gay men stood in the national elections of 2008 and that Mr Pant was the first openly gay man to be elected to the Nepali Constituent Assembly in 2008. At [46] the Tribunal notes that the range of events referred to in the Kathmandu press and in international gay websites suggests that the gay movement in Nepal is becoming more prominent and visible, and further observations to that effect are made at [46]. At [47] the Tribunal notes that community acceptance of sexual minorities is indicated by the openness and spread of services for gay men.
The Tribunal notes that the Blue Diamond Society offers services in 16 districts, mainly in southern and central Nepal. The Tribunal notes, also, that the Blue Diamond Society employs 500 full-time and part-time staff, 390 of whom are gay men or transgender persons. The Tribunal also notes that the Blue Diamond Society website states that the society is delivering services through 31 prevention and intervention centres, five regional care and support centres, and five regional human rights posts. The Blue Diamond Society claims, in its own material, that more than 90,000 people belonging to sexual minorities have benefited from outreach and prevention services: [47].
At [49] the Tribunal notes that a 2010 Human Rights Watch report states that since the Supreme Court decision earlier mentioned, there has been one incident of arbitrary detention where police raided a gay party in Kathmandu in June 2009 and detained participants for 12 hours without charge before releasing them. At [50] the Tribunal notes that despite the difficulties gay men face in Nepal, the above references do not suggest that gay men are commonly subjected to circumstances amounting to persecution by their families, the society, the authorities, or the government.
At [51] the Tribunal notes that it asked the appellant if he might be able to avoid the harm he anticipates in his village by moving to a city. The appellant told the Tribunal that he had no information about the treatment of gay men in Kathmandu and other urban centres in Nepal. The appellant apparently told the Tribunal that if he began to ask about the circumstances in Kathmandu and urban centres, his sexuality would then be revealed, and his parents would, in consequence, “be forced to commit suicide”.
The matters I have just mentioned go to the analysis of the sources of information the Tribunal selected to test and determine whether it could be satisfied, for the purposes of the Migration Act, whether the appellant held a well-founded fear of persecution for the Convention reason advanced. The Tribunal sets out its findings on these questions at AB 68 and AB 69, and the findings are these.
The Tribunal accepted the claims of the appellant that he is a homosexual.
The Tribunal at [56], observed that the Tribunal accepts that the appellant is afraid to return to Nepal for the reasons he states, although a question arises about whether that fear, so grounded, reflects a well-founded fear on a proper, objective, factual basis.
At [58] the Tribunal notes its acceptance of the claim that the appellant may be ostracised by his family and relatives, although the Tribunal finds that this treatment by family and relatives will not amount to harm of such nature or extent as to constitute persecution.
At [59] the Tribunal observes that it is satisfied that the appellant’s broader fear that he will be subjected to serious harm amounting to persecution by the authorities, the government, and society in general is not well-founded. The Tribunal notes at [59] that it has formed the view that there have been significant improvements in human rights conditions for homosexuals in Nepal since the Supreme Court decision of 2008, which effectively, in the Tribunal’s view, declared the targeting of homosexuals to be illegal.
The Tribunal finds that despite continuing difficulties confronting gay men in Nepal and negative community attitudes regarding homosexuality, gay men are not commonly subjected to discrimination or other forms of harm which amount to persecution for Convention purposes.
At [60] the Tribunal says that it accepts that negative and conservative attitudes may persist in the applicant’s village and within his own family, however, the Tribunal finds that the social ostracism which the appellant may face from his family and persons in his village will not amount to harm of such nature or extent as to constitute persecution for Convention purposes.
At [61] the Tribunal accepts the appellant’s claim that his remote village is not a suitable environment for a gay man to express his sexuality. At [61] the Tribunal observes that it has formed the view that the appellant may have to move to an urban environment if he wishes to express his sexuality in Nepal. The Tribunal says it is satisfied that by so relocating the appellant can avoid the conservative attitudes of his remote village and he will have greater access to services and support groups for homosexual men. The Tribunal believes that the appellant, by so relocating, will have more opportunities to meet and associate with other likeminded men. The Tribunal says that it is satisfied that the appellant has the resources, ability, and opportunity to move within Nepal as he has done previously, and thus the opportunity to mitigate his concerns is a real one.
At [62] the Tribunal considers an additional factual matter advanced by the appellant in his statutory declaration and in evidence before the Tribunal which concerned the claim related to Maoist activities and the notion that Maoists may target the appellant by reason of his homosexuality. As to those matters, the Tribunal observed that it had formed the view that the appellant’s fear in this regard is not well-founded. The Tribunal says that it is satisfied from information from the external sources it referred to and discussed with the appellant at the hearing, that positive developments in the treatment of homosexuals in Nepal have taken place at a time when the Maoists have been politically prominent and influential in implementing the findings of the 2008 Supreme Court decision. Thus the Tribunal finds that the appellant’s fear that he will be targeted by Maoists on the basis of his homosexuality is not well-founded.
At [63] the Tribunal notes the appellant’s fear of revealing his sexuality to his family and relatives in Nepal. Ultimately, the Tribunal concludes that those matters are reflective of a “personal social problem” for the appellant, and having regard to the entire factual matrix, the Tribunal could not be satisfied that those considerations give rise to a well‑founded fear of persecution for the Convention reason advanced. Thus, the Tribunal reached its decision affirming the decision of the Minister’s delegate.
The appellant then sought supervisory judicial review of the decision of the administrative tribunal on the footing that the Tribunal had exceeded its jurisdiction.
Three grounds were advanced before the Federal Magistrates Court on that footing.
The first was that the appellant contended that the Tribunal had fallen into jurisdictional error by “heavily relying on country information which is irrational or illogical in the context of [the particular circumstances of the appellant].” The appellant contended that the Tribunal did not consider the nature of Nepalese society or the construct that Nepal is a “failed state”. The appellant contended that it is not true to find that he could avoid the harm he was concerned about, as he would be a person of interest “to either the authorities or the Maoists.”
The second ground advanced by the appellant was that the Tribunal’s “analysis of the country information in the circumstances [was] inadequate and wrong”.
The third ground asserted was that the Tribunal, in the assessment of the appellant’s case, had fallen into error, by applying the wrong test. Ground 3 seems to suggest that had the Tribunal applied the correct test, it would, on balance, have been satisfied.
As to those grounds, Smith FM concluded that the Tribunal’s reasoning did not reflect irrationality or illogicality. Federal Magistrate Smith concluded that the Tribunal’s analysis and conclusions were clearly rational and open to it on the information available to the Tribunal. The Federal Magistrates Court rejected the contention that jurisdictional error arose on the ground of unreasonableness, and rejected the proposition that the Tribunal had failed to consider the nature of Nepalese society and the nature of the factual foundation for the appellant’s claims. The reasons of the Tribunal show that it considered the elements of the claim.
As to the question of whether the Tribunal applied the wrong test as a matter of law, that ground was not supported by any further elaboration by the appellant. The Tribunal identifies the test to be applied in determining whether it can be satisfied of the relevant matters, and they are whether the appellant holds a well-founded fear of persecution for the Convention reason advanced. There is nothing in the reasons of the Tribunal which suggests that the Tribunal either formulated the wrong test or applied the wrong test. The Tribunal approached the matter correctly, and embarked upon a consideration of the factual foundation of whether it could be satisfied that the appellant held a well-founded fear of persecution for the Convention reason advanced by confronting the statutory declaration of the appellant and by calling in aid of its analysis of the facts, a substantial body of country information which it clearly identifies in the reasons. Therefore, Smith FM was correct to conclude that ground 3 did not disclose an error.
It therefore follows that there is no error demonstrated on the part of the Federal Magistrate in the approach adopted by his Honour, and it follows that there is no demonstrated error in failing to identify jurisdictional error on the part of the Tribunal. In the Notice of Appeal filed in this Court, there are five grounds advanced upon which the decision of the Federal Magistrates Court is challenged.
The first ground involves the contention that the learned Federal Magistrate erred by failing to find that the Tribunal fell into jurisdictional error when relying upon the circumstances of the appellant’s country information; the appellant’s low level of education; and, the inability of the appellant to deal with Maoists and other homophobic people in the authorities and communities in Nepal.
There seem to be two notions involved in ground 1. The first is a challenge to the factual assessments and findings of the Tribunal and the second is a contended failure on the part of the Tribunal to deal with the country information in a way which, as I understand the ground, is said to be relevant to the factual contentions of the appellant. As to those two matters, the factual findings are a matter for the Tribunal and the findings it reached were open to it. As to the country information, the Tribunal relied upon information about the cultural position and societal attitudes in Nepal in the context of the factual contentions advanced before the Tribunal by the appellant. It is not correct to say that the Tribunal used or relied upon country information in a way which was disconnected from the factual contentions put before it.
The second ground of appeal in this court is that the Tribunal failed to consider whether a gay man living in a remote Nepalese village might be conscripted by the Maoists or other homophobic people in some particular way. There is no content to that ground. However, to the extent that it suggests that on the facts Maoists in particular regional areas of Nepal or otherwise, or other homophobic people, might focus upon the appellant as a member of a homosexual group, it seems to me that the reasoning of the Tribunal reflects an underlying assessment of the factual claims of the likely responses of such people to the appellant by reason of his homosexuality.
These issues have been dealt with at their centre by the Tribunal in reaching a conclusion about whether it could be satisfied that the appellant held a well-founded fear of persecution, having regard to questions of remoteness, social conditions, urban transition, and other matters. Ground 2 is not made out. I will return to the question in ground 2 of the contention that the Tribunal failed to properly deal with the issue of relocation from rural to urban areas. The appellant contends that relocation is not an option for him and the decision reached about the opportunity for relocation is simply unfair.
Ground 3 before this Court is a contention that the Tribunal fell into jurisdictional error on the footing that there was ‘no evidence’ to support certain factual findings made by the Tribunal. Those findings are not specifically identified, but the contention can be assessed upon the broad basis that it is said there is no evidence to support the findings and secondly, the findings are, as ground 3 contends, “irrational or illogical”.
The findings reached by the Tribunal were open to it. They arose out of an analysis of the factual foundation expressly put to the Tribunal, fundamentally arising out of the statutory declaration, and the engagement between the Tribunal and the appellant at the hearing process.
There is no basis for concluding that there was “no evidence” to support the factual findings made by the Tribunal. As to the question of whether the findings were “irrational or illogical”, it should be noted that a contention that the decision of the Tribunal as to its state of satisfaction of whether the appellant holds a well-founded fear of persecution for the Convention reason advanced is grounded in illogicality of irrationality so as to give rise to jurisdictional error, means that the decision is one which no decision-maker acting rationally or logically could reach on the evidence, having regard to the findings of fact or inferences drawn from facts as found.
This is why the High Court in the majority decision of Crennan and Bell JJ, (with Heydon J agreeing), at [130] described these contentions as being analogues of a complaint that the decision is ‘clearly unjust’ or ‘arbitrary’ or ‘capricious’ or ‘unreasonable’, and the Court ought not to lightly come to the conclusion that the decision is affected by error in that sense although should the decision reflect such error, the Court clearly must recognise that the Tribunal in such circumstances has failed to exercise the statutory review function according to law: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. In this particular case, having comprehensively looked at the documents and read the Tribunal’s reasons closely, I am satisfied that there is no merit in the contention that the Tribunal reached a decision affected by irrationality or illogicality, applying that test or the elaboration of that test, as reflected at [131] of the reasons in SZMDS.
The fourth ground of appeal to this Court is that the Tribunal member did not act in good faith, and thus acted under the influence of bias. The fifth ground is that the appellant is a real victim of the purported decision of the Tribunal made on 8 December 2010 because the Tribunal member heavily relied upon country information which was “politically motivated”. As to the ground 4 contention of lack of good faith or bias, there is simply nothing in any of the material which suggests bias on the part of the Tribunal, and there is no elaboration of the basis for that contention.
As to the question of whether the country information was politically motivated, I can find nothing in the reasons of the Tribunal which suggests that it acted out of any political motivation. I understand the ground of challenge to be that the information relied upon by the Tribunal was politically motivated and thus the decision was affected by political considerations and was not a decision reflecting accurately and objectively the set of circumstances prevailing in Nepal. The difficulty with that contention, of course, is that the selection of the information the Tribunal seeks to use is entirely a matter for it, so long as the information is directed to the question before the Tribunal and is thus relevant to that question.
If the Tribunal sought to rely upon information which had no rational connection with the issues, that might be a different matter, but the websites and other information gathered together by the Tribunal directly address the question of contemporary circumstances in Nepal arising out of societal attitudes, cultural attitudes, changes in the legal and governance framework within Nepal, the potential for changes to the Constitution, and the attitude of authorities towards homosexual men in particular. Those matters are matters that the Tribunal is entitled to have regard to and it is entitled to attribute what weight it regards as appropriate to those matters.
There is clear authority for that proposition: NBKT v The Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419; [2006] FCAFC 94, per Young J, (Gyles and Stone JJ agreeing). Authority for that proposition is also to be found in NAHI v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 per Gray, Tamberlin and Lander JJ.
The remaining matter concerns the question of whether there is any substance in the notion that the Tribunal failed to properly assess and apply the relocation consideration. There are no particulars given of that ground of challenge. I have mentioned in the course of reviewing the Tribunal’s reasons, the approach it adopted to that matter. Fundamentally, the Tribunal was seeking to determine whether developments within the Nepalese society were such that if the appellant relocated to Kathmandu or other urban areas, the probability is that the fears the appellant articulated would be mitigated in the sense that no real risk of persecution for the Convention reason advanced would subsist after relocation and thus the fear of harm as articulated would not amount to a well-founded fear of a real risk of persecution.
I can find no error in the approach adopted by the Tribunal on this question. The Tribunal was entitled to consider the circumstances within the regional and remote areas of Nepal, and the prevailing contemporary conditions in urban areas, particularly having regard to the observations about the developments through the Blue Diamond society. I am therefore satisfied that this ground, which was not raised before the Federal Magistrates Court in these terms, is unsustainable.
I have approached the assessment of the grounds of appeal to this Court recognising that the appellant, in essence contends that the Federal Magistrates Court fell into error by failing to find jurisdictional error on the part of the Tribunal and thus it has been necessary to examine the underlying challenge to the decision of the Tribunal itself and not simply whether error is demonstrated in the decision of the Federal Magistrates Court.
Accordingly, for all of these reasons, the appeal must be dismissed with an order that the appellant pay the costs of the first respondent of and incidental to the appeal.
I certify that the preceding 52 (fifty-two) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 12 August 2011
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