FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent

IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

JUDGES: BROMBERG, DAVIES AND O'BRYAN JJ DATE OF ORDER: 11 MARCH 2020

1. The appeal be allowed.
2. Paragraph 2 of the orders of the Federal Circuit Court of Australia made on 22 August 2019 be set aside and in lieu thereof the following orders be made: (a) A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 27 November 2017 (case number IAA17/03806). (b) A writ of mandamus issue directed to the second respondent requiring it to determine, according to law, the application made to it by the appellant for review of the decision of a delegate of the first respondent made on 19 October 2017 under s 65 of the Migration Act 1958 (Cth).
3. Paragraph 1 of the orders of the Federal Circuit Court of Australia made on 30 August 2019 be set aside and in lieu thereof the following order be made: The first respondent pay the appellant's costs of the Federal Circuit Court proceeding.
4. The first respondent pay the appellant's costs of the appeal.
5. The name of the first respondent be changed to 'Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs'. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This is an appeal from orders made by a judge of the Federal Circuit Court of Australia on 22 August 2019 dismissing an application for judicial review of a decision of the Immigration Assessment Authority (Authority) made under Part 7AA of the Migration Act 1958 (Cth) (Act) on 28 November 2017. The Authority had affirmed a decision of a delegate of the first respondent (the Minister) refusing to grant the appellant a protection visa. 2 The appellant, who is of Faili Kurd ethnicity and of Shia Muslim faith, was born in Iraq in 1985. When he was a few months old, his family (father, mother and brother) were expelled from Iraq on account of their ethnicity and deported to Iran. The family was accepted in Iran as refugees subject to registration. In Iran, registered Iraqi refugees are issued with Amayesh cards (also referred to as "white cards") which expire annually and must be renewed. The appellant claimed that his family remained in Iran with the status of refugees, but since 2011 the Iranian authorities refused to renew the appellant's refugee registration card and he is now stateless. As discussed further below, that claim was accepted by the Minister's delegate as credible, but was rejected by the Authority. The Authority reached the view that, at some point in time, the appellant became an Iranian citizen. That finding is the subject of the second ground of appeal. 3 On 22 September 2012, the appellant arrived on Christmas Island as an irregular maritime arrival. 4 On 16 August 2013, the appellant lodged an application for a protection visa which was affected by application bars in the Act. By letter dated 2 September 2015, the Department advised the appellant that the Minister had determined, pursuant to s 46A(2) of the Act, that s 46A(1) would not apply and invited the appellant to apply for a temporary protection visa or a safe haven enterprise visa. A further invitation was issued on 25 January 2016. 5 On 31 March 2016, the appellant lodged an application for a safe haven enterprise visa. The appellant claimed to fear harm if returned to Iran on two primary bases. The first concerned a relationship he formed with a woman in Iran. The appellant claimed that when, in 2010, the woman's father refused to give permission for them to marry, the couple ran away and lived together for a month before the appellant ran out of money. The woman then returned to her family and the appellant has since faced threats to his life from the woman's brothers. The second concerned the appellant's claim that the Iranian authorities refused to renew his refugee registration card in 2011. The appellant claimed to fear significant discrimination as a Faili Kurd and that he would not be able to become a citizen, obtain employment or continue his education. 6 On 19 October 2017, a delegate of the Minister refused the appellant's application for a safe haven enterprise visa on the basis that he was found not to be a person in respect of whom Australia has protection obligations. 7 On 25 October 2017, the delegate's decision was referred to the Authority for review under Part 7AA of the Act. On 27 November 2017, the Authority affirmed the decision not to grant the appellant a safe haven enterprise visa. The relevant parts of the Authority's decision will be considered in connection with the grounds of appeal. 8 On 22 December 2017, the appellant filed an application for judicial review of the Authority's decision in the Federal Circuit Court under s 476 of the Act. A further amended application was filed on 2 August 2018 in which the appellant raised three grounds of review identical in terms to those which are relied on in this appeal. Subject to various exceptions (which are not presently relevant), s 476 grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. 9 The appellant filed its notice of appeal in this Court on 11 September 2019. The three grounds of appeal are as follows: 1. The Federal Circuit Court erred by failing to find that the Second Respondent's decision was infected by jurisdictional error in that its processes would give rise to a reasonable apprehension of bias by reason that it received and considered material because it was regarded by the Secretary to have been 'relevant', which information detailed charges of 'persistent sexual abuse of a child' being a 13 year old girl with whom the Applicant was alleged to have had an abusive and recent relationship over 3 years. 2. The Federal Circuit Court erred by failing to find that the Second Respondent acted in a way that was legally unreasonable, namely by: a. Rejecting the protection claim concerning statelessness of the Applicant on bases not raised with the Applicant at any time and without any evaluation of an issue of substance which undermined the rejection of that claim of the Applicant, namely that his paternal ancestry was from Iraq, not Iran; b. Making adverse findings based on how the Applicant 'appeared' on the Applicant's mental health and on his 'capacity to participate in interviews' in circumstances where the reviewer had never seen the Applicant in person. 10 The appeal is by way of rehearing under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). Accordingly, the Court must determine whether the Federal Circuit Court was correct to find that the decision of the Authority was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (SZVFW). 11 For the reasons that follow, we uphold appeal grounds 1 and 2(a).

Appeal ground 1: apprehended bias 12 By appeal ground 1, the appellant contends that the Authority's decision involved jurisdictional error because its processes gave rise to a reasonable apprehension of bias by reason that it received and considered prejudicial and irrelevant information concerning the appellant.

Background 13 As already noted, on 25 October 2017 the Department referred the delegate's decision to refuse the grant of a visa to the Authority for review under Part 7AA of the Act. Pursuant to s 473CB(1)(c) of the Act, the Secretary was required to provide to the Authority all material in the Secretary's possession or control that the Secretary considered to be relevant to the Authority's review. By letter dated 26 October 2017, the Authority wrote to the appellant and stated that the Department had complied with that obligation. 14 It is common ground that amongst the material provided to the Authority by the Secretary was a document titled "Court Attendance Notice" which appeared to have been issued early on 23 September 2016 and required the appellant to attend the Bankstown Local Court at 9.30am that day. The document indicated that the appellant had been arrested the previous evening and charged under s 66EA of the Crimes Act 1900 (NSW) with persistent sexual abuse of a child. The particulars of the charge were that the appellant had a sexual relationship with a minor over a three year period from 1 August 2013 until 11 March 2016. It can be inferred from the document that the attendance at the Bankstown Local Court was to consider bail. The "Fact Sheet" that formed part of the document, prepared by the New South Wales Police, detailed an allegation that the appellant had met the victim by arrangement at a train station when she was 13 years old and a ward of the State; their sexual relationship continued over three years in circumstances where the appellant knew that the victim was under 16 years of age for most of that time; and the appellant had terminated the relationship in July 2016. 15 It is not entirely clear whether the Authority also learned that the appellant had been refused bail at the court hearing on 23 September 2016. The appellant placed reliance on that fact at the hearing as an additional component of the prejudicial information that had been provided to the Authority. In oral submissions, the Minister also seemed to accept that the Authority had learned of that fact. However, the evidence is less clear. While the Fact Sheet forming part of the Court Attendance Notice contained a statement "Bail Refused", the appellant accepted that that statement was unlikely to be a statement of the outcome of any bail application because the document had been printed at 6.30am on 23 September 2016, before the court hearing at 9.30am. Within the Department's file concerning the appellant was an email sent on 23 September 2016 at 4.55pm which reported the outcome of the court hearing that day. Amongst other things, the email recorded that bail was refused. However, Mr Alexander Lochland, an employee of the Department, gave affidavit evidence in the Federal Circuit Court that the email had not been provided to the Authority. The appellant accepted that evidence in oral submissions. In our view, nothing turns on whether the Authority learned that bail had been refused at the court hearing on 23 September 2016. As each of the appellant and the Minister presented arguments on the basis that the Authority had learned that bail was refused, we will proceed in the same manner. 16 Pursuant to s 473DB, the Authority is required to review the delegate's decision "by considering" the material provided to it by the Secretary under s 473CB. In the present case, it is clear that the Authority read the Court Attendance Notice, as it was required to do, because it expressly referred to it in its reasons (while stating that it would disregard it) in the following terms (at [3]): Included in the material given by the Secretary is a document which indicates the applicant was charged with certain criminal offences and contains information relating to the alleged context of those charges. There is no evidence of a conviction and in any event I view these matters as irrelevant to the assessment of the credibility of the applicant's claims for protection and the criteria to be determined by the IAA. I have disregarded this information in making my assessment.

Federal Circuit Court decision 17 In a careful and detailed analysis of the principles concerning apprehended bias, the primary judge concluded that, in the circumstances of the present case, a fair-minded and appropriately informed lay observer would not reasonably apprehend that the Authority might not bring a fair, impartial and independent mind to the determination of the matter on its merits. The principal reason for that conclusion was the fact that the Authority expressly acknowledged receipt of the prejudicial information, stated that the Authority considered it to be irrelevant and stated that the Authority would disregard it in making its decision (at [119]). The primary judge considered that the decision of the Full Court of this Court in Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 (AMA16) was distinguishable because, in that case, the Authority had not adverted to the prejudicial information (at [121]). The primary judge also considered that the Full Court's analysis in MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68 at [87]-[89] provides support for that approach. 18 After the Federal Circuit Court made its decision, the High Court delivered its reasons in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 94 ALJR 140 (CNY17), which concerned very similar circumstances in respect of a decision of the Authority under Part 7AA of the Act. One difference between the circumstances in CNY17 and the present case is that, in CNY17, the Authority made no reference to the irrelevant and prejudicial information in its reasons. A majority of the High Court, in separate reasons given by Nettle and Gordon JJ and by Edelman J, concluded that the circumstances gave rise to the appearance of bias and the decision of the Authority was accordingly affected by jurisdictional error. The principal question that arises on this appeal is whether, in light of the High Court's reasons in CNY17, the express statement by the Authority in the present case that the prejudicial material was irrelevant and the Authority would disregard it was sufficient to avoid any appearance of bias. The reasons in CNY17 are considered in more detail below.

Appellant's submissions 19 The appellant submitted that the nature of the material provided to the Authority by the Secretary (being the Court Attendance Notice), coupled with the Authority's statutory obligation in s 473DB to consider the material and its express acknowledgement in its reasons (at [3]) that it had had "regard" to that material, founds a conclusion of apprehended bias. 20 In relation to the nature of the material, the appellant submitted that the information conveyed by the Court Attendance Notice was highly prejudicial for four reasons. First, the charges against the appellant concerned sexual abuse, which, by its nature, involves misuse of a victim's body without lawful consent. Second, the charges alleged offending over a period of three years, which demonstrates a callousness for the victim and the law. Third, the charges pertained to a child victim, who is necessarily vulnerable and who is entitled to the protection of adults, not their exploitation. Fourth, the refusal of bail indicated that, in the mind of a court, there is an ongoing risk of further criminal conduct by the appellant. 21 The appellant submitted that the nature of the alleged offending in this case was even more prejudicial than the alleged offending considered by the Full Court in AMA16. The maximum penalty for the offence of "persistent sexual abuse of a child", with which the appellant was charged, is life imprisonment. It is one of only four offences under the Crimes Act 1900 (NSW) with such a maximum penalty, alongside murder (ss 19A, 66A, 61JA). In AMA16, the charge against the appellant was "indecent assault", the maximum penalty for which was 5 years' imprisonment (Crimes Act 1900 (NSW), s 61L (repealed from 1 December 2018)) and the Full Court described the information provided to the Authority about the charge as "highly prejudicial" (at [38], [75], [78], [83], [86]). 22 The appellant submitted that the charge and the background to it, coupled with knowledge that bail had been refused in respect of the conduct, is not the kind of information that, once known, could be un-known. The fact that the information was not only passed on by the Secretary on the basis that it was considered by the Secretary to be "relevant" to the Authority's review, but was required to be considered by the Authority, would give rise, in the mind of the reasonably informed lay person, to a reasonable possibility that the Authority did not come to its decision with an open mind. 23 The appellant submitted that the Authority's statement that the material was irrelevant and the Authority had disregarded the material did not overcome the problem of apprehended bias. In that regard, the appellant relied on obiter statements of Nettle and Gordon JJ (as part of the majority) in CNY17 at [99] that putting irrelevant and prejudicial material aside does not overcome the subconscious bias which might result from seeing that material.

Minister's submissions 24 The Minister submitted that, in assessing apprehended bias, the "totality of the circumstances of the case" are to be considered which includes the reasons of the decision-maker and any express disavowal of irrelevant and prejudicial material, relying on CNY17 at [20] per Kiefel CJ and Gageler J, at [102] per Nettle and Gordon JJ and at [111] and [114] per Edelman J. The Minister argued that a statement from a decision-maker that material has been set to one side is relevant, and may be determinative, of the question of the risk of apprehended bias. The Minister further submitted that, while the Court in CNY17 accepted that irrelevant and prejudicial material might subconsciously affect a decision-maker (creating a risk that the decision-maker will be unable to bring an impartial mind to the decision, free of the prejudice the material creates), such a conclusion will depend on all of the facts of the particular case. 25 The Minister argued that, in the present case, the Authority not only said that it had set the material aside, but also gave a logical explanation of why the material was inherently of no evidentiary value (because it related to charges only without any conviction) and was irrelevant to the Authority's task. The fact that the Authority recognised that the documents related only to charges without any conviction lessens any perception of apprehended bias. As a consequence, the Court should not conclude that the fair-minded lay observer might consider that the Authority would decide the case other than on its legal and factual merits. 26 The Minister acknowledged that the statutory framework governing the Authority's decision is also relevant. While s 473DB(1) of the Act required the Authority to consider the material, the Minister submitted that the section did not require the Authority to take the material into account in making its decision and the Authority was required to make its own assessment of relevance. In the present case, the Authority properly performed its statutory function by acknowledging receipt of the material and expressly disavowing any reliance on it.

Consideration of appeal ground 1 27 It is important to note at the outset that the appellant's ground of review is based on the principles of apprehended bias. It is not based on the separate principle of procedural fairness considered in Kioa v West (1985) 159 CLR 550 and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 (VEAL) that a person affected by an administrative decision should be given an opportunity to deal with adverse information that is credible, relevant and significant to the decision to be made. 28 As already noted, in CNY17 the High Court considered the question of apprehended bias in a similar context to the present case. The following summary of the facts is taken from the reasons of Nettle and Gordon JJ (at [74] - [82]): 74. The appellant arrived in Australia on 13 August 2013. He was detained on Christmas Island and was unable to apply for a visa because of the bar in s 46A of the Migration Act. He broke a window on 20 March 2015 while in detention and was charged with damaging Commonwealth property ("the March 2015 incident"). He pleaded guilty, was convicted and was released without sentence, on condition of good behaviour for six months and the payment of $820.60 in reparation. 75. The Minister lifted the s 46A visa application bar for the appellant on 29 September 2015. 76. In November 2015, there were protests on Christmas Island. The appellant was charged, he said in his visa application, with "spitting at a guard & breaking a window" during the protests ("the November 2015 incident"). The appellant was transferred to a correctional facility on 12 November 2015. 77. The appellant lodged an application for a safe haven enterprise visa on 16 September 2016. He disclosed his conviction from the March 2015 incident, and the pending charges from the November 2015 incident. In relation to the March 2015 incident, the appellant's form also said "[t]here may be further updates on the cases". 78. The visa application was refused on 14 March 2017. By letter of that date, the Department advised that the decision had been referred to the IAA. The Department said it had provided the IAA with the decision record, material given by the appellant to the Department, and "any other material the Department considers to be relevant to the review". That material was not identified. 79. The appellant then received a letter from the IAA dated 23 March 2017. It stated that the Department had provided "all documents they consider relevant to your case", though these were not identified. The IAA stated that a decision would be made on that material, "unless we decide to consider new information", but this could only happen "in limited circumstances". 80. The IAA affirmed the decision on 12 May 2017, stating that it "had regard to the material referred by the Secretary under s 473CB of the Migration Act 1958". The material was not particularised. 81. The Minister identified the material provided to the IAA only when the appellant sought judicial review of the IAA's decision. The material included departmental documents with the following assertions. First, that the appellant had a "history of aggressive and/or challenging behaviour when engaging with the [D]epartment", and had been "involved in many incidents while in detention" (without identifying the history or the incidents). Second, that he had been recommended for detention in a correctional facility while there was a police investigation into a "riot". Third, that Australian Border Force had advised the Department "to not engage" with the appellant (or other detainees) while in prison. Fourth, that the appellant was "no longer of interest to Det Intel" and was the subject of unspecified "on-going investigations". There was no identification of what, exactly, "Det Intel" referred to. Fifth, that he had been considered for release from detention on a Bridging E visa "on several occasions", which the appellant characterises as an implicit representation that his behaviour resulted in him not being granted those bridging visas. 82. The appellant never had these documents. The information in the documents went beyond what was provided by the appellant and, in many cases, it was information of which the appellant was not even aware… 29 The above facts fell within the fourth category of apprehended bias identified by Deane J in Webb v The Queen (1994) 181 CLR 41 (Webb) at 74, disqualification by extraneous information (knowledge of some prejudicial but irrelevant material). 30 It is immediately apparent that a difference between the facts and circumstances in CNY17 and the present case is that, in CNY17, the Authority did not at any stage expressly refer to the departmental documents, and did not expressly disavow reliance upon the documents. 31 All members of the Court agreed that the departmental material was irrelevant to the Authority's decision. A majority of the Court, Nettle, Gordon and Edelman JJ, concluded that a hypothetical fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the Authority might not bring an impartial mind to the decision before it as a result of the departmental information being given to it. Chief Justice Kiefel and Gageler J reached the opposite conclusion. 32 Although members of the Court disagreed on the outcome, each member of the Court was agreed on the following matters of principle: (a) First, the bias rule of procedural fairness is not excluded or limited by any of the provisions of Part 7AA of the Act, and indeed s 473FA(1) stipulates that, in carrying out its functions, the Authority is to pursue the objective of providing a mechanism of limited review that is, amongst other things, free of bias: at [16] per Kiefel CJ and Gageler J, at [60] per Nettle and Gordon JJ and at [131] per Edelman J. (b) Second, the applicable test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the Authority might not bring an impartial mind to the resolution of the questions the Authority is required to decide: at [17] per Kiefel CJ and Gageler J, at [56] per Nettle and Gordon JJ and at [132] per Edelman J. In assessing that test, the Court attributes to the fair-minded observer knowledge of the relevant legal framework (here the procedures under Part 7AA) and knowledge of the relevant facts: at [17] per Kiefel CJ and Gageler J and at [58] - [59] per Nettle and Gordon JJ (this point was not expressly addressed by Edelman J). (c) Third, it follows from the second principle that the apprehended bias rule is concerned with preserving the public appearance of independence and impartiality and the rule does not require a finding that the irrelevant material affected the decision and there was actual bias: at [18] per Kiefel CJ and Gageler J, at [70] per Nettle and Gordon JJ and at [131] per Edelman J. A corollary is that apprehended bias is not remedied by the decision-maker disregarding the irrelevant and prejudicial material. The question is directed to what a fair-minded lay observer might reasonably apprehend. (d) Fourth, in certain circumstances, a fair-minded lay observer might reasonably apprehend that irrelevant and prejudicial material might have a subconscious (prejudicial) effect on the mind of a decision-maker notwithstanding that the decision-maker had consciously and expressly put the information aside as irrelevant: at [28] - [29] per Kiefel CJ and Gageler J, at [97] per Nettle and Gordon JJ (this point was not expressly addressed by Edelman J). 33 Nettle and Gordon JJ (at [51]) and Edelman J (at [110]) concluded that a fair-minded lay observer might have apprehended that the Authority might not have brought an impartial mind to the review, by reason of the irrelevant and prejudicial material contained in the departmental information which the Authority was mandated to consider. Their Honours considered that the departmental information might have led the Authority to make a decision otherwise than on the legal and factual merits of the case, because it might have led the Authority to the view that the applicant was not the sort of person who should be granted a visa or that the applicant was not a person who should be believed, even if that view was formed on a subconscious rather than conscious level. The risk of subconscious bias was such that it could not be cured by putting the information aside (at [97] per Nettle and Gordon JJ). Their Honours regarded as relevant the facts that: the prejudice likely to arise from the departmental information was substantial; the Authority was required by statute to consider the material provided by the Department; the Authority said in a letter to the applicant that it would make its decision on the basis of the material provided by the Department; the Authority stated in its reasons for decision that it had considered all of the material provided to it; and the Authority did not expressly state that it had put the irrelevant and prejudicial material to one side (at [94], [96], [98] and [99] per Nettle and Gordon JJ and at [110] and [111] per Edelman J). 34 Kiefel CJ and Gageler J differed from the majority and concluded that the hypothetical fair-minded lay observer would understand that the departmental information could have no legitimate bearing on the review to be conducted by the Authority (at [41]) and that such an observer would not regard the information as so shocking as to give rise to the realistic possibility that knowing it would play on the subconscious of the Authority to the detriment of the applicant (at [43]). 35 Given the facts of the case, it was unnecessary for the High Court to determine one of the questions that arises in the present appeal: whether an express disavowal of the prejudicial information by the Authority would assuage the risk that a fair-minded lay observer might have apprehended that the Authority might not have brought an impartial mind to the review. Nevertheless, members of the Court addressed that question, albeit in statements that must be regarded as obiter. Kiefel CJ and Gageler J said (at [20]) that the question whether conduct has resulted in a breach of the bias rule must be assessed by reference to all the circumstances that exist at the time when that question arises and, where the question arises after the Authority has made a decision, the reasons that the Authority has given for the decision may be relevant. Justices Nettle and Gordon observed (at [69]) that the question of apprehended bias can be, and often is, considered before the decision is made and that, in the case before them, an objection on the basis of apprehended bias could have been raised as soon as the Authority was given the departmental information. In the case before them, their Honours recognised as relevant the facts that the Authority did not expressly state that the prejudicial material had been put to one side (at [99]) and the Authority did not reveal the prejudicial information to the applicant but kept it hidden (at [100]). Justice Edelman likewise said (at [135]) that apprehended bias must be assessed by reference to all the circumstances existing at the relevant time of enquiry and, if apprehended bias is assessed at the conclusion of a hearing, then the reasons for decision might reveal matters relevant to the consideration of whether a reasonable apprehension exists. In concluding that the case gave rise to apprehended bias, his Honour placed reliance on the fact that: "Nowhere in its reasons did the Authority suggest that any of the material provided by the Secretary was not relevant or that weight had not been placed on any of the material provided by the Secretary" (at [141]). 36 Ultimately, the question of apprehended bias is a question of fact to be assessed in light of all the circumstances. In Webb, a case involving the conduct of a juror during a trial, Mason CJ and McHugh J said that a "fair minded person would give considerable weight to the judge's conclusion that the public ventilation of the incident - together with an appropriate warning - would nullify the inference otherwise to be drawn from the irregularity" (at 53). In Johnson v Johnson (2000) 201 CLR 488, a case involving statements by the trial judge that may have given the appearance of prejudgment, the plurality accepted that in some cases an apprehension of bias can be removed by a later statement which withdraws or qualifies it, but observed that some statements or behaviour "may produce an ineradicable apprehension of prejudgment" (at 494). 37 In the present case, it is necessary to form a judgment as to whether a fair-minded lay observer might reasonably apprehend that the Authority might not bring an impartial mind to its decision, by reason of the receipt of the Court Attendance Notice. Full weight must be given to the qualifications that the lay observer is fair-minded and the apprehension must be reasonable. In CNY17, Kiefel CJ and Gageler J explained (at [19]): The purpose of combining the "fair-mindedness" of the hypothetical lay observer with the "reasonableness" of that observer's apprehension is to stress that the appearance or non-appearance of independence and impartiality on the part of the Authority falls to be determined from the perspective of a member of the public who is "neither complacent nor unduly sensitive or suspicious". Together they emphasise that "the confidence with which the [Authority] and its decisions ought to be regarded and received may be undermined, as much as may confidence in the courts of law, by a suspicion of bias reasonably - and not fancifully - entertained by responsible minds". 38 In the present case, we consider that the Court Attendance Notice contained information of a highly prejudicial kind. The information was that the NSW police alleged and brought charges against the appellant of a most serious kind, involving an alleged contravention of s 66EA of the Crimes Act 1900 (NSW). As noted earlier, the particulars of the charge were that the appellant had a sexual relationship with a minor (a girl of 13 who was a ward of the State) over a three year period from 1 August 2013 until 11 March 2016. We accept the appellant's submission that the allegation is highly prejudicial because it involves sexual offending against a vulnerable person, a young girl who is a ward of the State, over a lengthy period of time. While recognising that the information involves an allegation only and the appellant is entitled to a presumption of innocence, in our view a fair-minded lay observer might reasonably apprehend that the Authority might not bring an impartial mind to its decision by reason of being informed of the information. The observer might consider that the individual decision-maker might consciously or subconsciously form an adverse view of the appellant's character, inclining the decision-maker to the view that the appellant is not a person to whom the benefits of a visa should be extended. 39 In its reasons for decision, the Authority identified the prejudicial information, cogently explained why the information was irrelevant to the decision and stated that the Authority would disregard the information in making its decision. The question that arises is whether the apprehension of bias that arises by reason of the Authority receiving and considering the information is assuaged by those statements in the Authority's reasons. 40 In many cases, those actions by the Authority would be expected to assure a fair-minded lay observer that the Authority has brought an impartial mind to its decision. An illustration is O'Sullivan v Medical Tribunal of New South Wales [2009] NSWCA 374 in which the presiding judicial member rejected a proposed tender of an irrelevant and prejudicial document and stated that the Tribunal could properly put the document out of its mind and not bring it to bear in any way in determining the matter. 41 As recognised in CNY17, though, information may be of such a prejudicial kind that a fair-minded lay observer might reasonably consider that it would be difficult for the decision-maker to put the information out of his or her mind, notwithstanding that the decision-maker consciously and expressly endeavoured to disregard the information: see also AMA16 at [76] - [77] per Griffiths J and at [100] per Charlesworth J. It must be emphasised that the enquiry is not directed to the question of actual bias - whether the Court considers that the prejudicial information is of a kind that would be likely to have a subconscious effect on the decision-maker, such that the decision-maker would be unable to put the information out of his or her mind. The enquiry is directed to the question of apprehended bias - what a fair-minded lay observer would reasonably apprehend. The possibility of subconscious effect is only relevant in that latter sense. It should also be reiterated that the principle being considered in this case, apprehended bias, is not the same as the principle considered in VEAL. As the High Court stated in VEAL, the question whether a person affected by a decision has been afforded an opportunity to address adverse information is a question of the fairness of the procedures that have been followed, and does not depend on any assessment of whether the decision-maker may have been subconsciously affected by the adverse information (at [19]). 42 In the present case, we consider that the information is of such a prejudicial kind that a fair-minded lay observer might reasonably consider that it would be difficult for the decision-maker to put the information out of his or her mind in determining whether to grant a visa. In other words, a fair-minded lay observer might reasonably consider that the information is of a kind that might subconsciously affect the Authority's approach to the decision, notwithstanding that the Authority consciously endeavoured to disregard the information. 43 This is not to impose a standard of undue sensitivity on the fair-minded lay observer. It is only to recognise that the rule is "directed to the necessity for executive power to be exercised fairly and to appear to be exercised fairly, in support of the maintenance of confidence in the administrative process": SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2] per Allsop CJ. In CNY17, Kiefel CJ and Gageler J (at [27]) endorsed the wisdom of the following observations of Frankfurter J of the US Supreme Court in Public Utilities Commission of the District of Columbia v Pollak (1952) 343 US 451 at 466-467: …But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, judges recuse themselves. They do not sit in judgment. They do this for a variety of reasons. The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact. 44 In the context of a review under Part 7AA of the Act, if highly prejudicial but irrelevant information is given to the Authority, procedural fairness may demand more than the Authority merely disavowing reliance on the information. If the information is sufficiently prejudicial, and the person affected by the decision is not informed of the information or given an opportunity to respond to it, procedural fairness may require the individual decision-maker exposed to the information to recuse themselves. That will not be required in every case. But in our view, it was required in this case. 45 We therefore uphold ground 1 of the appeal.

Appeal ground 2a: rejection of the claim concerning statelessness 46 By appeal ground 2a, the appellant contends that the Authority acted in a way that was legally unreasonable by rejecting the appellant's claim to be stateless on bases not raised with the appellant and without any evaluation of an issue of substance which undermined the rejection of that claim, namely that his paternal ancestry was from Iraq, not Iran.

Background 47 As set out earlier, a central claim made by the appellant was that he was at risk of harm as a stateless person in Iran. The delegate accepted that the appellant was stateless (delegate's decision p 12). The Authority came to the opposite conclusion. It found that, at some point in time, likely prior to the family's move to Qom in 2003, the appellant became an Iranian citizen (at [27]). The reasons given by the Authority for reaching that conclusion were, in summary: (a) the appellant originally submitted a refugee registration card dated 2001 and, at the protection visa interview, claimed not to recall going to the authorities and having the card renewed each year (at [17]); (b) the appellant subsequently submitted a refugee registration card dated 2011, but the second card had less sophisticated features in comparison to the earlier card which caused the Authority to doubt the authenticity of the second card (at [18] - [19] and [27]); (c) the card dated 2011 permitted the appellant and his family members to reside and travel in Ahwaz, Khuzestan, whereas the appellant claimed that he and his family lived in Qom and, in his interview, the appellant claimed not to know of the restrictions of movement imposed on stateless Faili Kurds in Iran (at [21]); (d) aspects of the appellant's evidence suggested that his financial circumstances in Iran were not as he claimed, particularly his claims that he travelled from Qom to Mashaad where he met a girl from Astara in northern Iran, staying in a hotel there and subsequently renting a house in Qom for a month and the fact that he paid US$10,000 for his travel to Australia (at [22] - [25]); and (e) country information indicated that Faili Kurd refugees who present documentary evidence of Iranian paternal ancestry are able to obtain Iranian citizenship (at [26]). 48 Appeal ground 2a focusses on paragraph 26 of the Authority's reasons which was as follows: I note that there is information that some Faili Kurd refugees have been able to obtain citizenship. Faili Kurd refugees who present documentary evidence of Iranian paternal ancestry are able to obtain Iranian citizenship, although it can be difficult for many to establish evidence of such Iranian ancestry. Nonetheless, it is estimated that prior to 2003 Iran had granted citizenship to up to 100,000 Faili Kurd refugees who could provide their Iranian origin. 49 Paragraph 26 had two footnote references to a DFAT report: DFAT Thematic Report - Faili Kurds in Iraq and Iran, 3 December 2014. 50 At paragraph 27, the Authority stated its conclusion on the question whether the appellant was stateless: Considering the above as a whole, I am not satisfied that the more recent white cards submitted by the applicant following the interview are genuine. I do not find the applicant's claims regarding his inability to obtain employment or his family's claimed financial circumstances to be credible. While I accept that the applicant and his family were expelled to Iran from Iraq and most probably were registered as Faili Kurd refugees and initially subject to various restrictions, I am not satisfied that the applicant has remained stateless. ... I am strongly of the view that at some point in time, likely prior to the family's move to Qom, the applicant has become an Iranian citizen. I do not accept that the applicant was a stateless Faili Kurd at the time that he left Iran, or that he did so on a false Iraqi passport.

Federal Circuit Court decision 51 The primary judge concluded that the Authority reached its conclusion on statelessness on the basis of the information before the delegate, which had been provided to the appellant. In those circumstances, in conducting a review under Part 7AA, the Authority was not required to invite the appellant to comment, provide information or attend an interview (at [175]). The primary judge also concluded that the Authority's finding that the appellant was not stateless was not illogical or irrational. His Honour concluded that, although minds might differ upon the question, the conclusion was not one which lacked an evident or intelligible foundation (at [176]).

Appellant's submissions 52 The appellant submitted that the conclusion of the Authority concerning statelessness involved jurisdictional error on two bases. 53 First, the appellant submitted that it was legally unreasonable for the Authority to make a finding that the appellant was not stateless without exercising the power under s 473DC(3) of the Act to invite the appellant "to give new information". He submitted that he had no way of knowing that the inferences relied on by the Authority would be adversely determinative of his central protection claim, and he had no opportunity to respond to them because the Authority chose not to exercise its power under s 473DC. The appellant submitted that the present circumstances are analogous to those in Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (CRY16), Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526 and DPI17 v Minister for Home Affairs [2019] FCAFC 43; 366 ALR 665 where this Court found jurisdictional error for legally unreasonable failures to exercise the power under s 473DC. 54 Second, the appellant submitted that the Authority's conclusion that the appellant was not stateless lacked an evidentiary foundation or rational basis, and was legally unreasonable for that reason. The only evidence on which the Authority relied to demonstrate that it was possible under Iranian law for the appellant, as an acknowledged Faili Kurd refugee from Iraq, to become an Iranian citizen was the DFAT report which stated that "some Faili Kurd refugees… who present documentary evidence of Iranian paternal ancestry are able to obtain Iranian citizenship, although it can be difficult for many to establish evidence of such Iranian ancestry". However, that evidence was irrelevant to the appellant's circumstances, because there was no evidence that the appellant had Iranian paternal ancestry. The appellant claimed that his father and paternal grandfather were born in Iraq, and there was no evidence or finding to the contrary.

Minister's submissions 55 In relation to the first issue raised by the appellant, the Minister submitted that, in the context of a review under Part 7AA, there was no obligation on the Authority to give the appellant an opportunity to respond to the Authority's proposed finding in respect of the issue of statelessness, and it was not legally unreasonable for the Authority not to invite the appellant to provide further information. The cases relied on by the appellant are not analogous to the present case. They concerned situations where the Authority did not have the material necessary to deal with a question that had not been determined by the delegate and that was dispositive on the review. In the present case, the question of statelessness had been raised before the delegate and the Authority considered the issue on the same material considered by the delegate but came to a different conclusion. 56 In relation to the second issue raised by the appellant, the Minister accepted that the Authority's reference to the fact that Faili Kurd refugees who present documentary evidence of Iranian paternal ancestry are able to obtain Iranian citizenship was not relevant to the appellant's circumstances (because there was no evidence that the appellant had Iranian paternal ancestry). However, the Minister submitted that that reference did not lead to a conclusion that the Authority's finding that the appellant was not stateless was legally unreasonable. The other factual findings made by the Authority supported, and provided a rational basis for, its conclusion that the appellant was an Iranian citizen and the finding concerning the granting of citizenship to persons of Iranian paternal ancestry was not an essential step in reaching its conclusion.

Consideration of appeal ground 2a 57 Consistently with the decision of the primary judge, we reject the appellant's first contention. However, contrary to the decision of the primary judge, we accept the appellant's second contention. 58 In relation to the first contention, s 473DB stipulates that, subject to Part 7AA, the Authority must review a fast track reviewable decision referred to it under s 473CA by considering the review material provided under s 473CB without accepting or requesting new information and without interviewing the referred applicant. In other words, the review is to be conducted "on the papers". Section 473DC confers a discretion on the Authority to seek documents or information that were not before the Minister when the Minister made the decision and that the Authority considers may be relevant. The discretion conferred on the Authority by that section is subject to the implied condition that it be exercised within the bounds of reasonableness in the sense explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [21] per Gageler, Keane, and Nettle JJ and at [86] per Gordon J. The content of the constraint of reasonableness in this legislative context is informed by the legislative features of the scheme of review set out in Part 7AA: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11]; SZVFW at [59] per Gageler J. 59 On a number of occasions, this Court has considered whether a failure by the Authority to seek additional information from a visa applicant when conducting a review is unreasonable in the legal sense. As observed by O'Bryan J in BLS17 v Minister for Immigration and Border Protection [2019] FCA 1079 at [31], each case turns on its own facts but it is possible to distil the following principles from the decisions: (a) The legislative scheme of review established by Part 7AA (review by the Authority) differs from the legislative scheme of review established by Part 7 (review by the Administrative Appeals Tribunal). In particular, under Part 7, the Administrative Appeals Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments. In those circumstances, procedural fairness requires the Tribunal to inform the applicant of potentially adverse conclusions that are not obvious on the materials and the nature and content of the adverse material: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. However, those principles are not directly applicable to a review under Part 7AA given the different statutory requirements for the review. Part 7AA of the Act is an "exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews by the Authority": DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [69] (DGZ16). (b) As a general proposition, Part 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate and the Authority is not required to notify the referred applicant that it is considering taking a different view, which may be adverse to the referred applicant, of the material considered by the delegate: DGZ16 at [72]. That is so even if the Authority makes an adverse credibility finding against the referred applicant on the basis of the evidence: DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 at [74]. (c) However, circumstances may arise in which it would be legally unreasonable for the Authority to make a finding adverse to the applicant without exercising its powers to seek further information from the applicant. An example is afforded by Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (CRY16). In that case, the Authority had purported to determine the review on the basis that it was reasonable for the applicant to relocate to a particular part of his home country. However, that possibility had never been put to the applicant, before or during the review conducted by the Authority. The Full Court concluded that it was legally unreasonable for the Authority not to seek further information from the applicant in circumstances where the Authority knew that it did not have, but the applicant was likely to have, information on his particular circumstances and the impact upon him of relocation (CRY16 at [82]). CRY16 was a case where additional information (as to the reasonableness of relocation) was "necessary in order to complete the review": DGZ16 at [70]. (d) Another example is afforded by DPI17 v Minister for Home Affairs [2019] FCAFC 43 (DPI17). In that case, the delegate had made a positive assessment of the applicant's demeanour at the interview and the delegate's acceptance of certain claims by the applicant was based primarily on the delegate's assessment of the appellant's demeanour (DPI17 at [46]). Further, during the course of the delegate's interview with the applicant, the delegate indicated that certain discrepancies in the applicant's evidence were not major and that she would not put a lot of weight on those discrepancies. In reliance upon those statements, the applicant did not address the inconsistencies in his post-interview submissions to the delegate. The Authority reviewed the decision and made various credibility findings adverse to the applicant based on the discrepancies in the evidence. The Full Court found that, in circumstances where the Authority must have been aware of the delegate's positive assessment of the applicant's demeanour in the interview, it was legally unreasonable for the Authority not to consider exercising its power under s 473DC to invite the applicant to give new information when it was minded to give weight to the discrepancies in the applicant's evidence and come to a different conclusion on the claim (at [46] per Griffiths and Steward JJ and [58] per Mortimer J). 60 In the present case, the question of statelessness was considered by the delegate, including the possibility that the appellant had obtained Iranian citizenship (at p 12), and the appellant's representatives had provided written submissions on the issue (submissions dated 13 September 2017 at pp 5-6 and 12). The Authority reached its conclusion on the issue based on the same information that was before the delegate. Within the decision-making framework established by Part 7AA, the fact that the Authority came to a different conclusion to the delegate did not trigger an obligation to seek further information from the appellant. In those circumstances, it was not legally unreasonable for the Authority to decide the issue without exercising the power under s 473DC(3) of the Act to invite the appellant to give new information. 61 However, we accept the appellant's second contention that the Authority's conclusion was legally unreasonable because an important step in the reasoning process was logically unsound. A factual conclusion may be legally unreasonable if it is based on illogical or irrational findings or inferences of fact: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 per Gleeson CJ and McHugh J and at 657 per Gummow J; Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 73 ALD 1 at [5] per Gleeson CJ; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 at [37] - [38] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. 62 In reaching its conclusion, the Authority referred to and took into account a DFAT report which indicated that Faili Kurd refugees who present documentary evidence of Iranian paternal ancestry are able to obtain Iranian citizenship (at [26]). In context, it is clear that the Authority referred to the DFAT report to answer the question whether it was possible, under Iranian law, for a Faili Kurd refugee to become an Iranian citizen. That enquiry was logically necessary for the Authority to reach a conclusion that the appellant had become an Iranian refugee. However, there was no evidence that the appellant had Iranian paternal ancestry. The appellant claimed that his paternal ancestry was Iraqi and there was no evidence inconsistent with that claim. The Authority made no finding to the contrary. Accordingly, the Authority's apparent reliance on the DFAT report to answer the question whether it was possible, under Iranian law, for a Faili Kurd refugee to become an Iranian citizen was illogical. The parts of the DFAT report relied on by the Authority were irrelevant to the appellant's circumstances and therefore could not answer that question. 63 The Minister submitted that the Authority's conclusion on statelessness was not irrational because other factual matters relied on by the Authority (referred to above) were sufficient to support its conclusion. We reject that submission. It can be accepted that the Authority relied on a number of factual matters in reaching its conclusion on statelessness. However, it is apparent that, as part of its reasoning process, the Authority thought it necessary to consider the question of the legal process by which the appellant may have become an Iranian citizen. On the face of the Authority's reasons, that aspect of the Authority's reasoning process was essential to its conclusion on statelessness. That being the case, it is not open to ignore that aspect of the Authority's reasons. The legal unreasonableness in that finding undermined the Authority's conclusion on statelessness. 64 We therefore uphold appeal ground 2a.

Appeal ground 2b: demeanour findings 65 By appeal ground 2b, the appellant contended that the Authority acted in a way that was legally unreasonable by making adverse findings based on how the appellant "appeared" and on his "capacity to participate in interviews" in circumstances where the member had never seen the appellant in person. As we have upheld appeal grounds 1 and 2a, we will address this ground more briefly.

Background 66 The appellant's submissions on appeal ground 2b were focussed on the following two paragraphs of the Authority's reasons: 8. The applicant claims to have been severely emotionally and mentally affected by time in detention and prison. He stated that he has been told that there is nothing wrong with him, but he knows that he has been affected. He indicated at the conclusion of the protection visa interview that most of the time his mind was not focused and he did not understand things properly. He said he had such a difficult life that he was emotionally damaged. I note that the applicant appeared vague or forgetful during the interview, repeatedly answering 'I don't know' or 'I don't remember' to questions about his claims and his circumstances in Iran. It also appeared that he was unsure initially of the purpose of the interview. In submissions the applicant's representative referred to him as 'a traumatized man, who was most likely suffering from mental health issues' at the time of his arrival in Australia. 9. However, the applicant confirmed that he had not been diagnosed with a mental illness and apart from his and the representative's assertions, there is no evidence before me that the applicant suffers from any mental health or other condition impacting his capacity to participate in interviews or the quality of his evidence. In making my findings below I have taken into account the fact that the applicant has spent some time in prison and immigration detention, and the passage of time since the events he was asked to recall. However, I do not accept that the applicant was not capable of properly participating in the interview, or that his claimed difficulty in recollecting his experiences in Iran are [sic] attributable to mental health concerns.

Federal Circuit Court decision 67 The primary judge rejected the appellant's contention that it was legally unreasonable for the Authority to make the findings referred to in paragraphs 8 and 9 without interviewing the appellant in person (at [185] - [186]). His Honour concluded that it was permissible, and not legally unreasonable, for the Authority to make findings based on a transcript and audio recording of an interview before the delegate (at [182]). His Honour relied on the fact that the review process under Part 7AA generally required the review to be conducted "on the papers" (at [183]).

Appellant's submissions 68 The appellant submitted that the Authority's decision in this case relied on an analysis of the appellant's oral evidence. In that regard, the appellant referred to paragraph 8 of the Authority's reasons in which the Member stated that the appellant "appeared vague or forgetful during the interview" and that it "appeared that he was unsure initially of the purpose of the interview" and to paragraph 9 in which the Member rejected the notion that the appellant "was not capable of properly participating in the interview, or that his claimed difficulty in recollecting his experiences in Iran are attributable to mental health concerns". 69 The appellant argued that the Authority acted in a legally unreasonable manner because it made findings based on the appellant's demeanour or manner of giving evidence (in the interview with the delegate) without having observed the appellant give the evidence. Such findings could not be made without inviting the appellant to attend an interview so that the Authority could assess the appellant's demeanour for itself. The appellant relied on WZARH v Minister for Immigration and Border Protection (2014) 230 FCR 130 (WZARH) in which Flick and Gleeson JJ (Nicholas J agreeing) concluded that procedural fairness may require an applicant to receive an oral hearing in certain circumstances, including where the question of credibility may depend upon an assessment of the applicant's demeanour (at [8], [40]).

Minister's submissions 70 The Minister submitted that the appellant's reliance on WZARH failed to take proper account of the statutory scheme under Part 7AA. WZARH was an Independent Merits Review decision in which the Tribunal was obliged to provide the applicant with procedural fairness. The requirements of procedural fairness under Part 7AA differ and the Authority is generally required to review the delegate's decision without interviewing the referred applicant. 71 The Minister further submitted that the Authority's reasons at paragraphs 8 and 9 were not based on the appellant's demeanour, but were based on the substance of the questions and answers in the interview with the delegate which were able to be read and listened to by the Authority.

Consideration of appeal ground 2b 72 Appeal ground 2b proceeds from an incorrect premise. The Authority did not base its findings on the appellant's demeanour or manner of giving evidence in the interview with the delegate. Read in context, the Authority's conclusion in paragraph 8 that "the applicant appeared vague or forgetful during the interview" was not a finding about the appellant's demeanour but a finding of the content of the answers given by the appellant during the interview. That is made clear by the balance of the sentence in which the Authority explains that the appellant repeatedly answered questions with the statements "I don't know" or "I don't remember". 73 Nor did the Authority make an assessment of the appellant's mental health. At paragraph 9 of its reasons, the Authority recorded evidence before the delegate to the effect that the appellant had confirmed that he had not been diagnosed with a mental illness and that, apart from the appellant's assertions, there was no evidence that the appellant suffered from any mental health condition. On that basis, the Authority found that the appellant's claimed difficulty in recollecting his experiences in Iran was not attributable to mental health concerns. The Authority's reasoning did not involve the Authority making any mental health assessment of the appellant; rather, its reasoning was based on the evidence before the delegate. 74 We therefore reject the contention that the Authority's reasoning in paragraphs 8 and 9 is affected by legal unreasonableness and accordingly we dismiss appeal ground 2b.

Conclusion 75 In conclusion, we uphold appeal grounds 1 and 2a and dismiss appeal ground 2b. It follows that the order of the primary judge dismissing the application for review should be set aside and, in its place, a writ of certiorari issue quashing the decision of the Authority and a writ of mandamus issue requiring the Authority to make the decision again in accordance with law. The appellant should also have its costs of the proceeding before the Federal Circuit Court and this appeal. I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Bromberg, Davies and O'Bryan.