80 Section 359A provides:
"(1) Subject to subsection (2), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies - by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information."
81 The operation of ss 359A and 424A has been considered in a number of cases. In Carlos v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 719 at 725-726 [21] ("Carlos") I stated:
"The operation of s 424A of the Act, which is the counterpart of, s 359A in relation to the Refugee Review Tribunal (the RRT), has been considered in a number of cases. The following propositions can be taken to have established:
· The obligation to provide the information in question is enlivened when the tribunal forms the view that there is knowledge communicated about some fact or circumstance that is material to the review and is adverse to the applicant: see Naing v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 336 at [32]; Nader v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 548 at [58]-[59]; Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109; BC200004607 at [52]-[54]; Bhasani v Minister for Immigration and Multicultural Affairs [2000] FCA 1773; BC200007867 at [8]-[9];
· If information adverse to an applicant is relied upon in the reasons of the tribunal, a failure to have complied with the statutory requirements in respect of that information will found a ground of review: see Naing at [33];
· Untested assertions communicated to, or received by, the tribunal can constitute information irrespective of whether the information received is reliable or has a sound factual basis; thus, the section can apply when the tribunal has received information 'regardless of its source' if it considers the information would be a reason or part of the reason for affirming the delegate's decision: see Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 56 [18]-[20];
· The section is concerned with information of which the tribunal becomes aware, rather than with its subjective decision-making process: see Tin at [54]."
82 In Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 ("Al Shamry") Iobserved at 40 [39]:
"Section 424A does not require the RRT to provide to an applicant all of the information upon which it proposes to act, other than information provided by an applicant for the purpose of the review. Rather, the section requires the RRT to provide the applicant with 'particulars of any information' that the RRT considers would form part of its reason for refusing the application for review, to explain to the applicant why that information is relevant to the review and to invite a response to it."
83 In Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 ("Paul") at 427-428 [94] Allsop J (with whom Heerey J agreed) referred to the above passages stating:
"It is necessary to say something about s 424A. First, the word 'would' is used, not 'could'. I see no warrant to view the section as 'crystallising' or 'enlivening' any obligation merely because the Tribunal member in considering the matter forms the view that information could, or could possibly, be relevant to the determination of the claims. The Tribunal must give the particulars which have a certain character: particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision. It is not just a question of general adverse relevance. No time for compliance is identified. I have difficulty in seeing how there can be a failure to observe a procedure unless and until a decision is handed down without compliance with s 424A. To this extent I disagree with the views of Hill J in Naing v Minister for Immigration and Multicultural Affairs at 342 [32] and in Nader v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 352 at 366 [58] and [59] and of Merkel J in Carlos, and Al Shamry, as to the time of the obligation arising and their Honours' views of the general nature of the relevance of the information. If the Tribunal delivers its decision without complying with the requirement of s 424A, it will have failed to observe procedures laid down for it by the Act."
84 The difference between the views expressed in Carlos, Al Shamryand Paul may be a difference in form rather than substance. The summary of the principles in Carlos and Al Shamry offers guidelines to a tribunal to enable it to ensure that it has complied with ss 359A or 424A (as the case may be) when it hands down its decision. However, Allsop J is clearly correct in emphasising that a failure to comply with the requirements of those sections can only arise where the Tribunal considers that the information in question would, rather than could,be the reason or a part of the reason for affirming the decision under review. But it is more difficult to accept that the obligations in ss 359A(1) and 424A(1) are only enlivened when a decision is handed down without compliance with these sub-sections.
85 As I discussed in Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [21]-[22], the obligation to give particulars under ss 359A(1) and 424A(1) only arises when the Tribunal considers that information falling within the terms of the sections would be the reason or part of the reason for affirming the decision under review. In some cases the obligation under ss 359A(1) and 424A(1) may only be enlivened when the Tribunal has prepared and is ready to hand down its reasons. At that time the Tribunal will have determined that the information in question would form the reason or part of the reason for its decision. However, that need not always be the case. The Tribunal may form the view at an earlier stage that certain information adverse to an applicant would form part of its reasons for affirming the decision under review. If it forms that view it is required to comply with ss 359A(1) or 424A(1) in order to afford the applicant an opportunity to respond to that information prior to the Tribunal handing down its decision. While it is unlikely that a failure to comply with the sections could be ascertained until reasons for the decision are actually handed down, the obligation to give particulars of the relevant information is intended by the legislature to be discharged, and therefore it must have been enlivened, prior to the handing down of the Tribunal's reasons. If the position were otherwise the section could lose its utility.
86 Of course, the opinion that the information in question would be a reason for the decision is necessarily subject to the applicant's response to the particulars of the information given to the applicant pursuant to the sections. However, there is no anomaly in that view being taken of the operation of ss 359A(1) and 424A(1) as it gives effect to their obvious purpose, namely the opportunity by the applicant to respond to adverse information: see NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 ("NAAV") at 561 [457] per French J; and the Second Reading Speech to the Migration Legislation Amendment Bill (No 1) 1998 (Cth) (which introduced ss 359A and 424A), Hansard, House of Representatives, 2 December 1998 at 1123. Further, as was observed by Lord Diplock in "The Courts As Legislators" The Lawyer and Justice 1978 at 274:
"if … the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed".
87 I need not pursue the above matters further as the time at which the obligation under s 359A(1) is enlivened is not an issue in the present case as it is not in dispute that the Tribunal did not give particulars of the earlier inconsistent statements to the respondent. It is also not in dispute that the information is specifically about the respondent and is not "non-disclosable information", as defined in s 5 of the Act. Further, having regard to the decision of the Full Court in Al Shamry that the exclusion in s 424A(3)(b) (and it must follow s 359A(4)(b)) in respect of information that an applicant gave "for the purpose of the application" is a reference to information that the applicant gave for the purpose of the application for review by the particular Tribunal (see Al Shamry at 33-34 [17] and 38-39 [35]), it is clear that the prior inconsistent statements relied upon by the Tribunal in the present case were not given "for the purpose of the application".
88 However, senior counsel for the Minister contended that s 359A(1) was not contravened because the Tribunal arrived at its conclusion that the respondent was not a genuine student independently of its adverse credibility finding. Thus, so it is argued, the credibility finding was not a reason for the decision. I do not accept that contention. The issue of whether the respondent is "a genuine applicant for entry and stay as a student" will usually, as was the situation in the present case, involve findings as to the credit of an applicant. As explained above, on a fair reading of the Tribunal's reasons it is clear that the adverse credit finding was a reason or part of the reason for the Tribunal affirming the decision of the delegate.
89 The circumstances in the present case are analogous to those in Al Shamry,where the Refugee Review Tribunal's decision was set aside because of a failure to comply with s 424A. Al Shamry concerned discrepancies between an applicant's airport interview and later statements of the applicant which led the Tribunal to make an adverse finding as to credit which, together with other matters, resulted in the Tribunal not accepting the applicant's claim. The Tribunal was found to have breached s 424A(1) by not giving to the applicant particulars of the relevant statements.
90 In my view, the primary judge was correct in concluding that the Tribunal failed to comply with s 359A(1).
Section 474
91 The main issue on the appeal concerned the reconciliation of the mandatory requirement in s 359A(1) with s 474 of the Act, which provides:
"(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)."
92 In Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24 ("Plaintiff S157/2002") the High Court considered whether s 474 was inconsistent with s 75(v) of the Constitution and, if so, invalid. In concluding that there was no inconsistency, in their joint judgment Gaudron, McHugh, Gummow, Kirby and Hayne JJ made a number of observations concerning reconciling s 474 with the procedural requirements laid down by the Act. Their Honours stated at 44 [69] - [70]:
"Although s 474 does not purport to effect a repeal of statutory limitations or restraints, it should be noted that it may be that, by reference to the words of s 474, some procedural or other requirements laid down by the Act are to be construed as not essential to the validity of a decision. However, that is a matter that can only be determined by reference to the requirement in issue in a particular case.
Of course, the process of reconciliation elaborated by Dixon J in Murray which may result in some procedural or other requirement being construed as not essential to the validity of an act or decision, is necessary only if there is an apparent conflict between the provisions which impose those requirements and the privative clause in question. Thus, if reliance is placed on a privative clause, the first step must be to ascertain its meaning or, as Dixon J put it in Murray, to ascertain 'the protection it purports to afford'." [Footnotes omitted]
and at 45-46 [76] - [78]:
"Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression 'decision[s] ... made under this Act' must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is 'regarded, in law, as no decision at all'. Thus, if there has been jurisdictional error because, for example, of a failure to discharge 'imperative duties' or to observe 'inviolable limitations or restraints', the decision in question cannot properly be described in the terms used in s 474(2) as 'a decision ... made under this Act' and is, thus, not a 'privative clause decision' as defined in ss 474(2) and (3) of the Act.
To say that a decision that involves jurisdictional error is not 'a decision ... made under [the] Act' is not to deny that it may be necessary to engage in the reconciliation process earlier discussed to ascertain whether the failure to observe some procedural or other requirement of the Act constitutes an error which has resulted in a failure to exercise jurisdiction or in the decision-maker exceeding its jurisdiction.
The effect of s 474 is to require an examination of limitations and restraints found in the Act. There will follow the necessity, if s 474 is constitutionally valid and if proceedings are brought by the plaintiff in accordance with the draft Order Nisi, to determine, in those proceedings, whether, as a result of the reconciliation process, the decision of the Tribunal does or does not involve jurisdictional error and, accordingly, whether it is or is not a 'privative clause decision' as defined in s 474(2) of the Act." [Footnotes omitted]
93 In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1, Gaudron and Kirby JJ stated at 18 [79] - [81]:
"As explained in Plaintiff S157/2002 v The Commonwealth of Australia, it is necessary, if there is apparent conflict between a privative clause and a statutory provision imposing limitations or restraints upon jurisdiction or power, to attempt a reconciliation of those provisions. It is not necessary that a reconciliation be effected. Indeed, a reconciliation with the particular provision in question may be impossible, as will be the case if, for example, it imposes an 'inviolable' jurisdictional restraint. However, if reconciliation is possible, the provision pursuant to which the act in question has been done or the decision taken will be construed so that observance of specified requirements or restraints is not essential to the validity of that act or decision.
It may be that there is no insuperable difficulty in reconciling a particular provision with s 474 of the Act in the case of a power to do some act or to make some decision that involves a significant discretionary element or in respect of which there is no detailed specification as to matters that must be satisfied before a particular act is done or a particular decision taken. In such a case it may be possible to construe the provision governing that act or decision as one which does not impose restraints or limitations which must be observed if the act or decision is to be valid.
On the other hand, reconciliation of a particular provision with s 474 of the Act is very difficult, if not impossible, if, as in the case of s 65(1) of the Act, there is detailed specification of conditions which must be satisfied before a particular act can be done or a particular decision taken and there is also prescription of the precise act that must be done or the precise decision that must be reached if the specified conditions are met." [Footnotes omitted]
94 In endeavouring to ascertain whether s 359A(1) can be reconciled with s 474 it is necessary to consider whether s 359A(1) imposes a duty on the Tribunal or a limitation or restraint on its powers which, if breached, will result in invalidity, or whether observance of those duties, limitations or restraints is not essential to the validity of the decision. While the decisions have referred to "imperative duties" and "inviolable limitations or restraints" those terms merely emphasise that observance of the duty, limitation or restraint is essential to the validity of the decision.
95 It is in that context the role of s 359A(1) is to be considered. Div 3 of Pt 5 of the Act provides for the "Review of decisions by Migration Review Tribunal", which are decisions in respect of visas (other than protection visas) that satisfy the criteria in s 338. Section 348 provides that the Tribunal "must review the decision" if an application for review is properly brought in respect of a decision under s 347. The conduct of the review is provided for in the procedural and machinery provisions set out in Div 5 of Pt 5. Some of the provisions provide for the applicant for review or the Tribunal to take particular steps in relation to the review (see for example, ss 358, 359, 361, 362 and 366). Other provisions create entitlements in favour of an applicant (see for example, s 362A) or confer powers on the Tribunal (see for example, ss 363, 364).
96 I considered the role of s 424A in the context of a merits review by the Refugee Review Tribunal of decisions in respect of protection visas in Al Shamry at 40 [39] - [40], in a passage which Ryan and Conti JJ concurred at 34 [20]:
"s 424A enacts a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise: see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah(2001) 75 ALJR 889 at 912; 179 ALR 238 at 269 per McHugh J. By enacting s 424A and its counterparts elsewhere in the Act, the legislature has accepted that fairness dictates that an opportunity must be provided to applicants for visas or for review to respond to, or deal with, the adverse information.
An applicant for a protection visa will have provided information relevant to the outcome of the application prior to applying for the review of a delegate's decision. Such information may, in some cases, have been provided prior to the application for a visa. The prescribed application form requires that the basis for the application be stated. Further, the information given may be supplemented by information provided subsequently to the Department or to the delegate of the Minister. An applicant may have no record of the information provided but, more importantly, may not be aware of its significance to the review ultimately to be conducted by the RRT. It is therefore understandable that the legislature would require that, in fairness, any adverse information provided prior to review, the significance of which the applicant may be unaware, be disclosed to the applicant to enable him or her to respond to it. That approach has particular importance in the context of the inquisitional and non-adversarial nature of proceedings before the RRT: see Paramananthan v Minister for Immigration and Multicultural Affairs(1998) 94 FCR 28 at 62-63."
The same observations apply to the role of the Tribunal under s 359A.
97 The non-adversarial and inquisitorial nature of the review conducted by the Tribunal is significant: see for example Minister for Immigration and Multicultural Affairs v Wang (2003) 196 ALR 385 at 389 [12], 390 [18], 394 [37] and 403 [71]. It is inherent in the nature of such a review that, unbeknown to an applicant, the Tribunal will acquire information that may be adverse to the applicant's claim. In enacting s 359A(1) the legislature required that, unless the information falls within s 359A(4), particulars of it must be given by the Tribunal to the applicant if the information would be a reason for making an adverse decision. Plainly, s 359A(1) plays a critical role in securing procedural fairness in the decision-making processes of the Tribunal.
98 It is now well established that a failure to accord procedural fairness in respect of a decision provided for in the Act in relation to a visa can result in the decision being made in excess of jurisdiction for the purposes of s 75(v) of the Constitution: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 ("Aala") at 89, 91, 130-131, 143 and 156. The High Court has also held that the Act, prior to the enactment of s 474, did not manifest an intention to exclude the rules of natural justice in respect of decisions of the Minister or his delegate concerning visas: see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 ("Miah") at 75, 83-85 per Gaudron J, 97-98 per McHugh J and 111-115 per Kirby J; cf 73-75 per Gleeson CJ and Hayne J. Plainly, on the reasoning of the majority in Miah the same conclusion would be reached in respect of decisions of the Tribunal (and the Refugee Review Tribunal) reviewing decisions of the Minister or his delegate: see WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220 at [52]-[56]; cf WAAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 409 at [36].
99 In Plaintiff S157/2002 it was accepted that s 474 does not operate to exclude the rules of natural justice or to validate a decision made in breach of those rules. In the joint judgment at 47 [83] their Honours stated:
"Because, as this Court has held, the constitutional writs of prohibition and mandamus are available only for jurisdictional error and because s 474 of the Act does not protect decisions involving jurisdictional error, s 474 does not, in that regard conflict with s 75(v) of the Constitution and, thus, is valid in its application to the proceedings which the plaintiff would initiate. The plaintiff asserts jurisdictional error by reason of a denial to him of procedural fairness and thus s 474, whilst valid, does not upon its true construction protect the decision of which the plaintiff complains. A decision flawed for reasons of a failure to comply with the principles of natural justice is not a 'privative clause decision' within s 474(2) of the Act."
Gleeson CJ stated at 36 [37] - [38]:
"The principles of statutory construction stated above lead to the conclusion that Parliament has not evinced an intention that a decision by the Tribunal to confirm a refusal of a protection visa, made unfairly, and in contravention of the requirements of natural justice, shall stand so long as it was a bona fide attempt to decide whether or not such a visa should be granted. Decision-makers, judicial or administrative, may be found to have acted unfairly even though their good faith is not in question. People whose fundamental rights are at stake are ordinarily entitled to expect more than good faith. They are ordinarily entitled to expect fairness. If Parliament intends to provide that decisions of the Tribunal, although reached by an unfair procedure, are valid and binding, and that the law does not require fairness on the part of the Tribunal in order for its decisions to be effective under the Act, then s 474 does not suffice to manifest such an intention.
It follows that, in my view, if the Tribunal's decision in relation to the plaintiff was taken in breach of the rules of natural justice, as is alleged, then it is not within the scope of protection afforded by s 474. It is not, relevantly, a decision to which s 474 applies."
100 Underlying the above observations in the joint judgment and in the judgment of Gleeson CJ is the rule of construction that privative clauses are to be strictly construed (see 34-35 [29]-[33] of the judgment of Gleeson CJ and 44 [72] of the joint judgment). Further, the courts do not impute to the legislature an intention to abrogate fundamental rights unless such an intention is clearly manifested by unmistakable and unambiguous language (see 34 [30]). Thus, plain words of necessary intendment are required if a statute is to be taken to exclude the rules of natural justice in relation to decisions by a public officer that may defeat or prejudice a person's rights, interests or legitimate expectations: see Annetts v McCann (1990) 170 CLR 596 at 598 and Miah at 93 per McHugh J. Further, in the Act where the legislature intends to exclude the rules of natural justice in respect of a decision under the Act it has said so: see for example s 501(5) of the Act.
101 As explained above, s 359A(1) enacts an important aspect of the rules of natural justice, albeit in a somewhat more restricted form. For example, the rules of natural justice require disclosure of adverse information that could, rather than would, be prejudicial: see Kanda v Government of the Federation of Malaya [1962] AC 322 at 337 and Kioa v West (1985) 159 CLR 550 at 603, 629, 634. The observations to which I have referred in Aala, Miah and Plaintiff S 157/2002; the more restricted form of s 359A(1); its mandatory nature and its central importance in ensuring a fair review by the Tribunal; afford strong reasons for not construing s 474 as manifesting a legislative intent that a decision made in contravention of the requirements of s 359A(1) is validated by s 474. The above matters have led me to conclude that s 474 does not manifest a legislative intent that a decision made without compliance with s 359A(1), irrespective of how unfair that may have been, is nonetheless a valid decision.
102 For the above reasons the primary judge was correct in concluding that s 359A(1) imposes an imperative duty on the Tribunal and an inviolable limitation on its powers of review. Put another way, s 474 does not have the consequence that observance of s 359A(1) is not essential to the validity of the Tribunal's decision. It must follow that the decision made by the Tribunal in breach of s 359A(1) is invalid and the primary judge's declaration to that effect was properly made.
103 I have not made reference to or relied upon the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) as the Tribunal's decision was made before the commencement of this Act: see s 7(5). While the operation of the amending Act is yet to be determined it is clear that the legislative intent was to treat the statutory provisions enacting aspects of the natural justice hearing rule as exhaustive of the requirements of that rule. If the amending Act was to the effect that ss 359A and 424A is a code in respect of the Tribunal's obligation to inform an applicant of adverse information, that would reinforce the conclusions at which I have arrived.
104 Brief reference should be made to the decisions of the Full Court in NAAV. Although the five cases considered by the Full Court did not involve ss 359A or 424A the majority view was that s 474 operated to validate a decision that involved a failure to accord procedural fairness. Plainly, that decision cannot stand in the light of Plaintiff S157/2002: see SBBG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 121 at [19]. Similarly, dicta in NAAV to the effect that s 474 would validate decisions made in breach of those sections unless the Hickman conditions were satisfied (see Beaumont J at 486 [116] - [119] and von Doussa J at 623 [672]; cf French J at 586-588 [532] - [536]) are inconsistent with the reasoning in Plaintiff S157/2002.
105 Finally, if I am wrong in my view that the decision is invalid by reason of the failure to comply with s 359A(1) that would raise the question of whether it is invalid in any event on the ground that there was a failure by the Tribunal to accord procedural fairness to the respondent: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 at [31]. In view of the conclusion I have reached it is unnecessary to consider that question.
Discretion
106 The Minister contended the Court should exercise its discretion to refuse relief as the breach of s 359A(1) was merely technical and did not affect the outcome. Generally, relief for a failure to comply with a requirement of procedural fairness is withheld only where the Court concludes that compliance with the requirement "could have made no difference": see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. As was noted in Bax v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 55 at [18] such an outcome will be a rarity and it is no easy task to convince a court to adopt it. While the above observations were made in relation to refusal of relief where there has been a failure to comply with the common law requirements in respect of procedural fairness I see no reason for not applying them to the failure to comply with s 359A(1) that has occurred in the present case.
107 As explained earlier in these reasons the failure to comply with s 359A(1) related to matters concerning the respondent's credibility, which was critical to the decision of the Tribunal against the respondent. In those circumstances I am not satisfied that compliance with s 359A(1) "could have made no difference". Thus, the Minister has not established that the trial judge erred in not exercising his discretion to dismiss the application notwithstanding the Tribunal's failure to comply with s 359A(1). Accordingly, I am not satisfied that the trial judge erred in concluding that he should not exercise his discretion to refuse relief.
Conclusion
108 For the above reasons it is my view that the appeal is to be dismissed with costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.