Conscious disregard of info, thus no apprehended subconscious bias?

Federal Court (Full Court). "Where it may be inferred that a Tribunal consciously determined not to have regard to extraneous and prejudicial information in making its decision, [does it necessarily follow] that the fair-minded lay observer would exclude the possibility that the Tribunal might have been subconsciously affected by that information"? In determining a claim of apprehended bias where the Secretary provided the Tribunal with irrelevant, but highly prejudicial, material in the context of Part 7 of the Migration Act 1958 (Cth), what is the knowledge attributable to the hypothetical fair-minded lay observer?

Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: Does SZMTA establish that "when the Secretary notified the Tribunal in writing under s 438(2)(a) of the Migration Act that s 438(1)(b) applied to certain information given to the Department on the basis, so it was said, that the information had been given in confidence, the Tribunal incurred an obligation of procedural fairness to disclose the fact of that notification to the applicant before it"?

Question 2: Does SZMTA establish that, where "the Secretary gave an invalid notification because the information to which the notification related was not in fact given in confidence as s 438(1)(b) required, the Secretary’s purported exercise of statutory authority was of no legal effect in relation to the information"?

Question 3: Can it be said that "SZMTA can also be accepted as authority for the proposition that, in the context of this inquiry, it should be accepted that: (1) the Tribunal would ordinarily treat the Secretary’s notification that s 438(1)(b) applies to information as sufficient for the Tribunal’s purposes; and (2) if it appears that the Tribunal has given no “active consideration to an exercise of discretion under s 438(3)”, there being no contrary indication in the Tribunal’s statement of reasons for its decision or otherwise in the evidence, it should also be accepted that the Tribunal has left that information out of account in reaching its decision"?

Question 4: "In assessing whether a breach of procedural fairness or a breach of “an inviolable limitation governing the conduct of the review” is material in the sense that there is a realistic possibility that the Tribunal’s decision could have been different had the breach not occurred", does "the difference between “consciously” taking into account prejudicial material and the “subconscious” effect of that material on the Tribunal’s decision-making" matter?

Question 5: Can it be said that, "where it may be inferred that a Tribunal consciously determined not to have regard to extraneous and prejudicial information in making its decision, it necessarily follows that the fair-minded lay observer would exclude the possibility that the Tribunal might have been subconsciously affected by that information"?

Question 6: If the answer to Question 5 is "no", does it follow that "an available inference that the Tribunal did in fact have regard to the extraneous information for the purposes of its decision is immaterial"?

Question 7: In the determining a claim of apprehended bias where the Secretary provided the Tribunal with irrelevant, but highly prejudicial, material in the context of merits review under Part 7 of the Migration Act 1958 (Cth), what is the knowledge attributable to the hypothetical fair-minded lay observer?

The FCAFC answered those questions as follows:

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