Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23

Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 | Case summary | Zoe

The kind of suspicion presently relevant is one based, not upon interest, or relationship, or association, but upon a form of prejudgment, or predisposition[9], or, to use the words of Dawson J, "preconceptions existing independently of the case."[10]
There is a question as to the extent to which the common law rules of natural justice, or procedural fairness, applied to the Tribunal when it made the decision in question. Since the present proceedings are brought in this Court under s 75(v), that should not be confused with the question of the limits of the power of the Federal Court to review a decision of the Tribunal[11].
Part 7 of the Act deals with review of protection visa decisions. It empowers the Tribunal to review, amongst others, decisions of the kind made by the Minister's delegate in September 1996 in relation to the applicant. Divisions 3, 4, 5 and 7, of Pt 7, in the form in which they stood at the relevant time, governed the conduct of the Tribunal. The Tribunal's procedures were, and are, inquisitorial rather than adversarial in nature. Proceedings before the Tribunal do not take the form of litigation between parties. If the Tribunal varies or sets aside the decision under review, the decision as varied or substituted is taken to be the decision of the Minister. Section 420 of the Act requires the Tribunal to act according to the substantial justice and the merits of the case. Hearings are in private (s 429). The Tribunal is empowered to take evidence on oath or affirmation (s 427) and must give reasons for its decision (s 430). Part 8 of the Act provides for review of the Tribunal's decisions by the Federal Court. At that stage, the proceedings become adversarial in nature.
At the relevant time, ss 423, 425, 426, 427 and 438 contained various provisions as to what the Tribunal was, and was not, required to do in the course of a review. For example, s 425(1)(a) required the Tribunal, subject to a presently irrelevant qualification, to give an applicant an opportunity to appear before it to give evidence. Section 467 required a Tribunal member who had a conflict of interest to make disclosure, and prohibited the member from conducting a review without consent.
Part 8 of the Act, dealing with review of decisions by the Federal Court, included the following provision:

The validity of that provision was upheld in Abebe. It is to be noted, however, that it defines and limits the jurisdiction of the Federal Court; not of this Court.
The practical content of the requirements of natural justice, or procedural fairness, in the case of the operations of the Tribunal is affected both by the non-adversarial form of its procedures, the nature of the matters it is required to consider in coming to a decision, and the legislation which in some respects directly modifies those requirements. However, s 476(2)(a) is a provision about the jurisdiction of the Federal Court; read either alone or together with s 476(1)(g) it does not affect the capacity of this Court to exercise its constitutional jurisdiction. Nor does it, either expressly or by implication, produce the result that ostensible bias leaves the Tribunal's decision-making unaffected. The kind of conduct on the part of the Tribunal that might give rise to a reasonable apprehension of bias needs to be considered in the light of the Tribunal's statutory functions and procedures. Conduct which, on the part of a judge in adversarial litigation, might result in such an apprehension, might not have the same result when engaged in by the Tribunal. That is another matter.
It was submitted for the first respondent that the provisions of Pt 7 of the Act, at the relevant time, were sufficiently comprehensive in their prescription of the procedures to be followed by the Tribunal as to exclude, by necessary intendment, the need to comply with any other requirements of procedural fairness and, in particular, with the requirements concerning bias. This submission must be rejected, at least in so far as it relates to bias, actual or apprehended. The consequences of such a legislative intent are far-reaching. In the case of actual bias, s 476(1)(f) negates such a purpose. It being obvious that there is no such purpose in relation to actual bias, the existence of such a purpose in relation to apprehended bias would need to be made plain. No such purpose appears.
There was also an argument as to whether conduct after a decision could be relied upon to make out a case of apprehended bias. In theory, there is no reason why not. In practice, a substantial interval between such conduct and the decision might make the case harder to establish.

Mr Faustin Epeabaka ("the applicant") seeks orders quashing the decision of the Tribunal, constituted by a former member, Dr Rory Hudson, and addressed to the Minister for Immigration and Multicultural Affairs ("the Minister"). The Tribunal, by that name, submitted to the orders of this Court, although it is not a body corporate but rather a body constituted by its individual [present] members[20]. The Minister resists the applicant's entitlement to relief.
The proceedings have an extensive history. Both before the delegate of the Minister and the Tribunal, the applicant failed to establish his entitlement to a protection visa as a "refugee"[21] under the Migration Act 1958 (Cth) ("the Act"). However, he did succeed at first instance in the Federal Court of Australia[22] which ordered that the decision of the Tribunal be set aside and that the matter be remitted for redetermination by a differently constituted Tribunal. On appeal, that order was itself set aside by the Full Court of the Federal Court[23].
The substantive issues litigated in the Federal Court are not directly relevant to the question agitated in these proceedings. This is because the argument that has concerned this Court, namely that Dr Hudson was disqualified from deciding the matter by reason of ostensible bias, did not occur to the applicant until the publication of the reasons of Heerey J in Ferati v Minister for Immigration and Multicultural Affairs[24]. That decision, raising similar issues on almost identical facts, was announced approximately two weeks before the Full Court's decision was delivered in the applicant's case. But even if Ferati had been noticed, and its holding raised in time before the Federal Court, the jurisdiction of that Court is limited by the Act. Relevantly, it may only review an administrative decision on the ground that such decision "was induced or affected by ... actual bias"[25]. Although, at times, the allegations of the applicant appeared to come close to suggesting actual bias on the part of Dr Hudson, as ultimately framed, they contended no more than imputed, apparent or ostensible bias. They suggested that the parties or the public might, in the facts proved, entertain a reasonable apprehension that Dr Hudson, in making the Tribunal's decision concerning the applicant, might not have brought an impartial and unprejudiced mind to the resolution of the case[26].
The basis for the imputed bias alleged in this Court was the contents of a home page, which Dr Hudson published on the Internet. This publication concerned his experience as a member of the Tribunal, his attitudes to the general issue of refugees, to the laws and practices affecting them and to the evidence they commonly gave before the Tribunal. Relevant extracts from the home page appear in the reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ ("the joint reasons")[27]. I will not repeat them.
Singled out for special attention by Heerey J in Ferati were Dr Hudson's remarks that applicants for refugee status (of whom Mr Ferati, like the applicant, was one) often "lie through their teeth" and "weave webs of lies". Heerey J was of the opinion that such remarks had "hopelessly compromised" Dr Hudson by revealing publicly a preconception that existed independently of a particular case[28]. In such circumstances, according to Heerey J, an applicant approaching the Tribunal, constituted by Dr Hudson, "would regard him or herself as starting behind scratch"[29]. This was, in his Honour's view, a position that "no asylum seeker could reasonably be expected to accept"[30].
Although the home page was not published by Dr Hudson until 21 October 1997, ten months after the decision concerning the applicant, it was submitted that the views there expressed portrayed an attitude derived during Dr Hudson's entire service as a member of the Tribunal. It was therefore to be attributed to him as reflecting opinions held by him at the time that the impugned decision was made. The applicant argued that he was entitled to have his application determined by a Tribunal that was manifestly impartial. He sought from this Court the same relief as Heerey J had provided in Ferati. Although, in that case, Heerey J had rejected the suggestion of actual bias, he considered that the "clear case of apprehended bias" disclosed by the evidence amounted to a failure to act in accordance with the requirements of the Act. In providing relief, notwithstanding the lack of proof of actual bias, his Honour followed the authority of the Federal Court[31], which has since been reversed by this Court[32]. However, that matters not in these proceedings and Heerey J's finding of fact remains to be invoked by the applicant.

The Minister's first preliminary objection: The Minister took two preliminary, or jurisdictional, objections relevant to the relief available in this Court to a person in the position of the applicant. He submitted first that the provisions of the Act, governing the conduct of review by the Tribunal codified, and exhaustively provided for, the procedural requirements binding the Tribunal in making decisions concerning applications for refugee protection visas (such as that concerning the applicant). As such, those provisions did not expressly or impliedly require the Tribunal, in the conduct of its review, to comply with the common law rules of natural justice. Alternatively, it was submitted that the codification of these procedural requirements excluded the operation of the common law rules.
On either of the foregoing arguments, the Minister contended that the common law rules of natural justice were inapplicable to the Tribunal. To the extent that the rules of natural justice included the requirement that a decision‑maker should not, at the time of decision, be affected by ostensible bias (as distinct from actual bias), such a requirement was not, so it was said, part of the law governing the Tribunal. Even if it could be shown that, for a particular decision, the Tribunal was constituted by a member who displayed ostensible bias towards the parties or the issues, this would not invalidate the Tribunal's decision. It would give rise to no legal redress either in the Federal Court or in this Court. At most, it could give rise to political complaint or to a request to the Minister to exercise his residual discretion[35]. But the decision of the Tribunal would remain valid and legally binding.
This is such an astonishing submission that it is as well to make it clear that I reject it. However, out of fairness to the careful way in which the argument was presented, I will outline how it was developed and why it fails.
Arguments of the Minister: First, reliance was placed upon the collection of mandatory procedural requirements contained in Pt 7 of the Act. Those requirements are binding on the Tribunal in the conduct of the review of protection visa decisions. They included:

s 423: providing the applicant with an entitlement to give the Registrar of the Tribunal a statutory declaration on matters of fact and written arguments in relation to the decision under review;
s 425: providing, relevantly, for the Tribunal to give the applicant an opportunity to appear before it to give evidence and present arguments, and to obtain other evidence as considered necessary;
s 426: requiring notification to the applicant of the right to appear before the Tribunal;
s 426: entitling the applicant, upon giving notice, to request that the Tribunal call other persons to give evidence but relieving the Tribunal of an obligation to obtain evidence suggested by the applicant;
s 427: providing for the giving of information to an applicant and for the conduct of such investigations or medical examinations that the Tribunal thinks necessary;
s 427(6): removing a right to be represented before the Tribunal or to examine or cross-examine other persons;
s 438: empowering the Tribunal to have regard to matters contained in documents or information which may or may not be disclosed to the applicant; and
s 467: requiring a member of the Tribunal to disclose to the applicant any conflict of interest in relation to a review and, in that case, not to take part in the review or exercise powers under the Act unless the applicant and the Principal Member of the Tribunal consent[36].

There is no express general exemption in Pt 7 of the Act from a duty to observe the requirements of the rules of natural justice. Such express exemptions now appear elsewhere in the Act[37]. Nevertheless, the description of the procedural requirements as a "code", the terms of the Minister's Second Reading Speech in support of the Bill[38] which introduced many of the relevant procedures into the Act[39], the Explanatory Memorandum that accompanied the Bill[40] and the contents of Pt 7 of the Act all indicate, clearly enough, a legislative purpose to regulate, by express provision, the way in which the Tribunal would conduct its review jurisdiction. At least to the extent that the legislation deals with matters such as procedural fairness, the common law rules that might otherwise have applied to the exercise by the Tribunal of its jurisdiction are replaced by the express requirements of the detailed statutory scheme[41].
Secondly, the Minister drew attention to the provision in s 476 of the Act. This section removes from the grounds of judicial review, upon which an application might be made to the Federal Court, a ground "that a breach of the rules of natural justice occurred in connection with the making of the decision". It also limits review in that Court, relevantly, to a ground alleging "actual bias" on the part of the decision-maker. Whilst these provisions do not purport to control the jurisdiction or powers of this Court, they evidence (so it was put) a purpose of confining judicial review of Tribunal decisions, in effect, to those in which actual bias can be established or where bias of the kind expressly dealt with in s 467 of the Act (concerning disclosure of conflicts of interest) can be made out. Outside such circumstances, so it was submitted, this Court, when invited in the exercise of its constitutional jurisdiction to review decisions of the Tribunal for ostensible bias on the part of a Tribunal member, would withhold relief.
To the extent that I understood this argument, it appeared to suggest that this Court, in providing constitutional relief, would take into account the way in which the Parliament had expressly determined the content of natural justice as it applied in the Tribunal[42]. This Court would therefore not defy valid federal legislation regulating the proceedings in the Tribunal. On the contrary, it would confine any relief available under the constitutional writs to cases where jurisdictional error was shown by reference to the jurisdiction which the Tribunal actually enjoyed, not to rules of the common law effectively excluded by the enactment of the detailed procedural code.
Thirdly, the Minister submitted that, if the rules of natural justice relating to imputed bias were not excluded by the detailed provisions of the Act (as primarily argued), the statutory provisions at least narrowed the operational content of the rules. In particular, they had this effect because of the inquisitorial character of the review conducted by the Tribunal. It was suggested that natural justice rules, applicable to a court or a body conducting its proceedings according to adversarial procedures, were substantially modified in the case of an administrative decision-maker like the Tribunal. Such a person was entitled (perhaps expected) to gather information informally from many sources and to keep up to date with a vast range of information. Administrators were not confined to the more formal procedures of a court where contested material facts would normally be ignored unless proved[43]. According to this branch of his argument, the Minister submitted that the Tribunal was more like an administrative decision-maker of the ordinary kind than a formal court-like body.

Because the limiting provisions in s 476 are confined, in terms, to proceedings in the Federal Court and to "grounds" available in such proceedings, it would be contrary to their terms, and to principle, for this Court to exercise its own powers under s 75(v) of the Constitution by reference to the provisions of s 476 of the Act[56]. The latter does not even purport to govern this Court. As properly acknowledged by the Minister, even if it attempted to do so, such a provision could not control the discharge by this Court of its constitutional jurisdiction. Neither as a matter of power nor as a matter of discretion are the limitations imposed by the Parliament on the Federal Court relevant to the scope and exercise of the jurisdiction and powers which the applicant has invoked in this Court. The second argument of the Minister is likewise rejected.
Thirdly, I do not consider it necessary or helpful, in this case, to decide whether the Tribunal can be classified as "inquisitorial", as some have considered it[57], or "adjudicative" or "investigative". Such labels may have a tendency to mislead. What is important is that the Tribunal is "established", as such, by federal law[58]. It consists of members who are appointed by the Governor‑General[59]. The Tribunal is obviously intended to act independently of the delegates whose decisions it reviews and of the Minister who gives effect to the Tribunal's determinations.
The Tribunal enjoys very considerable power over individuals who come within its jurisdiction. In the nature of that jurisdiction, its exercise will sometimes affect the welfare, and even the lives, of the persons involved and possibly those associated with them. The requirements of natural justice in a particular case may vary in accordance with considerations such as the functions and independence of the relevant decision-maker and the importance of the decisions which that person makes[60]. By such criteria, members of the Tribunal are, and are expected to be, persons who approach their functions free from disqualifying bias. They are intended to perform those functions in compliance with lawful procedures. The procedures which the Parliament has spelt out in its "code" (in some respects going beyond the requirements of the common law) would be a charade if the persons discharging those functions were irretrievably biased in fact, or if they appeared to be such to the parties or the ordinary, reasonable member of the community.
It can therefore be assumed that the Parliament intended members of a body such as the Tribunal to be free of actual and ostensible bias. Otherwise public confidence in the decisions of the Tribunal would be shaken and applicants for refugee status, and those associated with them, would be left with a deep sense of grievance. This conclusion is further reinforced by the fact that, effectively, save for a residual discretion of the Minister, the Tribunal is the final decision-maker on disputed questions of fact and on contests about credibility and the merits[61]. Appeals to the Federal Court and applications to this Court are limited to legal questions. They do not provide a means to substitute decisions on the facts for those found by the Tribunal[62].
In some ways, the freer hand given to an independent member of the Tribunal, to secure information and to use it without necessarily disclosing it to the person affected, imposes practical requirements of manifest impartiality greater than in the case of judges and like decision-makers. Judicial office is controlled by centuries of tradition. Judges are obliged to sit in public. They are required to accept the legal representatives of the parties. They are controlled by settled procedures and rules of evidence. Their orders are reviewable by superior courts. If members of the Tribunal are authorised to act in some respects by inquisitorial procedures, that fact does not, of itself, exempt them from the rules of natural justice prohibiting bias.
This last point has been firmly established by the Supreme Court of Canada in an analogous case. In Newfoundland Telephone Co v Board of Commissioners of Public Utilities[63], Cory J, delivering the reasons of that Court, said:

The Minister's second preliminary objection: The Minister had a second preliminary objection. He argued that the time for determining whether there was an appearance of bias was the time of the conduct of the review before the Tribunal or, at the latest, the time of the decision. It was submitted that, if the rule against imputed bias were extended to include the conduct of proceedings and the making of decisions by judicial officers and tribunal members months or possibly years before the disqualifying conduct relied on, two undesirable consequences would flow. The first was that a serious potential to invalidate decisions would be established. Particularly because the suggested flaw was said to be one that deprived the decision-maker of jurisdiction, it was submitted that this would be contrary to principle. It would involve determining such a question by reference to facts alleged to have a retrospective operation. Secondly, such an approach was also said to be incompatible with the fundamental purpose of disqualification for actual or imputed bias. That purpose is to uphold the integrity of the relevant decision-making process as perceived both by the parties and by the impartial and reasonable observer. If a rule permitting retrospective invalidation were adopted, it was argued, this would effectively remove the incentive which the law should impose upon parties, who wish to raise objections of this kind, to do so before or during proceedings, at the earliest time, so as to avoid the injustice to others and needless cost to the public involved in persisting with a futile hearing.
Later statements may suggest earlier bias: I agree that such considerations are relevant to the decision which a court will make when faced with a belated allegation, relying on later events, that a formal decision-maker is disqualified for bias. Because people change their minds, abandon old preconceptions or embrace new ones, proof that prejudice existed at one time will not necessarily establish that it existed at an earlier or later time when the person concerned was discharging a decision-making function. Depending on the preconceptions that are proved, and the passage of time involved, it will often be impossible to prove that the suggested attitude existed at an earlier, or later, moment. Furthermore, the serious responsibility of adjudication ordinarily expects that personal predilections will be kept in tight rein. Opinions recorded before, or after, a person held the office of a public decision-maker may, depending on the circumstances, be such as to be discounted, or put to one side, when evaluating what that person did, or said, when discharging such functions.
In the present case none of these considerations warrants upholding this second preliminary objection of the Minister. At the time of publishing his home page, Dr Hudson was still a member of the Tribunal. The time between that publication and the decision concerning the applicant was 10 months. It was not suggested that anything had occurred in that interval to alter Dr Hudson's views or to warrant a conclusion that the opinions expressed were lately formed and did not represent the opinions held by him when he rejected the applicant's application for review. On the contrary, the terms in which the home page is expressed suggest that the views stated amounted to considered opinions, drawn from the extensive professional experience recorded in the publication. Such experience predated Dr Hudson's appointment to the Tribunal. The character and subject matter of the published views therefore represented a statement of deeply felt personal attitudes, operative at the relevant time.
In these circumstances, whatever may be the situation in other cases where the facts are different, it would certainly have been open to the hypothetical bystander to derive from the published home page an opinion that the views there expressed existed before, and at the time, of Dr Hudson's decision concerning the applicant. The Minister's second preliminary objection is therefore rejected.

Considerations suggesting ostensible bias: I acknowledge that there are a number of considerations that support the applicant's submission that Dr Hudson was disqualified for ostensible bias of an impermissible kind and degree.
First, there is the unusual feature of this matter which most applicants before the Tribunal would not have faced. That feature is not so much that Dr Hudson had a personal home page on the Internet (something that may become unremarkable in years to come[76]). Nor was it the fact that he referred, in his home page, to his statutory office and to refugee law. What was unusual was that, in that discussion, he made direct remarks concerning a matter which is usually at the heart of the exercise of the Tribunal's jurisdiction. He did so in terms that could be read as derogatory of the majority (or at least many) of the applicants for refugee status.
The existence of electronic communication of ideas, and the discussion by judges and tribunal members of issues relevant to their vocations, is less shocking today than it would have been in earlier times. Then it would have been unthinkable. Now, prudently performed, it may contribute to a more informed understanding of matters of legitimate community concern, a better appreciation of professional issues relevant to the administration of justice and greater transparency in government generally.
According to the applicant, however, Dr Hudson went beyond these legitimate activities. He displayed a "bent of mind"[77]. This, it was argued, was incompatible with the impartial performance of his functions as a member of the Tribunal. He was not obliged to reveal his mind in such an ample and candid way. But having done so, what he had written was available to raise real concerns for the parties and the public. Moreover, it placed the applicant, and people like him, in a disadvantageous position. Normally, those approaching the Tribunal are, by virtue of silence on the part of the Tribunal member, entitled to infer, and expect, that the member would approach the decision in their case impartially. Dr Hudson had, according to the applicant, deprived the Tribunal's decision of the presumption that it would otherwise enjoy. It left, so the applicant argued, those whose fate had been decided by Dr Hudson with the ineradicable belief that he was prejudiced against them. It thereby undermined the integrity and authority of the Tribunal's decisions in their cases.
Secondly, the applicant was entitled to rely on the fact that, in his case (as in the case of Ferati decided by Heerey J), the essential reason for rejecting his entitlement to a protection visa was a belief on the part of Dr Hudson that he had been dishonest in making his application and in the evidence which he gave before the Tribunal.
It is a fair reading of the Tribunal's decision in the applicant's case, encapsulated in the section of the primary judge's reasons cited by the Full Court[78], that Dr Hudson's difficulty with the applicant's claim rested, substantially, on a conclusion arrived at concerning the applicant's credibility. Thus, the reasons repeatedly refer to the "implausibility" of the applicant's conduct and evidence. Specifically, they refer to the "many credibility problems surrounding the applicant's identity"[79]. These were identity problems which the primary judge in the Federal Court regarded as insubstantial and unreasonable once Dr Hudson accepted (as he did) the evidence of Mr Norton, a fingerprint expert, to the effect that the applicant was, indeed, the person whom he said he was[80].
As the Full Court pointed out, this still left eight matters, identified by Dr Hudson, as telling against the acceptability of the applicant's evidence[81]. Those eight matters were held by the Full Court to sustain, as not unreasonable in the relevant sense, the decision of the Tribunal. But in these proceedings, the applicant was entitled to point out that most, if not all, of those eight matters were grounds by which Dr Hudson had rejected the applicant's credibility and found his testimony "implausible". Put shortly, the applicant argued, Dr Hudson was unduly suspicious of applicants for refugee status. His suspicions, revealed on his home page, had flowed over to affect the outcome of the applicant's case.
Thirdly, the applicant pointed to the high standards envisaged by the Parliament and by decisions of Australian courts for the determination by the Tribunal of the reviews encrusted to it, consonant with the serious interests at stake. The applicant supported the opinion of Heerey J in Ferati[82]. He submitted that, like Mr Ferati, he should not be obliged to accept a flawed decision of a Tribunal member who had stated that he approached cases coming before the Tribunal believing that many applicants "[lied] through their teeth" and "[wove] webs of lies". Setting aside the decision would not ensure that the applicant succeeded in his application for refugee status. But it would ensure that he, and others like him, were afforded a decision by a manifestly fair and impartial Tribunal, not one that had published to the world preconceptions which, in the midst of generalisations about sympathy, had disclosed a disqualifying bent or attitude.
Ostensible bias is not established: I do not regard the foregoing arguments as meritless. Out of respect for the opinion of Heerey J in Ferati, and the view which I share with him concerning the high standard of impartiality demanded of the Tribunal, I have hesitated before coming to the contrary opinion. But in the end, I have done so for the following reasons:
First, it must be remembered that the test for disqualification in a case such as the present is not merely a sense of unease or a feeling that conventions of discretion and prudence have been breached. Something more is required. Although the law interposes the imputed consideration of a fair minded observer and speculates on whether that person "might" (rather than "would") entertain a reasonable apprehension of bias in the particular case[83], the serious consequences that necessarily attend the affirmative conclusion oblige that it should be "firmly established"[84]. This reflects a recognition that decision-makers (whether in the judiciary, in adjudicative tribunals or elsewhere vested with public power) are human beings. They have foibles and personal characteristics that vary substantially, reflecting differences of view that also exist in the community at large. Being independent, such decision-makers, in their professional conduct and utterances, will often exhibit robust individuality that is characteristic of people who are obliged to make important and difficult decisions without fear or favour.
Secondly, it is unfair to Dr Hudson to take out of context the references in his home page to the fact that applicants often "lie through their teeth" and "weave webs of lies"[85]. These remarks must be read against the background of the entire home page which is in the nature of a personal revelation concerning Dr Hudson's homelife, work experience and values.
Far from emerging from a fair reading of the entire home page as a decision-maker prejudiced against persons in the position of the applicant, Dr Hudson is revealed as someone sensitive to the "desperation" which the overwhelming majority of such applicants feel "to find a better life". He describes their cases as "usually deserving" and most applicants as "decent human beings". The reference to the fact that some tell lies appears as a counterpoint to the remark of an unnamed colleague who told Dr Hudson, on his first appointment, to "[l]et 'em all in".
The reference to "weav[ing] webs of lies" appears in a context of condemning particular people (cruel foreign governments, obdurate immigration officials, greedy lawyers and migration agents who prey on applicants) whilst praising the Tribunal and the courts of Australia. Therefore, in context, the words complained of are much less objectionable than they might appear, viewed in isolation. They are indicators of a person who gave up a well paid position in the Federal Attorney-General's Department to work presumably for a pittance amongst Vietnamese refugees in Hong Kong and who looked to his appointment to the Tribunal as a high privilege. He regarded his appointment to the Tribunal, when it was made and renewed, with surprise. He expressed the hope to "serve as an advocate for refugee and human rights causes" when his service on the Tribunal concluded. Against this background, it can hardly be said that the reference to lies displayed a general bias against applicants for refugee status. If anything, the overall impression of the home page is of a person, by inclination, vocation and experience, sympathetic to refugee applicants.
Thirdly, it cannot really be regarded as surprising to see a reference by a member of the Tribunal to the fact that applicants for refugee status sometimes lie in prosecuting their claims. Numerous cases that have come before this Court have revealed the extent to which issues of credibility loom large before the Tribunal, simply because of the nature of its jurisdiction. This point has been remarked upon in this Court as the passage from Abebe[86], extracted in the joint reasons[87], illustrates.
Anyone who has read Holocaust stories or the biographies of refugees in earlier times and other places will know how desperate situations sometimes produce lies and deception ventured in the name of deliverance[88]. It is unremarkable that the same should be true of claimants for refugee status in Australia today. Recognition of that fact by a member of the Tribunal, so long as it did not distort the actual decision made in a particular case, would be unlikely to "firmly establish" the presence of bias against persons driven to lie. Least of all would it be likely in a person of the disclosed attitudes and predilections of Dr Hudson.
Accordingly, the applicant has not shown that the Tribunal, in hearing and deciding the case against him, was affected by ostensible bias.

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