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This slightly disturbing judgment is doing the rounds just now, although it was delivered in February. It was an application for review of a denial of refugee status brought on three grounds. The first ground failed; the second ground would probably have been enough on its own to have the decision set aside.

It is the third ground that is of some interest:

33. In support of ground 3 the applicant complains that the tribunal’s decision was vitiated by bias both apprehended and actual. On the first page of the decision there is a heading in bold type as follows:

DEFINITION OF ‘REFUGEE’ oogabooga.

34. The explanation for inclusion of the word ooga-booga is that the tribunal member was having difficulty with her spell check program and it was suggested that she type a nonsense word into the decision to see if the spell checker would find it. The tribunal member said that she overlooked the word when proofing the decision.

The Federal Magistrate (Riethmuller FM) disposed of a preliminary submission by the Commonwealth as follows:

36. Counsel for the Minister relied heavily upon the fact that the word does not appear in any of the major dictionaries and points out that it could not be an example of onomatopoeia, because onomatopoeia describes a word that sounds like the thing it is describing. Counsel for the Minister, however, noted that the term Ooga-booga appears to have been adopted as a brand name for a line of Australian clothing. Clothing names are not altogether helpful given other recent brand names such as FCUK and CNUT appear in the marketplace.

Then, he proceeded to sketch some recent and not-so-recent uses of the term. Unfortunately, this one contains an error:

The term has also appeared in web posts, such as the following which appears on the ‘Ask the Myth Busters’ site at < http :// science.slashdot.org > where it is stated:
I know at one point in the show you’ve stated that you’d like to stay away from the ‘ooga-booga’ myths, meaning I suppose the ones with a bit of mysticism attached to them. …

The website cited [should that be ‘webcited’?] is Slashdot’s science section and has nothing to do with Mythbusters; it just happened to carry a post last November entitled “Ask the mythbusters”, with answers posted in December.

Not all that surprisingly, after noting that “[t]he term appears to have overtones of mysticism and racism in its more modern uses”, Reithmuller FM sent the matter back to be heard by a differently constituted Refugee Review Tribunal on the grounds of apprehended, though not actual, bias:

48. These proceedings involve a claim for refugee status and a protection visa on the basis of a fear of personal harm as a result of political conduct in Burma. The issues are potentially those of life and death for the applicant. It is essential that the public and those involved in proceedings have confidence in the integrity and impartiality of such proceedings.

49. In the circumstances of this case I am of the view that a fair minded observer appraised of the facts and circumstances of the ooga-booga comment would entertain a reasonable apprehension of bias.