MZYPZ v Minister for Immigration

[2011] FMCA 531

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYPZ v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 531

MIGRATION – Application for review of Migration Review Tribunal decision – citizen of Sri Lanka seeking Partner (Temporary) (Class UK) Subclass 820 visa and a Partner (Residence) (Class BS) visa – applicant contends decision of Tribunal was affected by jurisdictional error.

Migration Act 1958 (Cth), ss.29, 31, 31(1), 31(3), 65 476
Migration Regulations 1994 (Cth), 2.01, 2.02, 2.03, Schedule 1, Schedule 2: Part 820, 820.211, Schedule 3: criteria 3001, 3003 & 3004

Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14
El Ess v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 43; [2004] FCA 1038
McNamara v MIMIA [2004] FCA 1096
Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; [1997] HCA 22
Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCD 469 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NAHI v Minister for Immigration & Multicultural Affairs [2004] FCAFC 10
Nguyen v Migration Review Tribunal [2008] FCA 524
Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
Re Ruddock & Anor; Ex parte S154/2002 (2003) 201 ALR 437
Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1113
Vargas v Minister for Immigration & Multicultural Affairs [2001] FCA 1025Vishnumolakala v Minister for Immigration [2006] FMCA 1209
WAFP v Minister for Immigration and Multicultural and Indigenous
Affairs [2003] FCAFC 319

Applicant: MZYPZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 137 of 2011

Judgment of: Whelan FM

Hearing date: 25 May 2011

Date of Last Submission: 25 May 2011

Delivered at: Melbourne

Delivered on: 14 July 2011

REPRESENTATION

Counsel for the Applicant: Mr Gibson

Solicitors for the Applicant: Goz Chambers Lawyers

Counsel for the Respondents: Mr Mosley

Solicitors for the Respondents: Australian Government Solicitor’s Office

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 137 of 2011

MZYPZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by MZYPZ (“the Applicant”) under s. 476 of the Migration Act 1958 (Cth) (“the Act”) for writs of prohibition, and certiorari and for a declaration in relation to a decision of the Migration Review Tribunal (“the Tribunal”) made on 13 January 2011. The Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant the Applicant a Partner (Temporary) (Class UK) subclass 820 visa and a Partner (Residence) (Class BS) visa. The application seeks that the decision of the Second Respondent be quashed and that the matter be remitted to the Tribunal to a different member for reconsideration.

Background

1. The Applicant is a Sri Lankan citizen. On 10 May 1999, he arrived in Australia as the holder of a subclass 676 Visitor visa. The Visitor visa expired on 10 August 1999.

2. On 4 June 1999, the Applicant applied for a Protection (Class XA) visa. The Applicant claimed that because of articles he wrote as a journalist in Sri Lanka that were critical of the Sri Lankan government, threats had been made against his life and he feared returning. He had left Sri Lanka in May 1999 as a consequence of these threats.

3. On 31 October 2000, a delegate of the Minister refused the application for a Protection (Class XA) visa. The Applicant sought a review of the decision of the Refugee Review Tribunal. That decision was set aside. On 28 August 2007, the Tribunal affirmed the decision under review.

4. On 4 November 2009, the Applicant applied for a Partner (Temporary) (Class UK) subclass 820 visa (“the visa”). The Applicant was sponsored by his wife. The Applicant claimed that he married on 23 November 2008 and separated on 23 April 2010 due to her family violence against him.[1]

   [1] Court Book page 264 at paragraph 49.

5. On 19 May 2010, a delegate of the Minister refused to grant the Applicant the visa. On 9 June 2010, the Applicant applied to the Tribunal for review of the delegate’s decision. The Tribunal affirmed the decision not to grant the Applicant the visa on 13 January 2011.

6. On 7 February 2011, the Applicant made this application for judicial review of the Tribunal’s decision.

Legislative Framework

1. Section 29 of the Act provides for the granting of visas by the First Respondent to non-citizens. Section 31(1) of the Act provides for prescribed classes of visas. Regulation 2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) provides that, for the purposes of section 31 of the Act, the prescribed classes of visas are set out in the respective items in Schedule 1. Regulation 2.02 provides for various sub-classes of visas. Regulation 2.03 provides that, for the purposes of s.31(3), the prescribed criteria for the grant to a person of a visa are as set out in the relevant part of Schedule 2. Section 65 of the Act provides that where the Minister is satisfied that the relevant criteria for a particular class of visa are satisfied, the Minister is to grant the visa and, if the Minister is not so satisfied, the Minister is to refuse to grant the visa.

2. The criteria for the grant of a subclass 820 visa are set out in Part 820 of Schedule 2 to the Regulations. Part 820.211 sets out the primary criteria to be satisfied at the time of the application. Clause 820.211(1) states that the Applicant must not hold a subclass 771 (Transit) visa, but must satisfy one of the alternative requirements in cl.820.211(2), (3), (4), (5), (6), (7), (8) or (9).

3. In the present case, only sub-cl.820.211(2) is relevant to the Applicant’s circumstances. Under cl.820.211(2)(d), if an applicant does not hold a substantive visa, (as the applicant did not), the applicant is required to:

   ·have entered Australia on a subclass 995 (Diplomatic) visa or a special purpose visa and satisfy criteria 3002 of Schedule 3 of the Regulations: cl.820.211(2)(d)(i); or

   ·

   satisfied criteria 3001, 3003 and 3004 in Schedule 3 of the Regulations unless the Minister is satisfied that there are ‘compelling reasons’ for not applying these criteria;

   
   cl 820.211(2)(d)(ii)

   .

4. As the Applicant did not satisfy cl.820.211(2)(d)(i), the issue was accordingly reduced to whether the Applicant satisfied cl.820.211(2)(d)(ii).

5. In order to satisfy criterion 3001, the Applicant must have lodged the application for a Partner visa within 28 days of the relevant day, being the day that he last held a substantive visa. In the Applicant’s case, this was on 10 August 1999. The Tribunal found that the Applicant could not satisfy criterion 3001 and, accordingly, the issue was whether it was satisfied that there were ‘compelling reasons’ not to apply the criteria.

6. The grounds on which the Applicant brings this application is that the Tribunal misconstrued and/or misapplied sub-cl.820.211(2)(d)(ii) in that it failed to consider whether there were ‘compelling reasons’ for not applying Schedule 3 criteria based on the Applicant’s fears for his safety as at the time of the application.

7. The Applicant accepts[2] that the Tribunal correctly identified the relevant and applicable law and policy in paragraphs 6 to 15 of its Statement of Decision and Reasons.[3] The Applicant also accepts[4] that the approach to determining what constitutes ‘compelling reasons’ is as set out by the Tribunal in paragraphs 65 to 68 and 70 of the Decision and Reasons.[5]

   [2] Applicant’s Contentions of Fact and Law , page 2, para 7.

   [3] Court Book page 256 to 259.

   [4] Applicant’s Contentions of Fact and Law , page 2, para 7.

   [5] Court Book pages 266 – 267.

Applicant’s Contentions

1. The Applicant contends that in making an evaluation of what constitutes ‘compelling reasons’, the Tribunal must consider the matters put in issue before it by the Applicant.

2. The policy, as set out in the Department’s Procedure Advice Manual (“PAM”), includes as a factor in considering whether circumstances are compelling “reasons concerning safety for the applicant (and the sponsor) in the applicant’s home country if required to submit application off-shore”.

3. While the Applicant indicated several other reasons why he wished to remain in Australia, he made it absolutely clear that he had:

   had a lot of trouble in Sri Lanka and had left because of that trouble and could not return there …In relation to compelling reasons he stated that he faced a lot of hardship in Sri Lanka and could not go back there and that was why he had to stay in Australia.[6]

   [6] Court Book page 264 paragraph 47.

4. While his claims had previously been rejected by the Refugee Review Tribunal, the Applicant stated that his ‘profile’ had been that of a political journalist.[7] The Applicant also stated that he had received death threats in the past when living in Sri Lanka.[8]

   [7] Court Book page 227.

   [8] Court Book page 264 at paragraph 48.

5. According to the Applicant, the Tribunal did not consider the Applicant’s current fears and their credibility, or otherwise, which are relevant to the safety issue. The Applicant contends that the Tribunal “disposes of the ‘issue’ simply on the basis that his past application for a protection visa was refused and therefore found these claims do not amount to compelling reasons”.[9]

   [9] Court Book page 268 at paragraph 74.

6. The Applicant stated that a finding made by the Tribunal two years ago when considering his protection visa claims at that time can provide:

   no answer to the time of application criterion to be considered as at November 2009 whether the fears he espouses for his safety at this current time have some foundation and support a conclusion of ‘compelling reasons.”[10]

   [10] Applicant’s Contentions of Fact and Law page 7 paragraph 21.

7. According to the Applicant, the Tribunal determined that the issue was foreclosed by the rejection of his protection visa application in the past and in so reasoning it failed to consider whether at the time of the Partner visa application reasons of safety may have amounted to compelling reasons for not applying the Schedule 3 criteria.

8. Even if the Tribunal is not required to apply the guidelines set out in the PAM, it is nonetheless required to consider the case put before it by the Applicant with respect to ‘compelling reasons’. The crucial issue in this matter is that the Tribunal did not consider the Applicant’s ongoing fears for his safety as at the time of the application. That is not answered by a decision made by the Refugee Review Tribunal in August 2007.

The Respondent’s Contentions

1. The Respondent contends that the Applicant’s claim can only succeed if he can show jurisdictional error by the Tribunal.[11] Whether there were ‘compelling reasons’ is indeed a question of fact to be determined solely by the decision maker having regards to the circumstances of the case.[12]

   [11] Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24.

   [12] McNamara v MIMIA [2004] FCA 1096.

2. In determining whether there are compelling reasons, the Tribunal is not bound to take into account the examples set out in the PAM. The PAM is no more than an advisory administrative guide to Ministerial delegates in relation to their application of the legislation. As a matter of law, the PAM can have no other status.[13]

   [13] Vishnumolakala v Minister for Immigration [2006] FMCA 1209 at paragraph 27.

3. In Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986], Mason J with whom Gibbs CJ and Dawson J agreed, held that the Tribunal will only commit jurisdictional error if it fails to take into account a consideration which the Tribunal is bound by legislation to take into account in making that decision.[14] The Respondent stated that the example noted in the PAM was a matter which the Tribunal was not bound by legislation to take into account and that the examples given in the PAM guidelines are not in themselves ‘relevant considerations’ in an administrative law sense and any failure by the Tribunal to apply a part of the guidelines cannot of itself constitute a jurisdictional error.[15]

   [14] Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40.

   [15] El Ess v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 43; [2004] FCA 1038 at [45] per Gray J.

4. Further, the Full Court in NAHI v Minister for Immigration & Multicultural Affairs [2004] held that in order to complete its jurisdictional task, the Tribunal is not required to expressly record and comment upon each particular piece of information or material before it.[16] The Tribunal is “not obliged to set out every detail of the reasoning process which [it] eventually employed for the [applicant’s] consideration”.[17] However, a failure to have regard to relevant material which is so fundamental that it goes to the issue of jurisdiction may in some circumstances constitute jurisdictional error[18]:

   What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.[19]

   [16] In NAHI v Minister for Immigration & Multicultural Affairs [2004] FCAFC 10 the Full Court said at [14]: “The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it then to another item.”

   [17] Re Ruddock & Anor; Ex parte S154/2002 (2003) 201 ALR 437 per Gummow and Heydon JJ at [54], Gleeson CJ relevantly agreeing at [1].

   [18] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82]; WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319, cf. Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1113.

   [19] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82].

5. The decision of Logan J in Nguyen v Migration Review Tribunal [2008][20] involved a finding by the Tribunal that there was no required ‘spousal relationship’ for the purposes of the Regulations. An issue in the appeal was the Tribunal’s failure to consider certain evidence put before the Tribunal. Logan J said (at [24]):

   The Appellant contends that the Tribunal should have referred in its reasons to receipts, letters, statutory declarations made by the Appellant, his spouse and their friends, utility bills, photographs and two home videos. The law does not require this. The Tribunal is not obliged “to give a line by line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal”: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] 197 CLR 510, 576 [187].

   [20] Nguyen v Migration Review Tribunal [2008] FCA 524.

6. The Tribunal did take into account the claims made by the Applicant. The relevant matters are set out at paragraphs [47] and [48] of the Tribunal’s Statement of Decision and Reasons:

   47. The applicant told the Tribunal that he had a lot of trouble in Sri Lanka and had left because of that trouble and could not return there. He met the sponsor in 2006 and could not apply for the spouse visa before he had met her. In relation to compelling reasons he stated that he faced a lot of hardship in Sri Lanka and could not go back there and that was why he had to stay in Australia. The Tribunal stated that his case was very unusual because he and the sponsor were no longer together and that was not usually the case when considering the waiver of Schedule 3 criteria.

   48. The applicant told the Tribunal that he had received death threats in Sri Lanka and was now a married person and had lived in Australia for 11 years and was used to Australia.

7. The Applicant sets out at paragraph 4 to 8 of his affidavit in these proceedings sworn 7 February 2011 the reasons for lodging an application for a protection visa in June 1999. His affidavit also deals with the history of that which followed.

8. On 8 February 2010, the Applicant was advised by the Department of the criteria the Department would need to address in considering his application. He was specifically advised

   Before your application is decided, you have the opportunity to put forward any information which you wish to be considered as ‘compelling reasons’ why the Schedule 3 criteria should be waived in your case … .[21]

   [21] Court Book at page 64.

9. In reply on 18 March 2010, the Applicant’s solicitors provided the following:

   In relation to why the applicant did not hold a substantive visa at the time of lodgement of his application, we submit that as evidenced by the applicant’s immigration record that his visa expired on 16 February 2000. However, prior to the expiration of the said visa, the applicant lodged application to remain in Australia as a refugee as a result of political persecution which faced as journalist in Sri Lanka, for a protection visa and has been on bridging since then. He only met his wife in December 2006 and the parties were married on 23 November 2008.[22]

   This is referred to at paragraphs 23 and 24 of the Tribunal’s Decisions and Reasons.[23]

   [22] Court Book page 68 at paragraph 8.

   [23] Court Book page 260 at paragraphs 23 and 24.

10. The claims made by the Applicant as to the reasons that he could not return to Sri Lanka at the hearing were very general in nature. They included that he had faced hardship there and that he was now a married person and had lived in Australia for 11 years and was used to Australia.[24] The only claim made by the Applicant that specifically concerned the PAM example of safety was that he had received death threats in Sri Lanka before his departure more than a decade earlier.[25] In Abebe v Commonwealth (1999), the High Court held that:

    [i]t is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention…. The Tribunal must then decide whether the claim is made out.[26]

    [24] Court Book page 264 paragraphs 47 and 48.

    [25] Court Book page 264 at paragraph 48.

    [26] Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [187].

11. The Applicant did not put forth to the Tribunal any new concerns about his safety other than the general claim advanced in his protection visa application that he had received death threats in 1999. This claim was considered and rejected in August 2007, being the date of the last Refugee Review Tribunal decision.

12. The Tribunal was clearly aware that it was required to deal with the evidence as at the date of the application. This is set out in paragraphs 68, 69 and 75 of the Decision and Reasons.[27]

    [27] Court Book at pages 266 – 268.

13. The Tribunal concluded that the Applicant’s claims, which were not seen to raise protection obligations in August 2007, also did not constitute compelling circumstances for the purpose of cl.820.211(2)(d)(ii). It was open to the Tribunal to place reliance upon the rejection of the Applicant’s protection visa application, in relation to his safety concerns if he were to return to Sri Lanka. No new or other information or claim was put before the Tribunal to suggest that other issues of personal safety had arisen as a result of the passage of time. In those circumstances, the Tribunal was entitled to rely on the rejection of his protection visa application, as sufficiently dealing with any safety concerns which had been agitated.

Conclusions

1. There is no dispute in this matter as to the applicable law and the matters for determination by the Court are narrow in their compass. The Applicant could only satisfy the criteria for the granting of the visa he sought if he could show that there were ‘compelling reasons’ for the Minister not to apply the criteria that he must have lodged the application for a Partner visa within 28 days of the day he last held a substantive visa. The criteria are to be satisfied at the time of the application and the ‘compelling reasons’ must therefore be ones which existed at that time.

2. The phrase ‘compelling reasons’ is not defined or limited by the Act. While the PAM provides by way of example, examples of what might be considered to be ‘compelling reasons’, the Tribunal is not limited by those examples nor bound to follow them in reaching its decision. It was open to the Tribunal to consider whatever the Applicant advanced as a ‘compelling reason’ although it might not unreasonably give consideration to the matters suggested by the PAM.

3. The Applicant refers in particular to the reference in the PAM to reasons concerning the safety of the Applicant in his home country if required to submit his application off-shore.

4. The issues raised are whether the Tribunal gave consideration to this and, if so, whether the Tribunal gave consideration to the Applicant’s fears for his safety as at the time he made the application.

5. The material put before the Tribunal, with respect to this issue, was limited. The matter is not addressed at all in the original application. The Applicant was advised by correspondence dated 5 February 2010[28] of the provisions of Regulation 820.211(2)(d) and that the criteria could be waived if there were any ‘compelling reasons’ for waiver. The Applicant was invited to put forward any information he wished to be considered as ‘compelling reasons’ why the Schedule 3 criteria should be waived.

   [28] Court Book page 63.

6. In response, the Applicant submitted:

   In relation to why the applicant did not hold a substantive visa at the time of lodgement of his application, we submit that as evidenced by the applicant’s immigration record that his visa expired on 16 February 2000. However, prior to the expiration of the said visa, the applicant lodged application to remain in Australia as a refugee as a result of political persecution which faced as journalist in Sri Lanka, for a protection visa and has been on bridging since then. He only met his wife in December 2006 and the parties were married on 23 November 2008.[29]

   [29] Court Book page 68 at paragraph 8.

7. The material lodged by the Applicant in support of his application for review of the delegate’s decision makes no particular reference to any fear he may have for his safety should he return to Sri Lanka. The only evidence of his mental state is contained in the report of Mr Monteleone, psychologist.[30] In his report, Mr Monteleone notes in recording the Applicant’s personal history:

   In the mid-1990’s his role as a political reporter resulted in unwanted scrutiny from the government of the time. He was then abducted by what he termed were “civilian thugs” who he believes worked for the government, “The Peoples Alliance”. He said that whilst travelling on a bus he was singled and taken into custody. He said he was blindfolded and taken to a secluded beach and assaulted. He said he was kicked and punched. He was told to desist from writing the type of reports attributed to him in the newspaper. These reports he admitted were critical of the ruling government. He was released to be picked up by a friend.

   He continued to work as a reporter but now used a pseudonym to avoid identification. In 1999 he received information from an old school friend who worked in the local intelligence office that there was a contract to kill him. He decided to flee his country of origin. He applied for a tourist visa and arrived in Australia on either 10 or 11 of May 1999, and then applied for a protection Visa. He has not returned to Sri Lanka since that time. He lived with Sri Lankan friends in Preston and Thornbury who supported him until he was able to work.[31]

   [30] Court Book pages 226 – 228.

   [31] Court Book page 227 at paragraphs 2 and 3.

8. When asked at the Tribunal hearing about the ‘compelling reasons’ for why they should waive the requirements of the criteria contained in Schedule 3, the Applicant referred only to the fact that “he faced a lot of hardship in Sri Lanka and could not go back there”.[32] In other statements, he stated that he “had a lot of trouble in Sri Lanka and had left because of that trouble and could not return there”.[33] He also told the Tribunal that he “had received death threats in Sri Lanka”.[34]

   [32] Court Book page 254 at paragraph 47.

   [33] Court Book page 254 at paragraph 47.

   [34] Court Book page 254 at paragraph 48.

9. The Tribunal gave consideration to the issue of ‘compelling reasons’ at paragraphs 65 to 81 of its Statement of Decision and Reasons. At paragraph 74, the Tribunal refers to the claims in relation to safety and concluded that the Applicant has made an application for a protection visa in the past and that the application was refused. Accordingly, it found that those claims did not amount to compelling reasons.

10. In my view, the Tribunal was entitled to take into account that the Applicant had raised fears for his safety should he return to Sri Lanka in the context of making an applicant for a protection visa and that as recently as August 2007 that application has been refused.

11. The Applicant argues that his fear for his safety as at November 2009 was what the Tribunal should have considered. The Applicant, however, raised only matters with the Tribunal which occurred prior to his arrival in Australia in 1999. These matters must have been considered by the Refugee Review Tribunal which refused his application for a protection visa in August 2007. He raised nothing to suggest any reasons why those fears should be given greater weight in November 2009 or any factors occurring between August 2007 and November 2009 which should cause the Tribunal to consider such fears to now constitute ‘compelling reasons’ for waiving the requirements of the relevant regulations.

12. The Tribunal was clearly cognisant that the relevant time for considering whether there were ‘compelling reasons’ for not applying the Schedule 3 criteria was the time of the visa application.[35] It clearly also understood what it was required to do in undertaking that consideration.[36] I am satisfied that it made no errors in doing so.

    [35] Court Book page 266 at paragraph 68.

    [36] Court Book page 267 at paragraph 70.

13. For these reasons, the application is dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Whelan FM

Associate: 

Date:  14 July 2011

In Vargas v Minister for Immigration & Multicultural Affairs [2001] FCA 1025, Kenny J said at [28]: “… The Tribunal is not, however, obliged to refer to every submission and each item of evidence relied upon by an applicant: see Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 of 583; [1997] HCA 22 per Kirby J, Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J and Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCD 469 at 461 (overruled on a different point). No inference of error can be drawn from the Tribunal’s failure to refer specifically to the applicant’s statement that he campaigned for his candidate.”