SZDKB v Minister for Immigration - [2007] FMCA 174

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDKB v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 174

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

Federal Magistrates Court Rules 2001 (Cth), r.12.03(1)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 420, 424A, 425, 483A

Minister for Immigration v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 SAAP v Minister for Immigration [2005] HCA 24
SZCJD v Minister for Immigration [2006] FCA 609
SZEEU v Minister for Immigration [2006] FCA FC 2
SZHFC v Minister for Immigration [2006] FCA 1359
VBAP of 2002 v Minister for Immigration [2005] FCA 965
WAGP v Minister for Immigration [2006] FCAFC 103

Applicant:

SZDKB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1209 of 2004

Judgment of:

Lloyd-Jones FM

Hearing date:

19 October 2006

Delivered at:

Sydney

Delivered on:

23 February 2007

REPRESENTATION

Counsel for the Applicant:

Mr R Nair appearing on a pro bono basis

Counsel for the Respondent:

Ms R Pepper

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 23 April 2004 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1209 of 2004

SZDKB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 23 April 2004 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 13 September 2002 and handed down on 9 October 2002, affirming a decision of the delegate of the first respondent made on 16 January 2001, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZDKB”.
A Court Book (“CB”) prepared by the first respondent's solicitors was filed and served on 19 August 2004. I have marked it Exhibit “A” and it was read into evidence.

Background

The Tribunal decision of L Nicholls, reference NO1/36984, provides the following background information. The applicant, who claims to be a citizen of Algeria, arrived in Australia on 2 September 2000. On 31 October 2000, he lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 16 January 2001, a delegate of the Minister for Immigration refused to grant the applicant a protection visa and on 31 January 2001, he applied for review of that decision.(CB 121)
At the time of the Tribunal application, the applicant was aged 28 years. He has never married and has no dependents. He is a Muslim and of Berber ethnicity. The applicant is a wrestler who came to Australia as a member of the Algerian Olympic team for the 2000 Sydney Olympics. He was born in the city of Algiers, Algeria and his parents and four brothers continue to live in Algeria. He lived in

Al Harracha (a suburb of Algiers) and Bijaia prior to arriving in Australia. He attended school in Algiers and attended Ghermoune Sports Centre, Chameneuve, Algiers between September 1989 and June 1998. The applicant completed his Algerian military service between 1994 and 1996. He was employed as a wrestling coach in Bourouba, Algiers from 1998 to July 2000. The applicant obtained an Algerian passport on 18 July 1999 and an Australian Olympic Visa as part of the Algerian Olympic team. The applicant has lived continuously in Australia since his arrival of 2 September 2000. His passport indicates that prior to Australia, the applicant had travelled to a number of other countries on short visas. He confirmed at the Tribunal hearing that he attended many international competitions throughout the world before his arrival in Australia.(CB 124)

Applicant’s Claims

The applicant claims persecution on the grounds of his Berber ethnicity, political activity (his membership of the Rally for Culture and Democracy, "RCD" Party) and his membership of several social groups, being young men who have completed military service in Algeria and persons who have claimed asylum overseas.(CB 124) In his protection visa application and various statutory declarations submitted to the Department in support, the applicant claims that:
(a) As a Berber he is subject to discrimination and harassment;
(b) He was called up as a reservist for further military service which was deferred until after the 2000 Olympics and he fears persecution by the Algerian government if he returns to Algeria as he has not reported for service and does not wish to do so. Further, the applicant claims that even if he did return and complete his further military service he would be persecuted because of the Islamic Salvation Front (FIS) who are anti-political to the government in Algeria;
(c) As a high profile athlete he has been labelled a traitor for not returning to Algeria and that were he to return now he could be executed as a traitor and a deserter and because he has sought asylum while in Australia;
(d) If he returns to Algeria he will be persecuted because he is a supporter of the RCD Party, a group that supports the Berber cause.

Tribunal’s Findings and Reasons

A convenient summary of the Tribunal's reasons are contained in the first respondent's written submissions prepared by Ms Pepper and I adopt paragraphs 6 to 11 of those submissions.
6.The tribunal was not satisfied on the evidence before it that the applicant had a well founded fear of persecution for a Convention reason. This was because the tribunal did not find that the applicant would face persecution for any of the reasons he claimed were he to return to Algeria.
7. The tribunal assessed the applicant's claims relating to his further military service in light of independent country information ("ICI") and concluded that the applicant's fears were not supported by the ICI or the documents provided by the applicant. (CB 145.2 - 146.2).
8. Similarly, the tribunal rejected his claim of discrimination and harassment by reason of his Berber ethnicity (CB 143.10 - 144.3).
9.As for the claim by the applicant that he feared persecution from the government because of his support for the RCD political party, the tribunal relied on ICI to find that the RCD was a mainstream political party and that there was no evidence to suggest that its members or supporters had ever been harmed or threatened. (CB 144.5).
10. As for the claim that the applicant would be targeted for harm by the military Islamic groups as a former conscript should he return to Algeria, again the tribunal relied on the ICI and the applicant's own evidence given at the hearing that former conscripts are no longer targeted by armed Islamic groups and that the violence in Algeria is indiscriminate and mainly confined to rural areas. (CB 145.2).
11.Finally, with respect to his claims that he would suffer persecution because he would be regarded as a traitor for claiming asylum, the tribunal rejected this claim on the basis that the ICI did not indicate that a person seeking asylum or who remains out of Algeria for any length of time would be targeted for harm by the state authorities. Furthermore; the applicant failed to provide any of the evidence he claimed to have by way of newspaper reports to support his claims of denunciation. (CB 146.3 - 147.1).

Application for Review of the Tribunal’s Decision

On 23 April 2004, the applicant filed an application for review under s.39B of the Judiciary Act. On 8 April 2005, the applicant filed an amended application. On 12 October 2006, the applicant filed a further amended application in these proceedings which contained the following grounds:
1. The second respondent's purported decision is vitiated by jurisdictional error in that the second respondent (the tribunal) failed to act in accordance with s.424A of the Migration Act.
Particulars:
(i) The applicant provided a copy of "joining order Ministry of National Defence 5 March 2000 (including translation from Arabic)" ("the joining orders") and a "summons order military of national events 15 March 2000 (including translation from Arabic)" ("the summons") to the Department of Immigration and Multicultural Affairs ("DIMA").
(ii) The applicant also provided DIMA with a "statutory declaration" declared on 31 October 2000 and a further statutory declaration declared 1 December 2000.
(iii) The applicant provided the Tribunal with a statutory declaration on 16 August 2002.
(iv)   Through the joining of orders and the summons, which were not provided to the Tribunal by the applicant for the purposes of review - the tribunal learnt:
(a) That the term, "joining order" was inconsistent with information the Tribunal had that the normal term in documents for recall of reservists was "recall order".
(b)   That the date of the joining order, 5 March 2000, and the direction that the applicant join his division on 15 March 2000 was inconsistent with information the Tribunal had that there had been no recall of reservists since 1998.
(c)   That the applicant's written statement - which the applicant had provided to DIMA - where the applicant had said he had been recalled as a military reservist in 2000 and had obtained deferral of his recall was inconsistent with information the Tribunal had that there was no recall of reservists since 1998.
(v) These "inconsistencies" were the reason or part of the reason for the Tribunal affirming the decision under review.
(vi) The Tribunal did not, pursuant to s.424A, give the applicant particulars of this information. The tribunal did not ensure, as far as was reasonably practical, the applicant understood why this information was relevant to the review. The tribunal did not invite the applicant to comment on this information. The Tribunal did not give the applicant the information and invitation by one of the methods specified in s.441A - in particular the Tribunal did not give the information and invitation in writing.
(2) The second respondent's purported decision is vitiated by jurisdictional error in that the second respondent ("the Tribunal") failed to act in accordance with s424A of the Migration Act 1958 in regard to information provided to DIMA that the applicant "feared persecution from the government because of his support of the RCD political party".
Particulars:
(i) In a statutory declaration to DIMA (CB 47-49) the applicant said:
"I am a supporter of the Berber group called RSD and have been for approximately seven years prior to my military service. This group supports the Berber cause. I did not become a member of the group as I did not want a membership card. I was afraid that if the Federation of Sport found out that I was a supporter of this group then they would expel me from the athletic program …"
(ii) The above information was not provided to the Tribunal for the purposes of review.
(iii) The Tribunal treated this information as inconsistent with country information. This inconsistency was a reason or part of the reasons for the tribunal affirming the decision.
(iv)   The Tribunal did not, pursuant to s.424A, give the applicant particulars of this information. The tribunal did not ensure, as far as was reasonably practical, that the applicant understood why this information was relevant to the review. The tribunal did not invite the applicant to comment on this information. The Tribunal did not give the applicant the information invitation by one of the methods specified in s.441A - in particular the tribunal did not give the information an invitation in writing.
(v)   In its "Findings and Reasons" the Tribunal said (CB 144). "The applicant claimed in his written statement that he feared persecution from the government because of his support of the RCD political party." It is clear that the tribunal has also misinterpreted what the statutory declaration says.
(3) The Tribunal failed, pursuant to s.420 and s.425 of the Migration Act, to provide the applicant with a "real and meaningful" invitation to attend the hearing and give evidence.
Particulars:
(i) The Tribunal was aware that the applicant had some difficulty with the interpreter because he was a Berber.
(ii) The Tribunal said that it would "go through the specific things (the applicant) raised in his statement."
(iii) The Tribunal raised the issue of the applicant being a supporter of the RCD.
(iv) The Tribunal failed to give the applicant a real and meaningful opportunity to respond to this issue.

Submissions

This matter was listed for final hearing on 15 May 2006. On that date, the applicant appeared as a self-represented litigant with the assistance of an Arabic interpreter. At the commencement of the hearing, the interpreter advised the Court that he had attempted to communicate with the applicant in both Arabic and French (languages commonly spoken in Algeria) but that the applicant was only fluent in the Berber language and had limited knowledge of either Arabic or French. I indicated to the parties that it was inappropriate to proceed and that I would make orders pursuant to r.12.03(1) of the Federal Magistrates Court Rules 2001 (Cth) referring the applicant to a lawyer for pro bono legal assistance, including in relation to one or more of the following:
(i) The preparation of affidavits.
(ii) The preparation of an amended application and written submissions.
(iii) Representation of the applicant at a resumed hearing.
When the assistance of a pro bono counsel was confirmed, the matter was set down for final hearing on 19 October 2006.
Mr Nair, appearing for the applicant, indicated three grounds of review – two based on s.424A and one on procedural unfairness in the way that the Tribunal hearing was conducted. Mr Nair indicated in respect of the first ground which related to information provided by the applicant to the Department (joining or recall orders, summons and a statutory declaration, see CB 145), that he would rely on his written submissions. I note that the written submissions substantially repeat the further amended application and it is unnecessary to re-state those points. Mr Nair also relied on SZEEU v Minister for Immigration [2006] FCA FC 2 (“SZEEU”) at [18] [19] and [20] where Moore J discussed what constitutes "information" for the purpose of s.424A.
In response to the first ground, Ms Pepper submits that it is not entirely clear how the alleged breach occurs. That is, whether or not it is claimed that s.424A was breached as a result of the joining (recall) orders and summons or as a result of the inconsistencies which arose from the conflicting nature of the two sets of documents. Ms Pepper submits that there is an independent and unimpeachable alternative basis for the decision with respect to that claim. The Tribunal noted the country information which indicates that persons who fail to answer the recall order to serve military service as reservists would generally not face any punitive action by Algerian authorities. At worst, they may have to serve the term of national service which they avoided.(CB 146.2) Ms Pepper submits that the Tribunal adopted the approach that if it accepted what the applicant said about the joining (recall) orders, would not matter if he returned to Algeria as nothing nefarious would occur: VBAP of 2002 v Minister for Immigration [2005] FCA 965 per North J. Ms Pepper submits that the joining orders and summons did not form part of the Tribunal decision.
Ms Pepper submits that the Tribunal spent time going through these documents but decided it was not satisfied that the documents were genuine. However, the Tribunal did not make a finding with respect to the credibility of the applicant. It found that even if the documents were genuine, they would not assist. With respect to the corroborative evidence that the applicant forwarded, the Tribunal concluded that it has not reached a level of satisfaction for it to give those documents any weight. While the documents gave no weight to the applicant's arguments, they certainly did not harm his arguments. Rather, the Tribunal relied on the independent country information which it referred to in its decision:
He has not provided copies of a deferral document evidencing deferral of military service. It was put to the applicant that the 2002 UK Home Office assessment on Algeria specifically states that there has been no recall of reserves since 1998. Further, the country information refers to the document calling up reservists as a "recall order". The document provided to the tribunal is referred to as a "joining orders". There is no mention in that document of the applicant's status as a reservist and parts of the document setting out the relevant division and its location are said to be "not legible". (CB 145.7)
The transcript of the Tribunal hearing also records a discussion about the documents:
MS NICHOLLS: … now the United Kingdom, the English country assessment, state that there was a call up in 1998 but says that there has been no further recall since 1998. Now, she also says that the document that you provided to the department as evidence of a recall was not in accordance with the documents that are sent for recall. She was not able to do a document examination, a formal document examination because you didn't provide her with the original.
Now, is there anything you want to put to me about any of those matters?
THE INTERPRETER: No.
MS NICHOLLS: Nothing? There is nothing you want to say to try and explain what has happened?
THE INTERPRETER: No, nothing.
MS NICHOLLS: All right. That is a difficulty if you want to pursue that argument or claim. The difficulty is that you haven't explained those discrepancies. Do you understand that?
THE INTERPRETER: Yes.(Transcript of Tribunal hearing, p.12)
Ms Pepper submits that the Tribunal did what it was supposed to do by discussing the country information with the applicant. The Tribunal member put to the applicant that the documents he provided as corroborative evidence could not be properly authenticated.However, the applicant elected to say nothing in reply. Ms Pepper argues that in these circumstances, the Tribunal was entitled to rely upon the country information and reject that part of the applicant's claim which it did. Ms Pepper submits that this information is exempt from s.424A (1) or s.424A(3)(a) of the Act.
Ms Pepper referred to Mr Nair’s reliance on SZEEU. She submits that due to the large number of decisions referring to Allsop J’s comments in SZEEU, one has to analyse carefully what the reasons were of the Tribunal affirming the decision in determining whether or not there has been a breach of s.424A. Merely describing what took place during the Tribunal hearing does not breach s.424A: SZCJD v Minister for Immigration [2006] FCA 609; WAGP v Minister for Immigration [2006] FCAFC 103.
WAGP v Minister for Immigration stands for the proposition that if information has not been used adversely, then s.424A is simply not engaged. Ms Pepper argues that the “joint orders, the summons and statutory declaration” submitted by the applicant to the Department were not used adversely but were simply neutral. I accept this analysis and agree that the first ground cannot be sustained.

In respect of the second ground, which is also an alleged breach of s.424A, Mr Nair relied on his written submissions which were substantially a reproduction of ground two of the further amended application. In oral submissions, Mr Nair referred me to the transcript where the Tribunal confirmed that the issue of membership or support of the political party (RCD or RSD) was not raised by the applicant with the Tribunal. Mr Nair submits that no such information was sent to the Tribunal. Mr Nair argued that the Tribunal raised the issue with the applicant at its hearing and relied on documents or information he had provided to the Department in that regard.
Ms Pepper referred the Court to the transcript of the Tribunal hearing at p.16:
MS NICHOLLS: Thank you. There was just one other matter that I meant to raise when I was talking about the Berber ethnicity. In the applicant's original statement he says he was a supporter of the RSD. I notice the delegate didn't make any comment about that but I did some research on that organisation and found that it is called RCD. It is a political party which has a large amount of support from the Berber population but it is conventional - well, it is a lawful political party. It has seats in parliament, although it didn't contest the last election.
THE INTERPRETER: They withdrew.
MS NICHOLLS: They withdrew but they are not targeted by the government, nor does membership result in discrimination or harm. They are part of the political landscape - can you interpret that - of Algeria. One of the important parts of the policy - or one of its policies, is the official recognition of the Berber language and government recognition of the problems that Berbers have in the hill regions, Kabilia. Is there anything you want to comment upon?
THE INTERPRETER: I am with the RCD at this point. And that's it, there's nothing, and I support the RCD.
MS NICHOLLS: Okay. Is there anything you want to add to that?
MR ALEXANDROU: No.
Ms Pepper submits that an error in the name of the political party was corrected, from RSD to RCD. The Tribunal put this mistake to the applicant for comment who again chose to say nothing. Ms Pepper submits that what appears to have occurred is that the Tribunal put some country information to the applicant suggesting the existence of a party called the RCD and the applicant answered that. Ms Pepper suggests that s.424A has not been engaged simply because it was strictly country information or, alternatively, the Tribunal relied on the oral evidence of the applicant given during the course of the Tribunal hearing and that information falls within the ambit of s.424A(3)(b).
Ms Pepper referred me to SZHFC v Minister for Immigration [2006] FCA 1359 where that applicant unsuccessfully argued that the Tribunal relied on an absence of country information to make particular findings regarding the applicant’s claim. It was argued that this absence of information was akin to a gap in the information provided by the applicant and therefore fell foul of s.424A. Justice Allsop rejected that argument with the following observation at [13] - [15]:
13.The Tribunal relied on the absence of independent country information to reject the appellant’s fear of persecution because he was of Gujarat ethnicity or from the Gujarat State or because he is a member of a Pathan family caste. The knowledge of absence of country information was said to be "information" not caught by s 424 (3)(a).
14.On p 17 of its reasons the Tribunal stated:
"The Applicant claimed to fear persecution because he is of Gujarat ethnicity or from Gujarat state, however the Tribunal is not satisfied that the Applicant’s fear of persecution is well-founded. This is because there is no independent country information before the Tribunal and none was submitted by the Applicant or his adviser to suggest that Gujaratis are persecuted by anyone for these reasons."
15.I reject this submission. The conclusion here reached by the Tribunal is one about the state of country information. As such, it is encompassed by s 424A (3)(a): Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572, WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178.
I believe the analysis applied by Ms Pepper to this claim is correct. I am satisfied that the s.424A has not been enlivened and that the second ground of the application should be dismissed.
In respect of the third ground, a claim of lack of procedural fairness, Mr Nair began with the applicant’s membership or support of the political party (RCD or RSD) as raised by the Tribunal. Mr Nair submits that it is clear that this information came from the applicant's statement as submitted to the delegate in his original visa application:
16. I am a supporter of a Berber group called RSD and have been for approximately seven years, prior to my military service. This group supports the Berber cause. I did not become a member of the group as I did not want a membership card. I was afraid that if the Federation of Sport found out that I was supporting this group that they would expel me from the athletic program … (CB 48)
Mr Nair submits that it is clear that although the Tribunal addressed its question in respect of the RSD to the applicant, it was his migration agent who replied.(Transcript of Tribunal hearing, p.17) Mr Nair submits that in this context, it should have been clear to the Tribunal that at the time of its hearing in 2002, the applicant had problems with interpretation between Arabic and Berber. Mr Nair contends that there is nothing to suggest that the applicant was fluent in the English language. Further, there is nothing in the transcript to indicate that the question about the RSD was translated to the applicant. As the question was addressed to the applicant, he should have been given the opportunity to reply. It is submitted that the failure to allow the applicant to have this question interpreted for him and to provide him with an opportunity to reply was a failure to afford him with procedural fairness mandated by ss.420 and 425 of the Act.
Mr Nair, in his written submissions, submits that the Tribunal is obliged to provide the applicant with a “real and meaningful ‘invitation’ to attend a hearing and give evidence”: ss.420 and 425 of the Act. It is submitted that the Tribunal failed to do so and this resulted in a jurisdictional error. Mr Nair referred the Court to Minister for Immigration v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 at [30] to [38] per Gray, Cooper and Sellway JJ.
Ms Pepper then referred to the transcript of the Tribunal hearing where the issue of interpretation was discussed:
MS NICHOLLS: …I also note that a specific request was made for a Berber speaking and Arabic speaking interpreter. Unfortunately, the number of those persons is extremely limited. Whilst we made every effort to find that person, they were not available. Now we have to make a decision here before we start the hearing as to whether we make further inquiries as to when a person might be available, if that is what the applicant prefers, or whether he wishes to go ahead with the hearing today.
THE INTERPRETER: …
MS NICHOLLS: …so we have to be very clear at the beginning what we want to do, what the applicant wants to do. Now I am happy if you would like, to speak to your adviser about this. I am happy to give you a short adjournment to discuss it if that is what you would prefer. So would you like to do that? Just for five minutes?
MR ALEXANDROU: A short - yes please.(Transcript of Tribunal hearing, p.2)
Ms Pepper submits that the Tribunal clearly offered the applicant a longer adjournment so that an appropriate interpreter could be found. Alternatively, the Tribunal offered the applicant some time to consider his position. This was clearly put to the applicant. After a short adjournment, the following exchange ensued:
MS NICHOLLS: Thank you. You have had discussions?
MR ALEXANDROU: Thank you. Yes we have.
MS NICHOLLS: And?
MR ALEXANDROU: Well, as I say, I have on his behalf have stipulated that it is in his interests to take the opportunity, if it is raised by yourself and the tribunal, on the premise of, as we discussed before, if he is insecure without, as I say, disrespect to the interpreter. You can ask him directly but I think he is of the persuasion, he would prefer that opportunity, if that can be arranged.
MS NICHOLLS: My only difficulty is that it is going to be extremely difficult to get an interpreter who speaks Berber.
THE INTERPRETER: I would like to continue with the interview today.
MS NICHOLLS: Okay. If, at any time, you have difficulty understanding a question or understanding anything about the proceedings you must tell me. It doesn't matter, I am quite happy to hear what the problem is at any time but if we proceed today we have to proceed on that basis. That, if you are having difficulty you will tell me at the time that you are having that difficulty.
THE INTERPRETER: Yes. .(Transcript of Tribunal hearing, pp.3-4)
The transcript continues at page 6:
MS NICHOLLS: Are you understanding me through the interpreter?
THE APPLICANT: Yes.
MS NICHOLLS: You have no difficulty understanding what we have been discussing?
THE APPLICANT: It's okay.
MS NICHOLLS: You have no difficulty?
THE INTERPRETER: We don't have any difficulty.
Ms Pepper submits that the Tribunal was well aware of the interpreting issue. The applicant chose to proceed with the hearing and the Tribunal asked him to advise of any difficulties he may face during the hearing. Ms Pepper submits that in the circumstances, there can be no suggestion of procedural unfairness generally or any breach of s.420 or s.425 of the Act.
Ms Pepper submits in relation to the RCD question from the Tribunal, that in the absence of any statement to the contrary by the applicant, the Tribunal was entitled to rely on the applicant's adviser when he spoke on behalf of the applicant. It is argued that there is nothing to indicate that the adviser did not seek instructions from the applicant. It is submitted that in the absence of affidavit evidence that the applicant disagreed with his adviser’s response, it must be assumed that the adviser was speaking on behalf of the applicant. The Tribunal dealt with that accordingly. There is no indication that during the hearing or at any time subsequent, the applicant objected to his adviser's response.
I am satisfied that the issue of interpreting service was ventilated at the beginning of the Tribunal hearing and that the applicant and his adviser elected to proceed with the hearing. I also agree with the submission made by Ms Pepper that no affidavit evidence has been submitted by the applicant that he did not want to proceed. I am satisfied that the applicant was not denied procedural fairness and that this ground of review cannot be sustained.
Mr Nair then addressed the issue of delay which was raised by Ms Pepper in her written submissions. Mr Nair acknowledged that the Tribunal decision was handed down on 9 October 2002 and the application for review in this Court was filed on 23 April 2004, a period of over a year. Mr Nair indicated that when the applicant’s application was rejected by the Tribunal, the applicant sought advice from both a lawyer and a migration agent about what further steps he could take. Mr Nair states that the applicant was advised that because he was an elite athlete, the Minister would look sympathetically upon his application to substitute the Tribunal decision with one more favourable decision to him. Mr Nair acknowledged that the applicant had some difficulty in giving him instructions. The applicant was able to convey that there had been an application to the Minister and that it took about a year before he was refused. Mr Nair was unable to provide any documentary evidence of that application to the Court.
Ms Pepper submits that SAAP v Minister for Immigration [2005] HCA 24 at [83] - [84] and [211] makes clear that a Court can refuse relief on discretionary grounds, including delay. In the present case the initial application for judicial review was filed almost a year and a half after the Tribunal handed down its decision. No satisfactory explanation has been provided for the delay. Ms Pepper submits that the evidence ought to have been properly prepared in the form of an affidavit explaining the delay. However, there is no explanation in any form that can be tested. Mr Nair was unable to provide the Court with the names of lawyers or migration agents from whom the applicant sought advice. Ms Pepper tendered a letter from the Department, not previously seen by Mr Nair, which clearly indicates that the application made under s.417 of the Act was determined on 24 April 2003. That letter was sent to Craddock Murray Newmann and dated 28 April 2003. I have marked it Exhibit “R1” in these proceedings.
It is apparent that this applicant experienced great difficulty in obtaining a Berber interpreter. The matter was delayed in this Court because of that difficulty. The absence of any explanation of the delay may be due to this problem or may be simply an issue of who the applicant approached for assistance. The applicant was not in a position to be able to offer any explanation to the Court, nor was Mr Nair able to obtain instructions on this issue.

Conclusion

I am satisfied that none of the grounds contained in the further amended application can be sustained and consequently the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 22 February 2007