Standing up for refugees In 2013, Gilbert + Tobin won a decisive victory for two Ghanaian clients who, after six years of legal battle, were finally recognised as refugees and granted protection visas. The two men, who identify as homosexual, had fled persecution in Ghana. On their first appearance before Australia’s Refugee Review Tribunal (RRT), they were found not to be genuine refugees. We appealed this decision on behalf of our clients, whose evidence was taken without an interpreter despite both clients having low levels of English comprehension. On appeal, the Federal Magistrates Court quashed the RRT decision. The failure to provide an interpreter was found to constitute a breach of procedural fairness. In January 2009, our clients returned to the RRT for a second hearing. They had to wait two and a half years before the RRT heard them again in July 2011. During the third stage of their hearing in September 2011, our clients’ applications were dismissed – the tribunal member doubted their credibility and did not accept they were homosexual.
Bringing human rights issues to the High Court Assisted by counsel, in late 2011 we filed for review in the Federal Magistrates Court. Less than one week later, the Australian Government Solicitor, representing the Minister for Immigration and Citizenship, conceded the second RRT decision had not been made according to law, and that the RRT should conduct a third review. In March 2013, our lawyers attended a two-day hearing. Within a week the RRT handed down its decision that recognised our clients as genuine refugees deserving protection. “Our clients were incredibly relieved that their claims were recognised and they had some certainty about their futures,” says Tamara Sims, a lawyer in our Pro Bono group.
In 2013, Gilbert + Tobin set an eminent precedent in the High Court on behalf of an Indonesian client who had lived in Australia since 1985. He had returned to Irian Jaya once, for a brief visit in 1996. In 2009, the Australian Government recognised our client had a well-founded fear of political persecution if he returned to Indonesia, and therefore satisfied the definition of a ‘refugee’. In 2001, our client was convicted of a serious crime. As a result, in 2003 a delegate from the Federal Minister for Immigration and Citizenship determined that he was not someone to whom Australia owed protection under the Refugees Convention. The delegate rejected our client’s application for a protection visa. This decision was affirmed by the Administrative Appeals Tribunal, the primary judge and the Full Court of the Federal Court. In 2012, Gilbert + Tobin appealed the decision to the High Court. On behalf of our client, we argued that when considering whether a person was a person to whom Australia owed protection obligations within the meaning of the Refugees Convention, it is irrelevant that the person has been convicted of a serious crime. Our client was someone to whom Australia owed protection obligations because he was a refugee within the meaning of the Refugees Convention.
Pro Bono Lawyers have a responsibility to ensure the legal system is fair, equitable and accessible to all. Gilbert + Tobin is a pioneer in providing pro bono legal services in the Australian legal sector. In 1996 we were the first law firm in Australia to appoint a fulltime in-house pro bono lawyer. In 2008, the firm broke new ground again by appointing its first full-time pro bono partner, Michelle Hannon. We now have a dedicated Pro Bono group of three lawyers and Michelle as partner.
We are proud advocates of social justice for everyone, and focus on providing advice and support to marginalised and disadvantaged clients. Pro bono work at G+T is particularly focused on Aboriginal and Torres Strait Islander issues, people with disabilities, refugees and the protection of human rights. We take on public interest litigation and regularly advise NGOs on commercial and corporate governance issues. The practice covers many and diverse areas of law such as discrimination, administrative law, defamation and public international law.
On 10 April 2013, the High Court accepted our argument that a person who satisfies the Refugees Convention definition of a refugee is therefore a person to whom Australia owes protection obligations within the meaning of section 36 of the Migration Act 1958 (Cth). When making a decision to refuse a protection visa on character grounds, the Minister cannot do so under section 36 but must do so under parts of the Act directed to this purpose. The impact of this case is far-reaching and will have significant practical consequences for protection visa applicants. For our client, this means he has the opportunity to have the decision whether to grant him a protection visa considered by the Minister anew, taking into account Australia’s nonrefoulement obligation.