Herbert Geer has acted in a number of matters against the Minister for Immigration and Multicultural and Indigenous Affairs referred by Public Interest Law Clearing House or directly from the Federal Court, pursuant to Order 80 of the Federal Court Rules. Each matter related to a review of a decision of the Refugee Review Tribunal which in turn affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs. Some of the matters also involved a review of the decision of the Federal Magistrates’ Court.
VFAC v the Minister for Immigration and Multicultural and Indigenous Affairs [2003] [FCA357]
The applicant (a national of the Islamic Republic of Iran) was initially unrepresented. The applicant was advised by the Judge that he should seek legal representation on a specific issue. The issue was referred to Herbert Geer and Counsel. However, Herbert Geer ultimately relied upon an entirely new ground in relation to the application for review (mainly relating to persecution because of the applicant’s belief in Christianity).
The Judge hearing the matter, whilst somewhat bemused by the fact that the initial grounds for referral were being discarded, found favour in the new grounds. Those new grounds were successful and judgment was ordered in our client’s favour.
This was another case involving a national of the Islamic Republic of Iran. The main attack on the Refugee Review Tribunal’s decision related to its reliance on certain independent country information in circumstances where the Refugee Review Tribunal had not given the applicant particulars of the information or ensured the applicant understood why it was relevant to the review.
Again, the applicant was successful in overturning the decision of the Federal Magistrates’ Court and an order was made directing the Refugee Review Tribunal to re-hear and determine the applicant’s direction. The applicant was ultimately granted a visa and was released from Port Hedland Immigration Reception and Processing Centre.
VWMY, VWMZ, VWNA, WVNB, VWNC (Federal Magistrates’ Court of Australia MLG133 of 2005)
The applicants again being nationals of Islamic Republic of Iran, filed an application for judicial review of a decision of the Refugee Review Tribunal. This proceeding is an example of the co-operation between Herbert Geer and other bodies such as the Refugee and Immigration Legal Centre Inc.
While proceedings were being commenced against the Minister for Immigration and Multicultural and Indigenous Affairs, the Refugee and Immigration Legal Centre was working on submissions to the Minister to intervene. In that instance, the Minister did in fact intervene and the applicants were each granted a permanent global special humanitarian visa. In addition, a separate application was made to the Human Rights Commission pursuant to the international covenant on civil and political rights. On 11 July 2006, the Human Rights Commission handed down a ruling in relation to the detention of the applicants, finding that the detention was a violation of the covenant.
M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs
This was a referral from the Victorian Bar Legal Assistance Scheme.
The clients were citizens of Sri Lanka who sought asylum in France as refugees and were granted refugee status in that country. They later arrived in Australia in 1994 and applied for protection visas on the grounds that they were political refugees from France and Sri Lanka to whom Australia had protection obligations.
Their initial application was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs and the decision of the delegate was confirmed by the Refugee Review Tribunal on 6 January 1996. In addition to a variety of other applications made by our clients, the matter came before a single judge in the Federal Court. The judge determined that, inter alia, the Court was precluded from considering whether the reasons for decision of the Refugee Review Tribunal disclosed jurisdictional error because of its conclusion that our clients were not people to whom Australia had protection obligations.
In 2005, our clients appealed the decision of the judge to the Full Court of the Federal Court. Herbert Geer commenced acting as instructing solicitors in this appeal.
Following detailed pleadings, submissions and pre-hearing preparation, the Minister exercised her discretion on the eve of the hearing in May 2006 to grant our clients visas for permanent residency in Australia which bought an end to the entire legal process.
Other Immigration Matters
Moeys and Minister for Immigration and Multicultural Affairs [2006] AATA 869
This was a referral from the Victorian Bar Legal Assistance Scheme. By an application made to the Administrative Appeal Tribunal, Herbert Geer sought review of a decision of the delegate of the Minister for Immigration and Multicultural Affairs. The delegate’s decision purported to cancel Mr Moey’s transitional permanent visa on character grounds under section 501(2) of the Migration Act 1958 (Cth). Two issues were placed before the Administrative Appeal Tribunal for its consideration:
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whether, having regard to all of the relevant considerations in Ministerial Direction No 21, the preferable decision was to cancel Mr Moeys’ visa, and
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whether the delegate’s decision to cancel Mr Moeys’ visa was beyond the delegate’s power having regard to the deportation provisions in section 201of the Migration Act.
Following a detailed exploration of the relevant facts of the matter, the prevailing legislative scheme, case law and issues of public policy, the Administrative Appeal Tribunal found in favour of Mr Moeys and decided to set aside the decision of the delegate to cancel Mr Moeys’ visa.