find the latest legal job
Corporate/Commercial Lawyers (2-5 years PAE)
Category: Corporate and Commercial Law | Location: Adelaide SA 5000
· Specialist commercial law firm · Long-term career progression
View details
Graduate Lawyer / Up to 1.5 yr PAE Lawyer
Category: Personal Injury Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Mentoring Opportunity in Regional QLD · Personal Injury Law
View details
Corporate and Commercial Partner
Category: Corporate and Commercial Law | Location: Adelaide SA 5000
· Full time · Join a leading Adelaide commercial law firm
View details
In-house Legal Counsel & Commercial Lawyers
Category: Corporate and Commercial Law | Location: All Sydney NSW
· Providing lawyers with flexibility and control over when they work, how they work and who they work for.
View details
In-house Legal Counsel & Commercial Lawyers
Category: Corporate and Commercial Law | Location: All Melbourne VIC
· Providing lawyers with flexibility and control over when they work, how they work and who they work for.
View details
Melbourne firm defeats Government on refugee case

Melbourne firm defeats Government on refugee case

Russell Kennedy successfully acted for a Hazara refugee in a Federal Court action that found the immigration minister did not act in accordance with the law.

Last year the 34 year-old Hazara man, who fled Afghanistan claiming he was being persecuted on the basis of race and ethnicity, had his application for asylum rejected.

The matter was then referred to the then Minister for Immigration, Chris Bowen, who refused to consider the case despite having the power to grant the refugee a visa if he deemed it was in the public interest.

Melbourne-based firm Russell Kennedy, which acted pro bono on the matter, successfully argued before the full Federal Court that this decision lacked procedural fairness.

Its central argument, with assistance from counsel Debbie Mortimer SC and Matthew Albert, was that the Minister was not entitled to exercise his personal decision-making power without considering the facts of a particular case, and that the Minister must complete the assessment and removal process according to law.

Speaking to Lawyers Weekly, Russell Kennedy principal Victor Harcourt (pictured), who led his firm’s team on the matter, said he was “hopeful rather than confident” that the decision would fall the way of his client.

“Once the Minister had detained our client to assess his claims for protection, then the Minister had to complete that assessment according to the Migration Act and the Court found that had not occurred,” said Harcourt. “The effect of [the judgment] will be to have the errors in the procedural fairness redressed so that our client’s claims for protection can be assessed in accordance with the requirements of the Migration Act, and they are quite extensive.”

The Hazara man’s application for asylum seeker status will now be reconsidered.

Harcourt added that the decision is likely to have a significant impact on more than 100 other Afghan asylum seekers thought to be in a similar position.

Brendan O’Connor replaced Chris Bowen as the minister for Immigration and Citizenship last month.

Saved from death
Pamela Kerr, from the Asylum Seeker Resource Centre, told the ABC that the Federal Court decision was “life and death”.

“What we were talking about today was a man being loaded on a plane, sent back to Kabul,” she said. “He would get off that plane and he would be marked. And he would surely be killed. Now, that’s been stopped. And we’ve got to stop it for the other 120.”

Harcourt refused to endorse Kerr’s comments when questioned by Lawyers Weekly. However, he said that his legal team did put forward testimony that brought into question the safety and welfare of his client if he was returned to Afghanistan.

“We argued that it is not in the public interest to send a person to a place where there are substantial grounds for believing they will be subject to arbitrary deprivation of life, torture, cruel, inhuman or degrading treatment and that was part of the basis of our application.”

Harcourt refused to offer his opinion on the Government’s policies towards refugees.

Other lawyers from the firm heavily involved in the matter included senior associate Emma Dunlevie, lawyer Sophie McNamara and trainee Julianna Marshall.

For the 2011-12 financial year, Russell Kennedy did an average of 46 hours of pro bono work per lawyer. This ranks it as one of Australia’s best performing firms for pro bono work.

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Melbourne firm defeats Government on refugee case
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Dec 13 2017
Young humanitarian lawyer California-bound
A young Australian lawyer will be travelling to the US next year for a prestigious nine-month study ...
Jackie Rhodes
Dec 12 2017
Report sheds light on LGBTQI inclusion in law firms
A recent report has revealed the varying perceptions on LGBTQI diversity and inclusion in the Austra...
Women in business
Dec 12 2017
Annabel Crabb headlines Women in Business Forum
Political journalist Annabel Crabb has appeared at the Coleman Greig Lawyers Women in Business Forum...
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...