A Tamil asylum-seeker family from rural Queensland will remain in Australia for the foreseeable future after the Federal Court ruled that the family's youngest daughter was not given procedural fairness when the government considered lifting a bar preventing her from applying for a visa.
Parents Priya and Nades Murugappan, and their two Australian-born children Kopika, four, and Tharunicaa, two, have been detained on Christmas Island since August last year when a court injunction prevented their deportation to Sri Lanka until the legal proceedings were finalised.
After almost two months of deliberation, Justice Mark Moshinsky handed down the much-anticipated verdict on Friday morning via teleconference due to social distancing restrictions imposed during the coronavirus pandemic.
He dismissed the first grounds raised by lawyers for the family, which claimed that a valid application for asylum had been made for Tharunicaa in September last year, but upheld a second ground that she was not "afforded procedural fairness" in her bid for protection.
A group of supporters for the family in front of the Federal Court of Australia in Melbourne during the hearings in February. Source: AAP
Immigration law prevents "unauthorised maritime arrivals" - and their children - from applying for Australian visas while onshore, however Immigration Minister David Coleman (currently on indefinite leave), Acting Immigration Minister Alan Tudge and Home Affairs Minister Peter Dutton all have the power to lift the bar for people in Tharunicaa's position.
Justice Moshinsky found that there was evidence that Mr Coleman had considered lifting the bar in the family's case, including a request for a "full brief" on the family, which meant they were entitled to "procedural fairness" when their situation was assessed in August.
This did not occur because the family or their lawyers were not told about the assessment or invited to comment on it, he said.
The three other family members have already had their bids for asylum rejected.
Both parties now have seven days to agree on Justice Moshinsky's proposed orders or lodge submissions on what they believe should happen next, with an interlocutory order barring the family's deportation to remain in place until the process is finalised.
Lawyer for the family, Carina Ford, told SBS News said the decision was not the end of the road and they would now spend the week determining how the decision should be interpreted.
"It's a far better result than losing on both grounds," she said, but added that it didn't mean the family would be released from detention today.
"The Minister and the department also need to look at the decision and determine what would be a fair approach from here."
The verdict is a culmination of a two-year battle to keep the family in Australia after they were removed from the rural Queensland community of Biloela in March 2018 and taken to a Melbourne immigration centre after their four-year bridging visa expired.
Since then, Biloela resident and family friend Angela Fredericks has led the charge to have the family returned to the community, where residents say they are in dire need of abattoir workers like Nades.
Minutes after the verdict was handed down, Ms Fredericks told SBS News she was relieved with the decision, which she described as a "win", but called on the government to intervene.
"The key thing that I want to continue to highlight is yes, while there are such severe complexities with the procedure and the legal process, this can actually be sorted out really quite simply if the minister would actually use his powers and listen to the people," she said.
"We've got a small town that needs these people, and particularly with the current economic crisis, this would also be a really good news story right now."
The Tamil Refugee Council said the court decision is a "small victory", but urged the federal government to resolve the protracted legal battle.
"Devoting so many resources to deporting this one family not only imperils their future, it is a waste of taxpayer money – legal fees, staff at the Christmas Island detention centre, a charter flight to take them to Sri Lanka – that could be spent protecting lives and livelihoods in the current crisis," said Tamil Refugee Council spokesperson Aran Mylvaganam.
Nades and Priya arrived in Australia by boat separately in 2012 and 2013. Both have claimed different reasons for seeking asylum from Sri Lanka; Priya reported being forced to watch her former husband be burnt alive, while Nades said he is in fear for his life due to his links to the banned Liberation Tigers of Tamil Eelam.
The Department of Home Affairs has repeatedly insisted the family does not meet the criteria for a protection visa.
As a result, in August last year, the government attempted to deport the family before a last-minute Federal Court injunction forced the plane carrying the family to land in Darwin.
From there they were moved to the recently re-opened immigration centre on Christmas Island, an Australian territory located approximately 350 kilometres off the Indonesian coast.
They are currently the only occupants of the centre. In October last year, it was revealed the government had .
In a statement on Friday, Labor's spokesperson for home affairs Kristina Keneally said she was "relieved the family will not be deported from Australia while this is taking place".
"Labor respects the Federal Court’s decision in regard to the Tamil family from Biloela," she said.
"It is now incumbent on the government and the Minister for Home Affairs to respect the decision, deal in good faith with the family’s lawyers over the next seven days and give effect to the Federal Court’s judgment."
A Department of Home Affairs spokesperson said they were aware of today's judgement and considering its implications.
"Despite the judgment, the matter still remains before the court for the purpose of the parties agreeing on the orders to give effect to the judgment. Accordingly, it would not be appropriate to make any further comment at this time," they said in a statement.
