Biloela Tamil family deportation case: asylum seekers can stay until final hearing

Federal court rules the family has a prima facie case to stay, and government cannot deport them to Sri Lanka until a final hearing

Two Tamil asylum seekers and their Australian-born daughters will remain in Australia for the foreseeable future after a federal court decided to hear their case.

Priya, Nadesalingam and their children, Kopika, 4, and Tharunicaa, 2, were sent to Christmas Island last month after the federal court granted an injunction preventing the government deporting Tharunicaa until the court application had been heard.

In federal court on Thursday, Justice Mordecai Bromberg found that the family had established a prima facie case to keep them in Australia until the case goes to a final hearing at a date still yet to be determined.

The home affairs minister, Peter Dutton, said on Thursday afternoon the family would stay on Christmas Island in the interim, and that they were not in detention but “effectively” living in the community – a claim Priya disputed. He also repeated accusations the couple had their daughters as “anchor babies”.

The case centres around the fact that until this week the government had not considered whether Tharunicaa was owed protection under Australia’s international obligations.

Under the Migration Act, people who arrive in Australia by boat cannot apply for a visa while in Australia. Even though Tharunicaa was born in Australia, she is given the same visa status as her parents. But the immigration minister has the power to “lift the bar” to allow her to apply for a visa.

After the case was launched, the home affairs department referred the case to the immigration minister, David Coleman, but he had decided not to lift the bar.

In an interlocutory hearing in the federal court on Wednesday, Bromberg delayed handing down a decision on whether to go to a full hearing after the barrister representing the family, Angel Aleksov, launched a new argument. He said a July 2017 ministerial determination from Dutton had in fact lifted the bar preventing Tharunicaa from applying for a visa in 2017, and the bar remained lifted.

A visa application for Tharunicaa was made last week, and the family’s lawyers have argued the application must be assessed.

Bromberg found that the argument that the bar was lifted in the 2017 determination had some prospect of success if the case went to final hearing, as well as the second claim that while there is process afoot that may lead Tharunicaa to be granted a visa, the government has no power to remove her (and her family by extension) from Australia.

Outside the court, the family’s lawyer, Carina Ford, said the case could take a while to resolve now it was going to a hearing, and indicated it was up to the Department of Home Affairs as to whether the family remains on Christmas Island until then.

On 2GB on Thursday, Dutton said the family had been moved to Christmas Island to protect the family and Border Force staff, on the advice of the Border Force Commissioner. He claimed the family was “not in detention” but living close by, to the centre.

Ford said she hadn’t heard Dutton’s comments, but said the family is in alternative accomodation and are isolated.

Labor has previously voiced its support for allowing the family to stay in Australia, but Dutton claimed in the federation chamber on Wednesday that since parliament returned Labor has not asked a question or “uttered any word” about the family.

“I’ve been waiting in parliament for a question on this important issue that required the leader of the opposition to charter an aircraft and fly out to Biloela,” he said. “He came back here and has not said a word. He has not ever mentioned the case again.”

Shortly before Dutton’s speech in the very same chamber, Labor MPs Ged Kearney and Josh Burns both mentioned the plight of the family.

On Sky News on Thursday, Dutton again accused Priya and Nades of having “anchor babies” in an attempt to strengthen their chances of staying in Australia, but conceded it was only his interpretation when asked for evidence.

Dutton said it was a “very well known practice”.

He repeated at least three times his claim that the parents were told “well before they had children” that they would never stay in Australia.

While Nades’s claim had been rejected, Tharunicaa was not yet born when Priya was first interviewed by the department to assess her asylum claim.

“We know the civil war was done in 2009 and we know that no court, no decision makers in the department, has decided this family has any case to make as to being refugees,” Dutton also said.

No court has reassessed the claims of Priya and Kopika - who made their case for asylum in an initial interview with a delegate. Subsequent court hearings have been on points of law, not asylum claims.

In the same interview Dutton revealed he had used his ministerial powers of intervention to grant visas to boat arrivals at least three times: two interpreters who assisted Australian defence forces in the Middle East, and a stateless Rohingya boy, as revealed by Guardian Australia in July.

He said it had never been used with a family in circumstances like this.

Contributor

Josh Taylor

The GuardianTramp

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