A Tamil family, who have seen their appeal to lift a bar on their youngest daughter applying for an Australia visa knocked back, has said they will appeal the court decision as the parents continue efforts to remain in the country after the parents arrived as illegal maritime immigrants in 2012 and 2013 and had two children.
Priya and Nades Murugappan and Australian-born daughters Kopika and Tharnicaa, five and three, have been living together in housing on Christmas Island since August 2019 after an urgent injunction put a hold on their deportation as they sought a visa for Tharnicaa.
On Tuesday morning, the full bench of the Federal Court knocked back a cross-appeal brought by the family on a second ground for relief and rejected an appeal by the federal government over an earlier ruling by Justice Mark Mochinsky, which found youngest-born Tharnicaa was denied procedural fairness in making a protection visa application that would have allowed her to remain in Australia.
Mochinsky had ordered the Commonwealth to pay the family’s legal costs of more than $200,000. He found that then Immigration Minister David Coleman had lifted a bar to consider a visa application in 2019 for Tharnicaa but no decision was made.
An assessment by an immigration department official in August found it unlikely Australia’s refugee protection obligations would apply to the family.
Justice Richard White handed down the full bench’s ruling on the appeal on Tuesday morning.
They backed Justice Mochinsky’s reasons and found there was no appealable error in his decision.
The full bench accepted that there was no legal obligation to inform Tharnicaa or her family of the minister’s decision, but added it was an ordinary expectation of good public administration that people be informed reasonably promptly.
“Ordinary human decency indicates that detainees should be informed of the position as soon as practicable,” they said.
Mr and Mrs Murugappan say they fear persecution if returned to Sri Lanka despite other illegal maritime immigrants accepting the Australian government’s offer of safe return to Sri Lanka.
Both the federal government and the family can now consider a High Court appeal on their failed grounds but must first be granted special leave.
In a statement, the family’s lawyer Carina Ford said they are considering an appeal and would seek a further injunction on the family’s deportation.
She said they believe the decision justifies the family’s release from “detention,” noting several ministers have always had the discretion to free them from detention while their legal matters are resolved.
“The family should be released immediately from detention and we hope this will occur,” she said.
The family have said they were grateful for the support and love they’ve been shown.
“It helps us stay strong. We just want to go back to Biloela,” they said of the Queensland town that they were temporarily settled in.
“We need our little girls to be safe. Every day they ask ‘when can we go home?'”
According to a statement from a spokesperson for the Department of Home Affairs, “The Australian Government’s policy is clear—no-one who attempts illegal maritime travel to Australia will be settled here.
“The family’s claims to engage Australia’s protection obligations have been comprehensively assessed on a number of occasions by the Department of Home Affairs, various merits review bodies, and appealed though multiple courts, including the Federal Court to the High Court.
“At no time has any member of the family been found to be owed protection.”
The spokesperson added, “non-citizens who do not hold a visa and who have exhausted all outstanding avenues to remain in Australian are encouraged to depart voluntarily.”
“Those unwilling to depart voluntarily will be subject to detention and removal from Australia, as has occurred in this case.”
Minister for Home Affairs Peter Dutton wrote in an op-ed in September 2019 of the Tamil family, “The mother and father arrived illegally by boat in 2012 and 2013 respectively. They were part of the 50,000 people who arrived on 800 boats under Mr. Rudd and Ms. Gillard.
“Labor initially put them into detention and they were told all those years ago that, on the details they provided, they were not refugees under the UN definition so they would have to go home. They were told that they would never settle permanently in Australia, just like many others who arrived by boat. They never accepted that decision.”
Dutton continued: “The civil war in Sri Lanka is now over and Tamils from around the world have returned to their country and have been accepted back by a democratically elected inclusive government. It is true though that Sri Lanka still doesn’t have the industry, welfare system or job opportunities we enjoy in Australia.
“It’s not that this family or those in the 68 million figure are unworthy or not sincere in their desire to live in Australia,” he wrote. “The reality is our government, with the support of the majority of Australians, has taken tough decisions over a number of years now to keep our borders secure and people off boats.
“At the same time we have brought refugees in who, in many cases faced imminent death or persecution, and their cases are much more compelling than those who are not refugees but simply want a stronger financial future for their families.”
AAP’s Karen Sweeney contributed to this article.