A Tamil family will remain in legal limbo on Christmas Island for the foreseeable future, with their deportation case now hinging on an upcoming court battle.
On Sept. 19, shortly before an order preventing their forcible removal to Sri Lanka expired, Federal Court judge Mordy Bromberg said that the family’s legal case needed to be decided at trial.
The family, whose case rests on their two-year-old daughter and her right to apply for a protection visa, cannot be deported by the Australian government until the matter is decided through the court system.
A date has not yet been set for their case to be heard.
Priya and Nades Murugappan and daughters Tharunicaa, two, and Kopika, four, had previously settled in the Queensland township of Biloela.
They were being deported in August, under instruction by the federal government, when their flight was ordered to land due to a late-night court injunction.
The family has since been housed on Christmas Island.
“I’ve given the department the direction that we want whatever support that is required for the children, support for the family, medical assistance ... the advocates will through all sort of spurious claims,” the minister said.
“This family was told before they had children that they couldn’t stay,” Dutton added, while saying that he had already intervened on their behalf on numerous occasions. “I brought them out of detention and allowed them to live in community, in Biloela for example, and I’ve allowed work rights and for kids to go to school.
But he said, “I’ve never acted under the powers that I have under the Migration Act in a similar case to allow those people to stay permanently.”
There have only been a limited few illegal immigrants granted permission to stay permanently in Australia, and those were under “a very specific set of circumstances,” Dutton said. He listed three cases that he could speak to—two had been interpreters who provided assistance in a theatre of war such as the Middle East and another was a stateless Rohingya orphan.
Dutton said that another 1,500 illegal maritime arrivals with similar cases had already voluntarily returned to Sri Lanka but that the public hadn’t heard of these cases as their stories had not been shared by advocacy groups on social media.
While under the Migration Act, Australian-born Tharunicaa is currently not eligible to access the nation’s protection as a child of an illegal maritime arrival, the Federal Court was told earlier this week that Tharunicaa had been legally entitled to apply for a protection visa during a short period in 2017 when her mother’s visa application was not yet finalised, following a determination by Home Affairs Minister Peter Dutton.
An application was made for Tharunicaa last week, but barrister Stephen Lloyd, acting for the federal government, argued on Wednesday the window of opportunity had closed.
Barrister Angel Aleksov, acting for the family, argued Tharunicaa’s visa application was “still in train,” meaning the government did not have the power to deport the family until the girl’s case was decided.
Dutton earlier said that the case was dragging on at additional cost to the Australian taxpayer.
“They have explained their circumstance to every decision-maker and Judge and every one of them has rejected their claim for protection,” he wrote. “That is that they are not refugees.”
“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,” Dutton continued. “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.”
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