The Australian Government Is Trying To Deport This Young Family. A Judge Has Stopped That — For Now.

    The family has been detained on Christmas Island since September 2019.

    Supplied: Home To Bilo

    Nades and Priya.

    A family of Tamil asylum seekers detained on a remote Australian island have won a partial victory in their fight against deportation.

    Friday's decision in the Federal Court marks a further reprieve in the family's long battle to avoid being sent back to Sri Lanka, but does not mean they will be released into the community.

    The Federal Court rejected the family's argument that the government had to consider a September 2019 application for Tharunicaa, the younger daughter, for a protection visa.

    But Justice Mark Moshinsky found that immigration minister David Coleman had decided in May 2019 to consider allowing the family to make protection visa applications. The family was denied procedural fairness in the process that followed, Moshinsky ruled.

    The deportation of the family will be further halted at least until the legal proceedings finish.

    The judge did not make final orders, but instead gave the parties seven days to agree on what they should be. If the parties don't agree, they will have to file submissions.

    The "Biloela family" — asylum seekers Priya and Nades and their young daughters Kopika and Tharunicaa — have been detained on Christmas Island since late 2019.

    Supplied / PR IMAGE

    Kopika (right) and Tharunicaa.

    The family had spent years living in the regional Queensland town of Biloela before being taken into detention. Tharunicaa and Kopika were both born in Australia.

    Asylum seekers who arrive by boat, like the Tamil family, are barred from applying for protection visas unless a minister personally intervenes to lift the bar.

    In mid-May 2019, Coleman requested a "full brief" on the family from the Department of Home Affairs. The department's resulting submission recommended he exercise his powers to lift the bar and allow them to apply for visas. That August, the department also put together an assessment of the protection obligations owed to Tharunicaa.

    Moshinsky said there was evidence, including Coleman's request for the full brief on the family, to lead to an inference that Coleman considered lifting the bar in the family's case. That meant the family had to be given procedural fairness when the department was looking at their August assessment, Moshinsky said.

    But they were denied procedural fairness.

    The family had also argued that home affairs minister Peter Dutton had considered exercising his power to lift the bar to allow them to apply for protection visas. Moshinsky rejected this argument.

    The judge rejected the family's primary argument: that Tharunicaa's protection visa claim filed in September 2019 had not been decided on.

    He said the application was not valid, because a 2017 government determination lifting the bar for certain children did not apply to Tharunicaa. Her lawyers had argued for a different interpretation of the determination that would have meant the bar was lifted for her.

    Unusually, the lawyers received the judgement by dialing into a teleconference — a measure to enable physical distancing because of the coronavirus.

    Shadow home affairs minister Kristina Keneally welcomed the decision and called on the government to deal in good faith with the family's lawyers to give effect to the judgement.

    Keneally said in a statement that Labor was "relieved" the family would not immediately be deported from Australia, "particularly given the COVID-19 pandemic and its impact on all countries and people across the globe".

    She added that Dutton could "bring this whole process to an end" by using his discretion and allowing the family to return home to Biloela.

    The Biloela community has vigorously supported the family's fight to stay in Australia. The government's attempt to deport them in August last year prompted widespread protests.

    Hannah Ryan is a reporter for BuzzFeed News and is based in Sydney.

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