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. Source: The Guardian.
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 the Federal Court yesterday, judge 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.
Home Affairs Minister Peter Dutton said yesterday afternoon that 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 Immigration Minister David Coleman, but he decided not to lift the bar.
In an interlocutory hearing in the Federal Court on Wednesday, Justice 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 Mr Dutton had lifted the bar preventing Tharunicaa from applying for a visa in 2017, and the bar remained lifted.
Justice 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.