Federal Court rules Tamils weren’t given a fair go

Court rules Tamil girl fighting deportation didn’t meet visa criteria, leaves open new avenue.

Nades Murugappan, Priya Nadarasa and their daughters. Picture: Colin Murty

The last family behind the wire on Christmas Island avoided immediate deportation on Friday.

And a failure by the Australian government to follow procedural fairness has given Tamil couple Priya Nadarasa and Nades Murugappan hope they may yet be able to stay in Australia.

“We are very happy,” Ms Nadarasa told The Australian from detention on Christmas Island on Friday.

“We feel strong support from Australians.”

The couple’s struggle to remain in Australia has lasted seven years and escalated when they and their two young daughters were removed from the rural Queensland town of Biloela in March 2018. Ms Nadarasa and Mr Murugappan arrived separately on asylum boats and met and married in Australia. Their two daughters Kopika and Tharanuicaa were born in Australia but are not considered Australian citizens.

Ms Nadarasa, Ms Murugappan and their oldest daughter Kopika, 4, have been found not to be refugees and the High Court has dismissed their bids for appeal.

However, a series of court rulings have kept them in Australia. In September 2019 Federal Court judge Mordecai Bromberg granted an injunction on the family’s deportation while they were already on a plane bound for Colombo, Sri Lanka. That is when the family was taken to Christmas Island, where they live under guard as the sole occupants of a detention camp next to the local swimming pool and recreation centre.

On Friday Justice Mark Moshinsky rejected the family’s first legal grounds when he found Tharunicaa’s application for a Safe Haven Enterprise visa did not meet the criteria.

However he found that when Immigration Minister David Coleman asked his department for a full brief on the family – including the option of using his power to let the family apply for protection visas – he prolonged Tharuicaa’s detention. This affected her interests, Justice Moshinsky found. The little girl’s lawyers were not notified nor invited to comment.

We had a small victory in the Fed Court today. Justice Moshinsky just ruled that Tharunicaa's asylum claim wasn't given 'procedural fairness'.It's good news,but it doesn't mean our friends are any closer to coming home.The PM could bring them home today,though,if he wanted to. pic.twitter.com/266egmHuOz

— HometoBilo (@HometoBilo) April 17, 2020

“I therefore conclude that, in finding that the applicant was not a person to whom Australia had protection obligations, the departmental officer who carried out the August 2019 Assessment failed to observe the requirements of procedural fairness,” he said.

Justice Moshinsky asked the family’s lawyers and the Australian government’s orders to each propose what should happen next within seven days. He would consider these within 14 days.

“The injunction remains in place during this period and she will not be deported,” the couple’s lawyer Carina Ford said.

“Any appeal would not be until after the final order is made.”