Federal government loses latest court bid to deport Tamil family

Asylum-seeker couple and family remain detained on Christmas Island with their bid to stay in Australia unresolved.

Mr Murugappan and his family on Christmas Island. Picture: Colin Murty

Two rejected asylum-seekers and their Australian-born children ­remained in detention on Christmas Island on Tuesday night after a court decision extended their epic battle with the federal ­government.

The family’s asylum case has become Australia’s most high-profile since the jet deporting them in 2019 was grounded in Darwin as a result of a last-minute court intervention.

Tamils Nadesalingam Murugappan and Kokilapathmapriv Nadarasa reached Australia during a sustained wave of asylum boat arrivals that brought more than 50,000 people between 2008 and 2013.

More than 1200 people drowned in people-smuggling ­operations that charged up to $US10,000 a seat on unseaworthy or barely seaworthy vessels.

On Tuesday, the full bench of the Federal Court ruled the family’s youngest child might yet be granted a protection visa because her original application was not given “procedural fairness”.

It meant the government ­charter on standby at the Christmas Island airport to deport the family to Colombo, Sir Lanka, ­returned to the Australian mainland on Tuesday afternoon.

Mr Murugappan, who reached Christmas Island by boat in 2012, and his wife Kokilapathmapriy Nadarasa, who arrived at ­Cocos ­Islands by boat in 2013, have ­repeatedly been found not be refugees in decisions by the Australian government and courts.

They met and married in Australia and had their children on the Australian mainland while their claims for protection were being assessed and appealed.

However, their daughters, aged five and three, are also “unauthorised maritime arrivals” under Australian law because they inherited their parents’ status.

The girls have spent most of their lives in detention at Villawood in Sydney and at a family camp on Christmas Island since their parents’ asylum claims were exhausted in 2018. The family’s lawyer, Carina Ford, said on Tuesday that she and her colleagues would now consider taking the case to the High Court.

“Unless the minister provides an undertaking not to remove, we will apply for an injunction,” she said.

“We also think this justifies the release of the family from ­detention.

“There are several ministers who have always had the discretion within the immigration portfolio to release this family into the community while their legal matters are resolved. That was the case in 2018, 2019 and 2020. It ­remains the case now, too.

“The family should be released immediately from detention and we hope that this will occur.”

On Tuesday Mr and Mrs ­Murugappan thanked Australians for the support and love they had been shown. “We are very grateful. It helps us stay strong. We just want to go back to Biloela (in Queensland, where they had made their home). We need our little girls to be safe. Every day, they ask, when can we go home?”

Home Affairs Minister Peter Dutton has previously defended the Coalition’s refusal to allow the family stay, saying Australia was a good inter­national citizen that did more than most to assist and ­resettle genuine refugees in need of ­protection.

In an emailed decision sent to all parties on Tuesday morning, the Federal Court upheld an April 2020 decision by Justice Mark Moshinsky that Tharnicaa was not given procedural fairness in her application for a visa.

Lawyers for the family said they would now decide whether to ­appeal and call upon the Australian government to immediately release this family from detention while legal matters are ongoing. Lawyers for the family said they were assessing whether an injunction or stay of orders would be ­required to protect the family from further deportation efforts.