A Tamil asylum seeker family detained on Christmas Island have won a legal battle in the Federal Court, and will not face imminent deportation to Sri Lanka, the Daily Mail reported.
In a landmark decision, the court ruled their two-year-old daughter had not been treated fairly – with the family’s future depending on the little girl’s visa status.
A series of court orders have barred the Australian government from deporting parents Nadesalingam Murugappan, known as Nades, and Kokilapathmapriya Nadesalingam, known as Priya.
They came to Australia by boat in 2012 and 2013 respectively, alleging they were escaping the Sri Lankan civil war.
Their two daughters, Kopika, 4, and Tharunicaa, 2, were born in Australia.
The family were moved to Christmas Island in August, with the couple saying they feared persecution back in Sri Lanka, having fled during the civil war.
On Friday, Federal Court Justice Mark Moshinsky found in favour of the family, with the matter resting on whether Tharunicaa has the right to apply for a protection visa.
He ruled Immigration Minister David Coleman had lifted the bar to consider a visa application for Tharunicaa in May last year.
This does not mean the government is required to issue the toddler with a visa, but marks an important point in their legal battle.
A court injunction last year prevented their deportation to Sri Lanka until legal proceedings were finalised.
The family want to return to the Queensland town of Biloela, and have been waiting on Justice Moshinsky’s decision since a two-day hearing in February.
Toddler Tharunicaa is considered an ‘unauthorised maritime arrival’ by authorities, despite being born in Australia.
Normally, holding this status means a person does not have the right to apply for a visa.
The rest of her family has not been found to be legally due Australia’s protection, and have exhausted any appeals process – meaning the family’s fate rests with their two-year-old daughter.
Having been moved to Christmas Island last year, the mother said her family had been separated from their home.
‘My children have been separated from their world,’ she said.
The court found that Mr Coleman had ordered a full departmental briefing on handling the family’s case, including the option that he exercise a power to allow them to apply for protection visas
That prompted an assessment in August, during which Justice Moshinsky said Tharunicaa was ‘not afforded procedural fairness’.
Lawyers now have seven days to tell the Federal Court what should happen next.
The family’s lawyers put forward two arguments in a two-day hearing in Melbourne in February.
Angel Aleksov said both Mr Coleman and Home Affairs Minister Peter Dutton had taken procedural steps that required them to make a decision on granting a visa to Tharunicaa.
Stephen Lloyd SC, representing the ministers, had claimed if Mr Coleman requested information on the family, he was saying ‘tell me what I could do’, rather than taking a formal procedural step.
The family will remain in detention while the process continues.
