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The Tamil family who settled in Biloela, Queensland, with their two Australian-born daughters have now spent more than 1000 days in immigration detention. But legal pressure is attempting to bend political will towards compassion. By Rachel Withers.

Biloela family wait for compassion

Tharunicaa and Kopika, the children in the Biloela family detained on Christmas Island.
Credit: AAP Image / Supplied

The Tamil family from Biloela being held on Christmas Island were granted yet another “reprieve” in their battle against deportation this week, with the Federal Court rejecting two appeals – one from the government and one from lawyers for the family. The outcome, being billed as a “win” for the family, leaves them in the same exact limbo they were in before – unable to be removed from Australia while the process remains ongoing, unable to return to Biloela as things stand. There are still two paths available to them – the legal and the ministerial – although neither seems probable, given that a change of heart by Home Affairs Minister Peter Dutton is their best hope. But could the latest decision prove to be a political turning point?

The Biloela family – made up of Sri Lankan-born Priya and Nades Murugappan and their two Australian-born daughters, Kopika and Tharunicaa – have now spent more than 1000 days in immigration detention, since being removed from the Queensland town of Biloela on March 5, 2018, when their bridging visas expired. In August 2019, the federal government attempted to deport them from a Melbourne facility, but a last-minute injunction saw their plane forced to land in Darwin, from where they were moved to Christmas Island. The family has remained there ever since, locked in a legal and political battle with the federal government.

The Murugappans argue they are at risk of harm if they return to Sri Lanka. However the Australian government has barred them from obtaining a visa because Nades and Priya arrived in Australia by boat, in 2012 and 2013 respectively. Home to Bilo, a community group made up of residents, friends and supporters, continues to advocate for them on the national stage, lobbying for them to be allowed to come home.

The ongoing – and probably final – legal battle hinges on the protection visa application for the younger daughter, Tharunicaa. The other family members’ protection claims have been rejected, but the government has assured the family’s lawyers they won’t be split up. Lawyers for the family have argued the government cannot deport Tharunicaa until they properly consider her claim for protection: they claim that a “bar” on applying for visas, lifted in 2017 for those who had arrived by boat between 2008 and 2013, had been lifted for Tharunicaa, too. Separately, they say she was denied procedural fairness in the consideration of her application by then-immigration minister David Coleman in May 2019.

In April 2020, the Federal Court dismissed the first ground, ruling that the bar had not been lifted for Tharunicaa. However, it agreed with them on the second, finding that Coleman never acted on a brief prepared for him by the Department of Home Affairs, which asked for him to intervene and lift the bar for the three-year-old.

On Tuesday, the full bench of the Federal Court upheld that decision, ruling that the family cannot be deported until Tharunicaa’s claim is fairly considered. The family was appealing the first ground, while the government was appealing the second. Both appeals failed.

Had the family won its appeal, they would have won the right for Tharunicaa to apply for a protection visa. “It was potentially the better outcome because it wouldn’t be reliant on ministerial discretion,” says Carina Ford, lawyer for the family, but admits her application would still have had to go through the Immigration Assessment Authority – “not exactly the fairest of processes”. It’s not clear that Tharunicaa would be found to be owed protection, with the rest of the family having already been found ineligible, although her age might have helped.

Had the government won its appeal, it would’ve been free to deport the family – something it clearly intended to do. There were unconfirmed reports that there was a plane at Christmas Island on Tuesday ready to take them away on the spot. “Not even allowing the appeal period to be considered,” Ford notes.

As it stands, the family has just one judicial avenue left. Lawyers are considering whether to seek leave to take their appeal to the High Court. Ford doesn’t expect the government to appeal the second ground, even if the family appeals, saying the decision on their appeal was “scathing” – the court labelled the government’s submissions “Kafkaesque”. If the family loses in the High Court, they will be left with only the ministerial discretion route—not a promising one, based on the ferocity with which the government has fought this case.

There are multiple ways the Home Affairs and Immigration ministers could use their discretionary powers here. Alex Hawke, the current immigration minister, still has the power to “lift the bar” on Tharunicaa applying for a visa.

The ministers have even further scope for discretion here. There is – and always has been – the option of the ministers within Home Affairs using their extraordinary powers under section 195A of the Migration Act, giving them absolute discretion to issue visas in the national interest. Sometimes referred to as “God powers”, these are non-reviewable, but while they are “extraordinary” they have been used in thousands of interventions, including for au pairs.

They also have the power to release the family into the community while their legal matters are ongoing – something lawyers have again called for.

Dutton has for years resisted calls to use the “God powers” for the Biloela family. When questions were put to Home Affairs over whether the minister intends to use his powers in this case, the department responded with a statement reaffirming the government’s policy that “no one who attempts illegal maritime travel to Australia will be settled here”.

“At no time has any member of the family been found to be owed protection,” a spokesperson added.

Home to Bilo is putting pressure on the government, and continuing to appeal to the better nature of Dutton and Hawke. In a statement following the judgement, the group called on Scott Morrison and his Coalition colleagues to show some compassion, noting that all this suffering could be ended on the spot.

Angela Fredericks, one of the group’s organisers and a mental health social worker, feels that Tuesday’s confirmation that Tharunicaa did not receive “procedural fairness” could help turn the tide.

“We are a nation of the ‘fair go’,” she says. “So, to see that our government is not actually giving people a fair go – I think that has definitely ignited a flame in a lot of people who are going to be letting the government know this and keeping that pressure up.”

Public opinion does seem to be shifting behind the family, Ford notes, with the Labor Party now firming up its position as well. The opposition has been supportive until now, but this week put out one of its firmest calls yet, with shadow immigration minister Kristina Keneally and assistant shadow immigration minister Andrew Giles releasing an official statement calling on Hawke to use his powers. “I think the sheer time that the children have now been in detention, it just sits uncomfortably with the community,” says Ford.

The media narrative also seems to be shifting, with much more mainstream coverage of the government’s latest failed appeal, and far fewer accusatory questions about whether the family is “wasting the courts’ time”. Ford says it was “interesting” that Dutton didn’t come out with any negative statement about the family on the day of the ruling, as he usually does. Home Affairs merely released its basic immigration talking points.

While Fredericks wants to believe that key Coalition figures could change their minds, she doesn’t have much hope. The group has offered to meet directly with the prime minister and ministers in Canberra but has never gotten close. “There’s never been any willingness to talk to us,” she says.

“Can we please sit down?” she asks of the prime minister. “Can we actually have a discussion and find an option where the government can feel secure in their policies around boat arrivals, which I know is what they’re saying is their fear of restarting… [and] where this family can remain safe?”

Ford acknowledges the Coalition might be a lost cause. Dutton and Morrison are generally very absolute in their stances on borders, something that has driven them to pursue the family’s case so relentlessly. But there is an election looming, and the government clearly doesn’t want the family’s indefinite detention to become an election issue – especially in the crucial state of Queensland, where the issue gets special attention. The government hoped to sweep this under the rug with a quick plane out on Tuesday, but Ford thinks a move like that “could absolutely backfire on them.” There is a simpler way to avoid making this an election issue: letting them go home.

Advocates are holding out for that election, acknowledging that ultimately a change of government must be the best chance they have to get the family back to Biloela. Even while acknowledging the turning tide, Ford says she is “not naive”, and is aware that this may not be a happy ending. “And the clients are fully across that as well.”

This article was first published in the print edition of The Saturday Paper on Feb 20, 2021 as "The way home to Biloela".

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Rachel Withers is the contributing editor of The Monthly Today.