Tamil family granted two more days in last-ditch legal bid to stay in Australia
A Tamil family fighting to stay in Australia have won a two-day reprieve as lawyers battle an overnight ministerial decision not to consider using his discretionary powers to allow a visa application to be made.
The Federal Court in Melbourne on Wednesday extended the latest injunction protecting the family's youngest child, Tharunicaa, 2, from being deported.
Justice Mordecai Bromberg ordered the Australian government be restrained from forcibly removing the girl until 4pm on Friday.
The court application only applies to Tharunicaa but her lawyers have been assured the family will not be separated.
Tharunicaa, her parents Priya and Nadesalingam and her four-year-old sister Kopika, are detained on Christmas Island as they await the outcome of a last-ditch bid to stay.
The court heard Immigration Minister David Coleman on Tuesday night declined to allow Tharunicaa to apply for a protection visa.
The toddler is considered an unauthorised maritime arrival, despite being born in Australia, because her parents arrived by boat. As such, she is unable to make a visa application from detention. The only way she could do that is for the minister to make an exception in allowing her to apply.
The mattered was adjourned until Friday, in light of the Minister's decision overnight. Lawyers for the family said they required more time to consider the impact of his decision on their case.
Justice Mordecai Bromberg will hear her case again on Friday morning.
He asked for the matter to proceed on Friday "without any further surprises" after the overnight change.
About 70 protesters gathered outside the court on Wednesday to call for the government to intervene and return the family to their home in Biloela.
The courts have rejected previous asylum applications from the father, mother and eldest daughter, but refugee advocates have held rallies to demand the government make an exception.
Labor leader Anthony Albanese has travelled to the Queensland town of Biloela to galvanise community support and try to heighten pressure on the Morrison government to halt the deportation of the Tamil family to Sri Lanka.
Mr Albanese will meet community leaders on Wednesday to call on Prime Minister Scott Morrison to allow the family to return to the rural town near Gladstone whether they win or lose a final court application to stay.
A last-minute injunction delivered over the phone last Thursday night stopped the government from deporting the family.
The injunction only barred the government from removing the family until last Friday afternoon, but it has been repeatedly extended for the two-year-old girl.
Their legal team had argued that Tharunicaa's protection claim was never referred to the Immigration Minister for assessment.
The family's case is resting on Tharunicaa's claim because she was not born when her mother's asylum request was made in late 2016.
Immigration lawyer Carina Ford conceded on Monday that even a win on Wednesday would have referred the matter back to a department delegate to consider for referral to the minister.
"We need a change of heart at the end of the day," Ms Ford said.
On Tuesday, Mr Albanese said Home Affairs Minister Peter Dutton had used his discretion to issue visas to two au pairs and should rely on the same powers to allow the Sri Lankan family to stay.
"You can have strong borders without losing your humanity and that's what this is about," the Opposition Leader told the ABC's 7.30 program on Tuesday night.
Prime Minister Scott Morrison has said he could not "in good conscience" intervene to stop the family being deported if it risked kick-starting the people-smuggling trade.
Priya and Nadesalingam arrived by boat separately as asylum seekers in 2012 and 2013.
Both say they face persecution if they are sent back to Sri Lanka due to past family links to the militant political group Liberation Tigers of Tamil Eelam.
Priya has said she witnessed her fiance and five other men from her village burned alive before she fled.
How we got here
- Priya and Nadesalingam fled Sri Lanka separately by boat in 2012 and 2013 after the country's civil war
- The couple met in Australia and married in 2014
- The couple's eldest daughter Kopika, is born in Australia in 2015
- Kopika's claim for asylum is processed with her mother's. Nadesalingam is processed separately
- By the start of 2018, Nadeslingam's claim is rejected and all of his avenues for appeal fail
- Priya and Kopika's claims are also rejected and Priya's bridging visa expires
- The family is detained after a raid on their Biloela home in March 2018 and they are moved to a Melbourne detention centre
- Priya and Kopika's subsequent appeals go all the way to the High Court but are unsuccessful
- The family's future rests on the youngest daughter Tharunicaa's case because she was not born when Priya's asylum claim was processed in late 2016
- With AAP, David Crowe