Australian Immigration Daily News

Have you been wondering about what has happened in The Tamil Refugee Case?

As you know, that is the very high profile case that has been unfolding in the Federal Courts, concerning the attempts of a Sri Lankan family of Tamil ethnicity to avoid removal from Australia. 

The family is composed of the parents, Priya and Nades, both of whom arrived in Australia by boat, and their two daughters, Kopika and Tharunicaa, who were both born in Australia.  They have lived in the community of Biloela in rural Queensland for a number of years, and have received vocal public support from members of that community for their efforts to avoid removal from Australia.

The Australian government was in the process of taking steps to remove the family from Australia when urgent proceedings were taken in the Federal Courts to stop their removal.

The case has received a huge amount of coverage in the news media.

The latest development in the case was that, after a hearing that was held before Justice Bromberg of the Federal Court on Wednesday  18 September,  an “interlocutory”, or “temporary” injunction was issued yesterday, 19 September, preventing the government from proceeding with the removal of the family.

You can access the decision by clicking here.

What is interesting here is that each of the parents, Priya and Nades, had (according to a chronology of the case in the Guardian) had sought a visa (in the case of Nades, a protection visa, and in Priya’s case, a Safe Haven Enterprise Visa); their visa applications had been refused, the refusals had been affirmed through administrative review, and judicial review proceedings had failed. 

In other words, the parents Priya and Nades have essentially exhausted all avenues of review following the refusal of their visa applications, and they have ultimately been unsuccessful.

The basis of the case that was heard before Justice Bromberg this week was that the youngest daughter, Tharunicaa, had applied (on 12 September)  for a Safe Haven Enterprise Visa in her own right. It was conceded by the government in the proceedings before Justice Bromberg that if the child Tharunicaa had made a valid application for a visa, the removal power under section 198 of the Migration Act would not be available, and she (and by extension, her family) could not lawfully be removed from Australia.

Section 46A of the Migration Act would appear to “bar” a person who has the status of an unauthorised maritime arrival from making a valid visa application.

However, section 46A(2) empowers the Minister to “lift the bar” when the Minister makes a written determination that it would be in the public interest to allow an unauthorised maritime arrival to make a valid visa application.

And in fact, on 26 July 2017, Minister Peter Dutton did make a determination enabling certain unauthorised maritime arrivals to make valid visa applications – in other words, Dutton “lifted the bar” for certain cases and persons.

The question before Justice Bromberg in the hearing that was heard this week was whether there was a “serious question to be tried”  as to whether the child Tarunicca could invoke the benefit of this determination lifting the bar.

It was Justice Bromberg’s conclusion that there is a serious question to be tried on this issue.

Accordingly, Justice Bromberg issued an interlocutory injunction to prevent the family from being removed until the issue of whether the youngest daughter has made a valid visa application is decided.

It’s a complicated, tangled case, and we’ll have to stay tuned to see what eventually happens and how the fate of this family is decided.

It does raise some very troubling issues about whether the removal powers should be exercised in relation to a family that has Australian born children and that has developed strong ties to the Australian community during the period when their applications for protection visas were slowly working their way through the system.

What do you think? Have your say in the comments section.

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