A Tamil family facing deportation has been given until Friday to consider a “surprise” development in their case, after the Immigration Minister said he would not exercise his discretion to allow the youngest daughter to stay in Australia.
The Federal Court heard the Immigration Minister David Coleman had advised the family’s lawyers that the department would not allow two-year-old Tharnicaa to apply to renew her visa and that her case had been assessed.
Justice Mordecai Bromberg extended the injunction preventing the family’s removal from Australia until 4pm on Friday.
The family had been advised by the government to abandon the case preventing the transfer “because it is futile”, their lawyer Angel Aleksov said.
The case has been set down for a further hearing on Friday.
Nadesalingam Murugappan, known as Nades, and Kokilapathmapriya Nadesalingam, known as Priya, left Sri Lanka during the civil war and arrived in Australia separately by boat in 2012 and 2013.
Their young daughters – four-year-old Kopika and two-year-old Tharnicaa – were born in Australia.
Nades and Priya’s applications for asylum have been turned down repeatedly.
On Thursday last week, lawyers representing Tharnicaa were able to get a last-minute injunction to stop the removal of the family from the country.
A Border Force plane en route to Sri Lanka was forced to land in Darwin in early on Friday to comply with the order.
Toddler’s application already assessed, court hears
In a hearing last week, Mr Aleksov told the court Tharnicaa should have been assessed by immigration officials as to whether she was entitled to protection.
The court heard on Wednesday the affidavit filed overnight said “the Minister has decided not to consider exercising his discretionary power … to permit the applicant [Tharnicaa] to make an application for a protection visa”.
The court heard the toddler’s original visa had expired “at the end of the judicial review process”.
The court heard her case had been assessed by someone in the Department of Home Affairs.
Mr Aleksov, acting for the family, said the affidavit was “the first we’ve heard about that”.
Justice Bromberg asked Mr Aleksov if he would be able to proceed on Friday “without any further surprises”.
Outside court, another of the family’s lawyers, Carina Ford, said the family was in “uncertain territory”.
“But I guess the fight is not over yet,” she said.
Ms Ford said the lawyers had not been allowed a response to the issues raised in Mr Coleman’s affidavit and would be requesting the documents detailing any assessment of Tharnicaa’s asylum claim.
She said the family, who were flown to Christmas Island late Friday night, remained “relatively distressed” but understood the court process as best they could.
The events of the past week have been closely watched by the family’s supporters in the central Queensland town of Biloela, where the family lived for four years until early 2018 when they were detained by immigration officials.
Despite intense public pressure and public lobbying of government ministers and MPs over the past week, the government has refused to exercise discretion to allow them to stay.
Home Affairs Minister Peter Dutton has consistently said the family does not have a legitimate claim to stay in Australia.