The Tamil family at the centre of a ‘Home to Bilo’ campaign have been given another reprieve, after a Federal Court judge ruled there was enough evidence for a protection visa claim to go to trial.
The ruling means Nadesalingam Murugappan, known as Nades, Kokilapathmapriya Nadesalingam, known as Priya, and their two children can stay in Australia until the court case is finalised.
Nades and Priya arrived in Australia separately by boat from Sri Lanka in 2012 and 2013, and their children Kopika and Tharnicaa were born in Australia.
The family were flown to Christmas Island after a last-minute injunction stopped them from being deported late last month.
The injunction just applies to two-year-old Tharnicaa — who lawyers argue has not had her claim for asylum properly assessed — but the family was kept together as her case made its way through the courts.
On Thursday, Federal Court judge Mordecai Bromberg agreed there was enough evidence to take the matter to trial.
“The applicant has established a prima facie case that the power under s198 of the Migration Act is not available to the [Government] to remove her from Australia,” Judge Bromberg said.
The judge also said that the risk that Tharnicaa would “suffer” if deported outweighed any potential impact on the government.
“An interlocutory injunction restraining the respondents from removing the applicant from Australia until the hearing and determination of her proceeding at trial has been justified,” he said.
The case before the Federal Court has often been highly technical, with lawyers focusing on a period in 2017 when the then Immigration Minister Peter Dutton enabled some boat arrivals to submit a request for a visa.
An application for the mother, Priya, was made and subsequently denied.
Lawyers argued the same privilege should extend to the toddler, Tharnicaa, but the Government maintained that grace period had passed.
Lawyers also argued that the Government could not detain Tharnicaa as her protection visa was “still in train”.
“It is a very seriously live question whether my client has been lawfully detained,” barrister Angel Aleksov told the court on Thursday.
Earlier this month, Immigration Minister Dave Coleman refused to use his discretion to allow Tharnicaa to make a claim for a protection visa.