A Tamil family who call the Queensland town of Biloela home have had another win in their battle to return to their community.
Priya and Nades Murugappan and Australian-born daughters Kopika and Tharnicaa, five and three, have been in detention on Christmas Island since August 2019 after an urgent injunction put a hold on their deportation.
On Tuesday morning the full bench of the Federal Court rejected an appeal by the federal government over an earlier ruling by Justice Mark Mochinsky, which found Tharnicaa was denied procedural fairness in making a protection visa application that would have allowed her to remain in Australia.
But their legal battle is not over yet.
In a statement, the family’s lawyer Carina Ford said they would seek a further injunction on the family’s deportation unless the government provides an undertaking not to remove them.
She said they believed the decision justified the family’s release from detention, noting several ministers have always had the discretion to free them from detention while their legal matters are resolved.
“The family should be released immediately from detention and we hope this will occur,” she said.
Mr and Ms Murugappan said they were grateful for the support and love they had been shown.
“It helps us stay strong. We just want to go back to Biloela,” they said.
“We need our little girls to be safe. Every day they ask ‘when can we go home?’.”
Justice Mochinsky’s ruling included an order that the federal government cover more than $200,000 in legal costs, after he determined then Immigration Minister David Coleman had lifted a bar to consider a visa application.
In May 2019 the Department of Home Affairs recommended Mr Coleman should exercise powers allowing Tharnicaa to apply for a bridging visa, and that he agree to consider exercising powers to grant her and her family substantive visas to remain in Australia.
While Mr Coleman had lifted a barrier to allow him to consider a visa application for Tharnicaa in May 2019, no decision was made.
An assessment by an immigration department official in August found it unlikely Australia’s protection obligations would apply to the family.
“The applicant was not notified that the August 2019 assessment was being conducted and was not invited to comment in relation to any aspect of the assessment,” Justice Moshinsky said.
Justice Richard White handed down the full bench’s ruling on the appeal on Tuesday morning, dismissing the federal government’s case.
The full bench backed Justice Mochinsky’s reasons and found there was no appealable error in his decision.
Mr and Ms Murugappan fear persecution if returned to Sri Lanka.
The full court also rejected a cross-appeal by the family to a second ground that was first dismissed by Justice Mochinsky.
The family’s lawyers are considering a High Court appeal but with no automatic right they must first be granted special leave.