Extract from The Guardian
Court denounces government’s ‘Kafkaesque’ handling of visa application for youngest Australian-born daughter, who is being detained indefinitely with her family
Last modified on Tue 16 Feb 2021 15.29 AEDT
The full bench of the federal court upheld a ruling that the government’s handling of the visa application of the youngest daughter of the Tamil family from Biloela denied her procedural fairness, calling it “Kafkaesque”.
The decision means the family will not be removed from Australia while the legal process remains ongoing but will remain in detention on Christmas Island without ministerial intervention.
Priya and Nades Murugappan and their daughters, Kopika and Tharnicaa, were taken from the regional Queensland town of Biloela into detention in Melbourne more than 1,000 days ago. The family was moved to Christmas Island in August 2019 after lawyers for the family commenced legal action that prevented their removal from Australia while the youngest daughter’s immigration case is ongoing.
In April last year, Justice Mark Moshinsky ruled that Tharnicaa had been denied procedural fairness, but the federal government appealed.
In a full federal court ruling on Tuesday, justices Geoffrey Flick, Richard White and Natalie Charlesworth upheld Moshinsky’s decision.
On 14 May 2019, then-immigration minister David Coleman received a brief from the home affairs department on the family’s situation asking for him to intervene and lift the bar to allow Tharnicaa to make a visa application.
Coleman never acted on the brief, and Moshinsky found that the decision not to lift the bar without informing the family denied her procedural fairness.
The full court noted that although there was no legal obligation for the department to inform the family, it is an ordinary expectation of good public administration that people subject to such decisions will be informed of them promptly.
“This is especially so in relation to decisions bearing upon the continued detention of persons. Ordinary human decency indicates that detainees should be informed of the position as soon as practicable,” the court said.
“The [government’s] submissions on this topic implied a Kafkaesque approach to these matters.”
The family lost a cross-appeal on whether the bar preventing Tharnicaa from applying for a visa had remained lifted since 2017 when the ministerial determination was made.
The decision doesn’t immediately change the living situation for the family on Christmas Island. Until the outcome of the appeal is determined the family will remain in detention indefinitely, barring ministerial intervention.
The legal costs and the cost to detain the family amount to more than $6m.
The family’s lawyer Carina Ford said in a statement the decision “justifies the release of the family from detention”.
“There are several ministers who have always had the discretion within the immigration portfolio to release this family into the community while their legal matters are resolved. That was the case in 2018, 2019 and 2020. It remains the case now, too,” she said.
“The family should be released immediately from detention and we hope that this will occur.”
Priya and Nades said in a statement through their lawyers that they appreciate the public support, and want to return to Biloela.
“We need our little girls to be safe. Every day, they ask ‘When can we go home?’”
The #HometoBilo campaign which has fought for the family’s return to Biloela for the past three years called for the government to show compassion.
“It has been nearly three years since our friends were taken from their home, from a loving community, and from safety,” they said in a statement.
“Since then, there have been dozens of days in court and over a thousand days without freedom. All of this suffering could have been avoided if the prime minister and his colleagues had shown some compassion. On the 1,078th day of our friends’ imprisonment, we call on Mr Morrison to do just that.”
Labor’s shadow home affairs minister, Kristina Keneally, and shadow assistant minister for immigration, Andrew Giles, called on the immigration minister, Alex Hawke, to use his ministerial discretionary powers to bring an end to the court case by allowing the family to stay in Australia and return to Biloela.
Guardian Australia has sought comment from the office of the home affairs minister, Peter Dutton.
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