Priya and Nades Murugappan and their Australian-born daughters Kopika and Tharunicaa, aged four and two, have spent more than two years in detention, including months on Christmas Island after an order prevented their deportation to Sri Lanka.
Federal Court Justice Mark Moshinsky on Friday ruled Immigration Minister David Coleman had lifted the bar to consider a visa application for two-year-old Tharunicaa last May.
He had ordered a full departmental briefing on handling the family’s case, including the option that he exercise a power to allow them to apply for protection visas
That prompted an assessment in August, during which Justice Moshinsky said Tharunicaa was “not afforded procedural fairness” because the family or their lawyers weren’t told about the assessment, or allowed to comment on it.
Lawyers now have seven days to tell the Federal Court what should happen next.
In a two-day hearing in February, the family’s lawyer Angel Aleksov said Coleman and Home Affairs Minister Peter Dutton had taken procedural steps that required them to make a decision on granting a visa to Tharunicaa.
Stephen Lloyd SC, representing the ministers, had claimed if Coleman requested information on the family, he was saying “Tell me what I could do”, rather than taking a formal procedural step.
The argument regarding Dutton was rejected by the court but the argument relating to Coleman was accepted.
Coleman sought a briefing from the Immigration Department in May 2019 after the High Court refused special leave for Priya to appeal the rejection of her visa.
His adviser Ross Macdonald claimed the request was not for options to exercise a power that allowed the family to obtain a visa, but “for information to reacquaint himself with the details”.
A May briefing prepared by the department included possible options for ministerial intervention in the applications of all four family members, noting it was provided “as requested”.
A pre-removal assessment of the family’s case by the department in August 2019 found they were not likely to engage Australia’s protection obligations.
The family was put on a plane to Sri Lanka at the end of the month but an urgent injunction prevented their deportation and they were instead sent to Christmas Island.
“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.
He found that the officer in the department who carried out the assessment had not given the young girl, or her lawyers, the opportunity to comment and failed to follow the requirements of procedural fairness.
The family will remain on Christmas Island until a decision on what should happen next is made.
– ABC / Karen SweeneyJump to next article