Priya and Nades Murugappan and their Australian-born daughters Kopika and Tharunicaa, aged five and three, had a win in the Federal Court earlier this year, but now must await the outcome of an appeal.
Justice Mark Moshinsky had ruled that Tharunicaa was denied procedural fairness in making a protection visa application, which would have allowed her to remain in Australia.
He ordered their costs of $206,934.33 be paid, after determining that Immigration Minister David Coleman had lifted a bar to consider a visa application.
The family, from Biloela in Queensland, were taken into detention in Melbourne in March 2018 and transferred to Christmas Island in August 2019 after an urgent injunction prevented their deportation to Sri Lanka mid-flight.
The federal government appealed Justice Moshinsky’s findings from earlier this year, while the family’s lawyers filed a cross-appeal against a second ground which was dismissed in that case.
In July 2017, by a ministerial determination from Home Affairs Minister Peter Dutton, the bar was lifted on 7500 people who arrived in Australia by boat between 2008 and 2013.
The family’s lawyer Angel Aleksov argued the bar was lifted for Tharunicaa at that time, even though she was just a month old and Priya’s application was under review. They said she was not part of her mother’s application and a September 2019 visa application must be processed separately.
He said Tharunicaa became eligible to apply when Mr Dutton lifted the bar, and the fact that she later failed a qualifying test was “legally irrelevant”.
The Government’s barrister Stephen Lloyd argued that was not the case.
He said criteria had to be met at the date an application was made, in order to determine the visa application was valid.
Legislation requires not only that valid applications are considered, but that invalid applications are not considered, he said.
The hearing was originally scheduled to run over two days, but instead wrapped up by lunchtime on Wednesday.
Justice Geoffrey Flick, one of three judges hearing the case, became “cranky” when submissions from Mr Lloyd largely reiterated his written points.
“You seem to be repeating yourself, quite frankly,” Justice Flick said.
He later warned Aleksov not to do the same.
“We can all read the written submissions for ourselves,” the judge said.
They will hand down their decision at a later date.
-AAPJump to next article