On 16 February 2021, the Federal Court upheld a previous ruling – contested by Immigration – that found 3-year-old Tamil girl Tharnicaa Murugappan had been denied procedural fairness in regard to her application for a protection visa in the country she was born in.
Indeed, the full bench of the court noted the Kafkaesque approach the government had taken to the matter.
Tharnicaa’s parents, Nades and Priya, arrived in Australian waters seeking asylum in 2012 and 2013, respectively. Having both fled Sri Lanka, the Tamil pair met in Australia, married, built a life amongst the community in a rural town and had two children. Tharnicaa’s older sister is 5-year-old Kopika.
Under subsection 5AA(1A) of the Migration Act 1958 (Cth), both Kopika and Tharnicaa are classed as “unauthorised maritime arrivals”: the same classification their parents receive. It seems those drafting our federal laws think of all the tricks.
The recent court decision means that Tharnicaa and her family will remain in Australia whilst the situation with her visa is dealt with. However, they’re confinement on Christmas Island is to continue, where they’ve been held in a demountable at the far off location since August 2019.
Gaoling innocent infants
Tharnicaa has been held in immigration detention facilities practically her whole life. Last Friday, 5 March, marks three years since the family was ripped from their home in the Queensland town of Biloela during an Australian Border Force dawn raid, which involved accompanying Serco guards.
After holding the family in immigration detention in Melbourne, the Morrison government attempted to discreetly deport them late night by plane in August 2019. But a last minute court injunction stopped this from happening, and at that point the family were sent to the island.
Nades and Priya had their protection visas denied in 2017. As Kopika was included in her mother’s application, she too was rejected. But there’s the possibility that Tharnicaa can apply for a visa if the immigration minister lifts the bar against unauthorised maritime arrivals making a claim onshore.
Justice Mark Moshinsky made the original, now-upheld ruling in April 2020. He found that in May 2019, then immigration minister David Coleman requested a brief on Tharnicaa, but neglected to make any formal decision and nothing was said to the family. This constituted a lack of due process.
So, now it’s back to the initial step, whether the current minister will lift the bar and allow the 3-year-old Tamil Australian girl the right to make an application to be permitted to remain in the country where she was born.
The good shepherd
Overseeing this travesty of justice, is Australian PM Scott Morrison. The nation’s head of state has made it well known that he’s a man of devout faith. Yet, he’s allowing his ministers, Home Affairs and the ABF to continue to deny these infant girls their freedom or protection.
In his 14 February 2008 maiden speech in federal parliament, Morrison said that the values he derives from his Pentecostal faith are “loving-kindness, justice and righteousness”, which allow him “to act with compassion and kindness”.
Hopefully, someone lets Tharnicaa and Kopika know that such a man has their welfare in his hands.
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Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.