Taxpayers Will Foot the Bill for Government’s Denial of Procedural Fairness

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Biloela QLD

The Federal Government has been ordered to pay Tamil family, Priya and Nades Murugappan and their two Australian-born daughters Kopika and Tharunicaa more than $200,000 in legal fees over their bid to stay in Australia.

In a small win for the family, who are still detained on Christmas Island, Federal Court Justice Mark Moshinsky has ordered the family’s costs of $206,934.33 be paid by the government, after they successfully argued their youngest daughter was denied procedural fairness in an application for a protection visa.

Biloela Children

The never-ending battle to return to Biloela

The family has been fighting for asylum for more than two years. The long and complicated battle began in 2018 when Nades’ claim was rejected and all of his avenues for appeal failed. At the same time, his wife, Priya and their first daughter Kopika also lost their asylum status.

The family was detained by immigration authorities and just as they were about to be sent back to Sri Lanka, a last-minute injunction lodged by the family’s lawyers was granted, as Tharunicaa – the youngest child – had not yet been assessed for a protection visa.

The injunction forced the plane to land in Darwin and from there the family was then taken to Christmas Island where they remain.

Under the Migration Act, people who arrive in Australia by boat cannot apply for a visa while in Australia. Even though Tharunicaa was born in Australia, she is given the same visa status as her parents. But the immigration minister has the power to “lift the bar” to allow her to apply for a visa.

Almost 12 months ago, in May last year, Immigration Minister David Coleman lifted a barrier to allow him to consider a visa application for Tharunicaa,  but no decision was made. He asked for a briefing on the family’s case, including his ability to exercise power allowing her to apply for a protection visa. An assessment by an immigration department official in August found it was unlikely Australia’s protection obligations would apply to the family. The family was not invited to comment or engage in this process in any way.

The latest decision by the Federal Court upholds the family’s appeal that three-year old Tharunicaa was denied procedural fairness in an application for a protection visa. The court also determined that their deportation must remain on hold.

Detention costs $20,000 a day

Last year it was revealed that the Australian government was spending $20,000 a day keeping the family in the detention facility, accruing to a total of $30 million at that time. And there has been outrage over the fact that Home Affairs Minister Peter Dutton continues to ignore pleas on the family’s behalf for him to use his discretionary powers – as he has allegedly done for a number of au pairs – to let the family stay in Biloela.

Labor leader Anthony Albanese has been exceptionally vocal, calling the family’s legal battle with the Australian Government and their subsequent detention on Christmas Island ‘publicly funded torture’.

The United Nations has also called on Australia to remove the family from Christmas Island.

What’s next for the Tamil Family?

What happens next for the family is unclear.

Both parents, Priya and Nades fear persecution if they are returned to Sri Lanka. Certainly, Christmas Island presents its own kind of interim hell – the family is isolated behind wire fences, watched closely by at least half-a-dozen security guards at all times.

But the Home Affairs Department has repeatedly stated that the family will remain on at the offshore detention centre while judicial review proceedings are before the court.

While the Federal Government does also have the power to intervene and make an exception for the family, it has insisted instead on a long, drawn out court battle – paid for from the public purse, along with the exorbitant costs of keeping the family locked up.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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