A Tamil family have been saved from deportation for two days but face the task of convincing a court their daughter, 2, would be at risk of harm in Sri Lanka.
A Tamil family fighting to remain in Australia will do so for another two days, as they seek to convince the Federal Court their youngest member needs the nation's protection.
Federal Court Justice Mordy Bromberg on Wednesday ordered the federal government not to deport the asylum seekers to Sri Lanka until 4pm on Friday.
That will allow the court to continue hearing the case of two-year-old Tharunicaa, who is currently detained on Christmas Island with her parents Priya and Nadesalingam and four-year-old sister Kopika.
A succession of courts, including the High Court, have previously found the parents and the eldest child are not refugees and do not qualify for Australia's protection.
The family's legal action is now focused on Tharunicaa's right to apply for a refugee visa, amid claims she will be subjected to "serious harm" if she was sent to Sri Lanka.
Priya and Nadesalingam had settled in the Queensland community of Biloela, where they had their two children, after arriving separately by boat in 2012 and 2013.
Despite being Australian-born, Tharunicaa has been deemed an "unauthorised maritime arrival" under the Migration Act, which stipulates children of asylum seekers who arrive in the country by boat cannot apply for a visa.
The family had been in long-term immigration detention in Melbourne until last Thursday when they were put on a plane for deportation to Sri Lanka.
A judge issued a last-minute injunction - saving them from deportation until 4pm on Wednesday - and the family was taken off the plane when it landed in Darwin, before being sent to Christmas Island hours later.
The Federal Court was told late Tuesday night that Immigration Minister David Coleman decided not to consider using his discretionary powers to allow the family to stay.
The coalition government is now seeking to have the family's claim against deportation dismissed as it is "futile".
Tharunicaa failed a protection assessment on Tuesday, the court also heard on Wednesday, but the family's lawyers argued it was the first they had learnt of it.
Lawyer Angel Aleksov, acting for the family in the court, argued the government didn't have the power to remove people in cases involving "live process" directed to a possible visa.
She called on Mr Coleman to "lift the bar" and use his discretionary powers.