Immigration

Biloela Tamil family to stay in Australia for at least another 12 days after case delayed

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The Federal Court has delayed the case of two-year-old Tharunicaa by another 12 days as the family remains detained on Christmas Island.

A Tamil family who have been fighting deportation will remain in Australia for at least another 12 days after the Federal Court extended an injunction in the case of their two-year-old daughter Tharunicaa's bid for asylum. 

A series of courts, including the High Court, have previously found her parents, Priya and Nadesalingam and the eldest child, four-year-old Kopika, are not refugees and therefore do not qualify for Australia's protection.

On Friday, Justice Mordy Bromberg ruled that the injunction would be extended until 4pm on 18 September and the court adjourned until then to allow time for more evidence to be prepared.

Priya and Nadesalingam and their two children were happily living in Biloela in central Queensland.
Priya and Nadesalingam and their two children were happily living in Biloela in central Queensland.
Supplied

Earlier this week the hearing was delayed to give the family’s lawyers enough time to respond to the last-minute decision by Immigration Minister David Coleman, who rejected an application for ministerial intervention in the two-year-old’s case.

The family are the only people detained on Christmas Island, after they were removed from the Melbourne immigration detention centre, where they had lived since March 2018, last week.

A court injunction regarding Tharunicaa's case, which was extended until 4pm on Friday earlier this week, has so far prevented the family’s forced return to Sri Lanka, where they fear they will be mistreated due to Nadesalingam’s connection to the Tamil Tigers separatist group.

Despite being born in Australia, 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.

Speaking outside the court, the lawyer acting on behalf of the family, Carina Ford, said the family will remain in detention on Christmas Island until the September interlocutory hearing.

Ms Ford could not say whether the matter would be finalised before the end of the year and stressed that this was "only the first part of the case", with the date for a full hearing yet to be determined. 

"It is really hard to predict," she said. "This has worked [faster] than most cases in this jurisdiction, so the parties are doing everything that they can but it still does take time and that's our legal process."

Lawyer for the family Carina Ford speaks to media at a press conference outside of the Federal Court earlier this week.
Lawyer for the family Carina Ford speaks to media at a press conference outside of the Federal Court earlier this week.
AAP

Even if the court case is successful, Ms Ford said the support of the minister would still be required. 

"There are other ways to mediate disputes and we remain open on those issues to discuss alternative plans," she said.

"There's still hope, I think, and maybe if discussions could take place, maybe the parties could come to an agreement in a way to resolve it."

The small Queensland community of Biloela - where the family lived prior to its detention - have long been vocal in support of the family, who they say make a valuable contribution to the rural town.

Family friend and Biloela resident Angela Frederiks - who travelled to Christmas Island to support the family - told SBS News the family should be “brought back to Biloela” immediately.

Despite the widespread support for the family, Prime Minister Scott Morrison has continually backed the court’s decision that “there is no asylum claim” and therefore refused to intervene.

The prime minister has previously said the family is welcome to reapply for an Australian visa after they have returned to Sri Lanka, but made clear that they would not receive special treatment.

Opposition leader Anthony Albanese this week travelled to Biloela to meet with friends of the family and has urged the government to utilise ministerial intervention to allow them to stay. 

Would the family be safe in Sri Lanka?

A debate has raged over whether the family will face legitimate danger if returned to Sri Lanka, with Mr Morrison arguing that Nadesalingam has returned to his country multiple times since moving to Australia without incident.

Supporter's of the Biloela Tamil asylum seeker family gather outside of the Federal Court in Melbourne, Wednesday, September 4, 2019.
Supporter's of the Biloela Tamil asylum seeker family gather outside of the Federal Court in Melbourne, Wednesday, September 4, 2019.
AAP

Priya and Nadesalingam fled Sri Lanka during the bloody civil war between the Tamil Tigers and the government, arriving in Australia separately by boat in 2012 and 2013.

While the war ended in 2009, some experts argue that persecution of Tamils - an ethnic minority in Sri Lanka - still continues.

Dr Matt Withers, a Sri Lanka expert at Macquarie University, told SBS News earlier this week that in the 10 years since the civil war ended, reconciliation had stalled and "continuing ethnic discontent is very much alive".

"It's hard to speak specifically to the sorts of conditions this family will encounter, [but] I'm inclined to agree there is a high likelihood of structural discrimination, if not a real threat of violence,” he said.

Sri Lankan Consul General to Australia Lal Raj Wickrematunga has previously told SBS News it is "safe" for the family to return.

"As far as the Sri Lankan government is concerned, Sri Lanka is safe for Tamil families to return,” he said.

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