'Relief': appeal win means Biloela family can put claim Sri Lanka is not safe, says supporter

By Amanda Meade

The Tamil asylum seeker family from Biloela say a reprieve from the federal court on Friday has given them their first “real win” in two years in their fight to stay in Australia.

The federal court ruled that the family was denied procedural fairness in the decision on whether to process their visa claim in 2019 and their deportation must remain on hold.

Their lawyers have until Friday to come up with an agreement with the government’s lawyers on what the next legal move is in the fight to stop their deportation to Sri Lanka.

Carina Ford, the lawyer for Priya and Nades and their Australian-born daughters, Kopika and Tharunicaa, said Justice Moshinsky of the federal court has ordered the two parties to come up with “an agreed minute of proposed orders” within seven days and the practical aspects of the decision are being considered.

“If that can’t be agreed upon within 14 days each party should file and serve a minute of proposed orders to give effect to the reasons for the judge then to consider,” Ford said.

Speaking from detention on Christmas Island, where they were sent late last year, Priya told family friend Angela Fredericks she felt they now had a chance to present evidence that it was not safe to return to Sri Lanka.

“We were very much encouraged by the judgment and it strengthened our resolve that we are moving in the right direction,” Fredericks said of her conversation with Priya. “It’s been very reassuring.

“This is the first real win in two years. While we’ve been granted injunctions to stay, this is the first time we’ve been able to show that something hasn’t been right. So for Priya, she definitely feels that sense of relief.”

The federal court looked at whether the home affairs minister, Peter Dutton, considered lifting a bar under the Migration Act in 2017 that prevented Australian-born Tharunicaa applying for a visa and, separately, whether the family had been given procedural fairness in the potential consideration of an application by the immigration minister, David Coleman, in May 2019.

Fredericks said supporters were cautiously optimistic because it may be a chance to put their case to the minister.

“Ultimately we hope that this leads to the lawyers being able to submit all the evidence that Sri Lanka is not safe,” Fredericks said. “Since they put their claims in five years ago there’s never been a chance to put forward any information.”

Ford said while the family lost on the first ground they were successful on the second ground, “that the applicant was not afforded procedural fairness in that process”.

“The applicant was never notified of the August 2019 assessment nor invited to comment on any aspect of the assessment,” Ford said.

“The injunction remains in place during this period and she will not be deported. Any deadline to appeal would not be until after the final order is made by the judge.

“It also remains open to the minister of home affairs or immigration at any stage to consider releasing the applicant and her family back into the Biloela community.”

Coleman lifted a barrier to allow him to consider a visa application for Tharunicaa last May, but no decision was made.

The immigration department then completed an assessment which found the family was unlikely to come under Australia’s protection visa obligations.