Biloela family argue younger daughter's asylum claim must be assessed

Josh Taylor
Photograph: David Crosling/AAP

The Tamil family from Biloela in Queensland fighting against being sent to Sri Lanka by the Australian government have made their case to the court that a visa application for their youngest daughter must be processed.

Tamil asylum seekers Priya and Nades and their daughters Kopika and Tharunicaa have been detained on Christmas Island since late last year awaiting the hearing.

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.

In July 2017, by a ministerial determination from the minister for home affairs, Peter Dutton, the bar was lifted on 7,500 people who arrived in Australia by boat between 2008 and 2013.

Lawyers acting for Tharunicaa argued the bar was also lifted for her at that time, even though she was just one month old and Priya’s application was under review. Her lawyers argue this means a visa application in September 2019 must be processed.

The family’s barrister Angel Aleksov told the court on Friday that Tharunicaa’s application for asylum was not part of her mother’s process and should be considered separately.

“She was not a participant in her parents’ visa applications. She was just a stranger to that case,” he said.

He argued the wording of the determination left it open for Tharunicaa to lodge an application after the 1 October 2017 deadline.

Government barrister Stephen Lloyd said one “annoying” problem identified by the department in 2017 was that many of those affected were “having babies during this period of time”, and those babies were also classified as unauthorised maritime arrivals, meaning that the determination had to apply to them, too.

“The child might not even be born by July 2017, it will apply to a [visa] application by a person as long as the application is made prior to the parent’s application being refused and finally determined,” he said.

“Ultimately we accepted there is a future element of this operation.”

The family’s lawyer, Carina Ford, said on Friday that the way the determination was written was ambiguous.

“Both sides would agree it’s not entirely clear in the way it is written, and that’s what the argument is.”

Related: Judge tells government to give documents to Biloela family's lawyer after ‘overenthusiastic’ redactions

The hearing will continue on a second ground on Tuesday, looking at whether Dutton personally considered lifting the bar, and whether the process was fair. It was delayed after the minister’s lawyers asked to put on more evidence.

Ford said her visit to Christmas Island last week was a “pretty emotional”.

“The climate alone makes it very draining and difficult to do things, but the conditions in which they are living – it’s not great,” she said.

“It’s really run down. Whilst money has been spent on detention centres at Christmas Island, I’m not so certain it’s been spent on where they’re staying.”