Under the law, unauthorised maritime arrivals are barred from making a valid visa application, but this bar may be lifted by the immigration minister. Tharnicaa’s lawyers argued that the bar was lifted in 2017, before her 2019 visa application.
Justice Moshinsky found Tharnicaa was denied procedural fairness because she was not notified the Home Affairs department was conducting an assessment in August 2019 of Australia’s protection obligations in relation to her, and was not invited to comment.
The federal government took the family from their home in Biloela in central Queensland in March 2018 and sent them to a Melbourne detention centre. A last-minute injunction stopped them being deported in August 2019, but they were transferred instead to Christmas Island.
The Full Federal Court rejected the federal government’s bid to overturn the procedural fairness ruling, but also rejected the family’s attempt to overturn Justice Moshinsky’s ruling that Tharnicaa had not made a valid visa application.
Kristina Keneally, opposition spokeswoman for home affairs, said: “The fact this family has had to spend two years in detention, at a cost of $50 million to the Australian taxpayer, not to mention the expense to the family members’ health and mental well-being is a disgrace.”
It was “long past time Immigration Minister Alex Hawke brought this whole process to an end and used his discretion to allow the family to return home to Biloela”, Senator Keneally said.
In a statement, Prida and Nades Murugappan said: “Thank you to everyone in Australia for the support and love that they have shown us. We are very grateful. It helps us stay strong. We just want to go back to Biloela. We need our little girls to be safe. Every day, they ask when can we go home?”
The family’s lawyer, Carina Ford, said the decision was under review and a High Court appeal was being considered, along with an injunction to stop the government removing the family from Australia.
“The family should be released immediately from detention, and we hope that this will occur,” she said.
Home Affairs Minister Peter Dutton was contacted for comment via his department.
