Significant Federal Court win for Biloela Tamil family

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On Friday 17 April, the Tamil family of four, detained on Christmas Island, obtained a significant win in the Federal Court.  

Sign reading 'Let them stay' at 2019 rally against deportation of Tamil family (Getty Images/David Gray)

They were taken by Border Force from their home in the Queensland country town of Biloela, to Melbourne detention centre in March 2018. An attempt to remove the family to Sri Lanka in August 2019 was prevented by an urgent interim injunction in the Federal Court. On 17 April 2020, the Federal Court ordered that Immigration had failed to comply with procedural fairness for the family. The case is known by the pseudonym XAD. The XAD case relied on significant legal principles going back to the M61 High Court decision of 2011.

Legislative changes made under the Gillard Government meant that all of Australia was considered excised for the purposes of Migration Law if you arrived by boat and without a visa. People in this situation were deemed to be known by the unattractive term ’unauthorised maritime arrivals’ (UMA). This meant that to be able to apply for any visa at all, the Minister had to intervene literally personally and lift the statutory bar of s46A to permit a visa application to be made.

This cumbersome and punitive process lead to an attempt in 2011 to say that the lifting the bar process was not reviewable in the Courts. The High Court dismissed the argument and held that legally you can only be detained for 3 reasons: a process of organising the removal of someone from Australia, considering an ongoing application, or whether to allow the application for a visa.

The High Court found that the process of requesting the Minister lift the s46A statutory bar, was a process that was subject to the law, and so procedural fairness should apply. In paragraph 78, The High Court held:

Contrary to the submissions of the Commonwealth and the Minister, the Minister's decision to consider whether power should be exercised under either s 46A or s 195A directly affected the rights and interests of those who were the subject of assessment or review. It affected their rights and interests directly because the decision to consider the exercise of those powers, with the consequential need to make inquiries, prolonged their detention for so long as the assessment and any necessary review took to complete. That price of prolongation of detention is a price which some claimants may have paid without protest. After all, they sought entry to Australia and this was the only way of achieving that end. And they claimed that return to their country of nationality entailed a real risk of persecution. But even if it were the fact that individuals were content to have detention prolonged, that must not obscure that what was being done, for the purposes of considering the exercise of a statutory power, had the consequence of depriving them of their liberty for longer than would otherwise have been the case.

As an interesting aside, the two senior counsel in the High Court in that case in 2010 are both now judges. Justice Mortimer appeared for M61 and she is now a judge on the Federal Court, and Justice Gageler who was representing the Minister in the M61 Case, is now on the High Court.

In the XAD Tamil family case, the issue was the request to the Minister to allow an application for a protection visa on behalf of the youngest child. The youngest child was born in Australia, but under a legal fiction in s46A, the child was deemed to ‘have arrived by sea’ and thereby become an ‘unauthorised maritime arrival’, and so barred from making an application for anything by s46A.

 

'One hopes that sense prevails and they are released into the care of the community in Biloela, however I would not want to be putting money on a sensible decision to release them, despite the extreme costs of ongoing detention so far away.'

 

Both parents’ cases had been refused, but the youngest child had never had the chance to present a case. It is common in the refugee area for parents to express claims on behalf on their children, or also expressing a fear that the parent will suffer persecution if there were serious harm or persecution of their child.

Significantly in the XAD case was that at several stages of the consideration of whether to permit the lifting of the statutory bar, there had been an ongoing assessment of not just whether the youngest child should have their case considered, but also whether there were new issues facing the father that had arisen since his case was refused. At some stage, although the Department had recommended there were reasons why the application should be permitted, the Minister declined to intervene. The brief and documents were returned by the Minister to Department officers marked ‘NFA‘ — no further action. This means that the Department shifted from case assessing mode into removal mode.

As an aside, in the media there has been references to the injunction preventing ‘deportation’ or the family. This was never the case. Deportation under s200 and removal under s198 are totally separate powers with different consequences. Deportation is a life ban, and has not been used as far as I can tell since before September 1994. Removal is a 12 month ban only. So, it is not just a legal quibble, it actually makes a difference legally.

The Federal Court decided in the XAD case that the failure to offer procedural fairness to the family was a legal error, known as jurisdictional error. This meant that the process they had undergone was legally flawed and needed to be done correctly. Justice Moshinsky held at paragraph 172 of the 57-page judgement:

‘…I conclude that the applicant’s interests were affected by the Minister’s personal procedural decision and the consequent processes. Accordingly, the rules of procedural fairness applied to those processes…’

The judge ordered the parties to present draft orders to give effect to his honour’s decision, and that includes costs for the family. The costs will be significant, because there were several days of hearings, and many affidavits with witnesses cross-examined, including senior Departmental officers. There are also the costs of detaining a family on four all the away over in Christmas Island for so long. Apart from the legal costs, there are the psychological and physical costs endured by the family members throughout this period. It is unlikely that the last will be quantified.

Now the family await in Christmas Island the decision of whether the Minister appeals the case or not. If he does appeal, it is likely the time period will be short for the appeal to be heard. If no appeal is made, then the internal assessments are again made about the family and their future. If the application is permitted, it could take some time and it is unclear if the family will be kept in detention while that process occurs.

One hopes that sense prevails and they are released into the care of the community in Biloela, however I would not want to be putting money on a sensible decision to release them, despite the extreme costs of ongoing detention so far away.  Christmas Island is about five thousand kilometres from Biloela.

As the family awaits this outcome, their supporters exemplarily in Biloela hope the family will be able to return to living in their town. We wait and watch with interest.

 

 

Kerry MurphyKerry Murphy is an immigration and refugee lawyer and part-time lecturer on immigration and refugee law at ACU.

Main image: Sign reading 'Let them stay' at 2019 rally against deportation of Tamil family (Getty Images/David Gray)

Topic tags: Kerry Murphy, Tamil family, High Court, Australian law

 

 

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Existing comments

What would it take to cause the current Home Affairs Department (and Minister) to use the 'sense' Kerry is talking about?
Brigid Arthur | 24 April 2020


#LetthemStay compassion for the two children if nothing else!
Carol | 24 April 2020


I hope and pray that this family is at long last able to return to Biloela. Their treatment by the Australian Government as been appalling, unjust and makes our leaders reference to Australian's giving everyone a fair go completely hypocritical. Thank you for your article.
Mary O'Byrne | 26 April 2020


This case is beyond law. Judicial finality delayed is justice denied. Back to Biloela.
roy chen yee | 27 April 2020


The ministers are 'not for turning'. Neither Dutton (nor Morrison) have any intention of deviating from their position. The court's decision will be seen as just an irritating interruption to be avoided next time. The minister will now just follow 'due process', then deny the application, and the family will then be 'removed'. The basic problem here is that the minister is prosecutor, jury, and judge and the only aspects of the case that are open to challenge in the courts are on points of law, not on the merits of the case. These people have never been charged with any offence, never tried, never convicted, and never sentenced in a court of law. Yet they, and others like them, are being 'removed' by executive fiat in order to 'keep us safe'. Another example of the creeping concentration of power in the executive at the expense of dealing-out the judiciary.
Ginger Meggs | 27 April 2020


as a footnote, the costs in this case are $206,934 - just for the applicant's legal tea m- that is about 10 times the usual costs in the Federal court for an Immigration case. Also that does not include the legal costs for the Minister's lawyers (possibly about the same) nor the detention costs, let alone medical and psychological costs. https://www.smh.com.au/national/government-ordered-to-pay-200k-in-tamil-family-case-20200427-p54nk4.html
Kerry Murphy | 29 April 2020


The cost of all this action is further evidence, if such was required, that the ministers are not for turning. Rather than go to the expense of defending the matter at court, they could quite easily have simply acknowledged that there may have been a case, agreed to review it, gone through due process, and rejected the application. But they didn't. Instead they spent hundreds of thousands of dollars of tax payers' money, and forced the family's supporters to spend several hundred thousand dollars, as a way of further intimidating them and anyone else who might show signs of getting a bit uppity and challenging their position. That the government has lost this case means nothing to them. Its objective was not so much to win but rather to intimidate and bleed the applicants of their limited resources.
Ginger Meggs | 29 April 2020


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