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What is a just outcome for the Biloela family?



I believe in the rule of law and I appreciate that the proper application of the law does not always produce a fair or popular result. I also believe that Australia's refugee policy is too harsh and deeply flawed. However, that policy is bipartisan and appears to be inexplicably popular. The same 'fortress Australia' mentality is evident in our efforts to contain Covid-19.

Those factors were pulling me in different directions when I heard the news on 12 August that the High Court had refused special leave to the youngest daughter of the Biloela family. Although she was born onshore she is not an Australian citizen. She has the same immigration status as her parents as an unauthorised maritime arrival. As a result, she can't make a valid visa application unless the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs so determines.

In July 2017, the Minister had issued a blanket determination to allow children born onshore to apply for visas but on the proviso that their parents' applications hadn't been refused. The timing of the blanket determination, the mother's visa refusal and the daughter's application produced the controversy which was the subject of the special leave application.

Putting aside all the legal arguments, I did start to contemplate what would be a just response to the situation in which the Biloela family find themselves.

On one hand, I understand that applications for protection visas have been made and refused. Although there were some minor victories along the way, attempts at merits and then judicial review have been unsuccessful. I have not delved into the basis for the protection claims and I don't know to what extent the family members were involved in the separatist movement.

Even if they were deeply involved, DFAT Country Information effectively says that Sri Lanka is generally safe. My administrative migration lawyer side understands if you apply for a visa and you don't meet the requirements, then, after exercising any rights of review you have to go home. This is precisely what countless other unsuccessful applicants have done.


'I really don't think the granting of visas in this case will result in a fresh wave of boats. Even if it did, despite what the government says, it is not illegal to seek asylum.' 


On the other hand, the family clearly has the support of the Biloela community and from large sections of the general community. Many senators and members of parliament have provided letters of support. I spent some of my primary school years living in central Queensland and I remember going to Biloela for sports carnivals. For a small country town to adopt a Sri Lankan family is in itself a reflection of how much Australia has changed in half a century.

However, even this creates another internal conundrum for me. For years, government policy has been to encourage migrants to live outside the major cities. Here is a family that had established itself in a regional area. They would not be a burden on Australia. On the contrary, I assume they would work, pay tax and contribute to society. Contrast this with the vast sums which must have been spent keeping them in immigration detention and resisting their applications in the courts. Unfortunately, their status as unauthorised maritime arrivals is against them. Nice family and beautiful children are not visa criteria.

A lot of attention in the media and on social media has been directed to the Minister's personal, non-delegable power to substitute a more favourable decision to the family, if he forms the view that it is in the public interest to do so. That power is not totally unfettered. It does have to be in the public interest and there are published non-exhaustive guidelines for how the power should be exercised. Traditionally that power has been exercised to rectify some clearly unintended or unfair legislated outcome.

Another ground is if there are compassionate grounds regarding age or health. In fact, I once persuaded a Minister to grant a visa to allow my elderly and terminally ill client to peacefully die in Australia. This family doesn't readily fit into any of the listed grounds.

The guidelines also contain a list of circumstances where it would be inappropriate for the Minister to consider using the power. These include if there is an ongoing visa application or if there is ongoing review in a court or tribunal. The Minister's powers are a last resort. There are also political factors at play.

So where does the balance lie? I really don't think the granting of visas in this case will result in a fresh wave of boats. Even if it did, despite what the government says, it is not illegal to seek asylum. In any event, considering what this family has been through, the message couldn't possibly be that Australia is a soft touch. I find myself inexorably coming to the view that compassion should prevail, ‘enough is enough’ and send them #HomeToBilo.



Paul Cutler is a Sydney based barrister and migration lawyer.

Main image: Illustration by Chris Johnstone 

Topic tags: Paul Cutler, Biloela family, migration law, High Court, Minister for Immigration, Sri Lanka



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Existing comments

I believe that commonsense and compassion are good "bedfellows"; whereas ignorance and arrogance, are the opposites to the first two. Therefore, it depends upon your personal set of values which side of the fence you sit. Justice, the lady with the blindfold, sits in the middle with the set of scales.
The First Australians accepted refugees with skins of different color to theirs, and although they fought against the aggressors, eventually had to accept them.
In this case, the refugees have been welcomed by white Australians, and wish them to stay. Why does our government resist their wish?

JOHN WILLIS | 24 August 2021  

The number of displaced people in the world is staggering. In his small book "Notes on an Exodus" published in 2016 Richard Flanagan wrote about the river that is the great exodus of Syrian refugees. He could have been writing about the Tamil family from Biloela. At the conclusion of the book Flanagan writes: "Refugees are not like you and me. They are you and me. That terrible river of the wretched and the damned flowing through Europe is my family. And there is no time in the future in which they might be helped. The only time we have is now."

Pam | 24 August 2021  
Show Responses

Great quote, Pam, from one of our iconic writers! As one who reads him and you avidly I would humbly add: 'Look at that great river of refugees; from Latin to North America; from Africa and the Middle East to Europe; and from Asia to Australia and New Zealand, and its not hard to see that these invasions of displaced people were primarily triggered AFTER neo-imperial interference - whether naively or mischievously intended appears beside the point! - in their internal affairs, thereby proving the wisdom in Roy's conservative adage that the road to hell is often paved with good intention.

Michael Furtado | 26 August 2021  

Thanks Michael for your, as always, thoughtful commentary. While I do agree with your views on outside interference in internal affairs we should not underestimate the power, in even the smallest and least powerful nations, of the people who have a strong, heartfelt commitment to their nation, whether native-born or committed newcomer.

Pam | 29 August 2021  

I read this article with interest. While respecting your expertise as a lawyer and migration agent I have to say that I have worked with people seeking asylum for over twenty years and I am totally disenchanted with the application for protection processes in Australia. The whole thing seems much more like a lottery than a fair and just process. It depends so much on who a person gets to do their application (some couldn't get anyone, who makes the decisions at different points, what time in history they made the application and so on. I was visiting the Scherger Detention Centre years ago and they got news that a certain immigration person was coming to interview the men and they begged not to have to be interviewed by that man because he failed everyone! I knew that to be true. I know two brothers who came on a boat together - one got a Permanent visa and the other failed at every step. I agree with your conclusion that Australia could do well to exercise compassion.

Brigid Arthur | 24 August 2021  

I could not agree more Paul. I am amazed actually to learn that some MPs favour your conclusion. Let them stay, I say- and permanently. Biloela is hardly the place to welcome terrorists!
Equally as bizarre, I find the government attitude to 'the boat people' in not wanting them to drown at sea and then incarcerating them offshore for years - vid. Behrouz- as tantamount to torture. Why rescue someone and then throw them in gaol, spending squillions to do it? What kind of government do we have??? Totally irrational and as you infer, lacking in compassion.

Henri | 24 August 2021  

I know how difficult it is to obtain a visa to stay in Australia, having a daughter who is profoundly deaf. We were very fortunate in that Malcolm Fraser was PM at the time. After 18 months of trying we wrote to him and she was granted a visa within a short while. We were very grateful but, thinking back, it doesn't seem fair on the many whose applications have been rejected. My daughter has not been a burden to Australia. She works and pays her taxes. It seems to me, having been in Australia a while, and having observed the problems many go through in the attempt to obtain visas, that it really helps if one is good at sport...

Mary Lancaster | 24 August 2021  

DFAT Country Information effectively says that Sri Lanka is generally safe.’ Generally?


P. Oliver | 24 August 2021  

International reports would suggest that Sri Lanka is in fact not a safe country, take for example the Human Rights Watch Report form February 2021 - "The protection of basic human rights in Sri Lanka is once again at a turning point. Since his election in 2019, President Gotabaya Rajapaksa and his government have waged a campaign of fear and intimidation against human rights activists, journalists, lawyers, and other perceived challengers. The administration has pursued policies hostile to ethnic and religious minorities and repressed those seeking justice for abuses committed during the country’s 26-year civil war that ended in 2009. Fundamental democratic freedoms and fragile post-war reconciliation are in danger." https://www.hrw.org/report/2021/02/01/open-wounds-and-mounting-dangers/blocking-accountability-grave-abuses-sri-lanka

Ruth | 24 August 2021  

Bravo, Paul. You have hit the nail on the head.

Richard Olive | 24 August 2021  

this family need to stay here in Australia,they do not need to be treated in this way please pray that they can stay

Maryellen Flynn | 24 August 2021  

I concur with your view, Paul. The amount of taxpayer dollars poured into imprisoning this family to labour a political point, to bludgeon it into the electorate's sensibilities, is outrageous. The Minister largely responsible is guilty of message overkill. There is a time when humanitarian concerns supersede political point-scoring. The dad would get his job back at the abattoir. The mum would be received with open arms into the community, with the two little girls reconnecting at kindy and school. But Dutton and Morrison have political points to make, and, by God, they will make them.

Jon Cocks | 24 August 2021  

The headline question for "what is a just outcome" caught my attention and the article maintained that impetus for a while but ended up with just an outcome: #HomeToBilo. Fair enough; it must be difficult to put pen to paper to present a humanitarian argument to battle a monolithic right wing slogan (stop the boats) but the Murugappan family are equally valued by both sides as the adversarial test case with international focus. DFAT have deferred but are unlikely to yeild in granting citizenship so there's a stalemate of sorts while the government's promise even today in relation to Afghanistan is no permanent visas for those that come by boat. Maybe a change of approach by both sides could give a "win - win". A 995 Diplomatic visa can be issued to military (LTTE) personnel and encompasses wife or de facto and unmarried children under 21; no, it's not citizenship, it's not permanent, it's not readily available to just anybody and the purpose of any diplomacy is as obscure as it is at the best of times...
Thanks for your article.

ray | 24 August 2021  
Show Responses

Ray's welcome suggestion reprises a component of the Beatitudes that those of us, assaulted by the crass injustices meted out to the Biloela asylum-seekers and - mea culpa! - given to privileging passion over practicality, sometimes miss: 'Blessed indeed are the Peacemakers', or, as Ray might more modestly remind, 'A bird in the hand....!'

Michael Furtado | 28 August 2021  

Not just compassion, Paul, but logic. With the US taking 70, 000 Afghanis and Canada, the UK & NZ ready to fill their immigration quotas with the immediate high demand from Kabuli asylum seekers, we should ditch our immigration program and just take refugees instead. The Brits did this with their Ugandan Asians who have risen to the top of the UK economy in one generation. History shows that they make much better migrants, especially their women and children, whose claims should come first at this time and in this day and age! They're unlikely to cause religious conflict associated with militant Islam, are better educated, more socially liberal, secularised and demonstrative of the high tolerance towards people of difference (in the way that most Australians, including Catholics, generally are) and, above all, appeal to a sense of honour and kindness that no nation on earth can afford to ignore in this globalised age......that is, of course, Covid permitting! Thank you for a case built upon reason and commonsense, which I hope and pray swings the hearts and minds of the faint-hearted among us.

Michael Furtado | 25 August 2021  

If this father who came here illegally returns to Sri Lanka surely he is at risk only if he is a known terrorist insurgent.

john frawley | 25 August 2021  

Unfortunately you are correct in that the laws are not necessarily just. Judges have stated that. The DFAT report on Sri Lanka is flawed. Wrong. Even the UK has told us so. If Priya watched her brother and others being burnt to death, then in my simple eyes, that makes her a refugee. Sending them back would be refoulement. Those children should be recognized as Australian. Why are people punished for wanting to just live in peace? Why? We have ruined lives of many potentially great and grateful citizens. The Universal Declaration of Human Rights which Australia signed, was written by good hearts and minds. The world may have changed, but our basic principles must remain.

Joan Daniel | 26 August 2021  
Show Responses

These people are Christians and don’t seem assassin types! This case reminds me of the spiteful views some Australians voiced about Jews. The whites were not invited into Australia but here they are. This family has suffered enough .

Karis | 27 August 2021  

One aspect of the Muragappan family’s situation that concerns me is that after their very long detention and myriad attempts to be granted visas, they will be quite unable to return to Sri Lanka without attracting government attention. I’m worried that their return would put them at risk.

Juliet Flesch | 27 August 2021  

What a balanced and sensible analysis. Let them live in Biloela where they are clearly welcome. They have suffered enough.

Margaret Hetherton | 27 August 2021  

For heaven's sake, can't we exercise mercy and let them stay? It doesn't necessarily mean 'opening the floodgates'. We have had amnesties previously. Why not a specific one now? I would not like to be a minority member in current Sri Lanka. It could be a multi-ethnic, multi-religious Paradise, as the old Ceylon, with all its faults, was. Successive xenophobic governments. often partly in reaction to the appalling Marxist Tamil Tigers, have put paid to that. It needs to be resurrected.

Edward Fido | 28 August 2021  

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