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