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What is a just outcome for the Biloela family?

  • 24 August 2021
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