Time doesn't fly in immigration detention ... A tortured path through Australia's visa regime for refugee applicants ... It's anything but Christmas ... A nine-year fight against cruelty and the law ... Janek Drevikovsky reviews the cases
THE Biloela refugee family have not known freedom for 1,088 days. The family has spent all that time in immigration detention - and the federal government has spent millions to keep them there.
We are talking here about Sri Lankan born Nades (Nadesalingam Murugappan) his wife Pria (Kokilapathmapriya Nadesalingam) and their two Australian born daughters Kopika (5) and Tharunicaa (3).
They two girls were born in Australia, the youngest in Biloela, the Queensland town where the family settled in 2015 - but because they are the children of unauthorised boat arrivals, Kopika and Tharunicaa are themselves classed as unauthorised boat arrivals.
The family is now in detention on Christmas Island, where they have been for over two years, with little chance of leaving, except by plane to Sri Lanka.
In the most recent Full Federal Court decision on their case the judges (Flick, White and Charlesworth) described the situation as "kafkaesque".
2012: Nades arrives
A people smuggler brought Nades to Christmas Island. He had been a member of the separatist group the Liberation Tigers of Tamil Eelam, or the Tamil Tigers.
Nades says he was forced to join the Tigers in the early 2000s, during the bitter civil war between the Hindu Tamil minority and the government dominated by Sinhalese-Buddhists, Sri Lanka's ethnic majority.
The Sri Lankan authorities harassed Nades and threatened him with death.
2012: Nades' visa applications
In 2012, Nades was released from detention on a bridging visa. He then began his long, and so far futile, struggle for refugee status.
A functionary refused his first application. The Refugee Review Tribunal also turned him down, finding he would not be in danger if he returned to Sri Lanka. He had passed through Sri Lankan airports on several occasions, the tribunal said, without being harassed by officials.
And besides, the war was over.
A judicial review application to the Federal Circuit Court failed; so did an appeal to Rares J of the Federal Court.
The High Court refused special leave. None of the appeals went to the merits of the visa-application: each was decided on narrow, judicial review grounds.
In other words, no court has ever decided that Nades did not deserve protection.
2013: Priya arrives
Priya arrived in the Cocos Islands, also on a people smuggler boat.
Since 2001, she had been living in a Tamil exclave in India. She fled there because of the the war - and because her Tamil family had been targeted by government forces. Priya has scars from shrapnel wounds.
2014-2015: Life in Australia
Kopika and Tharunicaa, boat people who were never on a boatNades and Priya met in Australia while both were on bridging visas. They married in November 2014.
Their first daughter, Kopika, was born in May 2015. That year, the family settled in Biloela, Queensland where Nades found work in an abattoir and volunteered at the local Vinnies.
2016: Visa applications
Priya and her daughter Kopika applied for a "safe haven enterprise" visa, or SHEV, a type of protection visa offered to asylum seekers who arrived by boat between 2012 and 2014.
To qualify for an SHEV, an arrival had to be in need of protection, have lived in regional Australia for three years, and have full time work or study.
Priya made her application in a phone call with an immigration official. Her migration agent and an interpreter were also on the line.
Priya was then eight months pregnant; she felt sick on the day of the interview; she struggled to understand her interpreter; the migration agent kept dropping in and out of the call.
The application was denied, as was Kopika's. The Immigration Assessment Authority (the fascistically named replacement for the RRT) upheld that decision.
Priya was no longer at risk if she returned to Sri Lanka, the authority found. Nor would her husband's involvement in the Tamil Tigers affect her safety.
Again, the family launched a series of appeals. Again, they were turned back, first by Judge Kirton in the Federal Circuit Court; and then by Justice John Middleton in the Federal Court.
Both judges held the immigration officials had been entitled to refuse Priya's application, despite the irregularities in her interview. But again, no judge found that Priya and Kopika were unworthy of protection.
The High Court again refused special leave.
2018: Immigration detention
In March 2018, the family's bridging visas expired. The next day, at dawn, the immigration officials arrived. They packed the family into separate vehicles - Priya and the children in a van, Nades in a car. Priya was not permitted to hold her newborn, Tharunicaa.
Their terminus was a detention centre in Melbourne, nearly 2,000 km from the town they had made their new home.
2019: attempted deportation
In August 2019, the Biloela four were put on a plane bound for Sri Lanka.
An urgent injunction was sought by the family's lawyers. It was argued that the youngest, Tharunicaa, had not yet had her refugee status assessed, so could not be deported.
The duty judge agreed; the plane was turned back in mid-air.
But the family was not returned to Melbourne: instead, they were taken to Australia's immigration prison on Christmas Island.
Other Christmas Island detainees
The facility was re-opened early in 2019, after the parliament passed the private member's Medevac bill, with the government predicting an uptick in unauthorised arrivals.
By September 2019, the only inmates on Christmas Island were the Biloela family. Over 100 staff, including fly-in, fly-out workers have been on hand to keep the centre running. In 2020 the cost of detaining the family on Christmas Island was $1.4 million.
2020: Priya's illness
Priya developed serious abdominal pain in July 2020. After weeks of lobbying by migration activists, the Border Force relented and transferred her to a Perth hospital.
She was kept in carceral conditions where she was not permitted visitors and her communication with the outside world was limited.
After a week's treatment, she was spirited back to Christmas Island by a squad of border officials.
2020-2021: Tharunicaa's case
After the family's abortive expulsion in 2019, their lawyers set to work on Tharunicaa's visa application.
The first step was to apply to then minister for immigration David Coleman. Under the Migration Act, the minister has to "lift the bar" before an illegal arrival can apply for a visa.
In Tharunicaa's case, Coleman refused to do so.
There was an application for judicial review. Justice Mark Moshinsky of the Federal Court found the Minister had acted without procedural fairness; he ordered the government to pay the family over $200,000 in legal fees.
However, the only substantive relief was a declaration: his Honour did not reverse the minister's decision, nor did he grant a permanent injunction to prevent Tharunicaa's deportation.
Both the family and the government appealed: the family argued the "bar" should be lifted; the government argued there had been no procedural fairness.
The full federal court rejected both appeals.
2021
Hawke: not budging
Which leaves the Biloela family in limbo. They are still on Christmas Island; immigration minister Alex Hawke shows no signs of granting a visa, as he could; an appeal to the High Court is possible, but the family has had no success with that avenue before.
An interim injunction will prevent deportation until Tharunicaa's appeals are exhausted. But after that, the government can do what it likes.
And Tharunicaa has spent nearly all of her life in a detention centre.
A number of lawyers have assisted the "Biloela Family" including Carina Ford Immigration Lawyers and in the earlier rounds of unsuccessful visa applications and appeals it was Rasan Selliah & Associates and Kajaliny Ranjith Legal. Sparke Helmore did the work for the Commonwealth.
In June 2021, after inadequate medical attention Tharunicca was taken from Christmas Island to Perth's Children's Hospital with sepsis and pheneumonia.
On June 14, 2021, the Immigration Minister, Alex Hawke, announced that the Murugappan family can be reunited in Perth while living in "community detention". The minister emphasised that this is not a pathway to permanent resettlement in Australia.
UPDATE
The Federal Circuit and Family Court of Australia is currently considering an application from Pria, Nades and Kopika challening earlier decisions of the minister which seek to prevent reapplication for bridging visas.
On September 23, 12-month briding visas were granted to Pria, Nades and Kopika, but not to Tharunicaa. It means the family cannot return to Biloela.