This article is more than 1 year old

This article is more than 1 year old

Two Tamil asylum seekers and their Australian-born daughters will remain on Christmas Island until at least Friday afternoon after the federal court extended the injunction preventing the Australian government from deporting them back to Sri Lanka.

Priya, Nadesalingam and their two Australian-born children Kopika, 4, and Tharunicaa, 2, were sent to Christmas Island over the weekend after the court granted an injunction until 4pm on Wednesday preventing the government from deporting Tharunicaa until the application had been heard.

The federal court on Wednesday extended an injunction on her removal until Friday 4pm.

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Lawyers acting for the family argued Tharunicaa had never been considered for a visa, despite the remainder of her family being refused refugee status.

Under the Migration Act, people who arrive to Australia by boat cannot apply for a visa while in Australia. Even though Tharunicaa was born in Australia, she is given the same visa status as her parents. The immigration minister has the power to “lift the bar” on the application.

On Wednesday morning, however, the court heard that the government had referred her case to immigration minister David Coleman, and he had decided not to consider it.

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Lawyers acting for the government argued the case should be dismissed but her family has sought more time to consider the new evidence submitted by the government on Tuesday night about consideration of the matter.

The hope was a win in the federal court would force the government to consider Tharunicaa’s claim, and potentially lead to a “change of heart” from Coleman on the case to allow the two-year-old and the rest of her family to remain in Australia.

Justice Mordecai Bromberg delayed the case until Friday to allow the family’s legal representatives to review the new information and return to the case. Bromberg said it was “in the interest of justice” to allow the case to continue.

Nadesalingam and Priya fled Sri Lanka claiming persecution and arrived in Australia separately by boat in 2012 and 2013. After living in Biloela for at least five years, on 5 March 2018 the family of four had their home stormed by Australian Border Force officers accompanied by Serco guards and were moved to immigration detention in Melbourne.

Last week the family was put on a private-chartered flight bound for Sri Lanka that was forced to land in Darwin after an injunction was granted preventing the family from being deported. The family was later moved into military barracks, before being transported to Christmas Island.

Dutton has repeatedly said the family are not refugees, and has said they should return to Sri Lanka. Dutton has the power to grant the family visas and allow them to return to the regional Queensland town of Biloela, where they had been living.

Outside the court Carina Ford, the family’s immigration lawyer, said they needed time to consider how to progress the case.

“We’re still in uncertain territory, but I guess the fight’s not over yet.”

Ford revealed an application for citizenship had been made with the Department of Home Affairs, but would not go into more detail.

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Ford said she spoke with the family on Tuesday night and they remain “relatively stressed” on Christmas Island.

Angela Fredericks, a friend of the family and one of the lead Biloela campaigners for them to stay, arrived on Christmas Island on Tuesday evening.

She said it was disappointing the minister had decided not to consider Tharuincaa’s case, but was pleased the judge wanted to hear arguments that he should.

Fredericks is seeking to visit the family but was told by guards at the Christmas Island detention centre on Wednesday morning that she had to go through the online application process, despite the website listing the facility as closed.

The department demands five days’ notice, so the earliest Fredericks could see the family – unless an exception is granted – is Friday.

“I don’t have a lot of hope for it, I’ve seen the cruelty this government seems so insistent on putting on this family,” she said.

“I’m really just floored at the whole lack of humanity. The fact I wasn’t allowed to go and sit with them this morning. I could have been looking after the girls while the parents attended to what’s going on. As a human I just can’t understand that.”