In a reprieve, the federal court in Australia on Thursday granted the Sri Lankan Tamil family, fighting deportation, interlocutory injunction, allowing them to stay in the country pending a full hearing into the case of their younger daughter's appeal for renewal of her visa.
Federal Court Judge Mordy Bromberg announced the couple Nadesalingam Murugappan (Nades) and Kokilapathmapriya Nadesalingam (Priya) along with their two daughters- Kopika and Tharnicaa- can stay in Australia until the court case is finalised.
"An interlocutory injunction restraining the respondents from removing the applicant from Australia until the hearing and determination of her proceeding at trial has been justified," he said.
Bromberg agreed there was enough evidence to take the 2-year-old Tharnicaa's matter to trial.
"The applicant has established a prima facie case that the power under s198 of the Migration Act is not available to the [Government] to remove her from Australia," Bromberg said, adding that the risk that Tharnicaa would "suffer" if deported outweighed any potential impact on the Government.
Earlier this month, the federal court extended an injunction for the family, who was staying in a detention centre, after its lawyers argued that Tharnicaa's plea had not been considered by Immigration Minister David Coleman.
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Family's lawyer Angel Aleksov told the court that Tharnicaa had not been assessed by immigration officials as to whether she was entitled to protection.
Australian Prime Minister Scott Morrison had refused to intervene in the matter, saying an "exception here or there" would only increase people-smuggling trade.
Earlier in the court, the defence team for the family argued that the girl was legally entitled to make a visa application after the bar was lifted in a period between July and August 2017, with the girl meeting the criteria allowing her to her to apply for a protection visa.
Under the Migration Act, Tharnicaa has been deemed an unauthorised maritime arrival and, as a child of an asylum seeker arriving in Australia by boat, cannot apply for a visa.
The couple arrived in Australia by boat separately in 2012 and 2013 seeking asylum. Their daughters, born in Australia, have never been to Sri Lanka. The family was settled in the central Queensland suburb of Biloela until they were placed in immigration detention in Melbourne in March 2018. They were flown to Christmas Island after a last-minute injunction stopped them from being deported late last month.
The Australian government's hardline immigration policies include turning away refugees arriving by boat and de facto offshore detention, both measures condemned by the United Nations.
Barrister Angel Aleksov argued that the girl did have a right to apply for a visa, that her matter is still in train and the government has no power to deport her to Sri Lanka with her family.
However, the date of trial has not yet been set for the case.