The decision does not mean the Australian government is legally obliged to release the family from immigration detention on Christmas Island. However,the protracted litigation temporarily halted moves by the government to deport the family to Sri Lanka,where they fear persecution.
Priya and Nades arrived in Australia by boat in 2012 and 2013 and are classified as “unlawful maritime arrivals” under Commonwealth migration law,as are their Australian-born daughters,Kopika and Tharnicaa.
Unauthorised maritime arrivals are barred from making a valid visa application,but this bar may be lifted by the immigration minister. Tharnicaa’s lawyers had argued the bar was lifted in 2017,before her 2019 visa application.
Justice Moshinsky found Tharnicaa was denied procedural fairness because she was not notified the Home Affairs department was conducting an assessment in August 2019 of Australia’s protection obligations in relation to her,or invited to comment.
The federal government took the family from their home in Biloela in central Queensland in March 2018,when their visa expired,and sent them to a Melbourne detention centre. An injunction stopped them being deported in August 2019,but they were transferred to Christmas Island.
The Full Federal Court rejected the federal government’s bid to overturn the procedural fairness ruling,but also rejected the family’s attempt to overturn Justice Moshinsky’s ruling that Tharnicaa had not made a valid visa application.