The Politics    Thursday, September 19, 2019

Tamil family remains in limbo

By Russell Marks

Tamil family remains in limbo

Nades and Priya, and their two daughters, Tharunicaa and Kopika. Source: Twitter 

The asylum-seeker family’s experience highlights the system’s deliberate cruelty

Tamil couple Kokilapathmapriya “Priya” Nadesalingam and Nadesalingam “Nades” Murugappan and their two daughters will stay on Christmas Island awaiting a Federal Court hearing into the last-ditch asylum claim by their youngest daughter, Tharunicaa, following a ruling by Justice Mordecai Bromberg today.

Their journey through Australia’s byzantine refugee application system since Priya’s and Nades’s separate arrivals between six and seven years ago highlights the system’s terrible human costs – costs fully intended by its architects to deter refugees from arriving by boat. Her arrival in April 2013 could have seen Priya sent to Manus Island or Nauru after the Gillard government recommenced offshore processing. As it happened, she remained in Australia, marrying Nades and beginning a family in Biloela, Queensland.

In November 2016 Priya applied for temporary protection – the only kind of protection available to people who arrive by boat – claiming that she feared returning to Sri Lanka. She said her older brother had been forcibly recruited into the Liberation Tigers of Tamil Eelam, and the Sri Lankan army had murdered her fiancé and sexually assaulted her mother before she and the rest of her family fled to India in 2001. The Department of Immigration accepts all these claims, but takes the view that the fact Sri Lanka’s civil war ended a decade ago means that its government is unlikely to have a problem with Priya’s family.

As one of the cohort of refugees referred to as the “legacy caseload” – people who arrived by boat after August 13, 2012, and not sent to Manus or Nauru – the only process open to Priya to apply for protection was the so-called “fast-track” system legislated retrospectively by the Abbott government (with Palmer United Party approval) in December 2014. The “fast track” process is a very limited merits review of original departmental decisions conducted by a tribunal called the Immigration Assessment Authority (IAA), which tends to avoid hearings and new evidence. “Fast track” didn’t live up to its name, and in May 2017 a frustrated Peter Dutton gave the “legacy caseload” people a little over four months to finalise their asylum applications.

Prior to this, the IAA’s predecessor, the Refugee Review Tribunal, had more than 60 per cent of all tribunal decisions were overturned by courts in each year between 2010 and 2013. In the 2010–11 financial year, a whopping 83 per cent of all tribunal decisions were overturned. But then came Abbott and Dutton’s “fast track” process and the IAA. The IAA’s refusal rate is 87 per cent. Tribunal.

“Fast track” claimants are utterly dependent on the initial interview with a departmental official. Priya’s was in February 2017. She was in Biloela, eight months’ pregnant. The official, the interpreter and her migration agent were on the other end of a phone. The conference call dropped out a number of times and there was confusion about whether the interpreter and the official had heard everything Priya said. The official said he’d heard enough, and Priya’s subsequent appeals to the IAA, the Federal Circuit Court, the Federal Court and the High Court all failed – though the courts weren’t able to assess the merits of her claim; they could only determine whether the IAA had applied the law correctly. Nades had earlier exhausted all of his appeals. One question that's never been answered satisfactorily is whether the department’s refusal of Tamil asylum claims has anything to do with the Australian government's close bilateral relations with the Sri Lankan government.

Priya, Nades and their two daughters were removed from Biloela by Dutton’s department in March last year and flown to the Broadmeadows detention centre in Melbourne. Two-year-old Tharunicaa was born in Australia, but under the Migration Act is treated as if she’d arrived by boat, because her parents did. Tharunicaa had never applied for a protection visa until last week, due to laws that now prevent “unauthorised maritime arrivals” from even lodging an application; one of the arguments before the Federal Court now is that Dutton “lifted the bar” on such applications in 2017.

If the family is ultimately deported, they’ll be automatically prohibited from ever returning to Australia. And they’re also likely to have a debt to the Australian government worth over $1 million. Meanwhile, Home Affairs Minister Peter Dutton continues to troll the family from Canberra. During an interview on 2GB today he blamed “the violence and activism” of the family’s supporters for the need to keep the family on Christmas Island pending the hearing.

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Russell Marks

Russell Marks is a lawyer and an adjunct research fellow at La Trobe University. He is the author of Crime and Punishment: Offenders and Victims in a Broken Justice System (Black Inc., 2015). 

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