Tamil family from Biloela get small legal win – but battle to live in Australia continues

The Tamil family from Biloela, who have captured the hearts of Australians, has had a small legal win.

The Nadesalingam family will remain on Christmas Island, as their battle to live in Australia continues.

Today’s full Federal Court bench upheld Justice Mark Mochinsky’s decision from last year, agreeing that Tharunicaa Nadesalingam was denied “procedural fairness” in making a protection visa application that would have allowed her to stay in Australia.

The justices on the bench accepted that “the Department was under no legal obligation to inform the appellant of the Minister’s decision” not to grant their request for him to use his power to lift the bars that prevented the visa application to be made.

“Ordinary human decency indicates that detainees should be informed of the position as soon as practicable.” – Full bench of federal court condemns Minister for Immigration

But, the full court bench said, like Justice Mochinsky, that they also found it “puzzling” how the minster made no formal attempts to communicate his decision to the Biloela family or their lawyers.

“It is an ordinary expectation of good public administration that the subjects of administrative decisions will be informed of them reasonably promptly. This is especially so in relation to decisions bearing upon the continued detention of persons. Ordinary human decency indicates that detainees should be informed of the position as soon as practicable. The respondents’ submissions on this topic implied a Kafkaesque approach to these matters,” the ruling stated.

The subject of the case – Tharunicaa – is now three years old. She is the Australian-born, youngest daughter of Priya and Nades, who left Sri Lanka during the civil war and arrived, separately, in Australia by boat in 2012 and 2013. They sought asylum and were put on temporary bridging visas while their applications to stay in Australia as refugees were assessed.

Priya and Nades were married in 2014 and they settled in Biloela, a rural town in the Shire of Banana in Central Queensland.

They legalised their traditional Tamil wedding with a ceremony at the Biloela Court House in 2014. Their two daughters were born in the town. They rented a house. Nades volunteered at the local St Vincent de Paul opportunity shop before getting a job at Teys meatworks. They began to build a new home and life for themselves, free from the dangers of their Sri Lankan homeland. Their daughters Kopika (who is now five) and Tharunicaa became part of the local community, who welcomed them.

Then, more than three years after they settled in Biloela, Priya’s bridging visa expired. The following morning, at 5am on March 5, 2018, Australian Border Force immigration officers and police arrived at the family’s home, told them that their visas had expired and that they were being deported. They were initially taken to the Melbourne Immigration Transit Accommodation facility in the Melbourne suburb of Broadmeadows, and were transferred to Christmas Island Detention Centre in August, 2019.

“They are our friends! They are our neighbours. It is our responsibility.” – Marie Austin

Almost three years later, the family and their local community in Biloela, along with various humanitarian groups and the family’s lawyers, have continued to fight for the family’s return.

Marie Austin is part of the #hometobilo campaign that began with a group of Biloela residents who wanted to do whatever they could to help Nades, Priya and their girls stay in Australia.

Austin told Eternity that today’s ruling had given her “a small sense of relief – keeping in mind that this decision is a response to a government appeal to a decision that the court handed down in April last year!”

“So here we are, ten months later, to have it confirmed that Tharnicaa was not afforded ‘procedural fairness’ in regards to her application for a protection visa.”

“This also should cast serious doubt in every Australian as to whether procedural fairness was given to any of the members of this family in the process that handled their application.,” Austin noted.

“The fact that [Minister for Home Affairs] Peter Dutton on a number of occasions has stressed that this family were told from the day they arrived in Australia they’d never be allowed to stay, makes a joke of the system that then allowed them to live in our community for many years – before they were ‘invited’ to apply for a visa – [and] then, years later, cruelly attempts to deport them.”

And from Austin’s perspective, the situation is one of injustice that she must fight because she is a Christian.

“This family has now been three years in detention; it has taken ten months to arrive at this single decision … every legal process takes such a long time, that it’s fair to say that we could still be here talking about this family in another 12 months, still fighting to be allowed to stay.”

“Meanwhile, we have an immigration act that provides for intervention in such cases as this, where with the stroke of a pen a minister can choose – as a generous and humane act and in the interests of the public – to grant them a visa at any time. Just as has been done for others in the past. Acts 10:34 says ‘I now realise how true it is that God does not show favourtism but accepts from every nation the one who fears Him and does what is right’.”

Austin first spoke to Eternity in 2019, describing how she had never considered the possibility of being involved in political activism until she saw the injustice experienced by her local, Tamil friends. Today, asked how she and others involved in the #hometobilo campaign have kept up the fight, Austin was passionate and fierce.

“It’s not a matter of choice for us to keep up the stamina to keep fighting for this family. They are our friends!” says Austin.

“They are our neighbours. It is our responsibility. We have to be a voice for those who are not allowed a voice. Hebrews 13:3 says, ‘Remember those in prison as if you were together with them in prison, remember those who are mistreated as though you yourselves were suffering.’

“Our friends are in prison, our friends are suffering. The least we can do is get alongside them and fight for them. This family has a huge amount of support from people all around Australia who agree that they have been treated disgracefully.”

“I pray for a miracle, and for an Immigration Minister who would be bold and courageous enough to intervene for this family!” – Marie Austin

Austin said that her “ultimate prayer” is that the family “will be allowed to come home to Biloela, where they are loved, and wanted”. She also prays for “strength and for the emotional wellbeing of Priya, Nades, Kopika and Tharunicaa as they spend day after day in indefinite detention. That their kind, gentle, beautiful hearts will not be hardened as a result of the treatment they have received.”

Austin implored other Australian Christians to stand with them, hoping “people will be motivated to do their own research and fact checks in relation to Priya and Nades, and the persecution of Tamils in Sri Lanka. As Christians, we support the work of missionary organisations in Sri Lanka for a reason.”

“I pray that our leaders will humble themselves and re-look at this whole case fairly and without pride or prejudice. Colossians 3:12 says, ‘Therefore, as God’s chosen people, holy and dearly loved, clothe yourselves with compassion, kindness, humility, gentleness and patience.’ I pray that this family are shown the compassion, kindness, humility and gentleness that we are commanded to show others.

“I pray for a miracle, and for an Immigration Minister who would be bold and courageous enough to intervene for this family!” she said.

Tamil asylum seeker Priya (left) with Biloela resident Marie Austin. Marie Austin

This article originally referred to the family as the Murugappan family, but having been made aware of the following update from the Home to Bilo campaign we are retrospectively editing our articles:

“This family’s name is Nadesalingam. Tamil people commonly take the husband/father’s first name as their family name, in preference to surnames which are closely associated with castes.

For many years, the #HometoBilo campaign avoided using Nades, Priya, Kopika and Tharnicaa’s full names, for fear that this would further compromise the family’s safety and security if the former government forced them to danger in Sri Lanka.

We are grateful to journalists and media outlets who are addressing the family using the correct family name, Nadesalingam.”