A Tamil family will remain in legal limbo on Christmas Island for the foreseeable future, with their deportation case now hinging on an upcoming court battle.
On Thursday afternoon, shortly before an order preventing their forcible removal to Sri Lanka expired, Federal Court judge Mordy Bromberg said the family had a legal case that needed to be decided at trial.
The family, whose case rests on their two-year-old daughter and her right to apply for a protection visa, cannot be deported by the Australian government until the matter is decided through the court system.
A date has not yet been set for their case to be heard.
Priya and Nades Murugappan and daughters Tharunicaa, two, and Kopika, four, had previously settled in the Queensland township of Biloela.
They were being deported in August, under instruction by the federal government, when their flight was ordered to land due to a late-night court injunction.
The family has since been detained in “jail-like” conditions on Christmas Island.
Tharunicaa, despite being Australian-born, would normally also be refused refugee status due to legislation blocking children of asylum seekers who arrive by boat from accessing the nation’s protection.
But the Federal Court was told earlier this week that Tharunicaa was legally entitled to apply for a protection visa during a short period in 2017 when her mother’s visa application was not yet finalised, following a determination by Home Affairs Minister Peter Dutton.
An application was made for Tharunicaa last week, but barrister Stephen Lloyd, acting for the federal government, argued on Wednesday the window of opportunity had closed.
Barrister Angel Aleksov, acting for the family, argued Tharunicaa's visa application was "still in train", meaning the government did not have the power to forcibly remove the child and her family until her case was decided.
Mr Dutton earlier expressed his frustration that the case was dragging on, labelling it "infuriating", particularly due to the costs to Australian taxpayers.
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