A Tamil family fighting deportation has been granted a 24-hour lifeline by the Federal Court.
An hours-long hearing in Melbourne on Wednesday failed to reach a resolution in the high-profile case of Priya and Nades Murugappan and their daughters Tharunicaa, two, and Kopika, four, who are being held in detention on Christmas Island awaiting the court’s ruling.
Federal government plans to return the family to Sri Lanka were put on hold by a previous injunction which expired at 4pm Wednesday, with Justice Mordy Bromberg making orders which stretch until 4pm Thursday.
The court was earlier told Tharunicaa was legally entitled to make a visa application after “the bar was lifted” in a period between July and August 2017, with two-year-old meeting the criteria allowing her to her to apply for a protection visa.
Under the Migration Act, Tharunicaa 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.
Barrister Angel Aleksov argued that Australian-born Tharunicaa 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.
“It is a very serious question about whether my client has been lawfully detained,” he said.
Mr Aleksov argued the minister should be required, and in fact had a duty, to consider Tharunicaa’s claim, with the only issue being whether she was “disqualified” under immigration legislation.
“It’s accepted that if the applicant has made a valid application for a visa, there is not power to remove her until it is determined,” Justice Mordy Bromberg said.
“This all turns on whether there was a power to remove … because there was a statutory process still in place”.
Mr Aleksov also argued if the family was deported, it was a “literally life or death” situation, but conceded there was no evidence before the court about their risk of serious harm back in Sri Lanka.
The family had settled in the Queensland township of Biloela before being taken into detention, with Tharunicaa’s parents and sister already refused refugee status in Australia.
Tamil Refugee Council spokesman Aran Mylvaganam said he had spoken to Priya and Nades from Christmas Island overnight, when they relayed their jail-like conditions, surrounded by guards.
“The circle of guards have been ordered by Australian Border Force to capture every moment of their stay there on video,” he told AAP on Wednesday.
“It is creating some sort of fear.”
The family is unlikely to be deported before a “full and final” hearing at a later date, still to be scheduled.