Federal Government Wrong to Take the Moral High Ground on the Legal Claims of the Tamil Family

6 September 2019

Opinion piece by A/Prof Peter Billings and Dr Joseph Lelliott. A version of this article appeared in The Guardian on September 6, 2019. 

Legal action in the Federal Court has, until today at least, stayed the deportation of a Tamil family of four ‘failed’ refugee claimants. The parents who were boat arrivals in 2012 and 2013 (along with their Australian-born children) had previously been living in the community of Biloela for several years.  

The parents’ substantive claims for refugee protection (and temporary visas) have both been refused, with immigration officials and the independent review body agreeing that there was not a real chance of significant harm if they were returned to Sri Lanka in the foreseeable future. Subsequent court challenges that alleged legal and procedural errors tainted the review process were unsuccessful.

The government remains steadfast: the family are not refugees and will be deported. And on Wednesday the Immigration Minister tried to pre-empt the latest rounds of legal proceedings before the Federal Court by stressing that he would not be prepared to exercise his discretionary ministerial powers and entertain a visa application from the youngest daughter. Apparently his department had already considered her case and the case was now closed, all of which came as a surprise to the family’s legal team.

The government’s view is that the family have received due process at substantial cost to the taxpayer and that Australia has discharged her international legal obligations. This is not an unreasonable position for the government to maintain; though the type of process the family have been subjected to (the ‘fast-track’ procedure) is, arguably, a flawed procedure, offering an unconventional and limited form of review that prioritises speed over fairness.

Far less plausible is the government’s claim that the integrity of immigration controls would be compromised by allowing one family to remain on compassionate and humanitarian grounds. This is because Operation Sovereign Borders, notably interception of boats at sea, has effectively insulated Australia from boat arrivals for several years and it serves as a formidable deterrent to potential boat arrivals.

The latest round of legal proceedings has further delayed the deportation of the family who languish in isolation in detention on Christmas Island. The legal team’s strategy has permitted a public campaign to gain some momentum and attracted high profile supporters. The significant period of time they have spent in Biloela, the fact the two daughters were born in Australia, and their community ties have all been raised in the family’s favour. The Australian Children’s Commissioner, Megan Mitchell, and the Human Rights Commissioner, Edward Santow, have lent intellectual heft to this stance, both calling for the exercise of Ministerial intervention in the case to protect the human rights of the family.

The Immigration Minister has broad and unparalleled personal discretionary powers under the Migration Act 1958 (Cth), permitting them to substitute a favourable decision if the Minister thinks it is in the ‘public interest’ to do so. Use of the powers is non-compellable and non-reviewable, and what it is in ‘the public interest’ is not defined in the legislation: it is effectively an unreviewable political question. And that, we argue, is part of the problem in a liberal democracy founded on the rule of law and checks and balances. These exorbitant ‘God-like’ powers are used frequently and, sometimes, controversially. As Alan Jones asked pointedly, in his Telegraph column, earlier this week “why can’t they get a bit of ‘au pair’ treatment?” in reference to Peter Dutton’s use of ministerial discretion to prevent the deportation of two European au pairs in 2018. Why indeed?

There are policy guidelines as to when cases might be referred to the Minister for consideration. Unique and exceptional circumstances are required; these include (but are not limited to) compassionate circumstances regarding age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.

The Minister’s Discretion and the Rights of the Children

The UN Convention on the Rights of the Child requires the best interests of the child to be a primary consideration in any decision affecting them. Although not a decisive consideration, UN bodies, including the United Nations High Commissioner for Refugees and the UN Committee on the Rights of the Child, have stated that non-rights based considerations, including those related to migration control and immigration, cannot override a child’s best interests. Further, children should be kept with their parents unless it is against their best interests.

Given that the two young children in this case were born and raised in Australia, have evidently developed strong ties within their community in rural Queensland, and have never been to Sri Lanka, a strong principled argument can be made that it is in their best interests to remain in Australia. Indeed, according to the UN Committee on the Rights of the Child, children should only be removed if it is in their best interests. Further, removal should not be pursued where there is a ‘reasonable risk’ that it will violate their ‘fundamental rights’, including rights to life, health, and education, and development to the maximum extent possible. While DFAT’s current country information report states that Tamils are generally safe in Sri Lanka, others have argued strongly that country remains dangerous for them.

It is open to the Immigration Minister to grant the family visas because it is, arguably, in the children’s best interests. Taking into account the particular circumstances of the Tamil family, the Immigration Minister, David Coleman, could set aside the previous adverse visa decisions and grant the family visas to remain in Australia on a principled legal basis relating to the best interests of the children. To date, there has been no official recognition that the government canvassed this approach: we say it should do so, now.