The Murugappan family from Biloela has won a court challenge against the immigration minister’s decision effectively barring them from reapplying for bridging visas.
Alex Hawke’s move to revoke a decision allowing three family members to reapply for a visa was procedurally unfair, the federal circuit court’s judge Heather Riley held on Monday.
In late June Hawke granted three-month bridging visas to parents Nades and Priya and their daughter Kopika, so they could live in community detention in Perth while the youngest daughter, Tharnicaa, received medical treatment after being evacuated from Christmas Island.
On 15 June, the Department of Home Affairs wrote to the family advising them Hawke proposed to “lower the bar” in immigration law, which would then prevent three of the members of the family – Nades, Priya and Kopika – from reapplying for bridging visas.
It gave the family until the close of business on 22 June to make submissions. The family’s lawyer, Carina Ford, made a submission to the department at 5.45pm AEST on 22 June, but it was disregarded because it was sent after 5pm and the email address wasn’t being monitored at the time.
In September the family’s visas were extended again pending a decision over whether Hawke had afforded the family procedural fairness; the three now have bridging visas to December 2022.
Tharnicaa has not received a bridging visa, and is subject to an order requiring her to live in community detention.
Judge Riley found that the minister or his adviser were still working on the case at 7.21pm, when they sent the revocation to Ford, and therefore the submission should have been taken into account.
“Whatever ‘close of business’ might mean in general, it must have meant at least 7.21pm for the Department of Home Affairs on 22 June 2021,” she said.
Riley concluded it was “legally unreasonable” for the minister not to take into account “submissions that had been sent to his department, at the nominated email address, within the time specified in the invitation to comment”.
“He thereby denied the applicants procedural fairness.”
When proposing to revoke the decision lifting the bar, Hawke told the Biloela family that the critical issue was to align the position of Nades, Priya and Kopika with Tharnicaa.
But Riley said that “cannot have been the critical issue, because, if alignment was the objective, it would have made more sense for the bar to be lifted in respect of the younger child, as that would have required only one decision to be made, instead of three”.
“Moreover, alignment, or sameness for the sake of sameness, is not a rational basis for making a migration decision.”
Riley found that the revocation was “based on some other critical issue, which the Minister has not made known to the applicants or the court”.
The judge held that by failing to identify the critical issue on which the decision was based, the minister “thereby failed to afford the applicants procedural fairness”.
The court ordered that Hawke’s decision revoking the lift of the bar be quashed, and for Hawke to pay the family’s costs.
The decision, while a procedural win for the family, does not prevent Hawke from remaking a decision against the family on their right to reapply for visas.
Ford told Guardian Australia the case “may not change the status quo” for the family, because Tharnicaa is still subject to a community detention order.
But Ford said given the judge didn’t accept that alignment of the family’s status was the “real purpose” of lifting the bar for Nades, Priya and Kopika, the minister will need to explain the reason before any attempt to remake the decision.
“The minister should grant them a visa and let them go back to Bilo,” she said.
“Community support is still so strong for this family being returned there.
“It’s an exceptional case – it’s not going to mean whole ‘we will decide who comes here [and the circumstances in which they come]’ policy will fall apart.”
Labor’s Kristina Keneally and the Greens’ Nick McKim both welcomed the court decision and noted Hawke could allow the family to go home to Biloela with the “stroke of a pen”.
McKim said the government had “spent a fortune to pursue and detain the family, instead of simply allowing them to return to the community that made them so welcome”.
“It has cost the Muruguppans years of their lives and caused extreme anguish.”
A home affairs department spokesperson said it was considering the case but “it would be inappropriate to comment further during the appeal period”.
