A Tamil family fighting to stay in Australia has won a two-day reprieve as lawyers battle a decision by the immigration minister not use his discretionary powers to "lift the bar" and allow them to stay.
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Federal Court Justice Mordy Bromberg on Wednesday ordered the federal government be restrained from deporting the asylum seekers, who are in detention on Christmas Island, to Sri Lanka until 4pm on Friday.
It extends for an urgent injunction granted last Thursday to prevent their deportation until 4pm Wednesday after a last-minute court order was granted while the family was mid-flight after being removed from immigration detention in Melbourne.
Their case hinges on the Australian born two-year-old daughter Tharunicaa and her right to apply for a refugee visa amid claims she will be subjected to "serious harm" if she was sent to Sri Lanka.
Her mother Priya and father Nadesalingam had settled in the Queensland community of Biloela where they had two children, including four-year-old sister Kopika, after arriving separately by boat in 2012 and 2013.
Despite being Australian-born, Tharunicaa has been deemed an "unauthorised maritime arrival" under the Migration Act, which stipulates children of asylum seekers who arrive in the country by boat cannot apply for a visa.
The court was told late Tuesday night, Immigration Minister David Coleman decided not to consider using his discretionary powers to allow the family to stay.
The coalition government is now seeking to have the family's claim against deportation dismissed as it is "futile".
Tharunicaa failed a protection assessment on Tuesday, the court also heard, but the family's lawyers argued it was the first they'd heard of it.
Lawyer Angel Aleksov, acting for the family in the court, argued the government didn't have the power to remove people in cases involving "live process" directed to a possible visa and called on Mr Coleman to "lift the bar" and use his discretionary powers.
Speaking outside court, another family lawyer Carina Ford said the fight wasn't over despite the case being in "uncertain territory".
Ms Ford confirmed a citizenship application was filed overnight with the Department for Home Affairs for the two children, but couldn't go into detail.
A succession of courts, including the High Court, have previously found Tharunicaa's parents and her four-year-old sister were not refugees.
Ms Ford said the family was "relatively distressed" in the "not necessarily ideal" conditions of Christmas Island, but were being clothed and fed.
The matter has been adjourned to give lawyers time to read the new materials and prepare before reconvening on Friday "for a full debate about what happens next".
Australian Associated Press
