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AUSTRALIA

Significant Federal Court win for Biloela Tamil family

  • 24 April 2020
On Friday 17 April, the Tamil family of four, detained on Christmas Island, obtained a significant win in the Federal Court.  

They were taken by Border Force from their home in the Queensland country town of Biloela, to Melbourne detention centre in March 2018. An attempt to remove the family to Sri Lanka in August 2019 was prevented by an urgent interim injunction in the Federal Court. On 17 April 2020, the Federal Court ordered that Immigration had failed to comply with procedural fairness for the family. The case is known by the pseudonym XAD. The XAD case relied on significant legal principles going back to the M61 High Court decision of 2011.

Legislative changes made under the Gillard Government meant that all of Australia was considered excised for the purposes of Migration Law if you arrived by boat and without a visa. People in this situation were deemed to be known by the unattractive term ’unauthorised maritime arrivals’ (UMA). This meant that to be able to apply for any visa at all, the Minister had to intervene literally personally and lift the statutory bar of s46A to permit a visa application to be made.

This cumbersome and punitive process lead to an attempt in 2011 to say that the lifting the bar process was not reviewable in the Courts. The High Court dismissed the argument and held that legally you can only be detained for 3 reasons: a process of organising the removal of someone from Australia, considering an ongoing application, or whether to allow the application for a visa.

The High Court found that the process of requesting the Minister lift the s46A statutory bar, was a process that was subject to the law, and so procedural fairness should apply. In paragraph 78, The High Court held:

Contrary to the submissions of the Commonwealth and the Minister, the Minister's decision to consider whether power should be exercised under either s 46A or s 195A directly affected the rights and interests of those who were the subject of assessment or review. It affected their rights and interests directly because the decision to consider the exercise of those powers, with the consequential need to make inquiries, prolonged their detention for so long as the assessment and any necessary review took to complete. That price of prolongation of detention is a price which some claimants may have paid without protest. After all, they sought entry to Australia and this was the only way
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