Solicitor of the Biloela Tamil family Carina Ford (Images: AAP/James Ross)

Today in a Melbourne courtroom, a barrister called Angel will submit a series of arguments on behalf of his two-year-old client who is nearly 5000 kilometres away locked up in a tiny place called Christmas Island.

This is neither a parable nor an episode of Buffy the Vampire Slayer. It is just another day in Australia’s aggressive and internationally embarrassing regime against asylum seekers.

Today, the latest in a series of court actions will play out in Melbourne’s Federal Court on behalf of two-year-old Australian-born Tharunicaa from Biloela, Queensland, and it depends largely on the aforementioned barrister Angel Aleksov and lawyer Carina Ford finding a loophole that allows them to pull a rabbit out of the hat. Or, more precisely, children out of detention.

After 18 months in an inadequate, perhaps criminally negligent detention centre, a last-minute injunction and emergency hearings, lawyers and advocates have openly stated that they still hoped to catch a break in the form of ministerial discretion. The reason being that, on the whole, Australian courts cannot compel the Australian government specifically on immigration matters.

During that time, public pressure has steadily built a campaign of such diversity that it included every conceivable form of vigil, petition, peaceful protest, through to public comments from comedians, Coalition colleagues and traditional foes.

Despite everything there has not yet been been a significant blink from the actual decision-makers themselves, the government.

In fact, in the age of the double down, the Coalition government outdid itself when Peter Dutton, the Home Affairs minister, made multiple damaging and false statements about Tharunicaa’s dad Nades less than a week ago on 2GB. In the course of a few minutes Dutton wildly misrepresented Nades’ travel out of Sri Lanka and falsely stated the family’s lawyers were pro bono. He also threw in “anchor babies”, a term (as Lisa Wilkinson of The Project noted on Sunday night) even the Oxford dictionary has listed as offensive.

While Dutton attempted to roll back one of his 2GB statements a day later, he didn’t amend all of them or apologise for getting the facts wrong, leading to some legal chatter that he could be vulnerable to defamation proceedings.

While much has been made of the family’s refugee status, it is worth noting that successive Australian governments have shifted the goal posts since both Nades and Priya arrived in 2012 and 2013. As Aran Mylvaganam of the Tamil refugee council points out, they faced significant changes to the Migration Act before having their cases heard in 2016. “When Priya arrived the enhanced screening process was introduced specifically for Tamils by the Gillard government, which meant only those who had chances of being granted a visa (as Priya was) were allowed in — it is successive governments that have kept shifting the bar.”

But despite that back and forth, lawyer and registered migration agent Reuben Saul says any focus on the refugee definition is “a red herring” in the context of ministerial intervention, which is specifically designed for cases that don’t fit the traditional definition’s protection.

“The purpose of that section is for the minister to grant visas for people who might not necessarily meet the definition,” Saul said. “Now the protection visa only applies to refugees and people owed protection under other conventions; however we know that there’s always going to be people who don’t always fit within those strict definitions, and that’s where the minister’s powers can come into play.”

“This is a unique case because you’re dealing with a community who have decided to take a special interest in this family, because of the fact that there’s children born in Australia, these children know no other country other than Australia.”

While the Department of Foreign Affairs has been ridiculed for arguing that Sri Lanka will be safe for the family, even the department concedes in its latest report that Priya and Nades will be detained immediately upon arrival in Sri Lanka.

Noting the latest DFAT report, Saul argues that, “where you’ve got a situation where people are going to almost certainly be placed in a detention facility in any country in the world, such as this case, serious questions need to be asked about what is going to happen during that time. And where there’s children involved it becomes extremely important to not be speculating but to know for certain what will happen to them during that process.”

“If Australia is going to be returning someone to that situation — we as a country need to be certain that that person is going to be treated humanely and fairly throughout that process.”

Which would have been a good stance for Australia to take over 18 months ago, when it sent Border Force officers to rip the then nine-month-old applicant in today’s matters from her cot in Biloela.

With additional reporting by Chris Woods. 

Peter Fray

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