The Murugappan family from Biloela will be allowed to stay in Australia for at least another three months after the immigration minister, Alex Hawke, told a court he intended to renew their bridging visas next week.
Hawke initially announced in late June he had 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.
Those visas are due to expire on Wednesday and there was concern among the family’s supporters that without valid visas they could be put back into immigration detention or removed from Australia.
Hawke, through his barrister Stephen Lloyd, told the federal circuit court on Thursday he was prepared to extend their visas next week for another three months, subject to any adverse events or evidence.
Family friend Simone Cameron welcomed the announcement but said it meant the family’s situation was largely unchanged. “They are still essentially trapped in Perth, in community detention along with little Tharni,” she said.
A week before the 23 June visa announcement, 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.
The case before the court on Thursday centred on how the “close of business” is defined in a time when government departments and businesses often communicate up to 24 hours a day.
In the invitation to comment, the department said the family could make submissions on whether the bar should be lowered by 22 June.
The family’s lawyer, Carina Ford, passed on a submission to the department at 5.45pm AEST on 22 June. However, the department did not consider this submission when ultimately providing a brief to Hawke an hour later, and 22 minutes after the brief was received, Hawke decided to lower the bar.
Federal circuit court judge Heather Riley has been asked to rule on whether the family was denied procedural fairness in the decision by not taking into account the submissions sent to the department at 5.45pm.
“There’s a measure, we submit, of unreasonableness in which the department rushed to a decision without checking to see whether there was a submission put to them,” Angel Aleksov, the barrister acting for the family, said.
Lloyd argued the invitation stated submissions needed to be provided by close of business on 22 June and close of business was understood to be 5pm Canberra time.
The family’s lawyer, Carina Ford, gave evidence to the court on Thursday that she was not aware of the 5pm deadline and the definition of “close of business” was a grey area. She pointed out often people within the department would be responding to emails at all hours and, on that particular day, she sent the email to the department after finishing up with another client at 5.30pm and her work day didn’t finish until 7pm.
“The issue of what constitutes close of business is the grey area,” she said.
On Thursday afternoon, the family’s barrister, Angel Aleksov, asked home affairs department assistant secretary Belinda Gill whether it was reasonable to consider after 5pm to still be before the close of business when staff in the department would often work longer hours.
Given the correspondence was addressed to the family, who are currently based in Perth, Aleksov also raised questions about how “close of business” could be understood to be 5pm Canberra time when it would be later in Perth.
Gill suggested she didn’t really talk to her colleagues about when they usually finished.
Ford told the court she was initially “shocked” to hear the bar could be lowered because she hadn’t known it had been lifted at some point previously allowing the family members to apply for a visa. The ongoing legal battle – since their visas expired in 2018 and they were removed from Biloela – had been on the understanding they were not able to apply for a visa.
Closing submissions will be due to the court by 1 October and judgment has been reserved.
The case before the federal circuit court does not apply to Tharnicaa because a brief on her case is currently before Hawke.