A Tamil family from Sri Lanka face deportation after the High Court of Australia refused them leave to appeal a decision of the Federal Court last year. The Federal Court decision confirmed the Minister for Immigration’s ruling that the family had no basis to seek a protection visa, leaving them with no claim to stay in Australia after the expiration of their bridging visa. The mother Priya, and father, Nadesalingam, arrived in Australia separately after the civil war in Sri Lanka. The mother witnessed her fiancé at the time, along with five other men from her village, get burned alive by the Sri Lankan army, for their ties to the Tamil Tiger separatist organisation. Both Priya and Nadesalingam’s families have ties to the Tamil Tigers, placing both their lives and the lives of their children, at risk if they return to Sri Lanka. Their two children were born in Australia and know no other life than in Australia. The family has spent the last 14 months in a Melbourne detention centre after they were taken into custody during an Australia Border Force raid. The family has already made a life in the small town of Biloela in Queensland and have created ties with the people there. Residents have been showing their support for them by pleading with the Immigration Minister David Coleman and the Prime Minister to intervene in the case. The family is well known; Priya used to take her homemade curries to the doctors at Biloela Hospital and Nadesalingam was an employee at the local meatworks, who contributed a great deal and was highly valued.


In 2003 a Research Paper was published by Peter Prince for the Law and Bills Digest Group by the Parliament of Australia. It addressed the issue of who is Australian, the Constitution and deportation of Australian-born children. Until 1986 every child born in Australia automatically became an Australian citizen at birth no matter who the parents were. Only children of foreign diplomats did not become citizens.

It outlines the reality that the Federal Government has the right, under our Constitution, to make laws about immigration and emigration, naturalization (the process of becoming a citizen), and aliens (meaning foreigners). The High Court has held that there is a ‘nationhood power’ implied in the Constitution allowing the Commonwealth to legislate for matters which are inherently national.

Using its constitutional power, the Federal Government’s current laws reflect something different to the situation pre-1986. An article explaining Australian residency rights for children born to migrant parents was published in 2018 by SBS. It confirms that “only children born to Australian citizens and permanent residents in Australia acquire Australian Citizenship by birth” as expressed by migration lawyer Judy Hamawi. When children are born in Australia to parents on temporary visas, the children are granted only temporary visas, with conditions similar to those of their parents. Once these children who hold temporary visas and live in Australia for 10 consecutive years, they are eligible to apply for Australian citizenship. Unfortunately for this Sri Lankan family, Priya and Nadesalingam only arrived by boat in 2012 and 2013 and their children are younger than 10.


The High Court, in making its decision, had to apply constitutional law and implement the correct interpretation of these laws, leaving no room for humanitarian consideration. Should the Immigration Minister not treat this family’s case with compassion, filling the gap which the Court cannot fulfil? The reality is that he could but for political reasons he must maintain a strict policy which the Australian Government has chosen to enforce. It is clear they seek to avoid any view that they may be soft on illegal immigrants because of their children. We have some conflicting views as to the actual danger the family faces if they return to Sri Lanka; friends of the family, who have been interviewed in the Canberra Times, allege that the military in Sri Lanka still knocks on the famiy’s relatives’ back home, waiting for their return. The media has reported that disappearances of Tamils in Sri Lanka are ongoing, and that Tamils should not be sent back there. Sri Lanka’s High Commissioner to Australia Somasundaram Skandakumar, however, says differently, noting that many Tamils have returned voluntarily and are not in danger. Regardless of these reports, the family have used all legal avenues possible, and at every step have been found not to be refugees. In this apparent absence of enough evidence to prove the family has a legitimate protection claim, there is nothing else that can be done, other than for the community in Queensland to continue applying pressure on the government.


The Government’s resolve to not permit any asylum seekers arriving by boat, to eventually settle here in Australia, can work to protect our society, but also be unduly harsh and detrimental to the diversity of Australian life, particularly in rural areas. This is an example of a family that works hard, contributes to and enriches their community, paying taxes just like everyone else, assimilating to Australian culture and upholding the values of our society, paying the ultimate price for strict government policies.

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