Minister denied Biloela family procedural fairness, court finds

By Jackson Graham

January 24, 2022

Alex Hawke
Minister for Immigration Alex Hawke. (AAP Image/Mick Tsikas)

Immigration minister Alex Hawke failed to give three members of the Murugappan family procedural fairness when denying them an opportunity to reapply for a bridging visa, the Federal Court has found. 

Hawke, in June last year, had revoked an earlier decision to “lift the bar” for the family members. A bar lift is an administrative term that allows for management of people on bridging visas.

Federal Court Judge Heather Riley found on Monday that this had denied the family members procedural fairness. 

“The minister did not identify for the applicants the critical issue on which the revocation decision was based,” Riley said in the judgment.

“The minister thereby failed to afford the applicants procedural fairness.” 

The court also considered the timing of emails from the family’s solicitor, Carina Ford, to provide a written submission to the minister after learning of Hawke’s intention to deny the family opportunity to apply for a bridging visa. 

Department of Home Affairs assistant secretary Belinda Gill had informed Ford she had until close of business on June 22 to provide a submission on behalf of the family to a department email address. 

Ford sent the family’s submission to the address at 5.45pm, but Gill did not receive the email. 

Gill sent a recommendation to the minister about an hour later, noting the family’s lawyer had not responded “in the required time” and the minister made a decision to deny the family from making visa applications shortly afterwards. 

Lawyers for the minister argued that this was reasonable because the department’s working hours were 8.30am to 5pm.

But Riley pointed out in her judgment that close of business in the Department of Home Affairs Workplace Determination indicated that in most states and territories “staff could work flex-time within the hours of 7am until 7pm on weekdays”.

She also found that because Ford had been given until close of business on June 22, it would be reasonable to expect the minister would not make a decision later that same day. 

“Ms Ford sent her submissions to the department, at the email address that it had provided, at 5.45pm on the specified date. The minister did not take them into account. He thereby denied the applicants procedural fairness,” Riley said. 

The court has ordered the minister to pay the family’s legal costs, but the family’s future still remains uncertain with the avenue of appeal still open to the government. 

The family, Sri Lankan Tamils seeking asylum in Australia, has become widely known as the Biloela family after the family settled in the Queensland town of Biloela. 

The family has been in community detention in Perth after they were released from Christmas Island last year.

The Department of Home Affairs told The Mandarin it was considering the implications of the decision. 

“It would be inappropriate to comment further during the appeal period,” a department spokesperson said. 


AG welcomes merged Federal Circuit and Family Court of Australia

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