Legal Issues of Tamil Family Regarding Refugee Status to Live in Australia

Analyzing the legal issues of Tamil family applying to Australia domestic law and international law, to find the reason why the government is sending them back to Sri Lanka and the possible solution for the family and future of their two daughters to be able to live and study in mainland Australia.

Issues in International Law
SEMESTER II, CLASS OF 2021,
PROJECT I:
LEGAL ISSUES OF TAMIL FAMILY: REGARDING REFUGEE
STATUS TO LIVE IN AUSTRALIA.

TABLE OF CONTENT:
PROJECT QUESTION:...................................................................3
INTRODUCTION:.............................................................................4
AUSTRALIAN DOMESTIC LAW:.................................................5
INTERNATIONAL LAW: ...............................................................8
CONCLUSION: .................................................................................8
REFERENCE LIST: .........................................................................9

Project question:
Do you think the Sri Lanken Tamil Family (Nades, Priya and their two daughters)
should be granted refugee status and return to the Queensland regional town of
Biloela? Discuss this question from both the Australian law and the international law
perspectives.
Requirements:
- Do some research on the relevant Australian domestic law and the
international treaties (law) in which Australia is a signatory
regarding the above essay question.
- In your discussions, please explain your understandings of the
legality of domestic law and international law; comparative
advantages and difficulties in implementations of domestic law
and international obligations.
- Word limit: 1,000 words

Introduction:
Priya and Nades are Sri Lankan refugees came by boat in 2012 and 2013, they met
and started family in Biloela, Queensland where both daughters were born. After four years
of living as a family they were deported by the Department of Home Affairs to detention
centre at Christmas Island and waiting to send them back to Sri Lanka. The reason for being
lock up in detention centre because the court claimed that their refugee status did not meet
Australian’s protection obligations. In this case study will analyse legal issues of Tamil
family applying to Australia domestic law and international law, to finding the reason why
the government sending them back to Sri Lanka and the possible solution for the family and
future of their two daughters to be able to live and study in mainland Australia.
summary the Facts:
- During Sri Lankan Civil War from 1984 to 2009. Nades was forced to join the
Liberation Tiger of Tamil Eelam (LTTE) in 2001 as a result, claimed to be harassed
by Sri Lankan Government authorities. while Priya was being targeted due to her
brother's supposed links to the LTTE.
- Nades and Priya did not meet refugees’ protection obligation. So, the government is
sending them back to Sri Lanka. The federal court found that during civil war
Nades (Husband) was traveling for work with Sri Lankan government- issues
passport on temporary work visas to Qatar and Kuwait. there is no evidence that
relative still living in Sri Lanka was at risk from authorities.
- Government deported them to detention centre at Christmas Island since March
2018.
- They have two Australian born daughters and the youngest daughter diagnosed with
pneumonia and septicaemia and now receiving the treatment at Children Hospital in
Perth.
- Family friends and community’s supporter claimed that it is not safe for Tamil
people to live in Sri Lanka.

Australian domestic Law:
ISSUES:
 Whether there is infringement of human rights of Tamil srilankans?
 Whether Tamil srilankans were entitle to fulfil requirements of Migration Act to take
the protection of refugees?
Regards to Migration Act 1958
why is the government sending them back?
why they are not being protected by the Australian goverment?
RULES:
- Migration Act 1958.
o Section4(4): “the Act provides the removal or deportation from Australia
of no-citizens whose presence in Australia not permitted by this Act’
 According to migration Act Section 5H(1)(a) &(b) identified
refugee if the person:
(a) in a case where the person has a nationality—is
outside the country of his or her nationality and, owing to a
well-founded fear of persecution, is unable or unwilling to avail
himself or herself of the protection of that country; or
(b) in a case where the person does not have a
nationality—is outside the country of his or her former habitual
residence and owing to a well-founded fear of persecution, is
unable or unwilling to return to it.
o Section 7A Effect on executive power to protect Australia’s borders (can
remove anyone from the border regardless of the law using Executive
Power of Commonwealth)
o Division 1 Subsection 14 Unlawful non-citizens
o Division 6 – Certain non-citizens to be kept in immigration detention (why
they are kept in Christmas island and when how they will leave Australia
*very useful)
o Division 7 – Detention of unlawful citizens
o Division 9 – Deportation (how refugee status don’t apply and family can
be removed if necessary)
Application:
https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/protection-866#Eligibility
Why Priya and Nades are not eligible for protection visas?

According to eligibility of protection visa found that Priya and Nades did not meet
some of the protection obligation:
Firstly, “person must arrive in Australia with a valid visa so they will be eligible to
apply for protection visa: Base on Section 5AA Meaning of unauthorised Maritime arrival,
subsection (1)(a), (b)&(c) of Migration Act 1958 have applied to Priya and Nades as they
arrived in Australia Illegally on a people smugger boat. “Under the classification of the
“legacy caseload” which have been classified as irregular arrivals and Maritime arrivals”. So
valid application for protection visa could not be made as both are consider as unauthorised
maritime arrival.
Secondly, a person must be a refugee. The Australian government have had strong
relationship with Sri Lankan government, it founds that the Australian government is
consider Sri Lanka is a safe place for Tamil people. According to “the Department of Foreign
Affairs and Trade report in 2019 that Tamil in Sri Lanka “face a low risk of official or societal
discrimination” and “low risk of torture overall” this could be the reason that government
did not consider Nades and Priya as refugees, so Migration Act 1958, section 5AAA & 5H
could not apply to their refugee status. Additionally, the federal court found that their
relative still living in Sri Lanka was not at risk from authorities as Nades was freely to travel
and return to Sri Lanka multiple times with Sri Lankan passport during Civil War. This
evidence could help the court seen clearly regarding Migration Act 1958, Section 5J Meaning
of well-found fear of persecuted, as a result, Nades
Lastly, Nades and Priya are unauthorised arrival, so their two Australian born
daughters are considered as unauthorised maritime arrivals regarding section 78 “Children
born in Australian”.
The migration Act manages and incorporates all the rights related to the Australia
domestic law and also managed to protect the personal life and the liberty of the individuals
in the country. Their main aim is to mandates all the protection regarding the obligation and
working.

CONCLUSION:
According to Migration Act 1958 and requirement for applying protection visa found
that the family or any member of them are not eligible for protection visa so Australian
government had right to send them back to Sri Lanka.
https://www.smh.com.au/politics/federal/what-s-next-for-the-tamil-family-fighting-to-stay-
in-australia-20190904-p52o0w.html
International Law:
FACT:
what is the best solution for this family? Regarding International Human right?
Issues:
why are Tamil People persecuted from Sri Lanka?
What situation of Civil war now a day?
What are international Human rights could protect the family?
Rules:
As in Australia signatory about the Refugees convention there is been provided that it
manage to protect the refugees feeling through the persecution. Its Article 1A(2) provides that
refugees are all the person who are being in fear regarding to the persecuted due to the race,
sex, religion, nationality, membership in various political opinion and social groups1. As
according to the Migration Act article 1A(2) there is being provided that the Australian
domestic law provides all the non refoulment and helps to protect the rights of the persons by
protecting them from all the issues related top nationality, religion, race. It also provides
protection to Visa to all the non-citizen in Australia by section 36(2) as being amended by the
Refugees protocol. All such person who are being affected by the threat of the person's life
and also liberty along with the harassment and the ill treatment with general economic
hardship to manage and earn livelihood2. As Srilanka is also signatory of universal
declaration of human right so they also need to manage and protect all the individuals from
the issues related to the discrimination and their seems that no person can their be
discriminated. As according to it all the treatment should tend to be equal and no genocide
1 Choi, Jee Hyun, "Various Issues Relating To The Legal Status Of Korea In
International Law" (2018) 49 Korea International Law Review
2 Vylegzhanin, Alexander N., "International Law Versus Piracy: Issues In Legal
Theory" (2020) 24(1) International Journal of Psychosocial Rehabilitation

and the torture harassment can be made with any person on the basis of race, sex, religion or
other measures.
As through the Migration Act there is been given the protection to the life and the
liberty of the person and this also mandates and provided the vary nature in order to attain
and promote the safety of all the migrants.
Analyse:
As UDHR is the main followed convention through which all the rights and the
management regarding to the working functions is incorporated. Their is been seen that in
this case both the girls have the rights in order to manage the protection from Australia as the
right to protect the personal safety is there by being divergence by the convention. Other
then this the right to asylum is an important right to all the effected person which was
infringed. As in Refugee convention of Australia it is been given that all the migrants who
were being affected are merely being idealised and managed to be protected from the further
discrimination. It involves all the persecuted article 1A(2)3. So they are needed to be
managed and protected. So the girls are needed to be protected as according to the article 1A
and also with the general conditions and terms in the migration act4.
Conclusion:
It is concluded from the above report that all the individuals are needed to be
protected in order to manage their personal safety and rights there is been seen several
conventions are provided. Their is also idealised that asylum should be given to all the person
who are discriminated and harassed. Further it will also conclude the nature and the working
through major regulations and the infringement of rights of the girls are needed to be
managed.
Conclusion:
3 Vylegzhanin, Alexander N., "International Law Versus Piracy: Issues In Legal
Theory" (2020) 24(1) International Journal of Psychosocial Rehabilitation
4 Mejía-Lemos, Diego, "Custom In General International Law And International
Criminal Law: A Survey Of Selected Issues" (2020) 20(5) International Criminal
Law Review

Reference List:
Barlow, K, 2014. Asylum seekers: Many children on Chrismas Island reportedly sick and
distressed, wetting the bed, having flasbacks,
https://www.abc.net.au/news/2014-07-24/christmas-island-children-asylum-seekerswetting-
bed-flashbacks/5620202?nw=0&r=HtmlFragment
ABC News, 2021. Tamil family will be reunited on Australian mainland Immigration
Mimister confirms. https://www.abc.net.au/news/2021-06-15/tamil-family-murugappan-
christmas-island/100215160
Gregoire, P 2021. Sri Lanka: The continuing Tamil geonocide in Sri Lanka: An interview
with TRC spokesperson Charanja Thavendra.
https://www.mondaq.com/human-rights/1069294/the-continuing-tamil-genocide-in-sri-lanka-
an-interview-with-trc-spokesperson-charanja-thavendran
Dias, M 2014. How bad is the situation for Tamil asylum seekers in Sri Lanka?
https://www.abc.net.au/radionational/programs/latenightlive/how-bad-is-the-situation-for-
tamil-asylum-seekers-in-sri-lanka/5650338
What is international Law? https://www.ag.gov.au/international-relations/international-law
Book: Fundamental perspective on international law
https://www.corteidh.or.cr/tablas/r32533.pdf
international human right law:
https://www.law.cornell.edu/wex/international_humanitarian_law
international law in Australia:
https://www.internationalaffairs.org.au/australianoutlook/international-law-in-australia/
https://www.aph.gov.au/about_parliament/parliamentary_departments/
parliamentary_library/pubs/rp/rp1617/refugeeresettlement#_ftn1
Vylegzhanin, Alexander N., "International Law Versus Piracy: Issues In Legal Theory"
(2020) 24(1) International Journal of Psychosocial Rehabilitation
Mejía-Lemos, Diego, "Custom In General International Law And International Criminal
Law: A Survey Of Selected Issues" (2020) 20(5) International Criminal Law Review

Vylegzhanin, Alexander N., "International Law Versus Piracy: Issues In Legal Theory"
(2020) 24(1) International Journal of Psychosocial Rehabilitation
Choi, Jee Hyun, "Various Issues Relating To The Legal Status Of Korea In International
Law" (2018) 49 Korea International Law Review