Parents Priya and Nadesalingam and their Australian-born daughters Kopika, 4, and Tharunicaa, 2, have been on Christmas Island since the end of August, when the government tried to deport them but were stopped so Tharunicaa’s case could be heard.
The Federal Court in Melbourne on Thursday agreed the case should proceed to a full hearing, which could take months and hear from witnesses.
The government will now be blocked from deporting the family until Tharunicaa’s full arguments can be heard.
The government had earlier been blocked from deporting the family until 4pm, Thursday while Justice Mordecai Bromberg made his decision.
The court hearing and injunction only applies to Tharunicaa, but her lawyers have been assured the family will not be separated. The two-year-old was not born when her mother’s claim was made in late 2016 and Tharunicaa’s claim for protection has never been fully explored.
Her barrister Angel Aleksov had on Wednesday said the court should weigh heavily in favour of proceeding to a full hearing because it is a case of “life and death”.
His main argument on Wednesday was that Home Affairs Minister Peter Dutton in July 2017, when he was immigration minister, made a determination that allowed children in her situation to apply for a visa. He said there was no end date to that determination.
Stephen Lloyd, for the government, argued Tharunicaa’s capacity to make a visa application was voided when her mother’s claim was “finally determined” and failed a month later in August 2017.
During that month, Mr Lloyd said, Tharunicaa could have made a valid protection claim. He could not say whether Tharunicaa was ever informed of that right.
Immigration Minister David Coleman earlier this month declined to use his discretion to allow Tharunicaa to make a visa claim.
Mr Aleksov on Wednesday argued the bar had already been lifted under the July 2017 determination, and that right had never been revoked.
Outside court on Wednesday the family’s immigration lawyer, Carina Ford, said: “There’s a question into the way in which that  determination should be read.”
Mr Aleksov also told the court Tharunicaa had made an application for a safe haven enterprise visa last week.
Mr Lloyd insists that is invalid and she can be deported because she has no right to make a visa claim. He said Mr Aleksov’s argument lacked merit.
Immigration lawyer Ms Ford has conceded that, no matter what, the family still needs the government to have a change of heart and intervene.
Justice Bromberg earlier this month noted “widespread public interest” in the case.
Family friend Angela Fredericks, who met the family where they lived in the central Queensland town of Biloela, on Thursday said she was hoping it would proceed.
“I’m never giving up hope, I do have strong faith that we will all end up together,” she said prior to the judgment.
The parents and eldest child were found not to be refugees by the government, and they have failed to have that decision overturned in a succession of courts. They have no more avenue for appeal.
The parents came to Australia separately by boat in 2012 and 2013 following Sri Lanka’s civil war and established themselves in Biloela, near Gladstone.
Priya and Nadesalingam say they face persecution if they are sent back to Sri Lanka due to links to the Liberation Tigers of Tamil Eelam.
Priya has said she saw her fiance burnt alive before she fled.
The family was detained in a pre-dawn raid when Priya’s bridging visa expired in March 2018 and were taken into Melbourne detention. After 18 months, the government tried to deport them but was stopped by court injunctions, and the family was shuffled to Darwin and then to Christmas Island.
The court is yet to set a date for the full hearing.