A family that could be split apart by government moves to deport the two parents back to Fiji has been given a flicker of hope after the Human Rights Commission agreed to examine their case.
The Prasad family, ethnic Indians who arrived in Sydney in 2000, includes two Australian-born children who cannot be deported because they are full citizens, with Australian passports.
Assistant Immigration Minister Alex Hawke has declined to exercise his discretionary powers to keep the family together and compliance officials from the Immigration Department have warned the family that deportation action could begin from Tuesday.
Fairfax Media has confirmed the HRC, led by president Gillian Triggs, has accepted a complaint by Jitend Prasad and his wife Joytika that their Australian childrens' human rights would be breached if they were sent back to Fiji.
The HRC has found in a number of recent cases that a child's right "not to be subject to arbitrary or unlawful interference with their family" is breached when the government removes their foreign-born parents.
In a 2013 case that closely mirrors the Prasads', Ms Triggs found that removing the Bangladeshi parents of an Australian boy, Master Aishik Antar Paul, back to their country of origin would be "inconsistent" with his rights under the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights.
Both the previous Labor government and the Coalition refused to intervene in the Paul case and the government has recently cut off Medicare rights to the family from Campsie as it continues to seek their removal, according to their lawyer, Christopher Levingston.
"The continuing failure of the Minister [Peter Dutton] and Assistant Minister of Immigration [Mr Hawke] to act in conformity with the recommendations of the Human Rights Commission concerning the best interests of Australian citizen children, is in my view totally inconsistent with the precept that the family is the fundamental unit of society," Mr Levingston said.
"The impulse to punish and remove the parents of Australian citizen children is not only inconsistent with international treaty obligations it is an affront to common sense and does nothing to instil confidence in the integrity of the migration program. It is unfair, unjust and makes absolutely no political sense at all."
The Prasads' migration agent, Farnam Razzaghipour, said the department should be notified on Friday but the family remained "petrified" about being sent to immigration detention.
It is usual for the HRC to ask the department to pause any deportation action while the commission investigates but Immigration is not bound by such a request.
An investigator for the HRC said she was unable to comment on the status of any complaint until the commission reports its findings.
The Prasads have lived for 17 years in Eastlakes, southern Sydney, with Jasmita, 15, and her brother Jasneel, 12, both Australian citizens, attending local schools Randwick Girls' High and Mascot Public, respectively.
The Prasads, who have had their claim for asylum refused, claim they were caught up in threats and violence by indigenous Fijians from a nearby village during the 2000 military coup in Fiji and would suffer discrimination and degrading treatment on the grounds of their ethnicity if they returned.
According to the law, the minister can use discretionary power if there are "strong, compassionate circumstances that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident."
