When Shakespeare wrote the Merchant of Venice, England had separate courts for the administration of the law and equity. The court of law judged matters on the basis of the ‘common law’ or precedent of England. The Court of Equity (or Chancery) made decisions when the strict application of the common law would lead to harshness or inequity.
Shylock, a moneylender in the Merchant of Venice, demanded the strict application of the law, “to have the due and forfeit of my bond”, in his demand for a pound of flesh, when Antonio couldn’t repay a loan. Antonio’s wife, Portia, pleaded for mercy against the strict application of the law, saying in a famous speech, that mercy “blesseth him that gives and him that takes”.
The tension between the law and mercy lies at the heart of different views on how to respond to the Murugappan family. The father and mother of the family arrived illegally in Australia by boat from Sri Lanka in 2012 and 2013 respectively. While on temporary visas, as their claim for refugee status was assessed, they moved to Biloela, married and had two daughters. They were loved and welcome members of the Biloela community.
The law on their case is clear. The father has had four cases heard in our courts and the mother three. Every one of these cases has upheld the decision, originally made by the former Labor Government, that the Murugappans are not refugees. Under Australian law those that arrive here illegally by boat, and are not refugees, are returned to their home country.
The Australian government has returned over 1000 Sri Lankans who arrived here by boat while the former Labor Government lost control of our borders.
There are no reports of persecution of those who have returned. While there were reports of human rights abuses against Tamils - a Sri Lankan ethnic group - during a civil war, that war ended in 2009. While Nades Murugappan claimed to have links to the opposition group in the civil war, Australia’s Immigration Assessment Authority (IAA) found that he had returned to Sri Lanka in 2004, 2008 and 2010 from overseas, and had been able to pass through security at the airport on each occasion. In regards to the family as a whole, the IAA ruled that “given the passage of time and change in country circumstances, the applicant would not ... be of interest to the Sri Lankan authorities”.
Notwithstanding the clear legal facts, there are some who suggest we should show mercy and let this family return to Biloela. That is an understandable view given the nearly 10 years this case has dragged on, and the two children who have been born in Australia. It is reasonable to weigh up these ‘equity’ issues rather than just rely on a strict interpretation of the law.
However, on an equity basis it is hard to see how allowing this family to stay would be equitable to the over 1000 Sri Lankans who have been sent home. Those people probably had equally good cases to stay. Some of them would have had children born here in Australia. So what is different about this case which would necessitate special treatment?
The only thing that is different is their willingness to engage in lengthy legal action, and the resulting media scrutiny around that. Media hype seems a flimsy reason to make a special arrangement for this family compared to others. Worse it would encourage others to engage in protracted lawfare that puts their
families in limbo, and only enriches those in our legal system.
The court rules in favour of Shylock in the Merchant of Venice at first but he then fails to extract his pound of flesh because he can only do so if he takes it without a “jot of blood”. It is right that we uphold our English legal tradition of weighing up what is equitable, not just what is legal. In this case though equal treatment would mean the return of the Murragappan family to Sri Lanka just as many others have been required to do so.