Biloela family
Asylum seekers Priya and Nades and their Australian-born daughters, Kopika and Tharunicaa (Image: Rebekah Holt)

On Sunday afternoon a strawberry cheesecake was denied entry to the Melbourne Immigration Detention Centre (MITA).

The cake’s destination was the visiting room where would-be recipient Tharunicaa was excitedly waiting to celebrate her second birthday. The same day, Peter Dutton appeared on Insiders saying he had “got all children out of detention here in Australia”.

Tharunicaa has been held at the detention centre with her parents and four-year-old sister Kopika after they were taken from their Biloela home in a pre-dawn raid by Border Force over 15 months ago.

Tharunicaa turned one in the same detention centre last year. A cake was refused on that occasion, so her parents, Priya and Nades, made every effort to have the required forms filled out so their friends could bring a cake this week. Crikey has seen the forms the child’s father filled out and submitted asking for permission for the birthday cake to be brought into the visit room.

Yesterday Crikey sent copies of the forms to the department’s media team and asked Border Force why the cake had been denied entry but only received a reply directing us to the ABF website.

A strawberry cheesecake intended for two-year-old asylum seeker Tharunicaa.

Commissioner’s concerns

The two-year-old was the subject of extensive reporting in May this year when she finally received medical attention for a mouth infection which was preventing her from eating solids.

After the ensuing coverage Liana Buchanan, the Victorian Commissioner for Children and Young People, publicly requested Border Force allow her to visit MITA. Buchanan was finally granted a visit last week, noteworthy in that it was the first time the children’s commissioner had been given access to the centre since she started her role over two years ago. 

Crikey has been aware of infants and children in MITA since a baby, Isabella, was born to a mother detained at the facility in March 2018. Currently there are four small girls aged between one and four and a 17 year old boy in the centre.

Yesterday Buchanan told Crikey she had completed that first visit of children and their parents at MITA. “I remain keen to ensure appropriate and timely medical care and access to developmental opportunities, including preschool, for all detained children,” she said.

Preschool is currently not available to Tharunicaa or Kopika.

“I stress that it is the position of Australia’s Children’s Commissioners and Guardians that children should not be in immigration detention, so I am working to safeguard their wellbeing to the extent possible in that environment. The recent United Nation opinion on the detention of one particular mother and her child certainly reflects concerns I share regarding their detention.”

The commissioner is referring to a recent report from the UN Working Group on Arbitrary Detention addressing Isabella’s detention. The report said that Isabella’s situation “undoubtedly qualifies as detention” and that she should not be detained due to the migratory status of her parents.

Defining “detention”

Border Force has previously disputed the definition of detention regarding baby Isabella and her mother Huyen, who are held in the same unit with Tharunicaa and her family. Lawyers and the UN agree, semantics aside, that Isabella is a detained child.

Alison Battison, the lawyer representing Isabella, said that “the UN calls out the Australian government for detaining children despite the government classifying some of these children as ‘guests'”.

“The UN Working Group opines that the Australian government in detaining children have breached their human rights as enshrined in the Universal Declaration of Human Rights and the ICCPR. These are foundation documents which Australia was involved in drafting following the horrors of World War II. It is embarrassing and deeply concerning to now be in breach.”

Battison says Isabella and her mother’s fate is at the discretion of the minister. “Despite the [UN] opinion being issued we have seen no indication Huyen and Isabella will be freed; this government continues to ignore the UN,” she said.

Crikey asked Home Affairs if Dutton could explain why he does not consider the children currently in MITA as being detained but received no answer before deadline. 

Keneally draws a line

Labor Senator Kristina Keneally told Crikey that compassion needed to be exercised. “Honestly, are we now at the point of denying a two-year-old a birthday cake? No one denies there are rules in place, but surely common sense and compassion cuts in somewhere, even in the Morrison government,” Keneally said.

That two-year-old, Tharunicaa, wasn’t even born when her parents made their asylum claims but may represent the family’s last hope to stay in Australia.

The family’s lawyer Carina Ford says that “the consideration to lift the bar and consider non-refoulment claims for the youngest child remains ongoing with the minister and the Department of Home Affairs”.

That’s a lot of pressure on a two-year-old girl who Peter Dutton says isn’t in detention.