The Biloela Four have another reprieve, courtesy of a judgment by Federal Court Justice Moshinsky last Friday. Their Christmas Island exile will continue for a while more, as the next chapter in their fight to remain in Australia unfolds. It’s a timely moment to reflect on their journey through Australia’s bureaucracy, courts and consciousness so far.
Their name, in case it be forgotten, is not Biloela. Nades and Priya Murugappan arrived in Australian waters, separately, in 2012 and 2013. They came by boat from Sri Lanka, and claimed asylum on arrival. Their claim to refugee status is based on the fear of persecution were they to be returned to Sri Lanka, as a consequence of the former civil war there.
They were given bridging visas as their claims were processed, and settled into life in the central Queensland town of Biloela. Their daughters, Kopika and Tharunicaa, were born in Australia. All was peaceful until March 2018, when the Border Force (ABF) turned up at their home and forcibly removed them to Broadmeadows detention centre in Melbourne.
Why Melbourne? Administrative convenience is the standard ABF response to questions about why it routinely moves asylum seekers around its detention facilities, very often shoving them into the farthest possible corner from family and community support.
Nades and Priya were not found, within our system, to be genuine refugees. After a variety of hearings and appeals, all the way to the High Court, the parents ran out of legal avenues for securing the right to remain in May 2019. Border Force was waiting.
In the meantime, the Biloela community had been agitating ever since the family’s removal, demanding that they be returned to the place where they had been living settled and fully absorbed lives. Regional Queensland not being renowned as a hot bed of pro-immigration sentiment, nevertheless the locals had found an exception in their hearts for this unobjectionable family with two very cute kids.
The story reached a dramatic climax on August 29-30, 2019, when Border Force moved in to deport the family from Australia. They were on a plane, the children terrorised and their parents distraught, bound for Sri Lanka when a Federal Circuit Court judge intervened, granting an injunction preventing their removal on a temporary basis. A few radio calls later, the plane diverted to Darwin and the family was disembarked, safe again for now.
The legal point in issue, then and still now, was the immigration status of the younger daughter Tharunicaa. She and her sister are not Australian citizens, nor automatically entitled to citizenship (unlike the USA, being born in Australia does not confer that right). However, their immigration status also does not simply follow that of their parents. Their claims must be heard too.
The Federal Court extended the injunction, and so the family was set to remain here some time longer while everyone prepared for the full hearing of Tharunicaa’s claim. Speculation as to whether they would be released back into the community in the interim was quickly quashed, when they were spirited by the ABF to its then-redundant detention facility on Christmas Island.
You may recall that, in the lead-up to the 2019 federal election after Labor and the cross-benchers ambushed the government and managed to get the medivac amendments into law, Scott Morrison responded by rushing to Christmas Island with a planeload of journalists. He dramatically announced its reopening to prepare for the expected fresh flood of boat arrivals that medivac would cause. $180 million later, the total number of new occupants was zero.
But at least the place had had a spring clean, and was ready for the Biloela family’s arrival. Again, no doubt, administrative convenience dictated that this extremely dangerous young family be sequestered 5000km away from their lawyers in Melbourne.
The key finding by Justice Moshinsky was a highly technical one. Under the law, the Immigration Minister (David Coleman) is not obliged to consider Tharunicaa’s claim. However, the judge found that he had taken steps in that direction, but then not carried them through to an actual decision. That denied the little girl procedural fairness, and so the minister has to do his job properly and decide whether she can stay in the only country she’s known.
Of course, the minister may just decide, having gone through the motions again, to say no. His discretions are wide and not open to challenge, if he does the job properly. If the government maintains the stance it has ever since 2018, the family’s ultimate position is unlikely to be any different.
There’s not much benefit, at this distance of time, to trying to work out whether Nades or Priya ever was a legitimate refugee. We’re nearly a decade from the point at which they each decided to get on a boat and seek a better life.
And even if you, like Peter Dutton, are the kind of calloused soul who believes only the worst of people, and therefore assume that Kopika and Tharunicaa were created as “anchor babies” rather than as the children of a loving couple, that cannot justify what they have been forced to suffer for the sake of our borders.
Tharunicaa has no memory except imprisonment. She has enjoyed no part of a normal childhood. Her physical and mental health have been damaged, probably permanently, by her incarceration and the traumas inflicted by the brute machinery of our militarised immigration regime.
This family has suffered more than enough punishment for the temerity of the parents in seeking to come here to live. If the protection of our borders demands the making of examples to deter others (which the policy settings clearly command), then how much more harm do we need to inflict on the Biloela family to set the principle in stone?
There is no conscience in our treatment of these people. No morality, ethics or humanity. It is passionless, gruesome officiousness, grinding them to dust in the name of the rule of a law that is bad.
It is past time to say enough. Let them return to the good lives they had made, in the community that wants them back.