Priya and Nades: The Facts
1. Priya and Nades came to Australia legally
Priya and Nades came to Australia legally under international and Australian laws that give us all the right to seek safety (“asylum”) from persecution, no matter how we arrive.
They abided by the conditions of their bridging visas, obeyed Australia’s laws, paid taxes and contributed to our community.
Once, politicians proudly welcomed people just like Priya and Nades, who came seeking safety. Liberal Prime Minister Robert Menzies’ signature brought the Refugee Convention into being and Malcolm Fraser welcomed thousands of refugees from Vietnam.
But today, certain politicians believe they can win votes by dividing our community and spreading misinformation about people who come in search of a safe, peaceful life.
One way they do this is by using the word “illegal” to falsely label people who have come by sea, in search of safety.
There is no offence under the Migration Act for arriving in Australia without a visa. But in 2013, Scott Morrison ordered officials to start using the word “illegal” to falsely describe people seeking safety who arrive by sea, even though it is legal to do this.
2. Priya and Nades have stayed in Australia since they arrived here
The conditions of the bridging visas issued to Priya and Nades after they arrived in Australia in 2012 and 2013 did not allow them to leave Australia. They have been in Australia ever since.
Peter Dutton has been caught spreading false information about this. When he said that Nades travelled to Sri Lanka after arriving in Australia, AAP FactCheck found this was a “false claim”.
Between 2004 and 2011, Nades tried to escape the danger he faced in Sri Lanka by travelling to Qatar and Kuwait as a temporary guest worker.
Qatar and Kuwait have not signed the Refugee Convention and do not give protection to people seeking safety. When his temporary work visas expired, Nades had no choice but to return to Sri Lanka. He finally escaped Sri Lanka in 2012 and has been here in Australia ever since.
In 2001, Priya fled from Sri Lanka to India, which has not signed the Refugee Convention and does not give permanent protection to people seeking safety. In India, Tamil refugees face exploitation, harassment and sexual assault. Many live in fear of being forced back to danger.
Priya endured these dangerous conditions for 12 years. She fled to Australia in 2013 when she feared she would be forced back to Sri Lanka. It is now 20 years since she escaped Sri Lanka. She has never returned and has no family there.
3. Priya was not allowed to apply for protection until after her first child was born
Before they met in Australia, Priya and Nades lost many years of their lives to war and conflict. They feared they would never have a family of their own.
In Biloela, they found peace and safety. After everything they had been through, they believed Australia would protect them. In May 2015, they welcomed their daughter Kopika into the world. Her sister Tharnicaa was born in June 2017.
Peter Dutton has falsely claimed that Priya and Nades were told “long before they had children that there was never a prospect of them remaining in Australia”.
This is untrue. Changes Scott Morrison made to Australia’s migration laws stopped Priya from applying for a protection visa until November 2016, almost four years after she arrived and well over a year after Kopika was born.
Any official who told Priya she could not remain in Australia before she was allowed to apply for protection would be breaking international laws that give us all the right to seek safety.
When asked if Priya and Nades were advised they could be removed from Australia if their applications for protection were denied, Department of Home Affairs General Counsel Pip De Veau told Parliament: “I can't confirm whether that was before or after they … had children.”
Mr Dutton tried to de-humanise Kopika and Tharnicaa using divisive hate-speech imported from America.
But like all Australian-born children, Kopika and Tharnicaa have the same citizen status as their parents. In Australia, Mr Dutton’s disgusting, imported slur simply doesn’t make sense.
4. Sri Lanka is unsafe for Tamil people forced to return
For 26 years, the Sri Lankan government fought a bloody civil war with the Tamil Tigers, a rebel group that tried to establish an independent state in the north and east of the country. The war followed decades of discrimination against the Tamil ethnic minority.
During the last months of the war, the Sri Lankan government fired shells into the so-called “no fire zones” where they had told hundreds of thousands of Tamil civilians to shelter. The United Nations has estimated that 40,000 - 70,000 civilians were killed.
Amnesty International says Sri Lanka has one of the highest rates of enforced disappearance in the world, with 60,000 - 100,000 people missing since the late 1980s. Enforced disappearance is so common that the security forces’ use of unmarked vehicles to abduct, torture and murder civilians is known as “white van syndrome”.
Numerous human rights organisations have documented continuing, severe human rights abuse of Tamil people since the defeat of the Tamil Tigers in 2009:
In 2016, the Human Rights Commission of Sri Lanka found “torture to be of routine nature that is practiced all over the country
In 2017, UN Special Rapporteur Ben Emmerson found that “the use of torture has been, and remains today, endemic and routine” and that the Tamil community “has borne the brunt of the State’s well-oiled torture apparatus”.
In 2019, Freedom from Torture concluded that torture “has continued ... in post-conflict Sri Lanka” and the Office of the UN Human Rights Commissioner reported that it “continued to receive credible information about cases of abduction, unlawful detention, torture and sexual violence by Sri Lanka security forces”.
Tamil people forced to return after escaping Sri Lanka are frequently arrested by the feared Criminal Investigation Division (CID) when they arrive at the airport. The CID’s Colombo headquarters are a notorious torture site.
5. The courts have no power to grant or deny Priya, Nades or the girls refugee status
When Scott Morrison changed Australia’s migration laws in 2014, he took away the right of people who arrived by sea to have the decisions of officials fairly and properly checked.
This meant that Priya was given only one chance to explain why she fled from Sri Lanka. On the day she was interviewed in February 2017, she was eight months pregnant with her second daughter and suffering a migraine.
The interview took place by phone conference and her legal representative dropped out of the call at important points.
Scott Morrison’s changes to our migration laws meant that when Priya asked for this decision to be checked, officials only had to look at the paperwork and did not have to speak to Priya. The only option left to Priya was to prove in court that an administrative error had been made.
Peter Dutton has misrepresented the role of the courts by saying that Priya and Nades were “found all the way to the High Court not to have a claim for protection”.
In truth, the courts have no power to assess the merits of refugee claims. They can only assess whether officials have followed certain processes, like those that Scott Morrison put in place when he made unfair changes to Australia’s migration laws.
This means the courts can only decide on highly technical points of administrative law. For example, in April 2020, the Federal Court found that Priya’s Australian-born daughter Tharnicaa was denied “procedural fairness”. This decision was upheld by the full Court in February 2021.
6. The Immigration Minister’s own Department recommended he allow Priya, Nades and the girls to stay in Australia
Under the Migration Act, Immigration Ministers have the power to intervene in any immigration case for any reason they choose.
The Ministers’ power to intervene is completely separate from the decision of any court. There is no requirement for Priya, Nades, Kopika or Tharnicaa to be formally recognised as refugees for this to occur.
In May 2019, then Immigration Minister David Coleman asked his Department to prepare a brief on the family. He did this because the family’s legal team had asked him to intervene so that a protection visa application could be made for youngest daughter, Tharnicaa.
The submission contained a recommendation that the Minister "agree to consider exercising s195A to grant ... [the] family a substantive visa to remain in Australia".
On the 24th May 2019, days after the federal election, the submission was sent to the Minister. The Department's recommendations were ignored.
Because the power given to the Immigration Minister is non-compellable, the courts cannot even ask why the Minister ignored the recommendations of his own Department.