Our Biloela Family: The Facts
1. Priya and Nades came to Australia legally
Priya and Nades came to Australia legally under international laws that give us all the right to seek safety 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.
Australia has signed the Refugee Convention, which says that people who come seeking safety without first seeking permission (a ‘visa’) cannot be punished. There is no offence under Australian law for arriving without a visa.
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 in 2013, Scott Morrison ordered officials to start using the word “illegal” to falsely describe people seeking safety who come by sea.
This is like saying it is wrong to escape a burning house through a window because you can't get to a door in time.
The truth is that it is legal to come seeking safety from persecution, no matter how you arrive.
2. Sri Lanka is very dangerous for Tamil people forced to return
For 26 years, the Sri Lankan government and the Tamil Tigers, a rebel group that fought to establish an independent state in the north and east of the country, waged a bloody internal conflict.
In 2009, during the last months of the war, the Sri Lankan government fired shells into so-called “no fire zones” where they told hundreds of thousands of Tamil civilians to shelter.
While the United Nations has estimated civilian deaths of 40,000 - 70,000, the International Truth and Justice Project has found that as many as 169,796 civilians may have been killed in 2009.
Numerous human rights organisations have documented severe, continuing 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”.
In June 2021, a report the Australian Government has used to deny the dangers Tamil people face in Sri Lanka was rejected by a UK tribunal with equivalent status to the UK High Court.
In an influential case, three Upper Tribunal judges found that the Australian Government's report did not identify any sources or explain how the information in the report was obtained.
3. Australia’s courts don’t decide whether someone is a refugee
Until 2015, all people seeking safety in Australia had the right to have official decisions properly checked by an independent tribunal which looked at the facts of each case.
But when he was Immigration Minister, Scott Morrison changed Australia’s migration laws to take away the right of people to have these decisions properly checked, if they arrived by sea between 2012 and 2014.
This meant Priya was given just one chance to explain why Sri Lanka is a dangerous place for her.
On the day she was interviewed on the phone by officials using a remote translation service, Priya was eight months pregnant and she had been in hospital with a migraine the day before. Her legal representative dropped out of the call at important points.
Scott Morrison’s changes to our migration laws meant that when the decision to deny protection to Priya was checked, officials only had to look at the paperwork and did not have to speak to Priya.
Priya was not allowed to provide new information or explain her story to the officials reviewing the decision.
The only option left to Priya was to prove in court that an administrative error had been made.
When politicians falsely claim that the courts have found that Priya and Nades aren’t refugees, they are misrepresenting the role of the courts. In Australia, appeal courts don’t decide whether someone is or isn't a refugee.
The courts have no power to weigh up the facts in refugee cases. They can only review decisions on very limited technical grounds, such as whether officials have followed processes set out by the government.
Even when a court finds that an administrative error has been made, they have no power to grant refugee status.
4. The Ministers can grant visas to Priya, Nades and the girls at any time
Under Australian law, Immigration Ministers have the power to intervene in any immigration case and grant a visa to stay in Australia, if they think it is in the public interest.
The Ministers’ power to grant a visa to stay in Australia is completely independent from the decision of any court.
There is no requirement for Priya, Nades, Kopika or Tharnicaa to be formally recognised as refugees for the Ministers to grant a visa to stay in Australia.
In May 2019, the former Immigration Minister David Coleman asked his Department to prepare a brief on the family.
He did this because the family's legal team asked him to allow a protection visa application to be made for youngest daughter, Tharnicaa.
The brief contained a recommendation that the Minister "agree to consider exercising s195A to grant ... [the] family a substantive visa to remain in Australia", but the Department's recommendations were ignored.
The current Ministers, Karen Andrews and Alex Hawke, have incorrectly suggested that they cannot grant a visa while the family have matters before a court.
The truth is that the Ministers can use their power to grant a visa at any time - whether or not there are matters before a court.
This is what Minister Hawke did in September 2021, when he granted 12 month “bridging visas” to Priya, Nades and Kopika.
Minister Hawke could have issued the same visa to four year old Tharnicaa. By withholding a visa from Tharnicaa and keeping her in “community detention”, he is preventing the family from leaving WA and coming home to Biloela.
When the visas expire, the whole family could be put into detention again - or even forced from Australia to danger.
5. Kopika was already two years old before officials made any decision in Priya’s case
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.
Priya and Nades found peace and safety in Biloela. After everything they had been through, they believed Australia would protect them from danger.
The couple’s first daughter Kopika was born in Rockhampton in May 2015 and they welcomed her sister Tharnicaa into the world in June 2017.
Changes Scott Morrison made to Australia's laws when he was Immigration Minister meant Priya had to wait almost four years after she arrived in Australia before she was allowed to even apply for a protection visa to stay here.
Officials did not make any decisions about Priya's visa application until May 2017. By this time, Kopika was already two years old.
Certain politicians have falsely said that before Priya and Nades started a family, they were told they could not stay in Australia. This false claim makes as much sense as saying that someone who applied for a job was told they were unsuccessful before the position was even advertised.
The truth is that if an official told someone seeking safety in Australia that they could not stay, before letting them explain why they need protection from danger, they would be violating international law that gives us all the right to seek safety from persecution.
6. Priya and Nades have stayed in Australia since they arrived
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 Mr Dutton said that Nades travelled to Sri Lanka after arriving in Australia, AAP FactCheck found that he had made a “false claim”.
The truth is that between 2004 and 2011, Nades tried to escape the danger he faced by travelling from Sri Lankan 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 little 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 Priya escaped Sri Lanka. She has never returned and has no family there.