Do we still have a “White Australia” policy?
Like so many others this week, I have felt heartbroken by the story of three-year old Tharunicaa Nadesalingam, who was medically evacuated from the Christmas Island Detention Centre with a blood infection, after a suspected case of pneumonia was left untreated.
The treatment of Tharunicaa and her family, known to many as the “Biloela Family”, raises the question of whether Australia’s immigration policy still favours European-immigrants over non-European immigrants.
The story of the Biloela Family first sent shockwaves through the community back in March 2018, when Australian Border Force officers took the family into custody from their home in Biloela, a small rural town in central Queensland. What followed was a lengthy and expensive litigation process, which has reportedly cost the Australian Government over $6 million.
Tharunicaa’s parents, Priya and Nades, first met in Australia where they arrived by boat as Tamil asylum seekers in 2012, after fleeing Sri Lanka due to concerns of persecution following the Sri Lankan Civil War.
Section 46A of the Migration Act 1958 (Cth) prohibits individuals who arrive by boat to Australia without authority from making application for a visa, unless that person holds a “Safe Haven Enterprise Visa” (SHEV), which allows individuals to seek asylum in circumstances where they hold a well-founded fear of persecution or are otherwise unable to return to their home country.
On 23 November 2016, Priya applied for a SHEV, detailing concerns in relation to her and Nades’ families’ links with the Liberation Tigers of Tamil Eelam and the harassment experienced by their families in Sri Lanka, including the death of Priya’s former fiancée and the sexual assault of her mother.
On 9 May 2017, the Minister for Immigration, as he then was, Peter Dutton, refused to grant a SHEV to Priya, noting that although her and her family were adversely affected by the Sri Lankan Civil War, there was no longer a risk to the family.
Following their detention in 2018, the Biloela Family have faced various unsuccessful battles with the government in the Federal Circuit Court and the High Court, with both Courts finding that there were no errors in the decision-making process. In August 2019, they were flown to Christmas Island, where they have remained in detention facing deportation since.
The case of the Biloela Family led to public pleas for ministerial intervention, a power under the Migration Act 1958 (Cth) that allows the Government to intervene and exercise its discretion to substitute decisions of the Administrative Appeals Tribunal, such as decisions to refuse visas.
Those pleas fell on deaf ears when, during a press conference in September 2019, Prime Minister Scott Morrison noted that the Government would not be exercising its intervention powers for the Biloela Family, stating, “At a time when there are increasing push factors coming out of Sri Lanka, the worst possible thing you could do was to send a message that says ‘you know what? If you come illegally out of Sri Lanka the Government might make an exception because there’s been a public reaction…’”
So, what would be the case if this were a family of European-immigrants? And, in what circumstances is it appropriate for the Government to exercise its power of intervention?
Well, there doesn’t appear to be any consistent approach, however, the Government’s approach in the case of the Biloela Family stands in stark contrast to the approach in the case of two European au pairs in 2015. In that case, Peter Dutton exercised his discretion to intervene after French and Italian women faced deportation after being detained at the Brisbane Airport. A Senate inquiry into that intervention in September 2018 found that Peter Dutton had a personal connection with the intended employers of those au pairs and had misled Parliament.
In my view, Australia’s immigration policy has failed the Biloela Family. I cannot reconcile the decision to detain two Australian born children in prison with a desire to prevent illegal immigration.
The Government’s failure to intervene in the case of the Biloela Family, despite intervening in the cases of other immigrants, such as the European au pairs, is demonstrative of an urgent need for reform. Until that occurs, the Biloela Family will not be the last family be deported in these types of circumstances, and the Biloela children will not be the last children who grow up behind bars for no reason other than their parents seeking asylum.