The four asylum seekers are the only residents of the Christmas Island detention centre, where they are waiting for their day in court

This article is more than 9 months old

This article is more than 9 months old

There is no written record of the advice provided by the Australian Border Force commissioner that led to a family of Tamil asylum seekers from Biloela being kept in detention on Christmas Island for months while waiting for their day in court.

Priya, her husband, Nadesalingam, and their Australian-born children, Kopika, 4, and Tharunicaa, 2, have been held on Christmas Island on their own since the end of August after a court ordered an injunction against the government removing them from Australia back to Sri Lanka.

The court will decide if the government has properly considered whether the youngest child, Tharunicaa, is owed protection. The rest of the family has had their claims rejected.

The four asylum seekers are the only residents of the Christmas Island detention centre, which was reopened at a cost of tens of millions of dollars in response to the parliament passing laws allowing medical transfers for asylum seekers from Manus Island and Nauru to Australia.

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In late September, the federal court ruled the family could stay until their case could be heard by the court.

Prior to being moved in August, the family had been in detention in Melbourne, and before that had been living in the regional Queensland community of Biloela.

However, there is no written documentation to support the government’s decision to keep the family in detention on Christmas Island while waiting for their case to be heard.

On 19 September, the home affairs minister, Peter Dutton, justified to 2GB’s Ray Hadley the decision to move the family to Christmas Island. He said because activists “cut through the fence and chained themselves to the front of the plane” when the family was evacuated at Tullamarine airport, the advice he had received from the commissioner of the Australian Border Force, Michael Outram, was that it would be safer for the ABF and the family for them to be moved to Christmas Island.

Guardian Australia sought a copy of this advice using freedom of information law, but was initially rejected, with the department saying no documents could be found. After an internal review of the decision was conducted, the department told Guardian Australia it had been advised that Outram had given the advice to Dutton verbally.

This is backed up by a separate FOI response provided to Labor this week, in which a letter from Outram to Dutton, dated 13 September 2019, mentions the verbal advice on the family’s situation.

“Further to my verbal update to you this week with respect to the ‘Biloela family’, the entire family unit continue to be accommodated at the Phosphate Hill facility on Christmas Island,” he said in the FOI document provided to Guardian Australia by Labor.

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“They are housed in accommodation built specifically for families with children, with access to outdoor play areas, and age-appropriate toys and entertainment for the children.”

Outram said they had access to medical and mental health care practitioners, and interactions with Serco guards were recorded with body-worn cameras.

No other documents related to the advice to keep the family on Christmas Island have been released by the department.

Priya told Guardian Australia in September that the family felt distressed and worried being held on Christmas Island.

“Especially Kopika is saying she doesn’t like this place, she wants to go back to Biloela. Tharunicaa is not eating proper food. I think they are scared.”

The next case management hearing for the family is set down for 16 December. The case will not be heard in court until sometime after January 2020, meaning the family will remain on Christmas Island for several months at least.