Biloela family may spend months more on Christmas Island waiting on court decision

The Tamil asylum seeker family from Biloela may have to wait another three months for a decision on whether their youngest Australian-born daughter can have her asylum application assessed, after a court hearing in which a home affairs adviser was accused of untruthfulness.

Tamil asylum seekers Priya and Nades and their Australian-born daughters Kopika and Tharunicaa have been detained on Christmas Island since late last year awaiting the hearing on the processing of a visa application for Tharunicaa.

In a federal court hearing on Tuesday, lawyers for the family and for the government made arguments over whether the immigration minister, David Coleman, or home affairs minister, Peter Dutton, had considered lifting the bar under the Migration Act that was preventing Tharunicaa from applying for a visa because, despite being born in Australia, she is considered an unauthorised maritime arrival like her parents. The court is also considering whether the process of deciding whether to lift the bar was fair.

The federal court is considering separately whether her application should be processed.

Lawyers for the family produced email chains, briefing documents and other evidence from the home affairs department that they argued proved the government had taken the steps to consider lifting the bar.

The court heard that in April 2019, a brief was prepared for Coleman by the department of home affairs asking for him to intervene and lift the bar to allow Tharunicaa to make an application.

Department director for ministerial interventions, Jodi Stubbs, gave evidence in court that in the briefing the department noted that many members of the community and MPs had written to the department in support of the family’s case.

Related: No written record of advice that led to Biloela family's detention on Christmas Island

Ultimately, although more information was sought by Coleman’s office the week before the May 2019 election, the family’s barrister Angel Aleksov argued no decision was made on the case from the brief.

A senior adviser for Coleman, Ross Macdonald, told the court several times he could not recall briefing Coleman on the case on several occasions in 2019, or giving the briefs to Coleman to assess for consideration.

The court was shown text messages sent on 2 July in which Macdonald sought information on the case from an adviser in Dutton’s office after prompting from Labor home affairs spokesperson, Kristina Keneally. But Macdonald said he could not recall conversations he had with the adviser shortly after those text messages.

Aleksov then questioned whether Macdonald was being truthful in saying he could not recall several key meetings related to the case.

“I’m telling the truth,” Macdonald responded.

Part of the complication in the case is that Coleman has been on indefinite personal leave since mid-December, and is unavailable to give evidence. Aleksov said no adequate explanation had been provided to the court on why Coleman could not give evidence.

Related: What will happen to the Biloela family held on Christmas Island?

“Minister Coleman has not given evidence in this case at all. There is not an adequate explanation … that he is unable to attend court.”

When asked whether Coleman was still in the country, or what the nature of his personal leave was, Macdonald said he did not know.

Aleksov later told the court that Macdonald’s evidence was “so weak on so many aspects”.

The court also heard that from late July last year, the family’s case was transferred from Coleman to Dutton. A 24 July briefing, prepared for home affairs secretary Michael Pezzullo ahead of a meeting with Dutton, states that Pezzullo wanted to conduct a protection obligation assessment for Tharunicaa.

No meeting minutes or notes were provided to the court to show what was decided at that meeting.

The family is seeking for the application for a visa to be processed, or that the government be prevented from removing the family until a claim of unfair procedures on the handling of the case has been heard.

Justice Mark Moshinsky reserved his decision, and the family’s lawyer, Carina Ford, told journalists outside court it could be anywhere between one and three months before a decision is handed down.