Australian government lawyers yesterday said 153 Sri Lankan asylum seekers were in custody on the high seas and agreed to give three days’ notice before handing any back to Colombo, as criticism mounted.
A late night interim injunction on Monday temporarily halted the transfer of the would-be refugees from the boat, which until yesterday Canberra had refused to admit existed.
Lawyers acting for about a third of the mostly minority ethnic Tamils on board took their case to the High Court yesterday, arguing a transfer would be illegal and they should not be returned against their will.
The court has yet to decide whether there is a case to answer, but in an early submission government lawyers said the boat was intercepted outside Australian territorial waters.
Australian Solicitor-General Justin Gleeson said this meant any claims made under the Australian Migration Act were not applicable, but he gave an undertaking that 72 hours’ notice would be given before any of the asylum seekers, now reportedly held on a customs boat, were handed back to Colombo as the court looks to provide clarity around the government’s actions.
The legal dispute came a day after another vessel was returned to Sri Lanka by Australia following a week of secrecy.
Local police in Sri Lanka said the adults among the group of 41 — 28 men and four women — would be charged with attempting to leave the country illegally — a crime punishable by up to two years in jail.
Australian Human Rights Commission President Gillian Triggs said the screening of asylum seekers at sea appeared to be inadequate under international law.
The process reportedly involved a four-question interview via video link, with the applicants denied the means to challenge it.
“It sounds as though three or four or five questions are being asked by video conference, snap judgements are being made and they’re simply being returned,” Triggs told ABC television. “There is an obligation with international law to have a proper process.”
The UN High Commission for Refugees (UNHCR) said it was “deeply concerned” by the developments, although it did not have enough information about how they were screened to determine whether it was in accordance with international law.
“UNHCR’s experience over the years with shipboard processing has generally not been positive,” it added in a statement. “Such an environment would rarely afford an appropriate venue for a fair procedure.”
Australian Prime Minister Tony Abbott earlier dodged questions about the case.
“What I’m focused on is stopping the boats. That is what we are absolutely and constantly focused on, because as long as the boats keep coming, we will keep having deaths at sea,” Abbott said. “I’m not going to comment on what may or may not be happening on the water, but I do want to assure everyone that what we do on the water is consistent with our legal obligations and consistent with safety at sea.”
His remarks came as a relative pleaded for news of a three-year-old girl, reportedly his daughter, on the missing boat.
“I am desperate to know where my family is. I can’t function at all not knowing,” the man told the Tamil Refugee Council. “I know all of them would be in very big trouble if sent back to Sri Lanka. I want to plead with the Australian minister to stop our pain, and let us know what he has done with all the kids and families on the boat.”