High Court Considers Case of Asylum Seekers!
More than 150 asylum seekers, including around 40 children, face being in limbo on the high seas for weeks in an Australian customs vessel while their fate is decided in the High Court.
Lawyers for the Abbott government and the asylum seekers agreed on a timetable for court action on Tuesday after the government promised to give 72 hours notice in writing if it intended to hand the asylum seekers to Sri Lankan authorities.
Under the timetable, a directions hearings will be held within three weeks, raising the question of where the asylum seekers will be held in the interim.
During the hearings, the government revealed that it had intercepted a boat carrying the asylum seekers outside Australia’s migration zone and transferred them to a customs vessels.
The government revealed on Monday that it had already handed over to Sri Lanka 41 asylum seekers on another boat they were subjected to “enhanced screening” at sea.
Lawyers representing those on the second boat have signalled that they will challenge any transfer of the asylum seekers to Manus Island or Nauru as unlawful because the boat was intercepted on the high seas.
Another option would be to transfer the asylum seekers to Christmas Island until the case is decided. Immigration Minister Scott Morrison has so far given no indication of the government’s intentions.
Human rights lawyer George Newhouse, acting for 48 of the 153 refugees, said after the hearing he would like to “thank the Minister and the Prime Minister for showing some compassion”.
He said the government’s guarantee that they would not be refouled to Sri Lanka without at least 72 hours notice was a significant victory, but that it was important that the group be given a chance to have their asylum claims legitimately and fairly assessed.
“What the government’s decision today means is that a group of vulnerable men, women, and children will not be sent back to their persecutors in Sri Lanka,” he said.
“I have no idea what plans the minister has for them.”
Mr Newhouse said, as part of an agreed order submitted to the court, the asylum seekers would be given access to legal representation.
Justice Susan Crennan signalled during the hearing that a challenge to any handover would be heard ”expeditiously” by the full High Court.
Counsel for the government Justin Gleeson, SC, revealed during the hearing that the boat carrying the asylum seekers had been intercepted outside Australia’s migration zone.
It is the first time the government has confirmed the existence of this boat of 153 asylum seekers since it left Pondicherry, India, on June 13.
Mr Morrison on Monday admitted 41 asylum seekers on board the other boat had been handed over to Sri Lanka’s military. The group arrived at a court in Galle, in Sri Lanka, on Tuesday.
Asylum seeker advocates say Australia is breaching its ”non-refoulement” obligations under international law by sending people back to a place where they face the threat of persecution.
In the hearing, Mr Gleeson, appearing via video link from Sydney, said the government had the executive discretion to determine where those detained ended up under the Maritime Powers Act.
But Ron Merkel, QC, acting for the asylum seekers, claimed the government did not have the power to lawfully return the asylum seekers to Sri Lanka against their will before their claims were determined.
He said the ”enhanced questioning” of the asylum seekers on the customs vessel to determine whether their claims should be pursued was clearly a denial of procedural fairness.
Mr Merkel has issued writs on behalf of 50 of those on board, including eight children aged between two and 16.
He said that once an assessment of the claims had begun, the government was lawfully bound to take it to its conclusion under the provisions of the Migration Act.
Mr Gleeson signalled that the Commonwealth would argue that the Migration Act was not applicable because the boat had not entered Australian waters.
Ian Rintoul from the Refugee Action Coalition said the government had offered no commitments on what it would do with the asylum seekers currently in its custody.
“I have no doubt Scott Morrison is currently working the phones trying to find some godforsaken place to dump them,” he said.
Mr Rintoul said it was “legally doubtful” that the asylum seekers could be taken against their will to Manus Island or to Nauru, because they were taken into Australian custody outside of Australian waters.