SYDNEY - Australia promised in court not to return a boatload of Tamil asylum seekers, including several children, to Sri Lanka without providing 72 hours notice, a move being hailed by human rights lawyers as a minor victory.
The emergency High Court hearing over the fate of 153 asylum seekers intercepted at sea by Australia was adjourned for an hour after that pledge to allow the government to discuss the next steps with lawyers acting for the asylum seekers. Human rights lawyers brought the legal challenge following the interception and return on Sunday of 41 other Sri Lankan asylum seekers on a separate boat by Australia whose conservative government's hard-line immigration policy was a centerpiece of its election victory last year.
Those 41 were due to appear in court in the port city of Galle later on Tuesday. Sri Lankan police have said that they would be charged with leaving the country illegally and any found guilty would face "rigorous imprisonment", raising fears about rights abuses. Western countries have long raised concerns with Sri Lanka over accusations of human rights violations during the final phase of the war against Tamil separatists that ended in 2009.
Sri Lanka says many asylum seekers are economic migrants, but rights groups say Tamils seek asylum to prevent torture, rape and other violence at the hands of the military. Tuesday's High Court hearing about the interception of a second boat has revealed details of the operation, undercutting the government's attempts to maintain a veil of secrecy over its so-called "Operation Sovereign Borders". Lawyer Justice Gleeson, acting for Immigration Minister Scott Morrison, said that the group was intercepted 12 miles from Australia and outside the country's migration zone.
They were now on an Australian navy vessel on the high seas, he said. Lawyer Ron Merkel, representing 40 of the 153 asylum seekers, said that the group were all Tamils and included several children, including a two-year-old. Merkel, who said that the entire group's communications had been removed, argued that they had been denied procedural fairness by not receiving a proper assessment of their claims to asylum. "This is the government's intent ... to involuntarily and by coercion return the 50 plaintiffs ... to Sri Lanka against their will," Merkel told the court.
Merkel said that the key issue was whether the Migration Act allowed the government to hold the asylum seekers at sea. Gleeson, however, said that the Migration Act did not apply because the group was picked up outside Australia's waters. Gleeson did not provide any detail on how or why Australian authorities boarded the boat and transferred the group to the navy boat. The U.N. Refugee Agency said that it was "deeply concerned" about the return of the 41 asylum seekers and the fate of the other 153.
Of particular concern is Australia's "enhanced screening" process, used to assess asylum seekers on the first boat, reportedly involving asking them just four questions over a phone link to Australia. "UNHCR's experience over the years with shipboard processing has generally not been positive," the refugee agency said in a statement. "Such an environment would rarely afford an appropriate venue for a fair procedure." The 41 people on the first boat, including nine children, are due to appear in court in Galle after spending the night in at a military camp notorious during the war for holding Liberation Tigers of Tamil Eelam rebels.
"Only on the last day did my cousin tell me that he was going on this journey," said a woman who tended to her baby at the 17th century, Dutch-built court as she waited for the 41 to be brought in. "But the best thing is he has returned alive." "They told us they were going to New Zealand," another relative told Reuters. "They said that they had seen an internet advertisement for 5,000 vacancies in New Zealand." Australia has touted its success in blocking asylum seeker boats, saying there have been no arrivals since December.
Prime Minister Tony Abbott refused earlier on Tuesday to comment directly on the case but defended Australia's immigration policies. "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," he told Channel 7 television. "We promised we would stop the boats and we are stopping the boats." Merkel said affidavits filed to the court on Tuesday signed by the government marked its first acknowledgement of the existence of the second boat and its passengers.
Human rights lawyers are concerned that Australia has stretched its authority for offshore processing of asylum seekers by conducting brief interviews aboard boats rather than transferring passengers to its facilities in Nauru and Papua New Guinea. The court has the authority to extend the injunction against transferring the 153 asylum seekers back to Sri Lanka or order the government to send the asylum seekers to those facilities for full processing.
Australia received 16,000 asylum seeker applications last year, just under 0.5 percent of the 3.6 million lodged worldwide, UN figures show, and a drop from one percent in 2010. The court hearing comes on the eve of a visit by Morrison to Sri Lanka, where he is due to talk with government and defence officials and attend a ceremony with President Mahinda Rajapakse to mark Australia's gift of two former patrol vessels.