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High Court injunction blocks handover of 153 asylum seekers to Sri Lanka
ABC Radio Australia - July 7, 2014
After two weeks of silence, Immigration Minister Scott Morrison today confirmed 41 asylum seekers have been handed over to Sri Lanka's military after being processed at sea. But he refused to discuss the whereabouts of 153 asylum seekers on another boat believed to be facing the same fate.
Refugee advocates seeking to protect those asylum seekers made an application to the High Court, which granted the injunction after an urgent hearing.
Solicitor George Newhouse says the asylum seekers are Tamils who "claim that they are fleeing persecution and that they are risk of death, torture or significant harm".
"We argued that the asylum seekers are entitled to have their allegations – claims against the Sri Lankan government – heard and processed in accordance with the law," he said.
"We will be making the point to the court that the asylum seekers are entitled to have their claims for asylum processed in accordance with Australian law. The Minister can't simply intercept them in the night and 'disappear' them."
Mr Newhouse says 48 of the 153 asylum seekers on the boat were named in court. "The others we've sought protection for even though we were unaware of their names," he said.
Mr Newhouse says the revelation that Sri Lankan authorities would press criminal charges against an earlier group of returned asylum seekers returned is "shocking".
"That strengthens the urgency of court application because if this Government is putting those people at risk of criminal charges, imprisonment and torture – because that's what happens in Sri Lankan prisons – then these people need assistance urgently," he said.
The interim injunction will be in place until tomorrow afternoon, when the matter is set to be heard in the High Court.
The asylum seekers reportedly fled Sri Lanka to a refugee camp in India before boarding a boat to Australia. The boat was intercepted off Christmas Island more than a week ago.
Greens Senator Sarah Hanson-Young has previously urged the Government needs to reveal the fate of those on board. "The majority of them, my understanding is, are Tamil asylum seekers, including 37 children. Now, they are still being held in custody on board a Customs vessel," she said.
The Tamil Refugee Council claims at least 11 people on that boat have been tortured by Sri Lanka's intelligence services, and says there must have been more people on the ship in a similar situation.
Returned asylum seekers face 'rigorous imprisonment'
Mr Morrison says the group of asylum seekers already returned to Sri Lanka were intercepted on a boat west of the Cocos Islands. The 37 Sinhalese and four Tamils from Sri Lanka were scanned by teleconference at sea before being transferred to the Sri Lankan navy on Sunday.
The Government says one of the Sinhalese may have had a case for seeking asylum, but opted to be handed back to Sri Lanka after being told they would be sent to Manus Island or Nauru for offshore processing.
The asylum seekers, all men, were taken to the port of Galle today and handed over to the Criminal Investigation Division, which is an arm of the intelligence branch.
It is a crime to leave Sri Lanka without leaving by an official port, so people who are caught at sea and returned are often charged with illegal migration offences.
"They will be charged under the Immigrants and Emigrants Act," police spokesman Ajith Rohana told the Reuters news agency. "The sentence for those who are proved to have left illegally is two years of rigorous imprisonment and a fine."
Sri Lankan authorities will also be trying to establish if any of the men have any links to any militant groups, which officials say is why the intelligence department must screen them. Leading refugee lawyer David Manne says it is hard to predict what will happen to them next.
"This is part of the problem that we've seen in Sri Lanka with people being essentially summarily expelled there without proper due process," he told the ABC's 7.30.
"It's a country where there is an extremely serious systematic abuse of human rights ongoing in the country against certain minority particularly, and it is often very difficult to precisely track the fate of a returned asylum seeker."
"There are profound concerns that [returning the asylum seekers] is not legal. That it is violating people's fundamental rights and putting people's lives at risk."
Legal scholars say transfer may have violated international law
Fifty-three legal scholars from 17 Australian universities say they are "profoundly concerned" the asylum seekers were subjected to "rapid and inadequate screening interviews at sea" before being returned to Sri Lanka.
In a statement, the academics say the Government's actions in returning the asylum seekers to their country of origin "raises a real risk of refoulement."
Refoulement is an international law term that refers to the involuntarily return of refugees to their country of origin in cases where they may face severe human rights abuse or persecution.
The scholars said returning the asylum seekers would breach Australia's obligations under international refugee and human rights law, including the 1951 Refugees Convention, 1948 Universal Declaration on Human Rights, and the 1966 International Covenant on Civil and Political Rights. They also questioned the legality of holding the asylum seekers at sea.
"Holding asylum seekers on boats in this manner also amounts to incommunicado detention without judicial scrutiny," they said in a statement. "We urgently call on the Australian Government to make public its legal justification for this operation."
Senator Hanson-Young has criticised the Government's screening process, which reportedly involved just four questions via teleconference. "A telephone conference of four questions – really, if it wasn't so serious, if it wasn't about life and death, it'd be laughable," Senator Hanson-Young said.
Shadow minister for immigration Richard Marles has also questioned the operation. "Australia's international obligations are reliant upon a credible processing system and we have deep concerns about how that could have been performed by video link at sea in a way which gave an individual assessment, when all the time the boat was steaming towards Sri Lanka," Mr Marles said.
Sri Lanka has not directly commented on whether Australia has acted lawfully.
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