The Commonwealth late yesterday made an undertaking in the High Court that it will not transfer 153 Tamil asylum seekers to the Sri Lankan government or military without giving 72 hours notice.
It was the first public confirmation that the Australian Navy has custody of the asylum seekers. The government has spent the past week refusing to confirm that the boat or asylum seekers exist.
The Full Court of the High Court will decide in three weeks whether the Australian government has the power to ‘refoule’ asylum seekers, or return them to the country from which they are fleeing.
Ron Merkel QC said in court that he represented 50 of the 153 asylum seekers on board, including a child as young as 2 years old.
There are as many as 29 minors on board, 122 men, and between 10 and 28 women.
They departed from a Tamil refugee camp in Pondicherry, India. Merkel suggested that there is evidence that persecution caused them to flee to the camp. They are currently on an Australian Border Protection vessel on the high seas.
The news followed an urgent hearing on Monday afternoon, when Justice Crennan granted an interim injunction preventing any transfer of the asylum seekers until 4pm yesterday.
This is not the first time the High Court has frustrated government policy on asylum seekers.
In 2010, it held that the Gillard Government’s ‘Malaysia Solution’ was illegal.
Most recently, it held last month that Immigration Minister Scott Morrison could not cap the number of protection visas issued in a year.
The group’s solicitor George Newhouse hailed today’s outcome as a victory.
“The government’s decision [yesterday]means that a group of vulnerable men, women and children will not be returned to their persecutors, certainly not without notice,” Newhouse told New Matilda last night.
“And we now know where they are and we have access to them. “But because they remain in limbo, I am still concerned for their safety.”
Merkel argued that the Commonwealth does not have power to return asylum seekers unwillingly to a country from which they have fled.
He argued first that they are entitled to protection under Australia’s Migration Act. He also argued that Australia’s international law obligations of non-refoulement, which make it illegal to return people to a country where they may face torture or inhuman treatment, are incorporated into Australian domestic law and constrain the exercise of the executive’s power.
He also argued that the asylum seekers had been denied procedural fairness. He submitted that the process of asking four questions through a video link without assistance was fundamentally unfair, and therefore any decision based on that screening process would be invalid.
Merkel also flagged a possible challenge to detention on Nauru and Manus Island, suggesting that he might amend his application to the High Court to challenge the legality of a transfer to either destination.
In response, the Commonwealth Solicitor-General Justin Gleeson SC did not deny that Australia wishes to return the asylum seekers to Sri Lanka.
Instead, he asserted that the Commonwealth has the power to do so under the Maritime Powers Act and the constitutional executive power.
The Maritime Powers Act was introduced last year by the previous government. It allows Australian maritime officers to detain boats and people and take them anywhere inside the migration zone, or outside it.
It renders any consequent restraint on persons’ liberty lawful.
The Commonwealth did not deny that returning the asylum seekers would constitute refoulement in breach of international law. Instead it was put that there was no legal prohibition on refoulement where the boat was intercepted outside Australia’s migration zone.
If the asylum seekers succeed, it means the earlier transfer of 41 asylum seekers to the Sri Lankan military was very likely illegal.
There could also be wider ramifications.
Professor Mary Crock of the University of Sydney, one of 53 legal scholars who recently signed a statement condemning the return of the 41 asylum seekers to Sri Lanka says that the group has a “very good case” that they are entitled to procedural fairness. And if that argument succeeds, it might allow a challenge to ‘enhanced screening’, a secretive and speedy processing method used on Sri Lankan asylum seekers.
However, the on-land enhanced screening process is not as crude as the processing taking place at sea. According to Professor Crock: “It’s at a whole different level.”
But the more significant victory would be finding that Australia’s powers under the Maritime Powers Act are qualified by Australia’s non-refoulement obligations under international law, says Professor Crock.
Such a ruling would “severely limit” the government’s powers.
However, even if the High Court finds in the asylum seekers’ favour, they may not be admitted to Australia. Merkel did not argue that the asylum seekers were entitled to enter Australia.
The case will be heard by the Full Court of the High Court of Australia within three weeks. This will give the asylum seekers’ lawyers time to make contact with them and gather evidence about their situation, and for the Commonwealth to file a defence.
In the meantime, it remains unclear whether the asylum seekers will remain on the high seas or whether the Navy will take them to land. The Commonwealth’s undertaking means only that they will not be returned to Sri Lanka.
“The government hasn’t told us what they propose doing with our clients. All we know is that they won’t deliver them to the Sri Lankan government,” Newhouse said.
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