Australia abandoned even its minimum screening process for the 157 Tamil asylum seekers held for a month on board an Australian ship, court documents revealed on Wednesday.

The Tamils were given no chance to claim asylum or “any opportunity to be heard on any matter concerning [their] detention or movement”, the high court papers show, and were not put through even the basic so-called “enhanced screening” process.

One of the 157, a Sri Lankan Tamil man known as CPCF, has challenged his detention at sea in the high court, arguing he was illegally imprisoned on board the customs vessel and should be compensated.

His case is being seen as a test for the detention of all 157 Sri Lankans – who left for Australia from southern India – and a broader test of Australia’s ability to intercept boats and take people to foreign countries against their will.

The court reserved its decision but its judgment could be superseded by legislation currently going through the federal parliament. The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 would make it easier for the government to forcibly repatriate asylum seekers regardless of whether they would face persecution at home.

In June, the 157 asylum seekers were intercepted on their fishing vessel 16 nautical miles from Christmas Island and taken aboard Australia’s Ocean Protector customs vessel. They were then held at sea for 28 days while the Australian authorities sought a place to take them.

After failing to secure an agreement to return the group to India, Australia moved the asylum seekers to Nauru.

The agreed facts of the case put before the full bench of the high court in Canberra show CPCF and his fellow asylum seekers were never asked why they were coming to Australia before it was decided to return them to India.

CPCF was only asked “questions concerning his personal and biographical details” and was not asked:



why he left Sri Lanka

why he left India

whether he claims to be a person in respect of whom Australia owes any of the non-refoulement obligations

asked where he wants to go

informed of any matter concerning his detention or movement

provided with any opportunity to be heard on any matter concerning his detention or movement

Non-refoulement is the obligation on Australia not to return a person to a place where they face a risk of persecution, but Australia did not ask any questions to find out whether this was the case.



Government solicitor Justin Gleeson SC told the high court on Wednesday that it was impractical to compel Australia to consider non-refoulement on board the ship, because it would “turn the vessel, by law, into a floating tribunal”.



The “enhanced screening” process for asylum seekers, already controversial because of the abbreviated nature of interrogation, usually asks, after personal details: “What are your reasons for coming to Australia? Do you have any other reasons for coming to Australia? Would you like to add anything else?”

The UNHCR says enhanced screening is unfair and unreliable.

The decision to take the Tamils back to India was not taken on board the ship, or in response to any information provided by the asylum seekers.

Rather, the decision was taken on the Australian mainland by the eight-member national security committee of cabinet, which includes prime minister Tony Abbott, immigration minister Scott Morrison, the foreign affairs and defence ministers, and the attorney general.

“In taking the plaintiff and other passengers … to India, the maritime officers of the Australian vessel were implementing a government policy of general application … confirmed by the national security council of cabinet … to the effect that anyone seeking to enter Australia by boat without a visa will be intercepted and removed from Australian waters.”

Only three of the 157 on board spoke English.

CPCF was allowed to speak with lawyers three times during the 28 days he was on board the customs vessel. Since being transferred to Nauru he has had further contact with lawyers and has sought protection in Australia, saying he faces persecution in Sri Lanka.

India has refused to accept any non-citizens being returned.

Court documents show the 157 asylum seekers were peaceful on board the customs vessel.

“None … engaged or threatened to engage in self-harm, refused to comply with lawful directions from the crew, or engaged in other actions that jeopardised the safety of the Australian vessel, any maritime officers or any passengers.”

However, customs officials refused to tell the asylum seekers they were being taken back to India, for fear they would riot or mutiny.

“There was a significant risk that, if the persons … were informed that they were being taken to India, some of those persons would take steps to prevent their effort to reach Australia from being thwarted, including by threatening or engaging in self-harm, refusing to comply with lawful directions from the crew, or other actions that may have jeopardised the safety of the Australian vessel.”

The executive director of the Human Rights Law Centre, Hugh de Kretser, said the government’s treatment of the asylum seekers raised serious legal questions that the high court would ultimately rule on.



“It’s an agreed fact that the government didn’t ask any questions whatsoever about why these people fled Sri Lanka or why they fled India, before it sent them back.

“The government’s position is it doesn’t need to ask these questions before it sends boats back. Our position is there needs to be a fair decision-making process that considers people’s individual circumstances.”