The Australian government has said asylum seekers on board a boat intercepted by Australian customs will not be sent to Sri Lanka without 72 hours' written notice to the high court, during a hearing that also resulted in the first official acknowledgement of the boat’s existence.



At a hearing in Melbourne, counsel for the immigration minister, Scott Morrison, told the court that the boat, first reported by refugee advocates nearly two weeks ago, was intercepted outside of Australian territorial waters and therefore not subject to Australia's migration laws.



This is the first time the government has admitted the boat’s existence after both Morrison and the Australian prime minister repeatedly refused to comment on its whereabouts, citing national security interests under Australia’s hardline military-led border regime.

The government undertaking raises the prospect of the asylum seekers languishing on board an Australian vessel on the high seas for an unknown period of time or potentially being directly transferred to one of Australia’s offshore detention centres in Papua New Guinea or the tiny island state of Nauru.

On Monday the Australian government also conceded that another boat, carrying 41 asylum seekers, had been handed over to the Sri Lankan navy during an on-water transfer off the coast of Sri Lanka. The move was condemned by the UN’s refugee body and described by a group of 53 legal scholars from 17 Australian universities as in violation of international law.

The detained group, which comprised 37 Sinhalese and four Tamils, appeared before a magistrates court in the southern Sri Lankan city of Galle on Tuesday morning, charged with leaving the country illegally. Most are expected to be released on bail.

According to a report from Australian news outlet Fairfax media, one of those asylum seekers complained of mistreatment by the Australian navy and said he had been served inedible food.

During the Tuesday high court hearing in Australia, Justin Gleeson SC, acting for the government and appearing via video link from Sydney, told the court the asylum seekers on the second boat– understood to be 153 Tamils – “have no rights under the Migration Act” and since interception had been moved by Australian authorities to the high seas.

Justin Gleeson SC told the court that the asylum seekers – understood to be 153 Tamils – “have no rights under the Migration Act” and since interception had been moved by Australian authorities to the high seas.



Ron Merkel QC, acting for 50 of those on board, including eight children aged from two years old and 21 women, said it was “irresistible” and clear that the Australian government planned to “involuntarily and by coercion” send the 153 asylum seekers to Sri Lanka despite the fact the boat departed from Pondicherry in southern India. It is understood that those on board had been living in a refugee camp in Tamil Nadu before boarding the boat.



Merkel argued that this would be a breach of Australia’s non-refoulement obligations under the refugee convention.



In response Gleeson gave an undertaking to the court not to engage in “any actions involving the surrender or delivery to custody of the Sri Lankan military or its delegates” without 72 hours' written notice.



Justice Crennan said the undertaking did not preclude Australia moving the asylum seekers on board “to some other place for processing”, with counsel for the asylum seekers indicating they would move to submit further applications to prevent the asylum seekers being transferred for offshore detention.

The hearing was deemed by refugee advocates and lawyers representing the asylum seekers as a victory. The case has been adjourned until the court issues a formal written ruling.



“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 and I want to take a moment to thank the minister and the prime minister for showing some compassion to these people,” said George Newhouse, a lawyer who brought the case.

“What we’ve agreed today is essentially the orders that we were seeking – that they not be returned to Sri Lanka and to their persecutors but the government is still able to deal with them in accordance with the law.”



The case is expected to resume again on Friday of next week for directions and is likely to culminate in a hearing before the full bench of the high court.

On Tuesday the immigration spokeswoman for the Australian Greens, Sarah Hanson-Young, said the government’s handling of the two boats had been “appalling”.

“The ugly truth is that the government has been detaining dozens of children out on the high seas,” she said. “It’s being done in Australia’s name, the detention of children, the custody of families out on the high seas, all under a shroud of secrecy … It’s time for this government accept that what they are doing is morally wrong.”



The Australian Labor party’s immigration spokesman, Richard Marles, said: “It has taken the high court to tell us what [immigration minister] Scott Morrison would not. It has taken the high court to blow the lid on this government’s secrecy.



“This is a man who treats transparency as an afterthought. This is a man who is treating the Australian people with contempt.”



Humanitarian groups also joined in the condemnation. “We are deeply concerned about the fate of any children who may be on board this boat, who are likely to be frightened and stressed as they struggle to cope with an ordeal no child should have to endure,” Plan International Australia’s chief executive, Ian Wishart, said.



“The Australian government has international obligations to treat asylum seekers fairly, especially children, and we call on them to do everything in their power to treat them humanely and in a way that is consistent with international law and practice.”



Ian Rintoul, a spokesman for the Refugee Action Coalition, said: “The culture of secrecy that he's [Morrison] tried to create has been blown out of the water by the proceedings. We now know that if we can get a name, we can find out where the asylum seekers are.”

A spokesperson for the acting minister for immigration and border protection, Julie Bishop, said: “The government provided the high court with the information it requested. However, in accordance with the policy established by the Operation Sovereign Borders joint agency task force commander, the government will not provide commentary about on-water matters under Operation Sovereign Borders.

“The government will act in accordance with undertakings made before the court.”

