Legal experts add to criticism from Labor, Greens and Clive Palmer about transfer of 41 asylum seekers, as Sri Lankan high commissioner reveals how authorities will handle arrivals

Labor, the Greens, Clive Palmer and a group of 53 legal experts have called on the federal government to reveal how asylum seekers are being assessed on board customs vessels, as the Sri Lankan government confirmed that 41 asylum seekers being returned via an unprecedented on-water transfer to the Sri Lankan navy will be handed to the police when they arrive back.

The immigration minister, Scott Morrison, announced on Monday morning that 41 people on board an asylum seeker vessel had been handed over to Sri Lankan authorities in a mid-ocean transfer just outside the Port of Batticaloa. Their boat had attempted to reach Australia but was intercepted by an Australian "Operation Sovereign Borders" vessel.

Speaking from Colombo, the Sri Lankan high commissioner to Australia, Admiral Thisara Samarasinghe, confirmed that those returned would be handed over to the Sri Lankan Criminal Investigation Department (CID).

“They won’t be charged,” Samarasinghe said, “They will be recorded and released unless they are wanted criminals.”

“They have gone out illegally … they should be thankful they didn’t die at sea and be thankful to the Australian and Sri Lankan authorities,” he added.

Samarasinghe, a former commander of the Sri Lankan navy, said the group of 41 would not be detained but “kept for clarification” until release.

On Monday, a group of 53 legal scholars from 17 Australian universities warned that the government’s conduct under its hardline military-led border regime “Operation Sovereign Borders” was in violation of international law, adding to the “profound concern” articulated by the UNHCR over the incident last week.

The group of lawyers warned that the on-water screening process named by the minister on Monday as the method the 41 asylum seekers were returned under did not “comply with the minimum standards on refugee determination under international law”.

The statement continued: “Holding asylum seekers in this manner also amounts to incommunicado detention without judicial scrutiny”.

Speaking on Sydney radio on Monday morning, Morrison said that any claims the turnback operation was in violation of international law was “offensive”.



“There were a lot of shrill and hysterical claims made over the past week. None of those turned out to be true,” Morrison said.



The Australian shadow immigration minister, Richard Marles, said Labor had “concerns about the integrity” of the new method of processing asylum seekers at sea, which appeared to be a newer version of the “enhanced screening” process introduced by the Labor government in 2012 and already the subject of sustained criticism.

At the National Press Club on Monday, Clive Palmer said: “First of all, one of the disappointing things is we don’t know what’s really happened, we don’t know if it’s true. We can’t just go on media reports and act according to the media reports.

“My criticism at the moment is that we don’t know and the minister for immigration needs to make it clear to the Australian public what’s exactly happened and what the government policy is. Because I don’t think it’s Australian government policy to not follow international conventions when dealing with asylum seekers,” he said.

Greens senator Sarah Hanson-Young said the government was acting above the law in returning the asylum seekers directly to Sri Lanka.



“The government has handed these people over to danger without properly assessing their claims for protection,” she said.

Hanson-Young also called on the minister to reveal the fate of a second vessel of 153 asylum seekers believed to have departed from India. It has been days since there has been any word from the vessel, which is believed to have been picked up by an Australian customs vessel.

“The government continues to think that they can act above the law. This contempt will be tested in the parliament when the new Senate votes on a motion condemning their actions out on the high seas,” she said.

The Tamil Refugee Council of Australia said on Monday that one of the suspected 37 children on board one was just 10 months old and quoted an anonymous relative of another three year-old girl on board named Febrina, calling for the Australian government to deliver an update on its whereabouts.



The relative supplied a photograph of the three year-old and said: "“I am desperate to know where my family is. I can’t function at all not knowing. I know all of them would be in very big trouble if sent back to Sri Lanka."



The statement continued: "I want to plead with the Australian minister to stop our pain and let us know what he has done with all the kids and families on the boat,” the relative was quoted as saying."



Febrina, aged 3, is one of the children due to be returned by Australian authorities to Sri Lanka. Photograph: Tamil Refugee Council of Australia

The council had previously stated that at least 11 of those on board had previously been tortured by the Sri Lankan authorities before fleeing.

Both Unicef Australia and Save the Children said they were also “seriously concerned” over the secrecy on the second boat and were worried that unaccompanied minors could be on board whom required additional assistance from Australia under international law.

Morrison told Sydney radio that the second boat was no longer in Australian waters but declined to give any further details.

The return of the asylum seekers has alarmed human rights groups, who maintain they could be taken directly to jail.

“The Australian government needs to be very mindful that they are returning these people where there is a real risk they may be persecuted,” said Ming Yu, an Amnesty International spokeswoman.

“Some returned asylum seekers often go straight into custody. Some stay in those jails and some are released. Those that are released often go to ground, but it is very hard to track because many of them are fearful for their own lives and don’t want to jeopardise their own welfare,” she said.

It is an offence in Sri Lanka to depart the country in an unauthorised way without departing from an official port. The Human Rights Law Centre says asylum seekers who are returned to Sri Lanka can face jail if they are returned.

Australia’s Parliamentary Library has prepared advice about the interception of asylum seeker vessels at sea in Australia’s territorial waters and contiguous zone. The advice says: “Generally speaking, the laws of the flag state apply in relation to ships, and except in certain circumstances, only the flag state can exercise jurisdiction in relation to ships entitled to fly the flag of that state.”

It adds that there are some “limited circumstances” where another country may interfere with that sovereignty. It is difficult to determine what the flag state of an asylum seeker vessel would be, which complicates the legal position.

The immigration minister said in his statement on Monday morning: “The Australian government will continue to act in accordance with our international obligations, including applicable international conventions and to protect the safety of life at sea.

“At the same time we will not allow people smugglers to try and exploit and manipulate Australia's support of these conventions as a tool to undermine Australia's strong border protection regime that is stopping the boats and the deaths at sea.”

On Monday afternoon around around 80 protesters gathered outside the immigration department in Sydney for a snap protest organised by refugee advocates, calling on the government to deliver more details about the whereabouts of the second boat.

"They disappear into the gulag," said Refugee Action Coalition spokesman Ian Rintoul.

"By holding the asylum seekers incommunicado, Scott Morrison is complicit with the human rights abuses of the Sri Lankan government.”