What will happen to those returned?

Sri Lankan officials have confirmed that the 41 returned asylum seekers have been handed over to the police criminal investigation department, and will be held for "clarification" purposes, potentially charged or released.



According to Sri Lankan law it is illegal to leave the country without departing from an official port.



A report published by the Human Rights Law Centre highlighted that asylum seekers caught attempting to leave Sri Lanka by boat are handed to the criminal investigation department and often charged with illegal migration and put before the magistrate court within a day of their return.

There have been numerous reports of mistreatment and torture inside Sri Lankan detention facilities, which Human Rights Watch described as a “widespread problem”.

A joint Human Rights Law Centre and Guardian Australia investigation revealed in March that a returned Sri Lankan asylum seeker from Australia made claims of being tortured in prison. These allegations were reported to the Australian federal police station in Colombo, who declined to interview the man, indicating an act of “wilful blindness” on the Australian authorities’ behalf.

More broadly, the Rajapaksa government in Sri Lanka is being investigated by the UN for alleged war crimes committed during the civil war, which ended in 2009 and led to the brutal suppression of the Tamil forces in the north and tens of thousands of civilian deaths from its inception more than two decades ago.

The president of the Refugee Council of Australia, Paul Power, said last week: “Reports from the US department of state, the United Nations High Commissioner for Human Rights, International Crisis Group, Human Rights Watch and Amnesty International have highlighted the silencing of critics of the government, torture and enforced disappearances.”

What has happened to the other boat – the one reportedly carrying 153 Tamil asylum seekers?

Scott Morrison’s Monday morning press release was silent on the fate of a reported second boat carrying 153 Tamil asylum seekers who departed from Pondicherry in southern India on 13 June.

The boat’s existence had not even been confirmed by the Australian government, despite those on board contacting refugee advocates and journalists a week ago.

But in a late sitting of the high court in Sydney on Monday night, the court barred the return of the 153 asylum seekers to Sri Lanka until 4pm on Tuesday or further order of the court. Their case will be heard at 2pm in Melbourne.

A lawyer representing the asylum seekers, George Newhouse, said the injunction had been granted because of concerns about the safety of the asylum seekers if handed over to Sri Lankan authorities.

It is understood that those on board were intercepted by the Australian customs vessel the Ocean Protector, which Guardian Australia revealed in May is equipped to bunk more than 150 asylum seekers in cramped living conditions.

In 2012 the immigration department examined the prospect of transferring intercepted asylum seekers straight to offshore detention centres on Manus Island and Nauru. They were advised at the time this was not lawful, but given the current government’s hardline efforts to prevent any irregular boat arrivals being registered in the country, this may be an option.

The fact remains though, that under Australia’s obligations under the refugee convention, those on board the second ship should, like those on the first, be afforded the right to fairly and thoroughly state their claims for protection.

Is any of this legal?

Every phase of the operation to send back the 41 Sri Lankans has raised serious questions about Australia’s commitment to international law.

Morrison has confirmed, as was reported last week, that the asylum seekers were subjected to the "enhanced screening" process on board a customs vessel.

Not only does the UNHCR have serious concerns that this process is an “unfair and unreliable” assessment of protection claims because of its streamlined nature, it appears this process has been fast-tracked even further with those on board reportedly only asked four questions.

Further, Morrison confirmed that one of the asylum seekers was found to have a protection claim but, “voluntarily requested to depart the vessel”. The Australian government is known to be directly encouraging asylum seekers to return to their country of origin, a move at odds with its non-refoulement obligations under the refugee convention.

Morrison has also confirmed that all those on board were transferred straight into the custody of the Sri Lankan navy. The Greens leader, Christine Milne, has likened this to “sending the persecuted back to the persecutors” as a direct violation of international law.

According to government figures more than 50% of Sri Lankans who arrive by boat have a legitimate claim for protection. This throws serious doubt over the minister’s claim that almost every person on board the boat did not engage Australia’s protection obligation.

Screening the asylum seekers on board customs vessels also raises concerns about the legality of the policy in domestic law. As Guardian Australia reported last week the immigration department previously considered a “mothership” model in 2012 where asylum seekers from multiple vessels would be picked up and screened in a customs vessel. But the department received legal advice suggesting this model may be unlawful, and the practice was never implemented.

Does this have anything to do with the boats Australia has just given Sri Lanka?

Both the current and previous Labor governments have courted a strong relationship with Sri Lanka. When Tony Abbott met the Sri Lankan president last year he was greeted warmly. The president gave the prime minister an ornate silver box, sapphire, gold and diamond cufflinks and a pendant for his wife. While all the gifts were surrendered, they were an unusually warm welcome for an Australian head of state.

Australia’s more recent gifts of patrol boats to the Sri Lankan navy show that the government has been eager to maintain this proximity and make public gestures to highlight how close governments are. While it is unclear whether the vessels are being used in any operations related to asylum seekers, the boats are an important symbol that shows both governments are willing to cooperate on maritime operations. The events of the weekend may well be a sign of future cooperation to return asylum seekers directly in an increasingly close alliance.

Why is Scott Morrison going to Sri Lanka this week?

The immigration minister’s visit to Sri Lanka this week is likely to be partly a political gesture and partly a practical one. The visit serves to enhance the public perception of a close relationship with the Sri Lankan government and reinforces government’s commitment to curbing the flow of asylum seekers who arrive by boat. There may well be practical issues that have arisen as a result of the handover from the weekend that the minister and his counterparts need to discuss. The logistics of mid-ocean transfers and the circumstances that they can occur raises a number of issues that the minister may be seeking to clarify.

Has this happened before?

There has not been an event like this before, but a number of episodes in Australian history had similar themes.



In 2012 it was reported the SLNS Samudura met the French supertanker Euronav for an ocean transfer of 28 Sri Lankans. It was reported the Euronav had been convinced by Australian authorities to divert to Sri Lankan waters and rescue the asylum seekers.

In 2001 the Howard government refused Norwegian freighter, the Tampa, permission to enter Australian waters to drop off 438 rescued asylum seekers, predominantly Hazaras from Afghanistan, to Christmas Island. The Australian government requested they be taken to Indonesia. A five-day standoff ensued between the government and the Tampa captain over where those on board should be taken.

The captain reported several asylum seekers needed medical assistance and eventually entered Australian waters without permission, at which point Australian authorities boarded the vessel. The government reached agreements with the governments of Nauru and New Zealand for the claims of the Tampa asylum seekers to be assessed in those countries.

It subsequently led to stricter border protection measures being implemented by the Australian government, with laws passed that gave military and government officials more authority in deciding where to send asylum seekers.

Will there be any repercussions for Australia for breaching international treaties on the treatment of refugees?

The UNHCR convention relating to the status of refugees provides that “no one shall expel or return a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears threats to life or freedom”.

The obligation not to send asylum seekers back to the country from which they are fleeing does not stop with the refugee convention. It is also a fundamental aspect of many other human rights treaties Australia subscribes to, including the International covenant on civil and political rights and the Vienna declaration.

The only legal option asylum seekers and their advocates have is to complain to one of the international human rights or torture committees, a lengthy process which takes at least three years, says a professor of public law at the University of Sydney, Mary Crock.

“People intercepted at sea are also all at sea when it comes to their legal options,” Crock says.

On Tuesday afternoon, the high court in Melbourne will hear the case of the 153 asylum seekers on board the second vessel, after an injunction was granted late on Monday to prevent them from being handed back to Sri Lankan authorities.