In ruling on Tamil asylum seekers held at sea, judges raise concerns about others being returned to their countries of origin if they face potential harm

The high court has questioned Australia’s right to “turn back” boats – to send asylum seekers back to the countries they are leaving – raising the prospect of further legal challenges to a key plank of Australia’s offshore asylum policies.



Australia has participated in the return of 15 boats in the past 16 months, sending boats back to Indonesia and Sri Lanka.

One of the returns to Sri Lanka involved 37 Tamils being involuntarily repatriated to that country, where they were charged before a court.

On Wednesday, the full bench of the high court split 4:3 in ruling that Australia’s detention of another boat of 157 Sri Lankan Tamil asylum seekers at sea for a month, and attempts to take them to India, were lawful.

The 157 – who were fleeing Sri Lanka via India – were intercepted in Australia’s contiguous zone and held on board the customs vessel the Ocean Protector. The group was first taken back across the Indian Ocean to just off the Indian coast, then, when India refused to accept them, brought to Australia and moved to Nauru.

The group was held on board the ship for 28 days. They were not asked any questions about why they had left India or Sri Lanka, or whether they faced persecution in either country.

The immigration minister, Peter Dutton, said the court’s decision had “vindicated” the government’s policies.

“Operation Sovereign Borders and our turnback policy has restored the integrity of our borders. We will do whatever is possible,” he said, “to stop people smuggling from taking place.”

While it was not of direct concern in the case of the 157, several high court justices raised concerns about asylum seekers being returned to their countries of origin if they faced potential harm there.

Justices Kenneth Hayne and Virginia Bell, in their dissenting judgment, rejected the government’s argument that the Maritime Powers Act gave broad powers to Australia to return boat passengers to any place outside Australia, and that it did not need to question people as to why they were fleeing their homelands.

The justices said Australia could not, in the instance of Sri Lankan Tamils, return them to Sri Lanka without first being satisfied they would be safe.

“If, then, it had been intended to take the plaintiff to Sri Lanka, a maritime officer could not have been satisfied, on reasonable grounds, that it was safe to put him in that place without asking the plaintiff some further questions including, at least, whether he feared for his personal safety in that place.

“And if, as might be expected, the plaintiff did say that he feared going back to Sri Lanka, and the maritime officer could not decide that the fear was ill‑founded, the maritime officer could not be satisfied, on reasonable grounds, that it would be safe to place him there.”

Chief Justice Robert French also rejected the government’s argument that it could take asylum seekers to a place without being legally bound to consider their safety. French said Australia was obligated to assess whether a place would be safe for someone to be returned to.

“A place which presents a substantial risk that the person, if taken there, will be exposed to persecution or torture would be unlikely to meet the criterion ‘that it is safe’.”

Joyce Chia, a legal academic specialising in refugee law, said the court’s judgment was “far from a full-blooded affirmation of the government’s actions and does provide limits on the government’s powers on the high seas”.

“The high court made clear that the government was required to transfer people within a reasonable time and could not take them to any place the government desired, and that these limits could be supervised by the courts.”

Chia said the government’s power to return Tamil asylum seekers to Sri Lanka – from where human rights organisations, the UN, and international media have consistently reported the persecution and abuse of returned asylum seekers – could be open to challenge.

“This [judgment] leaves open the question of whether the government does in fact have power to turn back boats, and whether it was lawful for the government to return the other boat of Sri Lankans to Sri Lanka.”

George Newhouse, special counsel with Shine lawyers, and who acted for the plaintiff in the 157 case, said high court decisions were too often “reported like football games, with winners and losers”, but that this week’s judgment raised important issues for future cases.

The court’s ruling established baseline standards for the interception of asylum seeker vessels and for where those asylum seekers could be taken, he said.

“The court found there are limits to the government’s power in these matters, asylum seekers have to be taken to a safe place, they cannot be taken somewhere where they would face harm or persecution. The decision is not a green light for the government to do anything they want to aliens on the high seas.”