High court to look at the Australian government’s power to remove asylum seekers and send them to other countries

This article is more than 5 years old

This article is more than 5 years old

The high court is set to examine a month-long stand-off on Tuesday involving the detention of 157 Sri Lankan asylum seekers on a Customs boat, as the United Nations seeks to join the case.

The case determining the federal government’s power to remove asylum seekers from Australia’s contiguous zone, just outside territorial waters, and send them to other countries will come before the full bench in Canberra.

The UN’s High Commissioner for Refugees has sought leave to intervene as amicus curiae (friend of the court). The UNHCR says it is concerned Australia’s actions could breach its non-refoulement obligations under international law. Non-refoulement is the obligation on countries not to expel a refugee to a place where their life or freedom might be threatened.

The group set off from India on 13 June and authorities intercepted their boat 16 days later, 16 nautical miles off Christmas Island. It is the only official boat arrival to Australia this year.

Australia held the asylum seekers in international waters for 28 days while it negotiated with India to return the asylum seekers. Customs officials reportedly instructed some asylum seekers in how to pilot the ship’s lifeboats, so they could return themselves to the subcontinent.

India insisted the asylum seekers be taken off the boat, so they were moved to Western Australia’s Curtin Detention Centre, but no agreement was reached for their return.

The asylum seekers, including 50 children, were then flown to Nauru.

At the same time, in the High Court, lawyers acting on behalf of the asylum seekers launched a case contesting their detention.

A Sri Lankan Tamil in detention on Nauru, and whose only experience of Australia has been the Curtin Detention Centre, is the lead plaintiff in the high profile case against the government.

CPCF has told lawyers he fled his native Sri Lanka after being attacked for opposing the government.

India does not recognise Sri Lankan Tamils as refugees, and, unable to work, rent a house, or access health and education services for his children, CPCF boarded a boat with his family for Australia.

He said the 28 days spent on board the Ocean Protector were “very difficult”. “There were women and children on the boat. There was even a pregnant woman. There were people who were sick and people who had heart problems. We all suffered a lot. I was locked in a room with 80 people. I was kept apart from my wife and children and was very worried about them.”

The two-day hearing before the full bench of the court will judge the lawfulness of the Australian government’s actions in intercepting the boat at sea, and holding the asylum seekers, initially in secret and incommunicado, for a month as it negotiated to send the people back to India.

Legal experts say this case could have profound ramifications for Australia’s border protection policies, and limit the government’s ability to detain people, or to tow boats back to other countries.

“Detention on the high seas, without parliamentary or judicial scrutiny, presents a significant challenge to the rule of law,” said Joyce Chia, senior research associate at the Andrew & Renata Kaldor centre for international refugee law at the University of New South Wales.

“The current high court has been sending increasingly clear signals that it is prepared to defend the rule of law in the case of executive detention, and this case is a particularly compelling example of prolonged, arbitrary detention intended to be exercised without any judicial or parliamentary scrutiny.”

Hugh de Kretser, executive director, Human Rights Law Centre said: “The case will consider whether the detention was lawful and the extent of the Australian government’s powers to intercept and detain at sea.”