A group of asylum seekers get on board an airplane at Cocos Island on Sunday, July 27, en route to Curtin detention centre in Western Australia.
Plight of Tamils: A group of asylum seekers get on
board an airplane at Cocos Island on Sunday, July 27, en route to Curtin
detention centre in Western Australia. Photo: AAP

A High Court challenge to the Abbott government's powers over
asylum seekers it takes into custody on the high seas has been widened
to include a claim for damages for false imprisonment.

Lawyers for more than 150 asylum seekers who are now being
held at the Curtin detention centre in remote north Western Australia
have urged the court to continue hearing the case, insisting the Abbott
government “can't engage in conduct like that with impunity”.

“They were detained for almost a month on the high seas
pursuant to a power we say the government did not have,” Ron Merkel QC
told Justice Kenneth Hayne on Monday.

Minister for Immigration and Border Protection, the Hon Scott Morrison.
Accused of pre-judging the claims for refugee status: Scott Morrison. Photo: Wolter Peeters

Although there was no longer an urgent need for a hearing by
the full court next week, Mr Merkel argued that the issues in question
were still live and in need of clarification because they went to
Australia's obligations under international law.

“I remind your honour that the government's policy of making
no comment on what is referred to as 'operational matters', means that
the events that occurred in this case could occur without anyone
knowing, without anyone having the opportunity for judicial
intervention,” he said.

The bottom line was whether the government had the power to
return people to places they were seeking protection against without
having their claims for protection assessed, he said.

Ron Merkel QC.
"They were detained on the high seas pursuant to a power we say the government did not have": Ron Merkel, QC. Photo: Jason South

While counsel for the government argued further proceedings
be remitted to the Federal Court, Justice Hayne said he considered it
premature to make such a determination.

The judge gave the government until 4pm on Thursday to reply
to an amended claim by lawyers for the asylum seekers, giving both
parties the ability to then apply for a directions hearing.

“I'm not going to just let this case just lie on the file.
Counsel should order their affairs on the assumption that once the
pleadings are in I, or another justice of the court, will be looking at
it with some care.”

Immigration Minister Scott Morrison, who says the asylum
seekers were taken to the mainland so that Indian consular officials
could establish how many were Indian citizens, has been accused of
pre-judging the claims for refugee status.

“We are talking about people who are seeking to come to
Australia from a safe country of India and the suggestion that they are
anything other than economic migrants here I think defies belief and
credibility and the Australian government is just not going to put up
with that,” Mr Morrison said.

Mr Hugh de Kretser, of the Human Rights Law Centre, said Mr
Morrison had admitted in court documents that the asylum seekers were
claiming refugee protection.

Lawyers representing the asylum seekers, who overwhelmingly
are Sri Lankan Tamils who departed from India on June 13, say it has
been impossible to assist in putting their claims.

"We've been given very little to no access to our clients.
And I am extremely concerned that they are about to be interrogated by
foreign powers and possibly delivered up to them without [us] even
having the opportunity to speak to them," said George Newhouse.

"I can't tell you anything about these people and their
claims because I haven't had the chance to speak with them. No-one has.
The government is still holding them as virtual prisoners."

Mr Morrison has not ruled out sending the asylum seekers who
are not returned to India to Nauru for detention, saying: "We reserve
all of our rights for offshore processing because it doesn't matter
whether you come to Christmas Island or you come to Curtin, you can
still transfer people to Nauru from Curtin."

A spokesman for the Nauruan government said it was "always
ready to accept asylum seekers, however the movements of asylum seekers
are at the discretion of the Australian government and all questions
should be directed to them".

In 2012 the Gillard government passed legislation that made
"illegal maritime arrivals" who reached, or were taken to the Australian
mainland, eligible for offshore processing.

With Sarah Whyte and Ben Doherty

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