Asylum seeker being delivered to court in Galle by Sri Lankan navy personnel on Tuesday.
Asylum seeker being delivered to court in Galle on
Tuesday, after Australian authorities handed the group of 41 over to the
Sri Lanka navy. The Australian High Court will now determine the fate
of those on a second boat. Photo: Jason Koutsoukis

More than 150 asylum seekers intercepted by the Australian
navy have been given a reprieve of at least 72 hours before they face
being handed to the Sri Lankan government.

The Abbott government told the High Court it was prepared to
give the written assurance during a hearing in Melbourne on Tuesday
afternoon. The offer led to an action on behalf of the asylum seekers
being adjourned for about an hour while lawyers for the asylum seekers
and the government discussed how to proceed.

A child arrives in the Galle court after being returned by Australian authories to Sri Lanka.
A child arrives in the Galle court after being returned by Australian authories to Sri Lanka. Photo: Jason Koutsoukis

Justice Susan Crennan signalled during the hearing that a
challenge to any handover would be heard ''expeditiously'' by the full
High Court.

Counsel for the government Justin Gleeson, SC, revealed
during the hearing that the boat carrying the asylum seekers had been
intercepted outside Australia's migration zone.

It is the first time the government has confirmed the
existence of this boat of 153 asylum seekers, and acknowledged its
passengers are in the custody of the Australian government.

Ron Merkel
Ron Merkel, the lawyer representing the asylum
seekers, said ‘‘enhanced questioning’’ of the asylum seekers on the
customs vessel was clearly a denial of procedural fairness. Photo: Eddie Jim

Immigration Minister Scott Morrison on Monday admitted 41 asylum seekers on board another boat had been handed over to Sri Lanka's military after being processed at sea. The group arrived at a court in Galle, in Sri Lanka, on Tuesday.

Asylum seekers advocate say Australia is breaching its
"non-refoulement" obligations under international law by sending people
back to a place where they face the threat of persecution.

In the hearing, Mr Gleeson, appearing via video link from
Sydney, said the asylum seekers had been transferred to a customs vessel
and were now on the ''high seas''.

He said the government had the executive discretion to
determine where those detained ended up under the Maritime Powers Act,
but Ron Merkel, QC, acting for the asylum seekers, claimed the
government did not have the power to lawfully refoul the asylum seekers
to Sri Lanka against their will before their claims were determined.

He said the ''enhanced questioning'' of the asylum seekers on
the customs vessel to determine whether their claims should be pursued
was clearly a denial of procedural fairness.

Mr Merkel has issued writs on behalf of 50 of those on board, including eight children aged between two and 16.

He said that once an assessment of the claims had begun, the
government was lawfully bound to take it to its conclusion under the
provisions of the Migration Act.

Mr Gleeson signalled that the Commonwealth would argue that
the Migration Act was not applicable because the boat had not entered
Australian waters.

Ian Rintoul, from the Refugee Action Coalition, told Fairfax
Media the government's offer to provide 72 hours written notice before
it would move the asylum seekers was ''a win'' and would help safeguard
asylum seekers rights.

''It means they will not be returned to their persecutors,'' he said.

''It's also a concession from the government that refouling
the 41 [other asylum seekers returned to Sri Lanka on Sunday] was
against the spirit of the law.''

More to come

with Ben Doherty

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