The mysterious return of Tamil and Sinhalese asylum seekers to the Sri Lankan authorities has triggered an urgent injunction application in the High Court of Australia.

What happened?

  • In late June 2014, around 200 Sinhalese and Tamils from Sri Lanka jumped onto two boats headed for Australia, to seek asylum.
  • One boat, containing 43 asylum seekers, was intercepted by the Australian Navy.  A screening process was conducted on board to assess the claims for asylum. Only 1 of the 43 asylum seekers was then offered asylum.
  • The asylum seekers on the first boat were handed back to the Sri Lankan navy and are likely to face charges in Sri Lanka for illegally leaving the country.
  • The Commonwealth won’t comment on the whereabouts and fate of the other boat, which carries the remaining 153 asylum seekers (including women and children).

The problem at international law

Australia is a party to several international conventions which aim to protect the rights of refugees. A key mechanism in the protection of refugees is the principle of non-refoulement. Basically a country shouldn’t send a refugee to a place where their life or freedom would be threatened because of their ethnicity, religion, or membership of a particular political or social group. Seems logical.  It is international law’s way of saying that Dracula is not the best person to be in charge of the blood bank.

The current processing of asylum seekers in Australia, and the lengthy periods which these often innocent and persecuted people spend in detention, is far from ideal. In our opinion it is at odds with Australia’s international obligations to protect and care for refugees. On the upside, while in detention, they have access to legal support/care agencies that work to protect refugee rights. We doubt that the ‘screening at sea’ process would have afforded the Sinhalese and Tamil asylum seekers that same level of protection.

The High Court injunction

On 7 July 2014, the High Court granted an urgent interim injunction to prevent the handover to Sri Lankan authorities of the second boat with its 153 asylum seekers.  We think it is great to see the High Court willing to use its full suite of constitutional powers to protect refugees, and to step in to act on a possible violation of some of Australia’s most important international obligations.

The matter is back before the High Court on 8 July 2014 for further hearing. We expect some fireworks if the Commonwealth again turns up and says ‘we don’t know what happened to the other boat’.