Cruising the Indian Ocean for a month is a dream holiday for many.  For 157 Tamil asylum seekers, it has been a cruel state of limbo.  The High Court may now need to consider whether the Australian Government’s treatment of a recent boatload of asylum seekers constitutes unlawful detention.

The good as can be news

The Australian Government now admits that they did in fact intercept the boat (ground breaking!) and had not returned the Tamil asylum seekers to Sri Lanka.  The Government maintains they were treated better than most junior lawyers, being allowed out for meals and given 3 hours of sunlight per day.  Now after a month at sea the asylum seekers have been taken to an onshore processing facility in Curtin, WA.  

The bad news

Without any formal assessment of the merits of their claims, the Australian Government now says that the asylum seekers are only economic refugees.  It proposes to have the interviews of the asylum seekers conducted by Indian personnel, and has reportedly entered into an arrangement with the Indian government to return many of the asylum seekers to India.

We hope that if this happens, the administrative processes set up to protect asylum seekers in Australia are strictly followed.  Otherwise there is the real risk (in our view) of claims not being properly determined, and asylum seekers being sent back to the very countries where their lives are in danger.

What next for the High Court?

Now that the asylum seekers have been brought to Australia, their lawyers are asking the High Court to address the question of whether the asylum seekers were ‘falsely imprisoned’ by the Australian Government.  The argument goes that the Australian Government didn’t have power to detain the asylum seekers at sea, so the detention was unlawful.  If so, they may be entitled to damages from the Government.  

As the urgency behind the protection of the asylum seekers (and Australia’s reputation) has passed, it is likely that the matter will be passed back to the Federal Court, being the usual court to hear this type of claim.  If this happens, it will be a little while before the fate of the asylum seekers will be settled.  We’ll know more later this week, when the matter is yet again before the High Court.