High Court finds that detention at sea of 157 Tamil asylum seekers was not a breach of Australian domestic law

The High Court ruled on 28 January that the Government’s detention of 157 asylum seekers for nearly a month on board a customs vessel at sea was legal under Australian domestic law.

While it was a very close 4:3 decision and a disappointing outcome, the case the Human Rights Law Centre helped run with Shine Lawyers and a team of barristers led by Ron Merkel QC was important for three key reasons.

First, it brought vital scrutiny and transparency to the Government's secretive actions at sea. It took this case for the Government to break its silence and confirm that these 157 people were in its custody. As one of the asylum seekers, a young mother, said, “if it wasn’t for this case, no one would have even known we existed.”

Second, the case helped to ensure that the 157 asylum seekers will have their refugee claims processed, instead of being sent back with no questions asked.

Third, the case established that there are important limits to the government’s powers to intercept and return asylum seekers at sea. While those limits weren’t breached in the attempted return to India in this case, they will be relevant in future attempts to return asylum seekers directly to Sri Lanka, or to place them on orange lifeboats off the coast of Indonesia or elsewhere.

The HRLC’s Executive Director, Hugh de Kretser, said the decision highlights the widening gap between Australia’s international human rights obligations and its domestic laws and practices.

“Incommunicado detention and attempts to return asylum seekers with assessing why they are fleeing are clear violations of our international obligations,” said Mr de Kretser. “Unfortunately, this decision confirms that our domestic law allows the Government to breach our international obligations.”

Following the judgement, the UNHCR, which intervened in the case, issued a statement expressing its “deep concern” at the Government’s actions at sea. The statement confirmed that Australian laws “do not change Australia's international obligations.” The statement reminded Australia of the simple but important obligation at the core of the Refugee Convention – to never return people to harm – and of the fact that Australia can’t dodge that obligation by acting beyond its borders.

Fleeing persecution

The lead plaintiff in the case, who for legal and safety reasons can only be identified as CPCF, is a Sri Lankan Tamil who fled to India with his wife and children after receiving death threats due to his involvement in politics.

 “In Sri Lanka we lived a very terrible life. Authorities came to my house and beat me. They threatened to shoot me just for standing up for my political beliefs,” CPCF said.

After fleeing to India, which is not a signatory to the Refugee Convention, CPCF said his family were unable to obtain legal status, work or access schooling.

“In India we had no status. We couldn’t register with the authorities because we had no legal right to be in that country. It was like we were hiding. We couldn’t stay,” he explained.

So CPCF made a decision so many others in desperate situations have made before: he got on a boat, seeking “an ordinary life, somewhere safe” for him and his family. There were 157 Tamil asylum seekers on the boat, including 50 children as young as one.

In late June, the asylum seekers told refugee groups in Australia via satellite phone they were nearing Christmas Island, but were experiencing severe engine trouble. Then suddenly, all contact ceased.

Government secrecy

With relatives fearing for the safety of those on board, the Australian Government repeatedly refused to confirm what happened to the boat. In an absurdly evasive press conference the then Migration Minister, Scott Morrison, simply brushed aside questions refusing to comment on ‘on-water maters’. The Minister told journalists, “I am not confirming any of these matters. This should come as no surprise to you. This has been our practice now for the entire period of this operation. This is another day at the office for Operation Sovereign Borders.”

It was only when legal action was brought in Australia’s High Court on 7 July that the Government finally broke its secrecy to confirm the asylum seekers had been intercepted and were detained somewhere at sea. The Government still refused to confirm where they were or where they were headed.

“If it hadn’t been for this case, the Australian public may never have found out what the Government was doing in their name,” said Mr de Kretser.

Attempted return, no questions asked

The asylum seekers were intercepted on 29 June within sight of Christmas Island. Initially relieved and grateful to have been rescued, they soon realized they were not being taken to land. Instead, they were detained for a month at sea while the Government tried, and failed, to return them to India.

During the entire time at sea, none of the 157 members of the group were asked why they left Sri Lanka, why they left India or whether or not they had safety fears if they were returned to Sri Lanka or India. They were not told where they were being taken or for how long they would be detained. They were not provided with any opportunity to say anything about where they were being taken.

The group spoke Tamil. The crew on board the Ocean Protector did not use professional Tamil interpreters to communicate with the group and relied on three members of the group who spoke a little English to communicate with the entire group.

After the High Court case commenced, lawyers from the Human Rights Law Centre were able to speak to a small number of the group on board the vessel via a phone link using professional interpreters.

Detention conditions and lifeboat plan

CPCF described the detention as “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,” he said.

The asylum seekers spent at least 22 hours a day locked in windowless rooms, for the most part never knowing where they were or where they were going.

Then, after around two weeks, 9 adults and 2 children were removed from the rest of the group. The adults were taken to a number of orange lifeboats and told that they would have to navigate their own way in them to India with each lifeboat carrying 50 to 60 of their fellow asylum seekers.

None of the adults had experience in navigating a boat. Despite not speaking English well, they were instructed how to use them in English. When they refused to take responsibility for the safety of the others in the lifeboat, they were told they had no choice but to obey.

For reasons that still haven’t been made public, the Australian Government then abandoned the lifeboat plan. In the meantime, the Immigration Minister flew to Delhi but failed to secure India’s agreement to accept the return of the Sri Lankan asylum seekers.

The high seas detention finally ended when CPCF and others aboard the boat were brought back across the Indian Ocean on 27 July to the Australian territory of Cocos Islands and flown from there to the remote Curtin Immigration Detention Centre on the Australian mainland. With the legal team urgently requesting permission to visit them, they were secretively taken with no warning to Australia’s detention centre on Nauru in an overnight flight.

High Court hearing

On an interim basis, on 7 July the High Court ordered the Government not to return the asylum seekers to Sri Lanka. The government subsequently undertook not to hand them over into the custody of any foreign government without notice.

When the asylum seekers were finally brought to Australia and then Nauru, the focus of case turned to challenging the legality of the month long detention at sea.

The case considered whether the decision to detain CPCF and take CPCF to India needed to be made through a fair process which properly considered his personal circumstances; whether CPCF could legally be detained for the purpose of taking him to India despite there being no agreement in place with India to take him there; and whether the power to detain him and take him to some other place was limited by Australia’s obligations under international law to not directly or indirectly return people to risks of serious harm.

Changing the goalposts

When the High Court hearing concluded and judges retired to consider their decisions, the Government set about securing legislative changes to weaken any limits on future turn-backs that might be established by the case.

The Government’s Migration and Maritime Powers Amendment Act removed any obligation under domestic law for the Government to consider or comply with international human rights rules and principles of natural justice when conducting boat turn-backs.

Limits on powers

While the High Court ultimately found the detention of CPCF was lawful, the decision established important limits on the Government’s powers to intercept and return asylum seekers.

The court found that the government couldn’t detain people for an “aimless and indefinite” or a “futile or entirely speculative” voyage.

More importantly, the court set limits through its interpretation of section 74 of the Maritime Powers Act which states that a maritime officer must not “place or keep a person in a place” unless satisfied on reasonable grounds that “it is safe for the person to be in that place.”

The Government argued in the case for a narrow interpretation of section 74 arguing that it had the power to return CPCF directly to Sri Lanka without asking about risks to his safety.

A majority of the court however found that section 74 required that the maritime officer who disembarks someone in a place (which could be a country or potentially a lifeboat in the ocean) must be satisfied on reasonable grounds that it is safe to do so. The court specifically referred to risks of persecution as being relevant in assessing safety – which would require some reasonable assessment of individual circumstances before returning asylum seekers directly to the country they are fleeing.

Section 74 wasn’t amended by the Migration and Maritime Powers Amendment Act so these limits are still operative.

The future for the asylum seekers

Most of the 157 continue to languish in detention in Nauru in conditions described by the United Nations Refugee Agency as inhumane, unsafe and unfit for children. They have not been given a timeframe for their processing and remain unsure as to if and where they will eventually be resettled.

“We are here in very bad conditions. We are still being put through hardship”, said CPCF.

The HRLC will continue to explore legal avenues to challenge Australia’s punitive asylum seeker policies. The HRLC will also continue to develop and present more humane and less costly options for providing protection to refugees in our region in ways that do not breach Australia’s international obligations.

Mr de Kretser said MPs must consider more humane and less costly options for providing protection to refugees.

“Instead of using cruel and secretive measures to stop refugees arriving on boats, the Government should focus on addressing why they get on them in the first place. Providing safe and viable pathways to protection within our region will address the reasons why refugees get on boats. This is where our focus should be,” said Mr de Kretser.

As for his hopes for the future, CPCF said “Our lives are in the hands of Australia and its leaders. We still hope they will give us a secure future. I just want to live an ordinary life with my family in safety.”