High Court hearing on lawfulness of high seas detention of 157 Tamils

Last week the High Court heard a challenge to the lawfulness of the Australian Government’s detention of 157 Sri Lankan asylum seekers for almost a month on board a customs vessel.

As the Human Rights Law Centre’s Executive Director Hugh de Kretser told the Australian, the case is critically important and could have significant implications for the Government’s boat turn-back policy.

“157 people – including 50 children as young as one – were detained on the high seas for almost a month, initially in secret, while the Australian Government tried to send them to India. This case concerns fundamental issues of liberty, safety and due process,” said Mr de Kretser.

During a two day hearing, the Full Court of the High Court heard submissions on behalf of the asylum seekers and the Government, and received written submissions from the United Nations Refugee Agency and the Australian Human Rights Commission.

As HRLC Director of Legal Advocacy Daniel Webb explained to ABC RN Breakfast and RN Drive, the key questions at the heart of the case focus on the scope of the Government’s power to detain people at sea and send them elsewhere. In particular, the Court heard submissions on whether such powers needed to be exercised fairly and with proper consideration of individual protection claims and also whether they are limited by our international law obligations to not return people to harm.

The HRLC was part of the legal team in the case, which was brought by Shine Lawyers and led by Ron Merkel QC.

The lead plaintiff in the case, known 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. As Hugh de Kretser explained to Lateline, CPCF came to Australia seeking “an ordinary life somewhere safe”, yet he was detained for a month at sea without the Government even asking a single question about his refugee claims.

While the High Court will ultimately assess the lawfulness of CPCF’s treatment, the broader story of his attempt to reach Australia reveals much more about how our refugee policies are failing us, wrote Daniel Webb in the Guardian.

“The fundamental flaw in Australia’s refugee policies is that they just give people who lack options one less”, said Mr Webb.

The treatment of our clients was the latest in a sequence of cruel measures being used by the Government to deter boat arrivals.

As Hugh de Kretser explained to the ABC’s 7:30 Report, “we're sacrificing our international reputation, we're sacrificing our foreign policy capital, all in this one-eyed obsession with saying that we've stopped the boats.”

Background information about the High Court case

The Plaintiff - CPCF

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 and his family were unable to obtain legal status and were unable to work.

“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.

CPCF described his time detained at sea 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.

After a month of high seas detention, including an aborted plan to offload the asylum seekers into orange lifeboats and tell them to make their own way back to India, CPCF and others aboard the boat were brought to the Cocos Islands and then the Curtin Immigration Detention Centre. As lawyers were making arrangements to go and visit them to provide further advice, they were suddenly and secretively taken to Nauru.

They continue to be detained in Nauru, 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.

 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.”

Key legal issues

The High Court will decide whether the detention of CPCF was lawful. In doing so, the Court will examine:

• 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.

The High Court hearing this week is called a Special Case. A Special Case is a way of stating legal questions for the Full Court of the High Court to decide. The parties have agreed on the facts considered necessary for the High Court to decide those questions.

Full transcripts of hearings that have already occurred in this case (the application for an injunction and various administrative hearings) as well as the parties’ submissions for this Special Case are available here: http://www.hcourt.gov.au/cases/case_s169-2014

Chronology

• 157 Sri Lankan Tamil asylum seekers, including 50 children, left India in mid-June 2014. The majority of the group are Christians.
• On 26/27 June, the boat contacted the Australian Maritime Safety Authority and requested assistance.
• On around 28 June, people on board the boat contacted refugee advocates in Australia via satellite phone and said they were approaching Christmas Island and had engine trouble.
• On 29 June, the boat was intercepted by Australian authorities around 16 nautical miles from Christmas Island in the contiguous zone. The group was subsequently transferred to and detained on the Australian Customs ship the Ocean Protector.
• On 1 July, the National Security Committee of Cabinet decided that the asylum seekers should be taken to India. There was no agreement with India in place to accept the asylum seekers. The decision to take them to India was made by applying a blanket policy that anyone seeking to come to Australia by boat without a visa would be intercepted and removed from Australian waters. The Government originally claimed public interest immunity over the details of the decision.
• There was no individualised consideration in the decision to return the group to India. 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. They relied on three members of the group who spoke some English to communicate with the entire group (when lawyers were allowed to speak to several members of the group on board the boat via a phone link, we provided our own professional interpreters to communicate with them).
• The High Court case was commenced on 7 July. The initial hearing was the first time the Australian Government publicly acknowledged the boat’s existence and confirmed that the 157 people on the boat were in Australian custody.
• The first time the Australian Government confirmed that it did not intend to take the group to Sri Lanka was on 18 July but it did not state where they were being taken, other than that it was outside of Australia.
• While detained on the Ocean Protector, the asylum seekers were locked in three separate windowless rooms. Families were separated – fathers were placed in separate rooms from women and children and were only able to see their family 3 or 4 times during the on-water detention. They were only allowed out of the rooms for meals and spent at least 22 hours day inside the rooms. On a number of days they were locked in the windowless rooms for the entire day because the weather was rough.
• Other than in connection with the lifeboat incident (see below), the group did not know where they were or where they were going.
• The Ocean Protector travelled to India arriving near India on 10 July. It stayed near India for 12 days.
• On around Monday 14 July, 9 adults and 2 children were removed from the rest of the 157 in the group. The 9 adults were taken to a number of orange lifeboats and told that they would be put in them and would need to navigate them to India. They were instructed in English how to use the lifeboats despite most of them not speaking English. They were told that each boat would have 50-60 people on it. When they refused, saying they had no experience in operating or navigating a boat and couldn’t take responsibility for ensuring the safety of the people on board, the officers told them it was an Australian Government decision and they had to obey. The 9 adults and 2 children were then separately detained from rest of the group for four or five days. Each day they were extremely fearful of what was going to happen to them. Then they were taken back into the three main rooms and reunited with the rest of the group. The entire group then feared that they would be forced onto the lifeboats and dropped in the ocean. The Government eventually decided not to proceed with the lifeboat plan but has not disclosed why.
• The Government subsequently decided to take the group to Australia. They arrived at the Cocos Islands on 27 July and were then taken to Curtin Immigration Detention Centre.
• On the evening of 1 August, without notice, the group was taken overnight to Nauru where they continue to be detained. The group’s lawyers were urgently requesting access to meet the group in person when they were transferred.

More information: Tom Clarke, Media & Communications Director, Human Rights Law Centre: 0422 545 763
Maia Keerie, Media & Communications Executive, Shine Lawyers: 0497 799 974