Scott Morrison agrees to court order on Tamils

A HIGH Court intervention has temporarily prevented 153 asylum-seekers in Australian custody being sent to Sri Lanka.

Ron Merkel, who is representing the asylum-seekers, arrives at the High Court in Melbourne. Picture: Stuart McEvoy

A HIGH Court intervention has temporarily prevented 153 asylum-seekers in Australian custody being sent to Sri Lanka, with one of the nation’s highest law officers pledging they will not be handed over without three days’ notice being given to their lawyers.

Solicitor-General Justin Gleeson SC yesterday provided the first official confirmation that the asylum-seekers had been picked up by Australian authorities, following days of government refusals to confirm their existence.

Despite the High Court undertaking, The Australian has learned the government has no intention of sending them back.

Mr Gleeson told the court the asylum-seekers’ boat had been stopped outside Australia’s ­migration zone more than 19km from Australian land and they had been transferred to a Customs vessel which was now on the high seas.

The information was offered only after lawyers representing the asylum-seekers won a temporary injunction banning Australia from handing the people over to the Sri Lankan government.

Mr Gleeson said people picked up in the contiguous zone had no rights under legal provisions relating to visas, detention and removal. “The boat in question on the evidence did not enter Australian waters or reach the Australian migration zone,” he said. “Any claims made under the Migration Act are inapplicable.”

Mr Gleeson told Justice Susan Crennan, sitting in Melbourne, Immigration Minister Scott Morrison would make an undertaking that Australia would not surrender or deliver any of the 153 to the Sri Lankan government without providing 72 hours’ notice.

Lawyers for the asylum-seekers believe there are 122 males and 31 females on board, including a two-year-old and 36 other minors.

Ron Merkel QC, representing the asylum-seekers, said the group had come from a Tamil refugee camp in Pondicherry, India. He said his legal team wanted to get instructions from each of them about what processes they had been subjected to and what they had been told about where they were being sent. He said their case did not take issue with a sovereign state’s power to expel an alien and was not necessarily trying to get the asylum-seekers into Australia.

But the group could not be returned to a country they had fled from and they had been denied procedural fairness during a video-conference interview of four questions to assess their position. “That assessment process, having begun, must be concluded in accordance with law,” he said.

Mr Merkel said he would also ask for the commonwealth to give notice if it intended to move the group to Manus Island or Nauru.

Justice Crennan said she would like to have the case heard ­“expeditiously” by a full court. The case has been adjourned for a directions hearing in about three weeks, with subpoenas issued to the government due to be returned to a registrar on Friday.

A spokesman for Acting Immigration and Border Protection Minister Julie Bishop said the government would adhere to the undertaking provided to the court.

“The government provided the High Court with the information it requested,” he said.

“However, in accordance with the policy established by the Operation Sovereign Borders Joint Agency Task Force Commander, the government will not provide commentary about on-water matters under Operation Sovereign Borders.’’

Outside the court George Newhouse, for the asylum-seekers, said he accepted there would be no barrier to the asylum-seekers being send to Manus Island. “We have said that they should not be sent back to their persecutors and essentially that has been conceded.”

He thanked the Prime Minister and the Immigration Minister for “showing some compassion” but said the asylum-seekers’ plight was still uncertain.

The asylum-seekers’ legal team also includes former US military lawyer Dan Mori, who represented convicted terrorism supporter David Hicks.