Australian government lawyers yesterday admitted that 153 Sri Lankan asylum seekers were in Australian custody on the high seas and agreed to give 72 hours' notice before handing any back to Colombo, in a victory for critics of Canberra's border policies.
A late-night interim injunction on Monday temporarily halted the transfer of the would-be refugees from the boat, which until now Australia had refused to admit existed.
Lawyers acting for about one-third of the mostly minority ethnic Tamils on board took their case to the High Court yesterday, arguing a transfer would be illegal and they should not be returned against their will.
The court has yet to decide whether there is a case to answer but in an early submission government lawyers said the boat was intercepted outside Australian territorial waters.
Solicitor General Justin Gleeson said this meant any claims made under the Australian Migration Act were not applicable.
But he gave an undertaking that 72 hours' notice would be given before any of the asylum seekers, now reportedly held on a Customs boat, were handed back to Colombo as the court looks to provide clarity around the government's actions.
The legal dispute came a day after another vessel was returned to Sri Lanka by Australia following a week of secrecy. Police in Sri Lanka said the adults among the group of 41 - 28 men and four women - would be charged with attempting to leave the country illegally, a crime punishable by up to two years in jail.
Twenty-seven of the group were granted bail yesterday in a court in the southern city of Galle. The nine children were ordered discharged and the five remaining adults were held for another two weeks.
One of the detainees, Dhamith Caldera, said outside court that he would complain to the UN over his treatment by Australian authorities and denied that he had been screened as a possible asylum seeker. "They never asked any questions. They just wanted us to go back," he said.
Australian Human Rights Commission chief Gillian Triggs said screening of asylum seekers at sea appeared to be inadequate under international law.
The process reportedly involved a four-question interview via video link with the applicants denied the means to challenge it.
"It sounds as though three, four or five questions are being asked by video conference, snap judgments are made and they're simply being returned," Triggs told ABC television. "There is an obligation with international law to have a proper process."
The UN's refugee agency, UNHCR, said it was "deeply concerned" by the developments, although it did not have enough information about how the Sri Lankans were screened to determine whether it was in accordance with international law.
Australian Prime Minister Tony Abbott earlier dodged questions about the case.
"What I'm focused on is stopping the boats. That is what we are absolutely and constantly focused on because as long as the boats keep coming, we will keep having deaths at sea," he said.
"I'm not going to comment on what may or may not be happening on the water, but I do want to assure everyone that what we do on the water is consistent with our legal obligations and consistent with safety at sea."
The US and European Union member states have said rights abuses against the ethnic Tamil minority in Sri Lanka have continued even after the civil war ended in 2009.