Australia's 'Stopping the Boats' to be Challenged


Australia's interception and boarding of boats outside Australia’s migration zone; holding of asylum seekers indefinitely in international waters; and then taking them to a place against their will, is being challenged.

In early July Australian forces stopped two boats in international waters. One boat came from India, the other from Sri Lanka – the people on board both boats were Tamil and Sinhalese seeking asylum in Australia.

One boat was stopped in international waters near Cocos Island, boarded and the people transferred to a Sri Lankan naval vessel.

Australian Immigration Minister, Scott Morrison, said the 41 people on the boat were “subjected to an enhanced screening process” before being refouled, that is - returned to the land they were fleeing.

Some of the 41 people say in reality they were asked three to four questions and had to respond with one sentence answers. Each interview took at the most 30 minutes, and Morrison himself said that the screening took place as the people were … “on the way” back to Sri Lanka.

On the basis of the 'screening' Australian immigration deemed that all but one person faced less than a 50% chance of persecution in Sri Lanka. That person allegedly opted to return voluntarily, the others had no choice. On their arrival in Sri Lanka, the 41 people were arrested and charged with leaving Sri Lanka illegally, a crime that carries a penalty of two years imprisonment. Some of these people are now remanded in custody, others are on bail.

The 153 people on the other boat, a boat that had sailed from India, were also stopped in international waters (this time near Christmas Island) and were transferred to an Australian customs ship.

It is their story – despite the Australian government repeatedly denying knowledge of both boats – that has raised awareness about Australia stopping boats in international waters, detaining people and returning people to the land they are fleeing.

Both boats were stopped in Australia's contiguous zone, a border of up to 24 nautical miles of water next to Australia's territorial sea. In this area, Australia 'may exercise control necessary to prevent and punish infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea.'

The people detained on the customs ship managed to get lawyers and are asking that they not be returned to India or taken to Sri Lanka, Nauru or Manus Island but be taken to Australia to apply for asylum.

The case will be the first test of whether the Australian government has the power to intercept boats on the high seas, hold asylum seekers against their will and take them where it chooses.

Government lawyers say that as the boats were boarded outside of Australia's territorial waters, the people detained have no rights under the Migration Act. Lawyers acting for the 153 people say that the area is under Australian control and they are entitled to protection. Plus, as the 153 people are now detained on an Australian state ship they are, in fact, now legally in Australian territory. Under international law a vessel is an extension of the state whose flag it flies.

Further, the returning of the 41 people broke international law. International refugee law does not permit refoulment of people to countries in which they may be persecuted, or face torture or serious harm. In the past this criteria has been set at a risk of less than 10% persecution; the measurement used by the Australian government to process the 41 people was a risk of less than 50%.

On Friday 18th July an Australian High Court granted an injunction stopping the refoulment of the 153 people without 72 hours notice. The injunction however, does not stop the Australian government ordering the customs ship to take the people to some other place for processing.

The case, if it is allowed to proceed, will be heard in the first week of August and will decide, as the judge said, “... whether the Australian government had the power to intercept the asylum-seekers and take them to a country other than Australia.”

But in the meantime, the 153 people have have spent more than a month at sea and nearly two weeks detained on the customs ship. They are being denied the right to seek asylum and are being held in limbo. And 41 people have been refouled.


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The second group have now been transferred to the Australian mainland and are held in the Curtin detention centre. Their lawyers are planning to widen the court challenge to include wrongful imprisonment.

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