Explainer: the High Court’s asylum seeker injunction

The High Court has issued a temporary injunction stopping the Federal Government-ordered handover of 153 Sri Lankan asylum seekers to Sri Lankan authorities.

A late sitting of the High Court in Sydney on Monday barred the return of the 153 asylum seekers, 48 of whom are Tamil, until 4pm Tuesday or further order of the court.

• High Court blocks Federal Government boat turn back policy

What is the case?

The Federal Government’s boat turnback policy, allowing the government to make at-sea decisions pertaining to the entry of asylum seekers, raises issues relating to the concept of refoulement.

Refoulement is an international law term referring to the involuntarily return of refugees to their country of origin in cases where they may face severe human rights abuse or persecution.

Australia has signed United Nations agreements stating that it is illegal to return a victim to their persecutor.

Lawyers for the refugees are arguing that the turnback policy breaches UN conventions.

Who are the parties?

Sydney lawyer George Newhouse is the solicitor bringing the case against the government on behalf of the asylum seekers.

Barrister Ron Merkel is also appearing in the case for the asylum seekers.

Mr Newhouse argues there are serious concerns for the safety of the asylum seekers if they are handed over, and is worried they will also be charged and potentially jailed in their home countries.

Mr Newhouse told The Conversation last night that the asylum seekers were being held captive.

“It’s all being done in breach of the migration act. Its a form of rendition,” he said.

What does this mean for the Federal Government?

The government’s central border protection policy has now been called into serious question by the High Court ruling.

Their policies are now vulnerable to legal challenge based on Australia’s international obligations.

What does this mean for the Sri Lankan asylum seekers?

Forty-one asylum seekers have already been returned to Sri Lanka by Australian authorities and are now being handed over to criminal investigators in the Sri Lankan port city of Galle. It’s a crime to leave a Sri Lankan port without authorisation. If convicted they could face jail terms of up to five years.

The whereabouts of the other 153 asylum seekers are currently not known. Immigration Minister Scott Morrison has refused to discuss their location with media, suggesting they are being temporarily held until their fate is determined.

The last contact with the asylum seekers was made more than a week ago by refugee advocate Ian Rentoul.

Depending on the case, the Sri Lankan asylum seekers may be allowed entry into Australia to be held at a detention centre or returned to their home country.

The Australian government says none of the Tamils, who were screened via video link, are in danger of persecution.

“All were screened in terms of any potential protection obligation and none were found to be owed that protection,” Immigration Minister Scott Morrison said on Monday.

Legal reaction

Fifty-three legal scholars from 17 Australian universities say they are “profoundly concerned” the asylum seekers were subjected to “rapid and inadequate screening interviews at sea” before being returned to Sri Lanka.

In a statement, the academics say the Governments actions in returning the asylum seekers to their country of origin “raises a real risk of refoulement.”

Twitter reaction

Where to from here?

The case will be heard at the High Court in Melbourne about 2pm on Tuesday.

-with AAP and ABC

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