The Australian High Court in Canberra has heard a test case challenging the legality of Australian authorities’ powers to intercept boats of asylum seekers outside of territorial waters. The case CPCF v Minister for Immigration and Border Patrol examines the compliance of Australia’s immigration policy under international law.
The 157 Sri Lankan Tamil asylum seekers were held at sea on a customs boat for almost a month before being transferred to a detention centre in Western Australia and then on to the island of Nauru in the South Pacific. This was part of Australia’s secretive ‘Operation Sovereign Borders’ – which has sparked great international concern. Justice Kenneth Hayne referred the case to an expedited full hearing in the High Court to test the legality of the programme for the first time.
Court documents show that the applicant, CPCF, is challenging the fact that Australian authorities never allowed the detainees to claim asylum or gave them any ‘opportunity to be heard on any matter concerning their detention or movement’. Australia has non-refoulement obligations under international law, which prevents States from returning asylum seekers to a country where there is a real threat of persecution or violence. The applicant claims that the authorities made decisions on their movement without hearing their reasons for entering Australia or the conditions which would meet them if they were returned to their country of origin.
The United Nations High Commissioner for Refugees (UNHCR) and the Australian Human Rights Commission were granted leave to make written submissions as third-party interveners. The UNHCR sought to intervene so they could inform the Court of the content of Australia’s non-refoulement obligations under the Refugee Convention, and the application of those obligations to the Maritime Powers Act 2013 and to their non-statutory executive powers.
The case is seen as a test for this group of asylum seekers and challenges the broader practices of Australia’s immigration authorities. Repeat cases may be blocked by the government’s recent introduction of a bill to amend the Maritime Powers Act, which would attempt to reduce Australia’s obligations under international law and restrict the power of courts to review the powers. This would make it easier for the government to forcibly repatriate asylum seekers regardless of whether they faced persecution on return.
The decision should be released in the next few months.
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