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Top court blocks Australia from sending asylum seekers back to Sri Lanka

Order comes hours after government said 41 other asylum seekers sent back; they could face imprisonment upon return

Australia’s High Court issued an injunction Monday to temporarily block the government from sending a boat with 153 asylum seekers back to Sri Lanka, the Australian Broadcasting Corporation (ABC) reported. If they return, they could face imprisonment for leaving Sri Lanka without official permission.

The injunction – which lasts until Tuesday afternoon, when the High Court will issue further guidance – came just after the Australian government confirmed earlier Monday that 41 other asylum seekers from Sri Lanka were returned after being processed at sea. 

Sri Lankan police said Monday that those returned would be charged with leaving the country illegally, and that if found guilty they would face "rigorous imprisonment.”

Australia’s border patrol intercepted the boat with 41 Sri Lankans off the Cocos Islands in the Indian Ocean in late June, Immigration Minister Scott Morrison said in a news release. On Sunday they were handed over to the Sri Lankan government after their refugee claims were assessed at sea and rejected.

For days, Morrison had refused to comment on reports that Australian officials had intercepted two boats carrying around 200 Sri Lankan asylum seekers and handed them over to Sri Lankan authorities. 

In a bid to stem a rising tide of asylum seekers trying to reach Australian shores, the nation's conservative government has implemented a tough policy of turning back their boats. 

Until now the vessels have been returned to Indonesia, a common transit point where asylum seekers from Afghanistan, Iran, Sri Lanka and other countries pay people smugglers to ferry them to Australia aboard rickety boats.

Headed 'back to danger'

Monday was the first time Prime Minister Tony Abbott's government has confirmed it had screened asylum seekers at sea and returned them directly to their home country.

Among the asylum seekers leaving Sri Lanka are ethnic Tamils who survived a lengthy civil war between government troops and the now-defeated separatist Tamil Tiger rebels. Refugee advocates say Tamils, a minority in Sri Lanka, still face violence by the military.

"Some of these people will be handed straight back to danger," said Sarah Hanson-Young, immigration spokeswoman for the Greens party.

Morrison said that four of the asylum seekers on board that boat that has already been sent back were Tamils, and that none were at risk of persecution.

"All were screened in terms of any potential protection obligation and none were found to be owed that protection," Morrison told Australian broadcaster Macquarie Radio.

A Sri Lankan navy spokesman confirmed that the asylum seekers had arrived in the southern port city of Galle, but gave no details on what would happen to them. 

Australia declined to give details of how the group was transported back to the site of the transfer, which Australia said was off the eastern Sri Lankan port of Batticaloa.

The Sri Lankan navy handed the group to the police, and police spokesman Ajith Rohana said they would be produced before a court in Galle. He did not say when.

"Everybody will be produced before the Galle magistrate," he told Reuters. "They will be charged under the Immigrants and Emigrants Act. The sentence for those proved to have left illegally is two years of rigorous imprisonment and a fine. But if there are any facilitators, then they will be tried even if they have left via an authorized port legally." 

Generally, asylum seekers in Sri Lanka are handed over to police for questioning. They face fines, but jail terms are likely only for those with proven links to insurgents groups or the smuggling trade.

Government criticized

The initial reports of a handover last week prompted the United Nations refugee agency, UNHCR, to issue a statement expressing "profound concern" that Australia was processing asylum seekers at sea rather than bringing them ashore to assess their claims.

"UNHCR considers that individuals who seek asylum must be properly and individually screened for protection needs," the agency said in a statement, adding that "international law prescribes that no individual can be returned involuntarily to a country in which he or she has a well-founded fear of persecution."

Ming Yu, a spokeswoman for Amnesty International, said the cursory processing of complex refugee claims means they may not be properly investigated. That could leave Australia in violation of its international obligation of non-refoulement, which forbids victims of persecution from being forced back to a place where their life or freedom is under threat.

"We know (Sri Lanka) is a country where persecution is still occurring, where torture by police is still occurring." Yu said. Morrison said Australia had complied with its legal obligations.

Just one of the 41 people on board was assessed as possibly having a case for asylum, and was given the option of being transferred to Australia's detention camps in the South Pacific island nations of Nauru or Papua New Guinea for further processing, Morrison said.

That asylum seeker opted instead to return to Sri Lanka. 

Wire services 

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