Asylum seekers transferred at sea by Australia to face court in Sri Lanka

Sri Lanka’s new president has no immediate plans to change laws regarding people illegally leaving the country

Asylum seekers returned to Sri Lanka will face court charged with illegally leaving the country as Sri Lanka’s new president has no plans to change the country’s laws regarding people leaving without permission.

Australia announced on Thursday that four Sri Lankan asylum seekers had been transferred at sea to the custody of the Sri Lankan navy after their boat was intercepted earlier this month north-west of the Cocos Islands.

The men were interviewed at sea by Australian immigration officials, regarding their asylum claims. It is not known when they will reach Sri Lanka.

Historically, asylum seekers forcibly repatriated to Sri Lanka have been taken from Colombo airport or the harbour to which they were returned directly to prison or to court, where they appeared before a magistrate and were usually charged with illegally leaving the country.

The minister of justice Wijeyadasa Rajapakshe said the administration of new president Maithripala Sirisena, elected in January, had no immediate plans to change policy towards returned asylum seekers.

“We have not discussed that at all, and such a change is not within the 100 days program of the new government and is not a priority. So there is unlikely to be any change soon. Any returning illegal asylum seeker would have to face the legal process of the country,” Rajapakshe said.

According to returnees and lawyers, it is usually the “facilitators” of asylum seeker boats – those skippering and operating the boats, not the kingpins who organised the trip – who are refused bail in Sri Lankan courts. Behind the boat skippers, the ultimate organisers of the asylum seeker journeys are rarely caught, but senior members of the Sri Lankan navy have consistently been alleged to be involved.

Four serving members of the Sri Lankan navy, including a commander who had briefed Australian authorities on anti-smuggling measures, have been arrested and charged with people-smuggling.

Fare-paying passengers are usually bailed out. But their cases often spend years before the courts, with regular appearances before magistrates, often in courtrooms far from their homes. Ultimately, asylum seekers are usually fined, but not jailed.

“Usually the so-called facilitators of journey, like captain of the boat and helpers are kept in remand prison, others who were passengers are released on bail,” Lakshan Dias, a Colombo-based lawyer who has represented returned asylum seekers, told the Guardian.

“But we had cases of even passengers being tortured and brutalised while in the custody of the Sri Lankan forces. Once these cases are concluded, a passenger usually ends up having to pay a fine of 100,000 Sri Lankan rupees (A$965), that is on top of whatever amount they paid for the journey.”

The average annual income in Sri Lanka is just ​over A$3,800

Ruwan Rangana, a former asylum seeker from Angunakolapelessa, in the southern Hambantota district, was returned to Sri Lanka last year, after the boat he was travelling on was intercepted by the Australian navy.

He had paid 200,000 ​rupees, about A$1,930, for his passage to Australia, and had been at sea 15 days when he was intercepted.

“Once we were handed over to the [Sri Lankan] ​navy, we were brought ashore. First the ​navy recorded a statement, then the Criminal Investigation Department recorded statements. We were brought ashore at the southern port of Galle.

“We were never put in prison or in a jail cell, we just waited inside the police station. We were produced in court and bailed after paying R5,000 (A$47). My next court date is in May. My lawyers said case could go on for even five years. The people who organised the trip, like the trawler captain and the helpers, were not bailed out.”

The four Sri Lankan asylum seekers currently at sea were interviewed at sea by border protection personnel to determine if they were refugees and requiring Australia’s protection. The interviews were then assessed by senior officials at the immigration department.

australia“All four illegal maritime arrivals were found eligible for return, consistent with Australia’s non-refoulement obligations,” a release by the immigration minister Peter Dutton’s office said. “All persons aboard the [vessel] were safe and accounted for at all times and at no stage was the vessel in distress.”

Australia cannot, under international law, send refugees back to countries in which they may face harm.

The so-called enhanced screening process of interviewing asylum seekers at sea began under Labor and has continued under the Coalition’s Operation Sovereign Borders policy.

“By working closely with our regional partners we save lives at sea and prevent vulnerable people being lied to and ripped off by people smugglers,” Dutton said. “The Coalition government’s policies and resolve are stopping illegal boat arrivals and are restoring integrity to Australia’s borders and immigration program. Anyone attempting to enter Australia illegally by sea will never be resettled in this country,” Dutton said.

The ​high ​court ruled on-water transfer operations were legal in a judgement delivered in January. But the United Nation’s ​high ​commissioner for ​refugees says screening of asylum seekers at sea is inadequate.

“UNHCR’s position is that they [asylum seekers intercepted at sea] must be swiftly and individually screened, in a process which they understand and in which they are able to explain their needs. Such screening is best carried out on land, given safety concerns and other limitations of doing so at sea.”

Bala Vigneswaran from the Australian Tamil Congress said interviewing people at sea was against international law because it denied people the right to ask questions, seek legal representation and contest the findings.

“I believe we should give people the best chance to state their case,” he told Guardian Australia. “A short interview on the high seas won’t give them that opportunity.

“It is not the right process … there’s no way it is acceptable.”

Vigneswaran acknowledges that the situation in Sri Lanka for Tamils has improved since former president Mahinda Rajapaksa’s shock election defeat in January. New president Sirisena was elected with the support of the country’s minorities, including Tamils and Muslims. But Vigneswaran said Sri Lanka was still not stable and peaceful, and expressed concerns about sending asylum seekers back.

Trevor Grant from the Tamil Refugee Council said it was a “fantasy” that interviews at sea were consistent with Australia’s obligations under the refugees convention.

“As was outlined late last month by two of the 40 asylum seekers on one boat Australia returned to Sri Lanka last year, this so-called ‘enhanced screening’ process is an outrageous breach of their rights. One of the men revealed that the phone dropped out ‘10 to 15 times’ during his interview and he struggled to hear the person on the other end of the line.”

Late last month Dutton confirmed that 15 boats had been turned back since the start of Operation Sovereign Borders. Only one vessel had arrived in Australia during 2014.