The Abbott government falsely imprisoned and subjected 157 asylum seekers to a "torturous journey" onboard a customs vessel for a month without a formal agreement on where to send them, lawyers have argued in the High Court on Tuesday.
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The first hearing of the two-day High Court case heard that the Australian government could have sent the asylum seekers straight to Australia or Nauru once they were rescued from their boat which had suffered a pump failure 16 nautical miles off Christmas Island on June 29. This would not have contravened any laws under the Migration Act, lawyers argued.
Instead, Immigration Minister Scott Morrison and the Immigration Department tried to negotiate with officials from India - where the asylum seekers had started their boat journey - to take back the Sri Lankan nationals before sending them to Nauru via the Curtin detention centre in Western Australia a month later.
Queens counsel Ron Merkel, who was acting on behalf of a Sri Lankan Tamil Christian asylum seeker given the pseudonym CPCF, says this detention resulted in a "torturous journey" for the asylum seekers, who were not allowed freedom of movement around the Ocean Protector Customs vessel, nor were they allowed to be in their family groups. There were 50 children as young as one on board the boat.
"We are dealing with Sri Lankan nationals who had no right to return to India," Mr Merkel said. "There was no agreement with India."
Mr Merkel also argued thatsending the asylum seekers to India could have resulted in indirect refoulment, meaning they could be sent back to Sri Lanka where they could face persecution or torture as India is not a party to the Refugee Convention.
But Solicitor-General of Australia, Justin Gleeson, representing the government, argued that there was no basis to the allegation that CPCF feared persecution or torture.
"There is no assertion that he fears refoulment in India," Mr Gleeson told the court.
Mr Gleeson also said that the boat carrying asylum seekers had been intercepted by officers lawfully before entering Australian waters, and that the Maritime Act was, by nature, "coercive".
"Just about all the powers are quite deliberately coercive," he said.
In Brisbane's Federal Circuit Court the Immigration Department was simultaneously fighting a case to give permanent protection to 100 babies who were born in Australia to asylum seeker parents. Lawyers from Maurice Blackburn Lawyers argued babies could not be considered as "Unauthorised Maritime Arrivals" if they are born in Australia. The judgment will be delivered on Wednesday at 3.30pm AEDT.
At the High Court in Canberra, George Newhouse from Shine Lawyers told reporters the case of the 157 asylum seekers was about "the power of politicians to lock people up without proper process and without a hearing."
Hugh de Krester from the Human Rights Law Centre, which is assisting Shine Lawyers, said the court's decision could have broader implications for the Australian government's powers to intercept other boats and send them back. It could also lead to compensation to the detained asylum seekers.
Under proposed changes to the Migration Act before the Senate, the government is currently seeking to give itself a licence to breach international law andto make unfair decisions in terms of boat turn backs, Mr de Krester said.
The case concludes on Wednesday.
