Media reports state that the High Court has issued an injunction preventing the Australian navy from handing over approximately 150 people, said to have travelled by boat to seek asylum in Australia, to Sri Lankan officials. This follows confirmation by the Australian government of an incident involving 41 people:
Forty one potential illegal maritime arrivals who were intercepted on the SIEV were returned to Sri Lankan authorities yesterday (Sunday 6 July). The 41 Sri Lankan nationals were transferred at sea, in mild sea conditions from a vessel assigned to Border Protection Command (BPC) to Sri Lankan authorities, just outside the Port of Batticaloa. All persons intercepted and returned were subjected to an enhanced screening process, as also practised by the previous government, to ensure compliance by Australia with our international obligations under relevant conventions.
The Australian reports that the injunction was granted by Crennan J in an urgent hearing this evening and will apply until 4pm tomorrow, by which time a further hearing will have occurred.
A possible precedent for the reported injunction is an interim injunction granted by Hayne J on 7 August 2011 to prevent the first transfer of asylum seekers from Christmas Island to Malaysia under the ‘Malaysian Solution’. In that case, Hayne J accepted that an interim injunction (until the next afternoon) should be granted because the completion of the transfer to Malaysia would defeat the asylum seekers’ claims about the legality of the removal and because at least one of the arguments about legality (that the declaration that Malaysia could be a country to which asylum seekers could be transferred was not authorised by the Migration Act) was not necessarily without merit. After a longer hearing the following day, Hayne J ruled that the same argument raised a serious issue to be tried and ordered a fresh injunction until the claim could be determined by the High Court. The Court held two days of hearings two weeks later and issued its judgment at the end of the month, upholding the attack on the validity of the ‘Malaysian Solution’.
On that occasion, the claim and its resolution occurred during August, when the High Court has regularly scheduled hearings. By contrast, this claim comes in the middle of the High Court’s winter recess, which commenced on 21 June. While that means that the High Court has no competing hearings in its short-term schedule, it is also possible that not all the judges will be available for a hearing this month. The High Court’s (currently) next scheduled hearing is on August 5th.