Returned asylum seekers will face court in Sri Lanka, says envoy

The Sri Lankan high commissioner to Australia says 41 asylum seekers intercepted at sea and handed over to his country’s authorities will be “subject to the law of the lands”.

But he said he “absolutely” believed they would be released into Sri Lankan society once authorities had confirmed their identities, provided they were not criminals.

“This is not the first time people who have attempted to leave Sri Lanka illegally have been returned to Sri Lanka and thousands of those people are now living completely normal lives free from harassment,” he said. “If they are not criminals, they will be released.”

On Tuesday Agence France-Presse reported that the group included 24 women and nine children; they were brought ashore on Monday at the southern port of Galle, 115km south of the capital, and taken to the notorious high-security Boossa prison.

Previous reports had suggested that all those on board were men.

"They will be brought before the Galle magistrate on Tuesday," a police spokesman, Ajith Rohana, said.

"In respect of the children, we will take them also before the magistrate, but we won't press charges and we won't object to their being released.”

Leaving the country illegally is a criminal offence in Sri Lanka, punishable by up to two years in jail.

A late sitting of the Australian high court in Sydney barred the sending to Sri Lanka of 153 asylum seekers on board a second boat until 4pm on Tuesday, or further order of the court. This boat came from Pondicherry in Tamil Nadu, south India, and most of those on board are believed to be of Sri Lankan origin.

Their case will be heard at the high court in Melbourne and Sydney about 2pm on Tuesday.

On Tuesday, the Australian prime minister, Tony Abbott, attempted to discredit the court action by dismissing one of the lawyers involved as a “former Labor candidate”.

“The Labor party and its activists, the Greens and their activists, they will try to disrupt the government's policies; they will try to do things that start the boats up again because that's in Labor's DNA. But we promised that we would stop the boats. We are stopping the boats,” Abbott told Channel Seven’s Sunrise program.

On Monday, the lawyer, George Newhouse, told Guardian Australia the injunction had been granted after the court heard of his clients' “grave concern” they would be handed over to the Sri Lankan military without having their claims of “death, torture, or substantial harm” at the hands of the country’s authorities fairly heard.

On Monday night, the immigration minister, Scott Morrison, said he would not be commenting on the case with it now before the court.

An investigation by the Guardian and the Human Rights Law Centre has previously revealed that Australian authorities in Colombo ignored claims that a returned asylum seeker had been tortured in Sri Lankan prison, sparking criticism that Australia employs a strategy of “wilful blindness” to the plight of those returned.

The UN refugee body UNHCR said it understood “enhanced screening” procedures had been used by Australian authorities in determining whether the protection claims of the 41 asylum seekers were worthy of further consideration. The UNHCR also raised concerns about the screening being carried out at sea.

“UNHCR has previously made known its concerns to Australia about its enhanced screening procedures and their non-compliance with international law,” it said in a statement.

“UNHCR’s experience over the years with shipboard processing has generally not been positive. Such an environment would rarely afford an appropriate venue for a fair procedure.

“UNHCR does not object to the returns of persons properly found not to be in need of international protection, but considers anyone claiming asylum has a right to have their case properly assessed by qualified personnel in accordance with the necessary procedural and legal safeguards.”

Under the “enhanced screening” process, asylum seekers can be interviewed by officers from the immigration department on board ship.

If officers determine an individual does not raise claims that meet Australia’s non-refoulement obligations, then they are “screened out” of the protection assessment process and barred from entering Australia.

The human rights commissioner, Gillian Triggs, said on Tuesday the government must have a policy in place to fairly assess the claims of asylum seekers.

"It sounds as though three or four or five questions are being asked by video conference, snap judgments are being [made], and they're simply being returned," she said.

"There is an obligation with international law to have a proper process."

A professor of public law at the University of Sydney, Mary Crock, said immigration officers had asked the asylum seekers just four questions before determining they should be handed back: their name, age, where they came from and why they didn’t want to go back.

"Anybody can tell you that asking someone in the middle of the high seas simple questions like that is not going to deliver anything near the information you need to work out if they are refugees or not," said Crock, a migration and refugee law expert.

"One Sinhalese Sri Lankan woman was recommended for refugee status, but we're told she voluntarily requested to depart [for Sri Lanka] with the others as she didn't want to be left alone.

"If the only option is 'we'll send you to Manus or Nauru by yourself' then that is surely coercion."