The High Court has issued an interim injunction preventing the transfer to Sri Lanka of 153 asylum seekers who are missing on a boat bound for Australia.
The injunction, granted late on Monday in Sydney, applies at least until a hearing resumes on Tuesday afternoon at 2.15pm.
The asylum seekers are represented by Ron Merkel, QC, who argued to Justice Susan Crennan that the transfer was illegal because the asylum seekers had been deprived the ability to have their claims properly assessed.
But it is not clear whether the transfer has already taken place because Immigration Minister Scott Morrison has refused to comment and his lawyers told the court they had not received instructions.
Sources said lawyers were representing the asylum seekers through their families and they have not been in touch with them since contact was lost more than a week ago.
The surprise court action followed an emotional plea from the father of a three-year-old girl on board the boat for Mr Morrison to reveal the fate of the passengers.
“I am desperate to know where my family is,” the man said. He claimed all on board would face persecution if they were sent to Sri Lanka.
“I can’t function at all not knowing.”
The legal move came as Gillian Triggs, the president of the Australian Human Rights Commission, announced plans to investigate the treatment of children on the boat if they were transferred to an Australian vessel before being returned to Sri Lanka.
Thirty-seven children are believed to have been on board the boat, which has not been heard from since Saturday, June 28, and left Pondicherry in southern India, on June 13.
Speaking on condition of anonymity from Europe, the father said he had not had contact with his family, including daughter Febrina, for more than a week.
‘‘I cannot understand why a country like Australia would send people back to Sri Lanka, knowing they have been tortured there,’’ he said.
Professor Triggs expressed alarm that the “enhanced screening” process used to reject the claims of another boat of 41 Sri Lankans – who were transferred at sea to Sri Lankan authorities – appeared in breach of international law.