By Jane Wardell and Shihar Aneez
SYDNEY/COLOMBO (Reuters) - Forty-one Sri Lankan asylum seekers returned by Australia are to be charged with leaving the country illegally and those found guilty face "rigorous imprisonment", police said on Monday, fuelling concerns about Australian policy and rights abuses in Sri Lanka.
Australia said the 41 were transferred to Sri Lankan authorities at sea on Sunday, but declined to comment on a second boat reported to be carrying an additional 153, saying only that it was not currently in Australian waters.
Australian border patrol personnel intercepted the first vessel carrying 41 Sri Lankans west of the remote Cocos Islands last week, after they were suspected of entering Australian waters illegally.
Australia declined to give details of how the group was transported back to the site of the transfer, which Australia said was off the eastern Sri Lankan port of Batticaloa.
The Sri Lankan navy handed the group to the police and police spokesman Ajith Rohana said they would be produced before a court in the southwestern port of Galle. He did not say when.
"Everybody will be produced before the Galle magistrate," he told Reuters. "They will be charged under the Immigrants and Emigrants Act. The sentence for those proved to have left illegally is two years of rigorous imprisonment and a fine.
"But if there are any facilitators, then they will be tried even if they have left via an authorised port legally."
Rights groups and some Western countries have raised concerns with Sri Lanka over alleged human rights violations during the final phase of the war against Tamil separatists that ended in 2009.
Sri Lanka says many asylum seekers are economic migrants, but rights groups say Tamils seek asylum to prevent torture, rape and other violence at the hands of the military. Four of the 41 asylum seekers are Tamils.
In the last three months, three Tamil asylum seekers on temporary visas in Australia, facing the prospect of being returned to Sri Lanka, have set themselves on fire. Two died. In a statement on Monday, 53 Australian legal scholars said Australia's policy "raises a real risk" of forcing people back to their place of origin, where they are expected to face persecution. That would breach Australia's obligations under international refugee and human rights law.
"These people are being held on the high seas, without being allowed to contact lawyers, challenge their detention in court or speak with family and friends," said Ben Saul, a law professor at Sydney University who signed the statement.
At worst, Australia's actions constitute "enforced disappearance", Saul said, and the government's secrecy around what it calls Operation Sovereign Borders disrespects its voluntary commitments under U.N. conventions.
A relative of a three-year-old girl aboard the boat reported to be carrying 153 asylum seekers has appealed to Australian Immigration Minister Scott Morrison to keep his family safe.
"I want to plead with the Australian minister to stop our pain and let us know what he has done with all the kids and families on the boat," the relative, who spoke on condition of anonymity, was quoted as saying in a statement from the Tamil Refugee Council.
"I ask him to be kind to these people. They are all very frightened. They cannot be sent back to Sri Lanka. Many of them will be tortured again and even killed."
The statement carried a photograph of a smiling child, identified only as Febrina, dressed in costume.
"It is a shameful state of affairs," Tamil Refugee Council spokesman Trevor Grant said in the statement. "Morrison needs to come clean and stop using the tactics of a totalitarian regime."
FOUR TAMILS AMONG ASYLUM SEEKERS
That echoes concerns voiced by the UN last week about Australia's brief assessment of the asylum seekers' claims when reports of the two boats first emerged. The government declined to comment at the time, continuing a policy of refusing to talk about "on-water operations".
"There was a lot of shrill and hysterical claims that were made over the course of the past week," Morrison told Australian radio. "None of those has proved to be true."
Morrison said the 37 Sinhalese and four Tamils went through what he called an "enhanced screening process" before the handover, adding that one Sinhalese was entitled to a further refugee assessment but had "voluntarily requested" to return. The vessel was at no stage in distress and all aboard were safe, he said.
When asked directly about a second boat, Morrison said it was not in Australian waters, but declined further comment, saying he would make further statements when other such operations were completed.
The incident comes on the eve of a visit by Morrison this week to Sri Lanka, where he is due to talk with government and defence officials and attend a ceremony with President Mahinda Rajapakse to mark Australia's gift of two former patrol vessels.
Australian Prime Minister Tony Abbott came to power last September partly because of his tough stance on asylum seekers.
While his popularity has since plummeted, more than 70 percent of Australians support the government's border policy, including sending boats back when safe to do so, according to a recent poll by the Lowy Institute think tank.
"The government will continue to reject the public and political advocacy of those who have sought to pressure the government into a change of policy," Morrison said in a statement.
"Their advocacy, though well intentioned, is naively doing the bidding of people smugglers who have been responsible for almost 1,200 deaths at sea."
The government has touted its success in blocking asylum seeker boats, saying there have been no illegal arrivals since last December.
Australia received 16,000 asylum seeker applications last year, just under 0.5 percent of the 3.6 million lodged worldwide, UN figures show, a drop from one percent in 2010.
Opposition Greens Party lawmaker Sarah Hanson-Young told the Australian Broadcasting Corp there was "nothing legal" about the government's conduct.
"They fall far short of our international obligations," she said.
(Additional reporting by Byron Kaye in Sydney and Ranga Sirilal in Colombo; Editing by Nick Macfie and Clarence Fernandez)