Australia would have breached the refugee convention if it had returned more than 150 asylum seekers to India after they were intercepted at sea, the UN High Commissioner for Refugees says.
The UNHCR has made a submission in the High Court case involving the detention of 157 asylum seekers at sea in an Australian Customs vessel.
The agency says Australia would have breached the refugee convention and traditional maritime law if the asylum seekers had been returned to India, as per the government's original plan.
"Intercepting a refugee in international waters and taking him or her back to the place of persecution would violate the spirit of the refugee convention," the UNHCR submission says.
The asylum seekers set off from India on June 13 and their boat was intercepted in Australia's contiguous zone, off Christmas Island, on June 29.
They are being held at Curtin.
The full bench of the High Court will determine in October whether the federal government had the power to remove asylum seekers from Australia's contiguous zone and send them to other countries.
The UNHCR says returning the asylum seekers to India would have been a case of refoulement, which is prohibited under the convention.
"Australia made no inquiries or assessment as to the circumstances of the plaintiff's departure from Sri Lanka or from India," it said.
"Nor did Australia make an assessment whether India would afford the plaintiff protection from refoulement to Sri Lanka, in circumstances where it was known that India is not a party to the refugee convention."
Lawyers for the asylum seekers say that if successful, they may seek damages for false imprisonment.
The federal government has said it has the authority to prevent non-citizens entering Australia.
Submissions from the government are due to be tendered next week.
The two-day hearing will begin in Canberra on October 14.
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