An Australian court has decided that an 11-month-old Rohingyan baby born in a Brisbane hospital cannot apply for a refugee visa. Baby Ferouz is the son of stateless asylum-seekers who fled their homeland in Burma and travelled to Australia via Indonesia. Like all other asylum-seekers reaching Australian territory by boat after 1 June 2013, they were defined as ‘unauthorized maritime arrivals’ and subject to Australia’s harsh border control policies. This meant that they were denied the right to seek protection in Australia and were instead sent offshore to a refugee detention and processing centre in the Pacific Island nation of Nauru.

Ferouz was born in Brisbane’s Mater Hospital, however, because his mother was brought to Australia for the delivery.

Acting pro-bono, lawyers from the firm Maurice Blackburn argued that because he was born in Australia, Ferouz, unlike his parents, could not be classified as an ‘unauthorized maritime arrival’ because he had not ‘entered Australia by sea’.  Therefore, they argued, he should be entitled to apply for asylum in his own right.

Judge Jarrett of the Federal Circuit Court of Australia rejected the lawyers’ arguments. In a judgement handed down 15 October 2014, he acknowledged that, in a literal sense, the phrase ‘entered Australia by sea’, would be ‘inapt’ to describe the circumstances in which Baby Ferouz came to be present in Australia – that is, being born in a hospital. He argued however, that under the Australian Migration Act, ‘the phrase “entered Australia by sea”, does not bear, or perhaps does not just bear, this ordinary meaning’.

Under Section 5AA of the Act an unauthorized maritime arrival can be anyone who entered Australia ‘other than on an aircraft’ – and this, according to the judge, can include entering Australia by way of being born in an Australian hospital. The judgement concludes:

‘On the applicant’s birth he entered Australia and became an “unlawful non-citizen”, given that neither of his parents held a valid visa. He did not enter on an aircraft, but he did enter after 1 June 2013 at “any other place”. … The applicant is therefore, in my view, an “unauthorised maritime arrival” and s 46A(1) of the Act applies to him and his application for a protection visa was invalid.'

Immigration Minister Scott Morrison welcomed the decision saying that it ‘has always been the intention of successive governments that children born to illegal maritime arrivals, are taken to have the same status as their parents’.

The story is not over however, because the Maurice Blackburn legal team are appealing the decision. Senior Associate Murray Watt, urged the Federal Court to hear the case quickly because ‘there is now very little stopping the Australian Government sending Ferouz, at short notice, to inhospitable conditions in off-shore detention on Nauru.’  

The fate of about 100 other Australian-born babies of asylum-seekers also turns on the outcome in the case, and Mr Watt notes that the government is trying to change the law with retrospective effect, so that any court decision of the full court will be rendered irrelevant in any case. He says that the Migration and Maritime Powers Legislation Amendment ‘would give the Australian government the power to transfer of all these Australian born babies to Nauru’.  Mr Watt is urging Senators from the Palmer United Party, who hold the balance of power in the Australian upper house, to reject the amendments.

Peter Mares is contributing editor of Inside Story and adjunct fellow at the Swinburne Institute for Social Research.