A baby born in Brisbane to asylum-seeker parents in detention does not have a right to stay in Australia as a refugee, the federal circuit court has ruled in a landmark case. The court’s ruling against 11-month-old Ferouz in his bid for a protection visa paves the way for he and 100 other Australian-born babies to be transferred to a detention centre in Nauru. The court in Brisbane upheld an immigration department refusal of his visa application on the grounds he was an “unauthorised maritime arrival”, despite being born in Brisbane’s Mater hospital. Lawyers for Ferouz confirmed that his parents, who currently live with him in detention in Darwin, will appeal the ruling before three judges of the full federal court. They also indicated they would continue to lobby Clive Palmer, whose Palmer United party senators hold the power to stop changes to migration laws. A separate application for Australian citizenship for Ferouz could offer him another chance to stay. But he faces the risk of deportation to Nauru with his family before the department hands down its decision. Greens party immigration spokeswoman Sarah Hanson-Young called on the government not to deport Ferouz or the other 100 babies until that appeal was decided. In a written judgement, the judge, Michael Jarrett, said it was “clearly the intention of parliament to establish a regime whereby the immigration status of a non-citizen child born in Australia followed or aligned with that of his or her parents”. He accepted the government’s argument that otherwise “there may be more incentive for pregnant women to engage people smugglers and make the dangerous journey across the seas in the hope of a perceived advantage that their child might become entitled to a visa once born”. “On the applicant’s birth he entered Australia and became an unlawful non-citizen, given that neither of his parents held a valid visa,” Justice Jarrett said. “He did not enter on an aircraft but he did enter after 1 June, 2013 at ‘any other place’.” This meant, while not an “excluded maritime arrival” under the immigration act, Ferouz was an “unauthorised maritime arrival” and his bid for a protection visa was “invaild”. The ruling follows dire warnings from medical experts – including the chief psychiatrist overseeing Australia’s detention program – about the medical and mental health risks associated with keeping children in offshore facilities. Ferouz’s advocates feared even success in court today would have signalled a Pyrrhic victory, with a bill now before parliament set to formally deny any chance that children born in detention in Australia could remain here under protection visas. Proposed amendments to the migration act, quietly tabled by immigration minister Scott Morrison last month, would retroactively deem all children born in Australia to asylum-seeker parents “unauthorised maritime arrivals”. Any hopes Ferouz can remain in Australia rest on his application to become an Australian citizen. But he faces transfer to Nauru with his family before the department hands down its decision. His legal team included former Queensland solicitor general Walter Sofronoff and ex-Bligh government backbencher Murray Watt, now a solicitor with the firm Maurice Blackburn. They have fought the immigration department for nearly a year, working pro bono. Ferouz and 31 other babies are eligible to apply for citizenship because they are Rohingyan, a persecuted minority who have no legal standing in their homeland of Burma. But the 70 other infants represented by Maurice Blackburn, hailing from war-torn countries including Iraq and Afghanistan, now face next to no prospect of remaining here. Watt told reporters outside court that Ferouz’s legal team was “obviously very disappointed” and he would recommend an appeal. The decision means the infant, who has spent almost his entire life in detention, remains without a state.
Posted on: Thu, 16 Oct 2014 22:42:47 +0000
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