New laws that would strip Australian-born children of asylum seekers of protection visa rights threaten to quash a legal bid to save a stateless infant called Ferouz from offshore detention.
A powerful legal team working pro bono for the 11-month-old boy had hoped success in today’s federal court challenge of his visa refusal by immigration officials would set a precedent for babies born in detention.
But the lawyers say so-called “Ferouz amendments”, quietly tabled in September by immigration minister Scott Morrison, would wipe any court decision in the boy’s favour and pave the way for he and 100 other babies to be sent to Nauru and Manus Island.
Maurice Blackburn solicitor Murray Watt told Guardian Australia that Ferouz and 31 other infants from the Rohingyan community of Burma could then still apply for citizenship.
But that would still leave them open to immediate deportation and cruel any chance the other 70 babies, hailing from countries including Afghanistan and Iraq, have of remaining in Australia.
The Rohingyan infants are eligible to apply for citizenship because the persecuted minority are not recognised as citizens by Burmese authorities.
Their plight has been acknowledged by foreign minister Julie Bishop, while Nobel peace laureate Aung San Suu Kyi has called for Australian “mercy” in dealing with the group, specifically in reference to Ferouz.
The government refused a protection visa for Ferouz on the grounds he was an “unauthorised maritime arrival”, despite the fact he was born in Brisbane’s Mater hospital.
His mother was allowed to visit the prematurely born baby for only hours at a time and the family were later transferred to a Darwin detention centre where they remain.
Ferouz’s legal team in the federal court in Brisbane is spearheaded by acclaimed barrister Walter Sofronoff, who took up the case in his first job since resigning as Queensland’s top government lawyer.
Watt said the fact a former solicitor general was “appearing pro bono in a matter against the government gives you an indication how serious this is and what a terrible breach of the law our federal government is perpetrating here”.
Morrison’s amendments to the Migration Act – which would retroactively brand all Australian-born children of asylum seekers “unauthorised maritime arrivals” – were “clearly designed to scuttle the case”, he said.
Many opposition federal MPs, whom the law firm has begun to lobby in a bid to block the changes, were “surprised that the amendments would have this effect”, he said.
“It seems that the government has slipped them in the back of the bill without telling anyone what the effect of is.
“That’s a pretty sneaky way to go about things so some of the people we’re speaking to are a bit annoyed this wasn’t brought to their attention, so I am hopeful but there’s a lot of work to be done.
“I am very hopeful that no member of parliament would want to have on their conscience voting for amendments that would remove Aussie kids to Nauru, and that would scuttle a court case that’s been going for nearly a year.”
Ferouz’s legal team and the government lawyers are expected to complete legal arguments on Tuesday with the court due to hand down its decision on Wednesday afternoon.
