MARK COLVIN: A Federal Court judge has ruled that a baby born to
asylum seeker parents in Australia cannot apply for a protection
Eleven-month-old Ferouz Myoodin was born in a Brisbane hospital to Rohingyan parents who arrived in Australia by boat.
His lawyers have argued he has the right to stay in Australia because he was born here.
Stephanie Smail is at the Federal Circuit Court in Brisbane.
So what reasons did the judge give for his decision Stephanie?
STEPHANIE SMAIL: Hi Mark. This landmark court battle has focused on whether baby Ferouz can apply for a protection visa to stay in Australia. The Federal Government has argued he arrived in Australia by boat, even though he was actually born in Brisbane's Mater Hospital.
So the Federal Government rejected his application for a protection visa on those grounds. The case has come down to the wording of the Federal Government Migration Act. So today in explaining his decision the judge Michael Jarrod detailed the complex legal argument that has been put forward in the case.
The judge accepted the Federal Government argument that the law states if asylum seekers enter Australia by any means other than an aircraft, they effectively arrive by boat. So even though he was born in Brisbane's Mater Hospital, he wasn't on the boat that his parents arrived on Christmas Island on, they were then transferred to Nauru, his mother was flown to Brisbane to give birth to Ferouz. Technically because they didn't arrive by a plane, they've arrived by a boat.
So that means the judge deems baby Ferouz an authorised maritime arrival and he can't apply for a protection visa.
MARK COLVIN: So basically saying that he arrived as a foetus by boat?
STEPHANIE SMAIL: It hasn't come down to that wording exactly, but it has the, basically the law states that if you arrive by any means other than an aircraft you are an unauthorised maritime arrival and that you have, more simply put, arrived by boat.
So interestingly the judge also told the court if he had granted Ferouz's approval to apply for a protection visa or his lawyers, his family obviously - he's a baby - that it might encourage other pregnant asylum seekers to enlist people smugglers and make the dangerous journey to Australia.
So that was another point that he made in court today.
MARK COLVIN: So if it had gone the other way, what would have that meant for the family?
STEPHANIE SMAIL: If Ferouz had been granted permission to apply for a protection visa, this really was just one hurdle in the long running fight to allow them to stay, if they had been granted approval to get a protection visa, even if Ferouz had been granted that protection visa, his family would have then relied on the Immigration Minister to let them stay.
So even if this had come through today in favour of Ferouz and his family, it really would have just been the first, the first hurdle in a long battle. Now it would appear that that battle may take longer.
MARK COLVIN: But it's not necessarily over, there are other legal steps that the family wants to take or that the lawyers are talking about taking?
STEPHANIE SMAIL: Absolutely.
The lawyers, the family's lawyers Morris Blackburn have said that they are planning to appeal. In terms of what it means for the family, they say they're - Morris Blackburn says that the Federal Government can now start the process of sending Ferouz's family back to Nauru. The law firm says today's decision, as you mentioned earlier, has implications for 100 other babies who were born in detention and they may have to go back to Nauru as well.
Now Morris Blackburn is appealing to the Federal Government to think hard about whether that's the right decision for these children, considering what they say is mounting evidence that keeping children in detention is bad for their mental health.
MARK COLVIN: So it could go to the High Court?
STEPHANIE SMAIL: I assume so. They'll start investigating their grounds for appeal this afternoon and get that ball rolling.
MARK COLVIN: Stephanie Smail in Brisbane, thank you very much.