FCCA Rules Baby Born In Queensland An “Unauthorised Maritime Arrival” Under Migration Act
Monday 20 October 2014 @ 11.47 a.m. | Immigration
Last week, the Federal Circuit Court in Brisbane found that a child born to asylum seeker parents in Australia did fall within the category of an “unauthorised maritime arrival” and thus could not make a valid application for a protection visa. The case involves Baby Ferouz, who was born prematurely in Brisbane in November 2013 and whose parents are Rohingya from Myanmar.
Ferouz’s parents arrived at Christmas Island from Indonesia by boat with their two eldest children in September 2013, while his mother was pregnant with Ferouz. They all became “unlawful non-citizens” and “unauthorised maritime arrivals” for the purposes of the Migration Act 1958 (Cth) (“the Act”).
The case revolved around section 46A of the Act, which prevents “unauthorised maritime arrivals” from making a valid application for a visa. Under the definition provision in s 5AA of the Act, a person is an “unauthorised maritime arrival” if they enter by sea and are not in a specific excluded category. Section 5AA(2) states that a person enters Australia by sea if they enter other than on an aircraft that lands in the migration zone. Lawyers for Ferouz argued that a baby born in Australia could not be said to fit within the meaning of the phrase “entered Australia by sea”. However, Jarrett J pointed to section 10 of the Act, which states that a child who was born in the migration zone, and was a non-citizen when he or she was born - “shall be taken to have entered Australia when he or she was born.” He thus concluded that, within the context of the Act:
“It is consistent with that policy [the prevention of people smuggling] for persons such as the applicant to be included within the definition of “unauthorised maritime arrival”. If that were not so, I accept the respondent’s argument that 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. The respondent contends, and I accept that the removal of such an incentive is the object sought to be addressed by s.5AA of the Act.”
Minister for Immigration Scott Morrison, told ABC News that the Federal Government “welcomed the outcome of the case”:
“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 Government has legislation before the Parliament that reinforces the outcome in this case and ensures that these cases continue to be treated consistently with the Government's policy.”
Maurice Blackburn, who are representing Ferouz and 100 other babies in similar situations, have said in a press release that they will lodge an urgent appeal. Solicitor Murray Watt said:
“While we respect the decision of the Court, Ferouz’s family are obviously very distressed by today’s verdict. All they have continued to seek for Ferouz is a fair go: Ferouz was born in Brisbane and has a Queensland birth certificate, and we remain firmly of the view that on that basis he should have the right to seek protection in Australia…”
According to ABC News, Ferouz’s parents have also lodged an application for Australian citizenship for Ferouz, as under the Australian Citizenship Act 2007 (Cth), a child born in Australia and considered “stateless” may apply for Australian citizenship. The Rohingya minority group that Ferouz’s parents are from has been denied citizenship in Myanmar, and the United Nations have recognised that they are one of the most persecuted groups in the world. However, that application is still pending.
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