Baby Ferouz: Family to appeal against Federal Circuit Court's refusal of protection visa

An asylum seeker family has vowed to fight a Federal Circuit Court ruling that their Australian-born son is an unauthorised maritime arrival.

A Federal Circuit Court judge ruled on Wednesday that Ferouz Myuddin, now 11 months old, was not entitled to apply for a protection visa after being born prematurely in Brisbane’s Mater Hospital in November 2013.

His mother had been transferred from the detention centre on Nauru amid concerns about her pregnancy.

The court agreed with the Government’s position that a visa could not be granted because the baby was an unauthorised boat arrival.

Ferouz and his family now live in detention in Darwin, but were originally from Myanmar.

Lawyers for the family said they would lodge an urgent appeal today and take the case all the way to the High Court if necessary.

Ruling affects the fate of 100 other babies

Murray Watt from Maurice Blackburn Lawyers said the family were extremely distressed when he advised them of the decision.

He said an urgent appeal would be lodged on behalf of Ferouz and 100 other babies facing a similar fate.

"I think any honest reading of the situation now is that boats coming to Australia have effectively stopped and we now have an opportunity to think as a country about what the fair way to deal with people who are already here is," Mr Watt told ABC News 24.

"This boy was born in the same hospital as me and the same hospital as my two children and yet he is now subject to being taken to Nauru.

"What this means is that people who are born on the Australian mainland to parents who have come here by boat are deemed themselves to have come here by boat.

"It means the Federal Government can remove all of these 100 babies and take them to Nauru to conditions the UN has labelled as inhumane.

"Currently we have an undertaking from the Federal Government they won't remove Ferouz and other babies without giving notice."

Mr Watt, a former state Labor MP, said he hoped the Government did not push ahead with the removal of any of the 100 affected babies while an appeal was pending.

"I think that would be a disgraceful thing to do," he said.

"Having said that, I don't exactly think this Government's record when it comes to the treatment of refugees is particularly good so I don't really put anything past them."

He said there had been numerous other instances where asylum seekers have been taken away "literally in the middle of the night".

"But there's nothing to cover length of time before appeal, so we will be asking the Federal Government to give an undertaking they won't be removed until an appeal is heard.

"We will be asking the [Immigration] Department that this family will not be removed until this appeal is heard because we believe they should have the opportunity to challenge that decision."

The Greens also urged the Government to wait until the legal process was finished before sending the baby offshore.

Mr Watt said if the court challenge failed the case would require political intervention.

'Mothers hope their babies won't go to Nauru'

Pamela Curr from the Asylum Seeker Resource Centre said she had met with some mothers who would be affected by the decision.

"The mothers were looking at me and saying they hoped they would not be sent back to Nauru," she said.

"That is their most fervent hope, that their babies won't go to Nauru."

She also urged the Federal Government not to transfer the children or their parents.

"These are brave couples, here they are with their children, the only hope they've got.

"It's heartbreaking what they're going to face."

Immigration Minister Scott Morrison released a statement saying it has always been the intention of successive governments that children born to illegal maritime arrivals had the same status as their parents.

He referred to law amendments before Parliament, saying they reinforced the outcome in this case.