Tortuous Legal Reasoning Denies Baby Ferouz Justice


Politics is a brutal game. The winner takes all and the losers often suffer ignominious fates. Strange and terrible things happen all the time. Covering it as a journalist is not calculated to increase one’s levels of democratic belief.

But every so often, something comes along that proves things really can get stranger and more terrible.

As usual, today’s disillusioning moment has emerged from the febrile politics of immigration and asylum. In a long-awaited judgment, the Federal Court has ruled on the fate of Ferouz Myuddin, an 11-month old son of Myanmar asylum seekers.

The Myuddin family is of Rohingya ethnicity, a persecuted group in Myanmar that is not entitled to citizenship. The UNHCR estimates there are around 1 million internally displaced Rohingya living in the country.

Ferouz’s mother was pregnant when apprehended by the Australian government on the high seas and sent to jail in Nauru. When she was about to give birth, the Immigration Department flew her to Brisbane – without her husband or the rest of her family – where she gave birth to a healthy boy in the Mater Hospital. He was given the name Ferouz.

The Australian government has never accepted that Ferouz Myuddin is an Australian citizen, born on Australian soil and entitled to all the rights afforded any other native son.

Instead, the government has worked assiduously to deny Ferouz his liberties, and to send him back to jail in a foreign country.

The government’s reasoning, almost unbelievably, is that he came here “by boat”.

Yes, that’s right. The Australian government has argued, in a court of law, that a boy born in an Australian hospital is an “unauthorised maritime arrival”.

The tortuous legal reasoning amounts to the contention that, because his mother arrived in Australian waters by boat, and because the Migration Act stipulates that anyone who doesn’t come to Australia with a visa on an airplane is unauthorised, therefore baby Ferouz is unauthorised as well.

Let me just say this one more time. The Australian government is arguing that a baby born in Australian hospital is an asylum seeker who came here by boat. So bizarre is Australian migration law, a court has now ruled in the government’s favour. 

On behalf of the Myuddin family, layers at Maurice Blakcburn have been trying to sue the government to overturn its decision not to award Ferouz a protection visa.

Yesterday, that attempt failed, after a Federal Court judge ruled in the government’s favour.

As one of the lawyers representing the Myuddin family, Murray Watt, pointed out this week, the decision beggars belief. Watt noted that, like baby Ferouz, he himself had been born in the Mater Hospital, and so had both of his children. Ferouz has even received a Queensland birth certificate.

“While we respect the decision of the court, Ferouz's family are obviously very distressed by the verdict,” Watt said yesterday.

“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.”

With a victorious judgment under its belt, Immigration Minister Scott Morrison wasted no time in putting out a triumphant statement.

Yes, he actually welcomed the decision.

“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,” Mr Morrison said.

It now seems likely that Ferouz and his family, who are currently in detention in Darwin, will be extradited back to Nauru.

The case has big implications for other asylum seekers. More than 100 children with asylum seeker parents have been born on Australian soil. 

Watt said yesterday that “amendments to the Migration Act, which are currently before Federal Parliament, would result in the transfer of all the babies to Nauru, despite being born on Australian soil.”

Maurice Blackburn are urgently appealing, in an attempt to prevent the extradition.

Meanwhile, Morrison has been busy with legal maneuvers of his own. The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Seekers Caseload) Bill 2014, currently before Parliament, will effectively end Australia’s international obligations under the Refugee Convention once and for all.

Some might argue that successive governments have been ignoring the convention, in fact if not in law, for many years.

This bill will finally confirm the de jure abrogation of our international responsibilities.

To quote the bill, the new law will “remove most references to the Refugees Convention from the Migration Act and replace them with a new statutory framework which articulates Australia‘s interpretation of its protection obligations under the Refugees Convention.”

In other words, if it passes, the spirit and letter of the Refugees Convention will be written out of Australian migration law.

And so the government builds another portcullis on the iron gates of Fortress Australia. It’s just one more basic democratic freedom, enshrined by international law, abandoned by the Abbott government.

It’s a turn of events that would impress Franz Kafka, if he were around to observe

We now live in a country where the government can tell a family that a baby born in an Australian hospital arrived here “by boat.”

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.