The Fate Of Twenty-Five Families Hangs In The Balance

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Over the past weeks, Immigration Minister Scott Morrison has talked at length about his interest in releasing children from detention by Christmas.

What he hasn’t admitted is that, rather than releasing all children from detention, his new Asylum Seeker Legacy Bill, passed in the Senate in the early hours of 5 December, has condemned 25 Australian born babies and their siblings to ongoing detention; 44 children in total.

Even worse, these babies and their brothers and sisters will be moved to detention centres in Nauru. The UN has described Nauru as harsh and unsuitable for minors and has called on the government to halt the transfer of children there altogether. Increasingly alarming reports have emerged though out the year concerning child abuse and sexual assault of minors within the camps.

Under the agreement secured by the government and key cross bench senators, many of our Australian born baby clients will now be entitled to apply for a temporary visa. Not so for baby Ferouz and 24 of our other clients, for one simple reason; their families spent time on Nauru before they were born.

The Minister has made it clear that any baby born to a parent who has previously been sent to an offshore processing centre, cannot apply for a temporary visa and must leave Australia. This is an arbitrary and cruel distinction to make. All Australian born babies should be treated the same.

One of the children facing deportation.Take for example Ferouz’s parents, who should never have been sent to Nauru in the first place. Ferouz’s parents are Rohingian; a stateless people and members of one of the most persecuted ethnic minorities in the world.

When Ferouz’s mother Latifar arrived in Australia last year with her husband and two young children, she was six months pregnant, and unwell. The doctor who first examined her on Christmas Island recently gave evidence about her case at the Australian Human Rights Inquiry into Children in Detention.

He told the Inquiry that he was so concerned regarding Latifar’s high risk pregnancy that he alerted the Department of Immigration and recommended that she be immediately transferred to the mainland for high level care. He was later advised that the family had instead been transferred to Nauru ‘to set an example.’

Latifar’s transfer to Nauru was not only punitive, it was pointless. On her arrival, Department staff quickly realised that her health needs could not be met in Nauru and she was ping-ponged back to Australia and admitted to hospital. In November last year she gave birth to Ferouz, following a risky and complicated labour.

Because of the punitive decision of a bureaucrat to send Latifar to Nauru contrary to medical advice, Ferouz will now never be entitled to claim protection in Australia. After spending the first year of his life behind the wire here, he will now be sent to Nauru with his two siblings for an indefinite period of incarceration. Ferouz’s appeal to the Federal Court of Australia in which we argue that he is entitled to apply for a protection visa, has been instantly nullified by the passing of the Bill.

Babies like Ferouz are not your average asylum seekers. Born in Australian hospitals, with two guards standing by their mother’s bed 24 hours a day, these children have spent every day of their life behind the fence. One baby was born premature to a mother who has lived in one of the most notorious refugee camps in Africa since she was three years old. Her parents fled to this camp to escape a civil war that continues to rage in her country today. After almost 20 years spent in the camp, and still no hope of resettlement, she fled to Australia, pregnant and alone.

Another child’s father expressed his anguished confusion to me while he explained that his brother, sister-in-law, niece and nephew are to be released into the community next week. He and his wife have been told instead that they will be sent to Nauru, with their 8-month-old baby. They all arrived together on the same boat; he and his wife were unfortunate enough to have spent a brief amount of time on Nauru one year ago, whereas his brother’s family remained on Christmas Island. Arbitrary and cruel, this deal struck by Morrison is tearing families apart.

The Minister has provided an undertaking that he will not remove these babies from Australia until at least 5pm on 30 January 2015. This is not good enough. Morrison still has the power to allow these 25 babies to be processed for a visa in Australia, along with all of the other children and families he has begun to release.

Allowing some Australian born babies to stay, while others must go, is a form of bureaucracy that plays God to innocent children’s lives.

Mr Morrison, let them stay.

* Katie Robertson is an Associate at Maurice Blackburn Lawyers. She currently represents a number of asylum seekers, including babies born in Australia.

Update: Since this story was published the Minster for Immigration has announced the families of 31 asylum seeker babies born in Australia will have their claims processed here.

“Those babies, and their immediate families, will be allowed to have their protection claims assessed in Australia,” Minister Morrison said

Katie Robertson

Katie Robertson is an Australian based human rights lawyer with experience representing refugees and people seeking asylum.

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