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Sunday, 19 October 2014

Tortuous Legal Reasoning Denies Baby Ferouz Justice |

Tortuous Legal Reasoning Denies Baby Ferouz Justice |

Tortuous Legal Reasoning Denies Baby Ferouz Justice

By Ben Eltham

a Federal Court ruling, asylum seekers born in detention in Australia
will be classified as illegal maritime arrivals. How can the law call a
hospital a boat, asks Ben Eltham.

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

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

“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.”