Three Federal Court justices have retired to consider whether a baby born in Brisbane to asylum-seeker parents is an "unauthorised maritime arrival", in an appeal case that has implications for more than 100 children born in detention.
Baby Ferouz was born just over a year ago in Brisbane's Mater Hospital to Rohingya parents from Myanmar (Burma), who arrived on Christmas Island in September last year.
The boy's mother Latifar was flown from a Nauru detention centre to Brisbane to give birth following complications in pregnancy.
The Australian government says Ferouz can't apply for a protection visa because he's an unauthorised maritime arrival, a stance that was upheld by the Federal Circuit Court last month.
Lawyers acting for Ferouz's family appealed the decision before the full bench of the Federal Court in Brisbane on Monday, arguing it's absurd to deem a child born in Australia an unauthorised maritime arrival.
Laws introduced last year mean asylum seekers who arrived by boat after July 19, 2013, can't claim protection visas.
"It becomes a question of whether a baby who is born in Australia has entered Australia, and we say that they haven't," said Murray Watt, senior associate of Maurice Blackburn, speaking outside court.
"We think that there's no question whatsoever that the Australian law is clear: that if a baby is born in Australia then that baby cannot possibly have come to Australia by sea and therefore the child is entitled to Australia's protection."
However, during the 90-minute hearing barrister Geoffrey Johnson, SC, for Immigration Minister Scott Morrison, argued Ferouz is an unauthorised maritime arrival under Australia's migration law.
Federal Court Justices Susan Kenny, Richard Edmonds and Darryl Rangiah reserved their decision.
If the appeal succeeds, it means baby Ferouz and 106 other children born in Australia to asylum-seeker parents can apply for protection visas.
However, the Federal Court decision may ultimately prove irrelevant if the federal Senate passes proposed changes to migration laws that explicitly deem babies like Ferouz to be unauthorised maritime arrivals.
Mr Watt said the amendments, if passed, would retrospectively apply to Ferouz, who recently celebrated his first birthday in detention in Darwin.
"Those amendments, if passed, will put it beyond doubt that the Australian government has the power to take Australian-born babies to detention in Nauru, no matter what happens in this case," he told reporters.
"So it's a very grave decision that the Senate has to face."
