FORMER Queensland solicitor-general Walter Sofranoff QC is at the helm of a legal challenge to the Federal Government’s decision to deny a baby born in Brisbane a protection visa because his parents were asylum seekers.

A decision in the Federal Circuit Court in Brisbane is due tomorrow after a hearing before Judge Michael Jarrett today.

It has wider ramifications for 100 other babies whose statehood also remains in limbo after being born in Australia to parents who were denied protection visas after journeying by boat to seek asylum.

Baby Ferouz was born by caesarean at Brisbane’s Mater Hospital on November 6 last year.

His parents, who are from the stateless Rohingya ethnic group in Myanmar, were being held in detention on Nauru as “unauthorised maritime arrivals” following their entry to Australian waters by boat on September 15.

A subsequent application by Baby Ferouz, filed by his father, for a permanent protection visa with the Department of Immigration and Border Protection, was declared invalid because it took the view he was an unauthorised maritime arrival, like his parents, and not a child born in Australia who should be afforded the same legal rights as any other.

Baby Ferouz now lives in immigration detention with his family in Darwin and has never known life outside a detention centre.

Mr Sofranoff, who appeared pro bono for Baby Ferouz, argued in court today the department was wrong to deny the now 11-month-old toddler a protection visa.

He argued the child could not be declared an unauthorised maritime arrival and an unauthorised citizen because he was born in Brisbane and did not arrive in Australia by sea.

Mr Sofranoff took Judge Jarrett to Sections 5AA, 10 and 78 of the Migration Act 1958, adding the court had to determine whether the legislation deemed being born an “act of entry” into Australia.

Barrister Geoffrey Johnson, for the department, said a non-citizen born in the Australian migration zone was deemed to have entered the country when they were born, as per Section 10 of the Act, and was therefore an “unauthorised maritime arrival”.

“That analysis is dependant not only upon the text of the provisions but is also contended with the content and purpose of the legislation,” he said.

He said the situation faced by Baby Ferouz and his family was not unanticipated by the legislature, and Section 5AA was to ensure those who arrived in Australia by a non-regular path did not obtain benefit or advantage by doing so.

“If a child is born in Australia whose parents do not have citizenship and do not have a vis, then the child is an unlawful non-citizen,” Mr Johnson said.

Baby Ferouz and 100 other children born to asylum seeker parents in Australia are being held in detention in Australia and will not be transferred to offshore processing sites until the test case is decided.

The hearing comes as the Federal Government considers amending the Migration Act to retrospectively declare all babies born to asylum seekers who arrive by boat to be declared unauthorised maritime arrivals, irrespective of whether they were born in Australia.

If the amendments are passed, babies born to asylum seeker parents in Australia will lose the right to apply for a permanent protection visa and should be transferred offshore to Manus Island or Nauru.

Outside court, Maurice Blackburn senior associate Murray Watt said he was pleased the case would be resolved quickly.

He expressed concern about proposed amendments to the Migration Act.

“If these amendments are passed, the Government will give itself the right to transfer Aussie kids to Nauru,” he said.

“The fact is there should never have been any question that babies born here deserve protection, but the Government have repeatedly and incorrectly denied these babies that right.”

The plight of Baby Ferouz and his family received widespread media attention last year when it was revealed the sick newborn, who was premature, was kept in hospital while his mother Latifar spent up to 18 hours a day in immigration detention in Brisbane.

Public backlash resulted in Immigration Minister Scott Morrison calling a departmental investigation into the family’s treatment.

Judge Jarrett will give judgment at 2.30pm tomorrow.

Comment has been sought from the Department of Immigration and Border Protection in relation to proposed amendments to the Migration Act.

Immigration Minister Scott Morrison said previously the planned amendments reinforced the government’s view that the children of asylum seekers who are born in Australia should be included within the existing definition of ‘unauthorised maritime arrival’ in the Migration Act.

“This will ensure that, consistent with their parents, these children are subject to offshore processing and are unable to apply for a visa while they remain in Australia, unless I have personally intervened to allow a visa application,” he said.