In December 2014, the Federal Court of Australia held that a baby (known as “baby Ferouz”) born in a hospital in Brisbane and issued with an Australian birth certificate, was an “unauthorised maritime arrival” under the Migration Act 1958 (Cth) (“Migration Act“). Baby Ferouz is the child of two asylum seekers from Myanmar, who arrived in Australia in an unauthorised manner by boat.
Because of this status under the Migration Act, baby Ferouz should be transported to a regional processing country such as Nauru “as soon as practicable“, and is barred from making an application for a protection visa in Australia.
On a plain reading of the definition of “unauthorised maritime arrival” current at the time, the decision seems somewhat incongruous. A person in the position of baby Ferouz would be an unauthorised maritime arrival if the following conditions were met:
- the person entered Australia by sea;
- the person became an unlawful non-citizen because of that entry; and
- the person is not an excluded maritime arrival.
The immediate question seems to be – how could it be said that baby Ferouz entered Australia by sea, when he was born in a hospital in Brisbane?
Quite simply, it is because there are words and phrases that can mean something other than what they actually mean, thanks to a crafty trick of legislative drafting.
Confused? Welcome to the world of “legal fiction” – where the meaning of ordinary words and phrases can be transformed. How? The Migration Act defined “entered Australia by sea” in several ways that the Court said was “wider than its ordinary meaning.” For example, if a person was rescued at sea outside Australia’s migration zone, and thereafter transported by aircraft into the migration zone, under the Migration Act, the person will be said to have “entered Australia by sea”. Even more bizarrely, under the Migration Act a person has also “entered Australia by sea” if “the person entered the migration zone except on an aircraft that landed in the migration zone”. One may be justifiably perturbed by how, by the hands of drafters of legislation, plain English can be bent into submission.
The Court found that baby Ferouz “entered Australia”, and therefore the “migration zone”, upon his birth in Brisbane. Because his entry into the migration zone was – to put it bluntly – via his mother’s birth canal rather than on an aircraft that landed in the migration zone, the Court held that he was a person “who entered the migration zone except on an aircraft that landed in the migration zone”.
Therefore, applying the criterion set out above, the Court found that baby Ferouz was an unlawful maritime arrival for the purposes of the Migration Act, because he had “entered Australia by sea” and became an unlawful non-citizen because of that entry. (The third criterion is not relevant as it relates to New Zealand citizens only.)
It is a thread of reasoning knotted by unwieldy drafting, and it seems perfectly legitimate to question its application in the context of a child born in Australia. The barrister acting for baby Ferouz, Walter Sofronoff QC, argued in his submissions that such a construction would “do violence to the English language”, stating that the phrase “entered Australia by sea” plainly referred to entry by some means of transport.
The Court neatly skirted the unsavoury proposition that an asylum seeker woman’s womb may, under Australian law, act as a vessel for a non-citizen – though indeed, this appears to be the case as a matter of logic. Rather, the Court held that its interpretation was consistent with the legislative object in the Migration Act to enable the immigration status of a non-citizen child born in Australia to be regulated by the statutory framework that applied to non-citizens who entered Australia in the ordinary way (i.e. by boat or plane).
Soon afterwards, the Australian Government passed the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, to make the position abundantly clear. Now, the Migration Act clearly states that a person is an unauthorised maritime arrival if the following conditions are met:
- the person is born in the migration zone; and
- a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival under the original definition above (no matter where that parent is at the time of the birth); and
- the person is not an Australian citizen at the time of birth.
While it is no longer necessarily to wrestle with the meaning of “entered Australia by sea”, the incongruity of a person born in Australia being labeled an “unauthorised maritime arrival” remains.
“There are pregnant women still in offshore detention centres
whose unborn children will be excluded from the December 2014 deal.”
The case of baby Ferouz, and other babies born to parents in detention centres, became the subject of some media interest late last year. In the wake of this, then Immigration Minister Scott Morrison struck a “once-off” deal with Senator Ricky Muir in December 2014 to enable 30 babies (including baby Ferouz) to be transferred to the mainland with their families for processing. This deal was made to encourage cross-benchers to pass the government’s new legislation reintroducing temporary protection visas, restricting the definition of who is eligible for refugee status in Australia, and limiting the pathways of review once a negative migration determination has been made. It would seem that this once-off deal was motivated by an ulterior purpose; neither the Coalition nor the Labor Party has demonstrated any intention to change the existing law on unauthorised maritime arrivals.
The Greens, however, introduced the Migration Amendment (Protecting Babies Born in Australia) Bill 2014, which is before the Senate and which is intended to ensure that a child born in Australia is not classified to have “entered Australia by sea”. The child therefore would not be considered an “unauthorised maritime arrival” subject to transfer to an offshore detention centre. The Bill is currently the subject of a Senate Inquiry. Little has been said with respect to its prospects of success in the Senate – but given the damning findings of the Australian Human Right Commission in its National Inquiry into Children in Immigration Detention 2014, it may (one hopes) be a timely opportunity to reframe at least one aspect of Australia’s refugee policy regarding children.
As it stands, under Australian law it remains perfectly legal to detain babies born in detention centres, and there are pregnant women still in offshore detention centres whose unborn children will be excluded from the December 2014 deal. Further, by reason of their status as “unauthorised maritime arrivals” these children, and any other children born classified as “unauthorised maritime arrivals”, remain unable to apply for a permanent protection visa in Australia.
They are targets of Australia’s deterrent rationale. They are “boat people”. Not by any choice – remembering that “choice” is an elusive concept in the context of forced migration – but by birth.
Sayomi Ariyawansa is a Melbourne lawyer. She has volunteered with the Asylum Seeker Resource Centre, interned in the New York Office of Human Rights First and previously worked for the Victorian Department of Justice. She is currently on the committee for the Global Ideas Forum.
Feature image: Nogwater via Flickr.