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The legal fiction that sealed Baby Ferouz's fate

  • 21 October 2014

Sometimes in law a ‘legal fiction’ is created to solve a problem that could otherwise lead to a ludicrous or even more complex and messy result. However successive Australian Governments have created fictions when dealing with asylum seekers. The are intended not to help asylum seekers but to find ways of excluding them.

The term ‘illegal maritime arrivals’ is a fiction, because the term does not appear in Migration Law. Instead we have the linguistic contortion of ‘unauthorised maritime arrivals’ - an invention of the Gillard Government. Other fictions are the idea of a ‘queue’ for asylum seekers, a fantasy that is used for political leverage. 

The 2012 Expert Panel report on Asylum Seekers referred to the fictions of the ‘no advantage principal’. The idea was that people arriving by boat should not get an ‘advantage’ in having their cases processed quicker than those waiting outside of Australia in the mythical queue. A problem was there was no average time or in fact any useful measure that could be used to give any meaning to what the ‘no advantage principal’ meant.

The latest example is the case of Baby Ferouz, whose protection visa application was refused in the Federal Circuit Court last week. The facts of the case raised complex legal issues.  Baby Ferouz’ parents are Rohingah, an Islamic ethnic group that is persecuted in Burma to such an extent that they are mainly stateless. Her parents arrived in Australia by boat in September 2013, after Kevin Rudd had announced that all those arriving by boat would be sent to PNG or Nauru for determination of their case, so off to Nauru they were sent.

However Ferouz’s mother was pregnant and medical staff on Nauru decided it was not safe for her to give birth on the Island, so arrangements were made to send the mother to Brisbane for the birth. She was accompanied by her spouse and their other children, but to ensure they did not make a claim for protection in Australia, they were termed ‘transitory persons’. 

This unpleasant term goes back to 2001 when the first Pacific Solution cases were sent to Nauru and some had to be transferred to Australia for medical treatment, but also a ban on them making any refugee application in Australia was created in the Migration Act.

Baby Ferouz was born in Australia to parents who were ‘unauthorised maritime arrivals’ when they arrived in 2013 and now ‘transitory