Lawyers representing 26 infants born in immigration detention in Australia have written to the immigration minister urging him not to transfer them to Nauru until the court case of baby Ferouz, which will determine whether babies born in detention can be defined as “unauthorised maritime arrivals”, is settled.



Legal representatives for the infants recently visited detention centres on Christmas Island and met asylum seeker families who say they fear being transferred to the offshore processing centre on Nauru.

Baby Ferouz was born in detention in Brisbane to a Rohingya asylum seeker family who had previously been detained on Nauru. Lawyers for Ferouz argue that because he was born in Australia he should be given an Australian passport and not be described as an asylum seeker.

Jacob Varghese, a lawyer for the 26 infants, 24 of whom were born on Christmas Island and two in Melbourne, said it was the “very least” the government could do not to transfer babies while the case was ongoing.

“The government ought to agree that no Australian-born babies will be sent offshore until the baby Ferouz case has been determined. That is what we are asking for these families,” Varghese said.

“The detainees told us that other families have been removed from Christmas Island in the middle of the night, without the chance to obtain legal advice. They are all understandably worried about getting that ominous knock on the door before dawn.

“There is no reason that families should be treated with such cruelty. They are entitled to legal advice and we are demanding that they be given time to get it.”

A redacted copy of a letter sent to the the minister, Scott Morrison, seen by Guardian Australia says he has until 4pm on Wednesday to respond. Baby Ferouz’s case is due for another hearing at the federal circuit court by the end of the month.

Morrison, said: “I am aware of the letter from Maurice Blackburn Lawyers.

“I note that they have a similar argument currently before the high court.

“As this issue is being considered by the high court it is not appropriate to say anything further at this point.”