Ferouz Myuddin, now 11 months old, was born in Brisbane when his mother was transferred to hospital from a refugee detention centre on Nauru, a small island nation in the South Pacific.
A federal court judge backed the government’s earlier ruling that the baby was an “unauthorised maritime arrival” so could not claim refugee status.
Lawyers said he and 100 similar babies could now be sent to the detention centre in Nauru.
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 as unauthorised maritime arrivals, irrespective of whether they were born on Australian soil.
These children would have no right to apply for a permanent protection visa and should be transferred offshore.
Ferouz’s family are Muslim Rohingyas who said they fled Burma to escape persecution. They landed on Australian territory in September 2013 and were taken to the offshore processing centre in Nauru.
Ferouz was born prematurely after his mother was taken to hospital in Brisbane because of concerns over her pregnancy.
Immigration minister Scott Morrison had previously denied Ferouz a protection visa – which allows refugees to live permanently in Australia – on the basis he had arrived by sea illegally. His parents appealed but federal court judge Michael Jarrett backed the government view and said the rule was intended to discourage people smugglers.
Lawyer Murray Watt yesterday said he had advised the Myuddin family, now in a detention centre in Darwin, to appeal. “This is a ludicrous decision given he was born here in Brisbane’s Mater Hospital and even has a Queensland birth certificate,” he said.
Mr Watt said his firm – which is representing the families of 100 babies born in Australia to asylum seekers who arrived by boat – would be seeking government assurances that the families will not be moved to Nauru until the appeal is heard.
Mr Morrison welcomed the ruling, saying it has “always been the intention of successive governments that children born to illegal maritime arrivals, are taken to have the same status as their parents”.
Ferouz’s family are also applying for citizenship for him as a “stateless” migrant, saying that as a Rohingya he is denied citizenship in Burma.
Children born in Australia to non-citizens or non-permanent residents can automatically get citizenship but only once they turn ten and have spent most of their life in Australia.
Last month Australia signed a deal with Cambodia to resettle refugees in the South-east Asian nation. It also reintroduced temporary visas for refugees, which allow them to be sent home if conditions in their home country are judged to have improved.
Australia’s high court is also hearing a challenge from more than 157 asylum seekers from Sri Lanka intercepted by Australian security in July and held on a customs ship at sea for a month, initially in secret. Their lawyers argued they were illegally detained, but government lawyers said their actions were legal. The court yesterday said a ruling was some way off.