The asylum seeker family of a baby born prematurely in Brisbane will have their bid to win him refugee status heard by a Federal Court judge.
Baby Ferouz was born on November 6 last year at Brisbane's Mater Hospital.
His family, from the persecuted Rohingya minority, had arrived on Christmas Island from Myanmar three months earlier before being transferred to Nauru.
The boy's pregnant mother Latifar was flown to Brisbane eight months ago on health grounds.
But asylum seekers who arrived by boat after July 19 last year were denied the right to claim protection visas under laws introduced by then prime minister Kevin Rudd.
Barrister Stephen Keim, SC, told the Federal Circuit Court on Monday that baby Ferouz should have the right to seek refugee status.
"The ... baby born last year is not an unauthorised maritime arrival," he said.
Law firm Maurice Blackburn, which is running the case, said Ferouz's health was still fragile, and his family was traumatised about returning to Nauru.
"Ferouz was a premature baby and he did have some respiratory problems after he was born," instructing solicitor Murray Watt told reporters.
Mr Watt said that while the family would not be able to apply for a protection visa, the situation was different for Ferouz.
"He was born on Australia soil in the Mater Hospital and we say that on that basis he didn't come to Australia by boat," he said.
"In legal terms, he's considered to be stateless because the ethnic group that he is from ... is not recognised as citizens.
"Therefore, he is entitled to apply for a protection visa, given that he would be at risk of persecution and potentially much worse if he was returned to the country that his parents came from."
Legal counsel for Immigration Minister Scott Morrison, Amelia Wheatley, asked the court to dismiss the bid to prevent the family's return to Nauru.
But Justice Michael Jarrett set a hearing date of October 14 to consider the bid for Australian citizenship for Ferouz and to stop their return to Nauru.