Linda Esenwozu who gave birth at Canberra Hospital has been told she can't stay in Australia

On January 23, Linda Esenwozu gave birth to Chike by caesarean section. She is a Nigerian citizen but tiny Chike is now Australian because his father is an Australian citizen.

But the Home Affairs Department has told Ms Esenwozu her visitor's visa has expired and she must go.

The deadline has been extended until May but after that she has to leave. The rules state she must be outside the country to apply for a visa to live permanently in Australia with her new son and husband.

"I don't know how I'm going to cope," she said. "I have some kind of depression. I feel like I'm hanging by a thread."

Her husband has been in Australia for seven years. He came as a student and stayed legitimately. He now has citizenship and works in Canberra. The plan was for his wife, Linda, to visit and then return to Nigeria.

But she got pregnant - accidentally, she says - on the visit, and stayed to have the baby.

Their argument is the pregnancy changed the situation so the Home Affairs Department should let her stay rather than force her to apply for a more permanent visa outside the country.

So they face an agonising dilemma: should she go, and leave the child with the father, or should she take the child to Nigeria and separate him from his father?

Should the baby be motherless or fatherless for his first years?

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The dilemma is all the more complicated because Chike has breathing problems and needs medication and probably treatment, according to the parents. They fear the Nigerian health system wouldn't give Chike the life-saving treatment he needs.

Initially, the deadline for deportation was February 2, but the Home Affairs Department extended it because Chike's birth was overdue.

But now there isn't any further concession from Home Affairs. "They don't want to understand my situation," Ms Esenwozu said.

"The fact that I have a child - I don't see the possibility of leaving the child and going back.

"I can't leave my child and I can't leave my husband. My life is here," she said. "I can't leave a child that young."

Both of the parents are Catholic so abortion was out of the question when Ms Esenwozu became pregnant.

"My initial plan was to visit and go back but the pregnancy came, and I wasn't going to get rid of it. My situation just happened. It's not like I intentionally got pregnant."

The couple say they have known each other since 2014 but only got married in Lagos in Nigeria on January 22, 2022 (they've just had their first anniversary).

She then came to Canberra in April on a three-month visitor's visa - and must have got pregnant very soon after arriving.

On August 6, they had a ceremony at the Catholic church in Curtin to bless their marriage.

The father, Odinaka Alozie, said the Home Affairs Department case officer had initially told them on the phone the baby didn't alter the visa condition. "The case officer said 'when your baby is one-month-old, you have to take him overseas'."

The father said he would sponsor the visa application for his wife. "I can sponsor her to remain in Australia so the family can be together."

A Department of Home Affairs spokesperson said the department does not comment on individual cases and will not enforce departure whilst an applicant has ongoing matters before the department.

"All non-citizens who wish to enter or remain in Australia must satisfy the requirements of the Migration Act 1958 (the Act) and the Migration Regulations 1994, including identity, health, character and security requirements," they said.

"Persons who do not hold a substantive visa in Australia can apply for a valid Partner (subclass 820/801) visa, however, they must satisfy additional legislative requirements, often known as schedule three criteria.

"Among other things, schedule three criteria require the applicant to satisfy the delegate that compelling reasons exist as to why the applicant did not hold a substantive visa when they made the application.

"Individuals who have no further matters before the Department, and have exhausted all avenues to remain in Australia are expected to depart."