Prior to 1986, all babies born in Australia automatically became Australian citizens. However, this has changed due to the increasing number of short-term visa holders living in the community. Today, when a child is born in Australia to parents who are non-citizens, the immigration status of the child depends on the type of visa or status that the parents hold.
Parents are Australian citizens
Where one or both parents are Australian citizens or a permanent residents, the child automatically acquires Australian citizenship. As soon as the baby is born, the parents may apply for an Australian passport in respect of the child. If both parents are permanent residents, the child will become an Australian citizen before they do.
Having a child who is an Australian citizen provides a pathway to apply for a Contributory Parent 143 Visa. This is a visa that allows the holder to remain in Australia permanently, to work and study here, and to sponsor eligible relatives to come to Australia.
Parents on visas
Where both parents are on temporary or permanent visas, Section 78 of the Migration Act provides that the child will automatically be taken to have been granted the same type of visa as the parents. The parents do not need to apply for a visa for the child, but they need to contact the Department of Immigration to organise for a visa to be attached to the child’s passport. When the parents’ progress from a temporary to a permanent visa, so does the child.
Parents on different visas
Where both parents are on visas but they hold different types of visas, the child will acquire the ‘best’ status. For example, if the mother is on a temporary visa but the father is on a permanent visa, the child will acquire a permanent visa.
Parents who separate
When a person on a temporary visa has a baby with an Australian citizen and the parents then separate, the child has citizenship but the foreign parent does not automatically have the right to stay in Australia. They will have to apply for a permanent visa and may or may not be successful. A negative decision will mean they will be unable to remain with their child.
If a child is born to parents who are not citizens and is ‘ordinarily resident’ in Australia until the age of ten, the child becomes eligible for citizenship. The child may have been temporarily absent from Australia during this period but their regular home must have been in Australia. To determine this, the department will look at:
- The length of time the child has lived in Australia;
- Whether the child considers Australia to be their home;
- The length and nature of any period of absence from Australia;
- Whether the child retained their right to re-enter Australia during any period of absence;
- The nature and extent of the child’s ties to Australia such as the presence of their family here, attendance at school and involvement in the community.
If the child was removed from Australia before their 10th birthday and did not retain the right to re-enter the country, they are not considered ‘ordinarily resident’ in Australia for the purpose of becoming eligible for citizenship.
The children of foreign diplomats cannot be taken to be ‘ordinarily resident’ in Australia for the purpose of obtaining citizenship based on having spent their first 10 years here.
Applying for citizenship for a child
An application for citizenship for a person under the age of 16 must be made by a responsible parent. This is the person who has legal responsibility for the child, whether or not they are a biological parent. The application can be made online or on paper.
If you require legal advice or representation in an immigration matter or in any other legal matter please contact Go To Court Lawyers.