What happens to a child born inside Australia of permanent resident parents? Up until 20 August 1986, regardless of the parents' immigration status, all babies born in Australia became Australian citizens.
After this date, automatic birthright to citizenship ceased, and now the immigration status of a child depends on the type of visa the parents hold or or the residency status of the parents.
The Australian Citizenship Act 2007 governs the rules for Australian citizenship. This article discusses the legal effects of a child born inside Australia of permanent resident parents, among other matters pertaining to the status of a child born in Australia.
Effects of a Child Born Inside Australia of Permanent Resident Parents
Under Section 12 of the Citizenship Act 2007, if one of the parents is an Australian citizen or a permanent resident, the child automatically becomes an Australian citizen.
Hence, a child born inside Australia of permanent resident parents gains Australian citizenship by birth. No separate application needs to be made as the child acquires Australian citizenship by operation of law.
A child born inside Australia of permanent resident parents becomes an Australian citizen before they do. However, as an Australian citizen, the child will require an Australian passport to leave and enter the country. As soon as the baby is born, the parents may apply for an Australian passport for their child.
You can view the Australian Passport Office website for information on applying for an Australian passport for your child and on preparation of documents.
If you need to show evidence of your child's Australian citizenship, you can make an application for Evidence of Australian Citizenship online.
One must note that the rules are different when the parents are not Australian citizens or permanent residents of Australia as opposed to a child born inside Australia of permanent resident parents.
Parents on Temporary Visas
Where both parents are in Australia on temporary visas, a child born to them in Australia will automatically have the same visa type as the parents. In this situation, the parents do not need to apply for a visa for the child.
However, even though the parents nee d not apply for a visa for the child, they must notify the Department of Home Affairs as soon as the child's birth certificate and passport are available so the DHA can attach a visa to the child's passport. When the parents' visa status changes from temporary to permanent, the child's status changes with them.
Parents On Different Australian Visas
If both parents of the child hold different Australian visa types, the child acquires the "best status". For instance, if the mother holds a temporary visa, but the father holds a permanent visa, the child acquires a permanent visa.
An "Ordinarily Resident" Child
Under Section 12 of the Citizenship Act 2007, a child gains Australian citizenship if they have been "ordinarily resident" in Australia throughout the period of 10 years beginning on the day they are born.
Hence, children born in Australia, where neither parent is a permanent resident of Australia, automatically acquire Australian citizenship on their 10th birthday if they have lived most of their life in Australia.
Section 3 of the Citizenship Act 2007 provides that a person is "ordinarily resident" in a country if and only if:
- he or she has his or her home in that country; or
- that country is the country of his or her permanent abode even if he or she is temporarily absent from that country.
The person is not taken to be "ordinarily resident" if he or she resides in that country for a special or temporary purpose only. Being an "ordinarily resident" does not mean that the child cannot leave Australia during those 10 years.
The child can be temporarily absent from Australia during the 10-year period, but their regular home should be Australia. To determine this, the Department considers:
- 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, and
- The nature and extent of the child's ties to Australia such as the presence of their family in the country, attendance at school, and involvement in the community.
Absences
Absences such as medical treatment and short overseas holidays will be considered as special or temporary absences, but there must be proof of intention to return back to Australia.
However, 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.
Summary Table
Below is a summary of the effects on the status of a child born inside Australia of permanent resident parents.
| Status of Parent/s | Status of Child Born Inside Australia |
|---|---|
| Parent 1: Permanent Resident; Parent 2: Permanent Resident | Citizen by Birth |
| Parent 1: Permanent Resident; Parent 2: Australian Citizen | Citizen by Birth |
| Parent 1: Permanent Resident; Parent 2: Temporary Visa Holder | Citizen by Birth |
| Parent 1: Australian Citizen; Parent 2: Australian Citizen | Citizen by Birth |
| Parent 1: Australian Citizen; Parent 2: Temporary Visa Holder | Citizen by Birth |
| Parent 1: Temporary Visa Holder; Parent 2: Temporary Visa Holder | Parents' Temporary Visa |
Benefit of Having an Australian Citizen Child
If a parent holds a temporary visa, has a baby with an Australian citizen, and the parents then separate, the child acquires Australian citizenship, but the foreign parent does not automatically have the right to stay in Australia.
However, having an Australian citizen child opens a pathway for a parent visa application, which allows the holder to remain in Australia permanently, work and study, and sponsor eligible relatives to come to Australia. Hence, the separated parent holding only a temporary visa can apply for a parent visa.
Seeking Legal Advice from Expert Immigration Lawyers
A child born inside Australia of permanent resident parents automatically gains Australian citizenship. However, situations may vary when parents hold other visa types. This article provides general advice only.
JB Solicitors has a leading team of expert immigration lawyers that can help with your specific situation. We offer legal representation and legal advice tailored to your needs. We ensure that our clients' legal concerns are addressed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
