Australian residency rights for children born to migrant parents

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 a parent who is an Australian citizen, the child automatically acquires Australian citizenship.  When one of the parents are non-citizens, the immigration status of the child depends on the type of visa or status that the other parent holds.

Children born to Australian citizens overseas acquire Australian Citizenship by descent once the Australian parent registers their birth with the Australian embassy in the country they are born in.  An application process will be required for the child to be able to enter Australia regardless of whether the parents are permanent residents or citizens of Australia.

Under s 12 of the Australian Citizenship Act 2007 (Cth) (Citizenship Act), a child born in Australia is an Australian citizen by birth if one of the parents are an Australian citizen.

Under s 12 of the Citizenship Act, a child born in Australia is an Australian citizen by birth if one of the parents are an Australian permanent resident.

If the parents hold a temporary visa (other than a special purpose visa), s 78 of the Migration Act 1958 (Cth) (Migration Act) states that the child is taken to have been granted the same visa as their parents.

The table below provides a summary 

ParentsCitizenship statusComments

Children born in Australia
Parent 1: Australian Citizen

Parent 2: Australian Citizen
Citizen by BirthAutomatically acquire Australian citizenship. Can apply a passport for the baby as soon as it is born.
Children born in AustraliaParent 1: Australian Citizen

Parent 2: Permanent Resident
Citizen by BirthAutomatically acquire Australian citizenship. Can apply a passport for the baby as soon as it is born.
Children born in AustraliaParent 1: Australian Citizen

Parent 2: Temporary Visa Holder
Citizen by BirthAutomatically acquire Australian citizenship. Can apply a passport for the baby as soon as it is born.
Children born in AustraliaParent 1: Permanent Resident

Parent 2: Permanent Resident
Citizen by Birth
Automatically acquire Australian citizenship. However, the nationality of the child is not mentioned on the birth certificate, only the place of birth is shown.

To apply for a passport for their Australia-born children, parents would have to request and obtain a separate citizenship certificate to be able to obtain the travel document for their new-born.
Children born in AustraliaParent 1: Permanent Resident

Parent 2: Temporary Visa Holder
Permanent Resident
Where one parent is on a temporary visa but the other is on a permanent visa, the child will acquire the ‘best status’ which is a permanent visa.
Children born in Australia
Parent 1: Temporary Visa Holder

Parent 2: Temporary Visa Holder
Parents’ Temporary Visa
Where both parents are on the same temporary 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.

Where both parents are on temporary visas but they hold different types of visas, the child will acquire the ‘best’ status.

Child could be eligible to apply for citizenship (regardless of their parents’ visa status) if it:

– was born after 20 August 1986;and 

– has been ordinarily resident in Australia from the day they were born until they become 10 years old. The meaning of ordinarily resident can be found below.
Children born outside of AustraliaParent 1: Australian Citizen

Parent 2: Australian Citizen
Citizen by DescentChildren may be eligible to be an Australian citizen by descent if they were born outside of Australia on or after 26 January 1949 and at least one parent was an Australian citizen at the time of the child’s birth.

However, this process requires an application to enable the child to travel to Australia.
Children born outside of AustraliaParent 1: Australian Citizen

Parent 2: Permanent Resident
Citizen by DescentChildren may be eligible to be an Australian citizen by descent if they were born outside of Australia on or after 26 January 1949 and at least one parent was an Australian citizen at the time of the child’s birth. The Australian parent needs to register the child’s birth with the Australian embassy in the country they are born in.  

An application will be required to enable the child to travel to Australia.
Children born outside of AustraliaParent 1: Australian Citizen

Parent 2: Temporary Visa Holder
Citizen by DescentChildren may be eligible to be an Australian citizen by descent if they were born outside of Australia on or after 26 January 1949 and at least one parent was an Australian citizen at the time of the child’s birth. The Australian parent needs to register the child’s birth with the Australian embassy in the country they are born in.

An application will be required to enable the child to travel to Australia.
Children born outside of AustraliaParent 1: Permanent Resident

Parent 2: Permanent Resident
No Visa. Need to Apply Child VisaThe parents will need to apply for a Child Visa Subclass 101 (and meet conditions of this visa) before the child is allowed to enter Australia to live with the parents permanently. The process can take up to 32 months.
Children born outside of AustraliaParent 1: Permanent Resident

Parent 2: Temporary Visa Holder
No Visa. Need to Apply Child VisaThe parents will need to apply for a Child Visa Subclass 101 (and meet conditions of this visa) before the child is allowed to enter Australia to live with the parents permanently. The process can take up to 32 months.
Children born outside of AustraliaParent 1: Temporary Visa Holder

Parent 2: Temporary Visa Holder
No Visa. Need to Apply Child VisaA child born outside Australia to an Australian temporary visa holder is not automatically granted a visa. This means they will need to lodge a new visa application to enter Australia.

Child who is ordinarily resident in Australia

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 of Home Affairs 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.

Being “ordinarily resident” does not mean that the child cannot leave Australia during those 10 years. Ordinarily resident refers to where a person is usually physically living, the place they call home. The interesting thing is that it is actually the residency history of the parents in Australia that matters, not the child. If it can be proven that the parents have been “ordinarily resident” in Australia for 10 years since the child’s birth, then the child is deemed to be ordinarily resident as well. This is due to the obvious fact that the child has no input over where they live during those first 10 years. The Australian courts have already made famous rulings on this matter.

This means your child could be sent overseas to be in their grandparents care, say for a few years. As long as the parents have remained Ordinarily resident during these periods the child is also considered the same.  It is not uncommon in Australia for parents to be so busy here that they have to send their child back home for their family to look after, for a temporary period.

However, if a child is 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.

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.

Benefits of an Australian Citizen Child?

So what will be primary benefit a having a child a citizen if the parents have no permanent residency visa status in Australia? The primary one will be that having a child as a citizen will be to open the door for a Contributory Parent visa application. 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.

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