Before 1986, all babies that were born in Australia were automatically Australian citizens. However, today, when a child is born in Australia to parents who are non-citizens, the immigration status of the baby depends on the type of visa or status enjoyed by the parents. This page deals with the immigration status of children who are born in Australia.
Where child’s parents are Australian citizens
When two people who are both Australian citizens or permanent residents have a baby in Australia, the child automatically acquires Australian citizenship. In this situation, the parents may apply for an Australian passport for the child as soon as it is born. If both parents are permanent residents, this means that their child will become an Australian citizen before they do.
Where child’s parents are on visas
Where both parents of a baby born in Australia are on temporary or permanent Australia visas, the child will automatically be granted the same type of visa as the parents. This rule is set out in section 78 of the Migration Act.
In this situation, the parents do not need to make an application for a visa for the child. However, the family does need to contact the Department of Immigration to organise for a visa to be attached to the child’s passport. When the parents’ visa status changes from temporary to permanent, the visa status of the child also changes.
Where child’s parents are on different visas
Where two people who are both on Australian visas have a baby in Australia, the child will acquire the same visa status as the parent who has the ‘best’ status. For example, if the mother has a temporary visa but the father has a permanent visa, the child will be placed on a permanent visa.
Where child’s parents separate
When an Australian citizen has a baby with a person who is on a temporary visa and the parents then separate, the child has Australian citizenship. However, it is important to note that in this situation, the foreign parent does not automatically have the right to stay in the country.
If the foreign parent wants to remain in Australia, they must apply for a permanent visa. This application may or may not be successful. If the parent is refused a permanent visa, this will mean that they will be unable to remain in Australia with the child.
Where child is ordinarily resident until 10
If a child is born to two people who are not Australian citizens and the child is ‘ordinarily resident’ in Australia until the age of ten, they become eligible for citizenship. This is the case even in a situation where the child has been temporarily absent from the country for one or more periods during their first ten years as long as their regular home has been in Australia.
To determine whether a child has been ‘ordinarily resident’ in Australia, the department will look at:
- How long they have lived in Australia;
- Whether they consider Australia to be home;
- The length and nature of any period of absence;
- Whether the child retained their right to re-enter the country during any period of absence;
- The nature and extent of the child’s ties to Australia.
If a child is removed from Australia prior to reaching the age of 10 and does not retain the right to re-enter the country, they are not considered ‘ordinarily resident’ in Australia.
It is worth noting that the children of foreign diplomats are not ‘ordinarily resident’ in Australia for the purpose of citizenship.
Applying for citizenship for a child
When a person under 16 seeks to apply for citizenship, the application must be made by a responsible parent. This is a person who has legal responsibility for the child. 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 Taylor Rose.
