Are Children Born Here Australian Citizens?

Before 1986, all babies born in Australia automatically became Australian citizens. This has changed in recent years due to the increasing number of short-term visa holders living in the Australian community. Today, when a child is born in Australia to parents who are non-citizens, the child’s immigration status depends on the type of visa or status held by the parents. 

Where one or both parents are Australian citizens

Where one or both of a child’s parents are Australian citizens or permanent residents of Australia, the child automatically acquires Australian citizenship. In this situation, as soon as the baby is born, the parents are eligible to apply for an Australian passport in respect of the baby. In the case where both parents are permanent residents, this means that the child will become an Australian citizen before the parents do.

A person who has a child who is an Australian citizen has a pathway to apply for a Contributory Parent 143 Visa. This visa allows the holder to remain in Australia permanently, and confers the rights to work and study here, and to sponsor eligible relatives to come here.

Where both parents are on the same visa 

Where both parents are in Australia on temporary or permanent visas, a child born to them in Australian will automatically be taken to have been granted the same type of visa as the parents. In this situation, the parents do not need to apply for a visa for the child. However, they do 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 child’s status will change with them.

Where parents are on different visas

Where both parents are in Australia on visas but they hold different visa types, the child will acquire the ‘best’ status. This means that if the mother is on a temporary visa but the father is on a permanent visa, the child will be granted a permanent visa.

Where one parent is a citizen and the parents separate

When a person is in Australia on a temporary visa and has a baby with an Australian citizen and the parents then separate, the child has Australian citizenship. However, the foreign parent does not automatically have the right to stay in Australia. If the non-citizen parent in this situation wants to remain in Australia, they will have to apply for a permanent visa and this application may or may not be successful. A negative decision will mean they will not be able to remain in Australia with their child. 

Where child is ordinarily resident here

If a child is born to parents who are not citizens and the child is ‘ordinarily resident’ in Australia until he or she reaches the age of ten, the child becomes eligible for citizenship at the age of ten. A child in this situation is still eligible to become a citizen if they have been temporarily absent from Australia during this period so long as their regular home has been Australia. To determine this, the department will look at:

• how long the child has lived in Australia;
• whether the child considers Australia their home;
• whether the child has had a period of absence from Australia and the nature of that absence;
• if the child had a period of absence from Australia, whether they retained their right to re-enter Australia during their absence;
• the nature and extent of the child’s ties to Australia such as whether their family is here, whether they attended school and their involvement in the community.

If the child was removed from Australia before they reached their tenth birthday and did not retain the right to re-enter the country, they will not be considered ‘ordinarily resident’ in Australia and will not be eligible for citizenship.

An exception exists in relation to the children of foreign diplomats, who cannot be taken to have been ‘ordinarily resident’ in Australia for the purpose of citizenship even if they have spent their first 10 years here.

Children applying to be Australian citizens

When a person under the age of 16 applies for citizenship, the application must be made by a responsible parent. This must be the person who has parental responsibility for the child, whether or not they are one of the child’s biological parents. The application for citizenship 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 Armstrong Legal.