Australia is not like other countries. When your child is born in Australia they automatically obtain the same visa status as the parents. So if you’re here on student visas, when your child is born they automatically obtain a student visa. Of course, children born to Australian citizens, permanent residents or eligible NZ Citizens, acquire citizenship at birth.
Children born to temporary residents here in Australia can be granted citizenship after 10 years of being “ordinarily resident” in Australia. After this 10 years is over they can apply for what is called “Evidence of Citizenship”.
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 you can prove 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 3, 4, or even 5 years or more. As long as the parents have remained Ordinarily resident during these periods the child is also considered the same.
The Immigration Departments current policy states;
“Being absent for a continuous period of six months or more does not mean the person cannot meet the requirement to have been ‘ordinarily resident’…”
In making a 10th birthday assessment it is necessary to look at the broader family rather than the child in most cases.”
A child whose parents live in Australia but the child is enrolled in a boarding school overseas and comes to Australia during school holidays may be considered to be ordinarily resident even though the child was absent on a regular basis. It would be usual for a child’s home to be with their family unit despite being educated overseas.”
If your child has spent the entire 10 years in Australia since birth, that, of course, would be a simpler scenario. The most common cases we find in Australia is that the parents being so busy here, they have to send their child back home for their family to look after, for a temporary period.
Our office has numerous successful applications with the longest absence from Australia with the maximum stay overseas so far being 5.5 years in total. If you have been refused an application in the past it is worth applying again.
Permanent removal / absence
A person who has been removed from Australia generally no longer have the right to return to Australia. Even if the child has spent most of their years in Australia but has been removed from Australia and denied the right to return before their 10th birthday, they cannot be considered to be ordinarily resident throughout the 10 years from their birth and as such, cannot be eligible for citizenship.
Children born to foreign diplomats
A child born in Australia on or after 25 November 1952 to a foreign diplomat cannot be taken to be ordinarily resident for the purposes of obtaining citizenship via having spent their first 10 years in Australia.
Benefits of an Australian Citizen Child?
So what will be the primary benefit a having a child as 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 Parent visa application. We will talk more about this in the following newsletters.
The Australian Immigration Law Services team has obtained many children their Citizenship certificates even though they spent many years overseas before they turned 10. You can have a read about this in articles on our web site.
These Evidence of Citizenship requests can be complicated and we know the immigration department is resistant to evidence the citizenship if the child has spent a number of years outside of Australia. Nonetheless, we know from experience that these applications can be successful. If you need help, give our team a call or drop us an email to find out how we can assist you. If your child has been refused in a previous attempt then there also may be a good chance to try again.
We are open and here for you! If you need advice, we offer Skype, Zoom and phone consultations. Call +(02) 8054 2537, 0434 890 199 or book online today to speak to our migration specialists.
