Australia Citizenship granted to children born and live in Australia for at least 10 years even if their parents are illegal non-citizens
Australian Citizenship may be granted to children who are born and live in Australia for at least 10 years, these children can apply for Australia Citizenship even though their parents do not have a valid visa and are living illegally.
Children born to illegal non-citizens or non-visa holders must be ordinarily resident or live permanently in Australia from their birth to their 10th birthday.
Section 12(1) of the Citizen Act 2007 provides “A person born in Australia is an Australian citizen if and only if:
(a) parent of the person is an Australian citizen, or a permanent resident, at the time the person is born; or
(b) the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.
To be granted Australia citizenship on their 10th birthday, they must satisfy the ordinarily resident requirement, that is, they are not residing in Australia temporarily so that their parents, for example, complete their studies or for any other temporarily reasons. They will be required to prove that they see and call Australia home.
Section 3 of the Citizen Act defines “ordinarily resident” as follows:a person is taken to be “ordinarily resident” in a country if and only if
(a) he or she has his or her home in that country; or
(b) that country is the country of his or her permanent abode even if he or she is temporary absent from that country.
However, the person is taken not to be so resident if he or she resides in that country for a special or temporary purpose only.
Essentially, the 10 years usually residence requirement do not break even if the child depart Australia temporarily for a special and temporary purpose. for example, the child return to their parents’ home country for special functions or occasions and they are able to return to Australia.
Section 37 of the Citizen Act provides:
Evidence of Australian citizenship
- A person may make an application to the Minister for evidence of the person’s Australian citizenship/
- The Minister may give the person a notice stating that the person is an Australian citizen at a particular time.
(5) A notice is prima facie evidence of the matters in the notice.
What if there is a break in the 10 years of ordinarily resident in Australia?
In the case of Kim v Minister for Immigration and Border Protection  FCA 959 (“Kim”)
- Kim was born in Australia on 29 December 2001 and was granted the same visa, UC-457, as his parents. His brother was also born in Australia and has medical conditions.
- Neither of Kim’s parents were Australian citizen, or a PR, at the time of his birth.
- Kim and his family at all relevant times, when in Australia, have been lawful non-citizens (i.e. holding a visa)
- Kim’s parents purchased an apartment for them to live in; attended local Church; involved in Church’s activities
- Kim’s parents later leased their apartment and moved in with his father’s sister. And later sold the apartment.
- In November 2001, Kim’s parents purchased a car
- Kim spent the first 10 years in Australia except for the period of approximately 13 months between 5 November 2003 and 3 December 2004 his parents took his brother (and him) to Korea for medical treatment because they could not afford the treatment in Australia. While they were in Korea, none of them held a visa allowing them to enter Australia.
- Kim’s parents left their possessions with family and friends to hold until they return to Australia. They also changed their mailing address to a relative’s residence.
- While they were in Korea, Kim’s parents’ intention was to return to Australia and resume residence whether his brother’s health improved.
- In Korea, Kim’s father had a temporary casual work. Their return to Australia was delayed as they moved in to care for his grandmother. His parents maintained contact their doctor and Church members in Australia – informing them of their intention to return.
- In around mid-September 2004, Kim’s father began to take steps to return to Australia. He applied for a UC-457 visa with his family.
- On 2 October 2004, Kim’s father arranged for airline tickets and visas to return to Australia but could not travel till later.
- On 14 October 2004, Kim’s father returned to Australia to look for a house for them to stay.
- On 30 November 2004, Kim and his family were granted UC-457 visa. They returned to Australia on 4 December 2004.
- Kim and his family were granted various UC-457 visas and subclass 573 student visas.
- In Australia Kim lived with his family in various addresses and attended schools.
- The Minister accepts that Kim was “ordinarily resident in Australia throughout” the periods between his birth and 5 November 2003, and between 4 December 2004 and 29 December 2011 (his 10th birthday) because he had his home in Australia throughout those periods.
- The Minister accepted that Kim’s parents intended to return to Australia from Korea while they were away from Australia in 2003 and 2004.
What does “ordinarily resident” mean?
In Lee v Minister for Immigration and Citizenship  FCA 1458; (2011) 199 FCR 336 (“Lee”), the Court said whether a person satisfies the requirements of s 12(1)(b) is to be determined on the basis of the evidence. Foster J stated that:
- The concept of “ordinarily resident” allows for some absences, depending on the nature and extent of those absences (at );
- Whether a person is ordinarily resident in Australia is a question of fact and degree (at );
- Whether a temporary absence from Australia prevents a person from being “ordinarily resident” in Australia is a question of fact and degree (at );
- Whether, at the time of departure and during the temporary absence, the person “intends to return to live in Australia after the temporary absence is relevant to determining” whether he or she is “ordinarily resident’ in Australia during the absence (at )’
- In the case of a minor, the question whether he or she is ordinarily resident in Australia will generally be determined by reference to the position of the parents (at ) or the intention of his parents (at ).
- The word “throughout” means continuity or constancy (at ).
- The words “has his or her home in” means a person’s “permanent abode is the place where he or she regularly or customarily lives (relying on Re Taylor; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194).
Absence from Australia during the 10 year period
A temporary absences, such as a holiday, would be unlikely to affect the facts concerning the location of a home. However, it is necessary to consider whether the circumstances of an absence warrant a conclusion that what was previously a person’s home no longer bears that description (Kim at ).
Hence, you must show that you was “ordinarily resident in Australia” on every single day for the 10 year.
In Kim’s case, the evidence include:
- His parents took him and his brother for medical treatment as they could not afford in Australia. The purpose of travelling to Korea was a special purpose, and not a purpose of taking up residency in Korea or a purpose of leaving Australia permanently;
- There was no evidence Kim and his family could not obtain a visa to return to Australia
- While in Korea, Kim’s parents consistently expressed their desire to return to Australia and to resume living in Australia, as soon as possible having regard to his brother’s medical condition;
- Kim’s parents left their possessions in Australia in the care of their relative and friends to await their planned return to Australia;
- Kim’s parents maintained a mailing address in Australia in the care of his father’s sister;
- They maintained contact with friends and the Church in Australia while in Korea;
- Kim’s parents did not establish a home in Korea during their absence, but stayed with relatives
- Kim’s father did not take up permanent employment in Korea
- Once Kim’s brother had received medical treatment, his parents planned to return to Australia
- They returned to Australia promptly after settling their affairs in Korea
- Once in Australia, they resume their lives, including Kim attending school.
Gleeson J accepted (at ) that Kim did not cease to have his home in Australia when he left the country on 5 November 2003. His Honour accepted that Kim departed Australia for a special and temporary purpose which arose from his brother’s medical conditions and his parents’ firm intention to return to Australia without delay and as soon as possible. It is true that his Kim’s intention could have been thwarted if they were unable to obtain visas to return to Australia.
Gleeson J also accept that 13 months absence from Australia is a significant absence from Australia but did not consider that duration to have caused Kim to cease to have his home in Australia when the reason for the absence was, in substance, to enable his parents to the care of his brother and his grandmother. A temporary change to his living arrangements in order to attend to the care of other family members is not the kind of matter that would ordinarily indicate that a person has moved or given up their home, particularly when it is accompanied by an intention to resume their residence in Australia (at ).
Even if Kim and his family are unable to obtain visas to return to Australia materially affected his position because that situation substantially reflected the absence of any need for a visa because of the supervening needs of his brother and grandmother (at ).
Living in Australia without a visa
Even though in the case of Kim, Gleeson J at  accepted that s 12(1)(b) includes those who are unlawful non-citizen or does not have permission or visa to reside in Australia. However, Gleeson J also accepted that an absence of permission (no visa) to enter Australia may, depending on the circumstances, lead to a conclusion that a person is not “ordinarily resident” because the absence of permission is inconsistent with a finding that the person satisfies the definition of “ordinarily resident” – a connection with Australia (at ).
It is often very difficult for a person to live in Australia without a valid visa as this person will become an unlawful non-citizen and if detained they will be sent to immigration detention pending deportation.
If a child is born in Australia to parents who are unlawful non-citizens, they will not be entitled to all the benefits enjoyed by Australian citizens, for example, health, education and others (click here to learn more about Medicare).
Similarly, these undocumented children may be able to depart Australia, but they may not be able to return. They may be banned for 3 years from returning.
If your child is born in Australia and has been living here for the past 10 years or more, you should consult an immigration lawyer to determine if your children are entitled to Australian citizenship (click here to learn how an immigration lawyer can help you); and to apply for a section 37(2) notice that the child is an Australian citizen by virtue of section 12(1)(b).
You should note that even if your child is granted Australian citizenship, you may not be entitled to apply for Australian citizenship yourself. However, your Australian citizen children may sponsor you for a Parent visa. Unless you have reached a pension age and even if you are sponsored for a Parent visa, the Department of Immigration (Department of Home Affairs) may not grant you a bridging visa to remain in Australia while your Parent visa is being processed.
There are 7 ways you could lose your Australian citizenship, click here to learn how.
Australian migration law and Citizen law are complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) regarding Australia citizenship granted to non-citizen children born in Australia. You may also refer to our FAQs for answers regarding visa application or visa cancellation by clicking here.
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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.