ChildCitizenship

What’s the status of children born to Australian citizens, permanent residents, or temporary visa holders?

By January 22, 2020August 2nd, 202018 Comments

What happens when an Australian citizen, permanent resident, or temporary visa holder has a baby? The immigration status of the child can differ depending on where the child is born.

Children born in Australia

Where at least one parent is an Australian citizen

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.

As this is granted by operation of law, no separate application needs to be made.

Where at least one parent is a permanent resident

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.

As this citizenship is granted by operation of law, no separate application needs to be made.

Where at least one parent is a temporary visa holder

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.

As this visa is granted by operation of law, no separate application needs to be made (though usually the Department needs to be notified).

It is also worthwhile to be aware that children born in Australia on or after 20 August 1986 automatically acquire citizenship if they have been ordinarily resident in Australia throughout the 10-year period beginning on the day of their birth. In such cases, the child will become an Australian citizen on their 10th birthday.

This provision operates regardless of the migration or citizenship status of the parent(s).

Children born outside of Australia

Where at least one parent was an Australian citizen

Children 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.

Where at least one parent is a permanent visa holder

A child born outside Australia to an Australian permanent resident visa holder is not automatically granted a visa. This means they will need to lodge a new visa application to enter Australia.

Where at least one parent is a temporary visa holder

A 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.

Summary table

Can we conflate the above information into a simple matrix? We certainly can:

 

At least one parent is an Australian citizen
At least one parent is an Australian permanent resident
At least one parent is a temporary visa holder
Born in Australia

Citizen by birth

Citizen by birth

 

Temporary visa holder at birth
Born outside of Australia
Citizen by descentNo visa

 

No visa

 

Any questions?

If you seek further information about the status of your child (congratulations!), or general questions about your family’s Australian immigration status, please email our general query inbox at [email protected] or call us on +61 3 9016 0484.

THIS DOCUMENT DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP. PLEASE CONSULT AN IMMIGRATION PROFESSIONAL FOR UP TO DATE INFORMATION.
Mihan Hannan

Author Mihan Hannan

Formerly a Senior Associate in one of Australia’s most reputable immigration litigation and review practices, Mihan is solutions focused and well versed in all aspects of Australian immigration law. Mihan also has a subscription addiction, being obsessed with tools to improve the immigration work flow.

More posts by Mihan Hannan

Join the discussion 18 Comments

  • Avatar ramesh thapaliya says:

    Hi, my baby born in australia during processing of permanent residency. After baby born then we got permanent resident along with baby. Can I apply the baby citizenship ? OR i need to wait for residency requirement before appy for the baby citizenship?
    What is the current processing time for baby citizenship application??

    • admin admin says:

      Hi Ramesh,
      Seems like your baby was not automatically granted citizenship because you were granted permanent residence after his / her birth.
      This means that ordinarily your baby will be included in a citizenship application with you (when you and your wife meet the general residence requirement).
      We’ll have a lawyer contact you by email.
      Hannan Tew

  • Avatar Rigved says:

    Hi, my child was born in the US and I am permanent resident in Australia. Can I bring my child to Australia as a permanent resident?
    And how much time it’ll take application to get processed?
    And can I bring my child temporary until they decide on permanent residency?

    • admin admin says:

      Hi Rigved,
      Thanks for getting in touch.
      Unfortunately as your child was born overseas to permanent residents, he / she is not automatically granted a visa.
      You could consider a Child visa (see here).
      The processing times are about 2 years at this point in time (bearing in mind that COVID-19 has significantly impacted processing times).
      You could apply for Visitor visas to bring your child over to Australia in the interim.
      One of our lawyers will be in touch to see if we can assist.
      Kind regards,
      Hannan Tew

  • Avatar Naveen kumar Kokku says:

    Hai this is Naveen Kumar Kokku my wife is a pregnant i am on 485 visa.If my wife born a baby here can i get the Australian Citizen after my baby 10th birthday

    • admin admin says:

      Hi Naveen,
      Firstly, congratulations on the birth of your baby!
      Secondly, to be granted Australia citizenship on the children’s 10th birthday, they must satisfy the “ordinarily resident” requirement. That is, they must demonstrate that 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. It’s a bit complicated, so if possible, it is usually easier for you to obtain citizenship on your own behalf (using for example, skilled visas). One of our lawyers will be in touch to see if we can help.
      Kind regards,
      Hannan Tew

      • Avatar Lisa says:

        Hi I’m Lisa and I’m having a baby with a permanent resident please will I be able to apply for PR through my newborn baby if I’m on a student visa?

        • admin admin says:

          Hi Lisa,
          Thank you very much for your comment – and congratulations on the birth of your child!
          If your child is born to a permanent resident in Australia your child will automatically be granted citizenship. In this case your child can certainly sponsor you on a Parent visa. However, this can be a lengthy and expensive process. A better option might be to apply for a Partner visa on the basis of your relationship to the permanent resident Australia?
          One of our lawyers will be in touch to see if we can help.
          Kind regards,
          Hannan Tew

  • Avatar Troy says:

    Hi just a quick question. I am a Austrailian citizen my kids where born in New Zealand . we have lived in Australia for 10 years are they classed as permanent residence?

    • admin admin says:

      Hi Troy,
      Thanks for your comment.
      Were you an Australian citizen when your children were born overseas? If so they would generally be eligible for citizenship (but would need to make an application).
      In any case, they must have had a passport to travel to Australia – was that an Australian passport or a foreign passport?
      One of our lawyers will flick you an email to determine more specifically what the situation is and whether we can help.
      Kind regards,
      Hannan Tew

  • Hi! My husband is an Australian citizen and iam permanent resident. Iam having a baby in Australia which will automatically be granted citizenship. Will it lessen my time of spending 4 yrs in Australia for getting an Australian citizenship or not?

    • admin admin says:

      Hi Shaista,
      Thank you for your comment (and congratulations on the pregnancy!).
      Having a child will not ordinarily allow you to reduce the overall general residence requirement but under (see: Ministerial discretion – Spouses and de facto partners (s22(9) and s22(10))) you might be able to treat periods offshore as periods onshore.
      If you’d like to consider your options, feel free to email us at [email protected]
      Kind regards,
      Hannan Tew

  • Avatar MP says:

    Hi, our situation is a little complicated. My husband and I are currently skilled work visa holders and will be lodging our PR application by this year. Our baby is due to arrive in February. We intend to register our baby as a Singaporean citizen. 2 questions: a) If we have successfully been granted PR before his birth, can we opt to apply for PR for the baby instead of AUS citizenship as Singapore does not allow dual citizenship? b) If our PR application is still pending, does the baby get included in this application for free?

    • admin admin says:

      Hi MP,
      Thank you very much for your comment on our article regarding citizenship.
      Noting that we are not Singaporean immigration lawyers (and thus cannot accurately advise on the validity of dual nationality), your child’s Australian status is as follows:
      1. If your child is born while your PR application is processing – your child will be granted the same visa as you (s 78 of the Migration Act), and be taken to apply for the same visa as you (regulation 2.08 of the Migration Regulations). This means you do not need to pay another fee;
      2. If your child is born after your PR application is approved – your child will be an Australian Citizen by birth (s 12 of the Australian Citizenship Act).
      In relation to situation 2, there are probably a couple of considerations for you including that your PR application cannot be approved until after you’ve completed your health examinations (which I’m assuming you would not want to do until after you’ve given birth as it involves a chest x-ray).
      Additionally, your child can renounce their Australian citizenship if it would deprive them of obtaining Singaporean citizenship – your child could potentially obtain Australian permanent residency on the basis of being a former Australian citizen.
      Hope that provides some guidance, but feel free to get in touch if you have any further questions.
      Kind regards,
      Hannan Tew

  • Avatar Adam says:

    Hello,

    My partner and I are Australian citizens living in the UK and we have a 10-month old child who was born in the UK and has British Citizenship.

    We would like to repatriate and I have been offered a job in Perth starting in the next couple of months. As the citizen by decent processing time is 4-6 months we plan to do this in Australia. Our problem is the tourist eVisa which is quick and easy to get only last 3-months so our daughter’s visa will run out before we can get her citizenship. The next possibility is a 6-12 month visitors visa but the processing time for this is 3-4 months and so my pattern and daughter will have to remain in the UK until this is granted and thus we will have to be apart for several months.

    We have travel exemptions from the WA police to travel and will quarantine on arrival. Again my partner will have to do this alone.

    It seems crazy there is not a visa for our situation. I would imagine there are many Australians living abroad with children born in that county having to move back to Australia at short notice because of job offers. However as far as I can see there is no way we can do this without being forced to spend time apart as a family. Or is there a visa I am missing?

    • admin admin says:

      Hi Adam,
      Thank you for your comment and we’re sorry to hear about the inconvenience you are facing.
      A couple of points:
      (1) For immediate travel to Australia, unfortunately the eVisitor visa is probably going to be the most appropriate at the moment. If towards the end of the 3 month stay period, you’ve still not heard from the Department regarding the citizenship application, you can apply for an onshore Visitor visa to extend your child’s stay period for a longer duration (so you won’t have to leave 3 months in). Your child will receive a bridging visa that’ll enable them to stay in Australia until a decision is made on the onshore Visitor visa application.
      (2) Re citizenship, the processing times indicate that 75% of citizenship by descent applications are processed in 4 months or less. It’s generally a relatively straight forward process if you have all the appropriate documentation (i.e. your child’s birth certificate, evidence of you and your partner’s identity as Australian citizens etc.) so it should not take that long to process. The main point is to submit as soon as possible!
      One of our lawyers will be in touch to see if we an help with any of the above.
      Kind regards,
      Hannan Tew

  • Avatar Pardeep says:

    Hi my name is pardeep, we come Australia in 2009 , we are on bridging visa, my son born in January 2012, is he eligible for australian citizenship 2021 , we continuing living in Australia

    • admin admin says:

      Hi Pardeep,
      Thank you for taking the time to read our article on citizenship. In short, a person born in Australian is an Australian citizen by birth if they are ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born. So if your son was born in January 2012, he would be a citizen by birth in or around January 2022 (on his 10th birthday) if he was ordinarily resident in Australia throughout this time.
      Feel free to get in touch with us at [email protected] if you have any further questions.
      Kind regards,
      Hannan Tew

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