What is the Immigration Status of a Child Born in Australia?

Most people assume that children born in Australia are recognized as permanent residents or citizens.

But this is not always the case.

Until the 20th of August 1986, a child born in Australia was considered an Australian citizen. After this, it is mandatory for the babies who are born in Australia: 

• At least one or both parents must be Australian citizens or permanent residents.
• The child must have ordinarily resided in Australia until they become 10 years old.

After this, children born in Australia with a birth certificate issued in Australia are not automatically considered Australian citizens or permanent residents. Now, it is mandatory for babies born in Australia that at least one parent be an Australian citizen or permanent resident at the time of their birth.

However, the immigration status of a child born in Australia might be different based on the circumstances of their birth. In this blog post, I will share with you the immigration status of a child born in Australia to different categories of parents.

Let’s get started with. 

Understand the Status of the Children Born in Australia

The immigration status of a child born in Australia to an Australian citizen, permanent resident, or temporary visa holder can be different based on many factors and situations, including where the child is born in Australia.

Status of a Child Born in Australia

If you had a child who is born in Australia, here is how you can check the immigration status:

If one parent is an Australian citizen:

According to s 12 of the Australian Citizenship ACT 2007 Cth ( Citizenship Act), a child born in Australia will be an Australian citizen by birth. This is permitted by Australia’s operational law, so there is no need to submit a separate application. However, the child must have an Australian passport to leave and enter Australia.

If One Parent is a Permanent Resident in Australia:

Under section 12 of the Citizenship Act 2007, a child born in Australia must have one parent and be a permanent resident of Australia.  In the same way, this permanent residency or citizenship is granted by the Australian operational law, so there is no need to submit a separate application. 

If One Parent is a Temporary Visa Holder:

As of Section 78 of the Migration ACT 1958 Cth ( Migration Act), a child born in Australia whose one parent is a permanent resident is granted the same visa as their parents by Australian operation law. 

As this visa is granted by operation law, there is no need to separate applications. However, the notification to the Department of Immigration is mandatory. 

Status of a Child Born Outside of Australia

Similarly, the immigration status of a child born outside of Australia to parents who are Australian citizens, permanent residents, or temporary visa holders will be different based on many factors, such as:

If one Parent is an Australian Citizen:

The child born outside of Australia to Australian citizens, permanent residents, or temporary visa holders will be eligible for Australian citizenship by descent (after the 26th of January 1949, it is required at least one parent must be an Australian citizen). For this purpose, it is mandatory to go through an application process. 

Note: Parents are required to submit an application on behalf of their child/children. 

If one Parent is a Permanent Resident:

A child or children born overseas to one Australian permanent resident will not receive a visa automatically to qualify for PR in Australia. For this purpose, a new visa application must be lodged so that a child can enter Australia freely. The visa options include the child (subclass 101) visa or adding the baby to an existing parent or marriage visa application. 

If One Parent is a Temporary Visa Holder:

A child born outside Australia to one parent who is a temporary visa holder will not be granted the visa automatically.  They ought to lodge a new visa application to enter Australia. However, for subsequent entrants, there are different Australian visas available based on the type of visa their parents hold, such as:

• Business Innovation and Investment (provisional) (subclass 188) visa
• Skilled Regional (provisional) (subclass 489) visa
• Student (subclass 500) visa
• Temporary Work (International Relations) (subclass 403) visa
• Training (subclass 407) visa
• Temporary Activity (subclass 408) visa
• Temporary Work (Skilled) (subclass 457) visa
• Temporary Skills Shortage (subclass 482) visa
• Skills in Demand (subclass 482) visa
• Skilled Employer Sponsored Regional (subclass 494) visa
• Skilled Work Regional (subclass 491) visa

Status of a Child whose Parents Are on the Same Visa?

If both parents of the child hold the same temporary or permanent visas. In that case, a child who is born in Australia will receive the same visa type, either permanent or temporary visas in Australia. In this scenario, there is no need to apply for the citizenship and residency status of the child.  However, they are required to inform the Department of Immigration so that they can organize a visa to be attached to the child’s passport. 

Status of a Child Whose Parents Are on Different Visas

When both parents of the child hold different visas, the child will acquire a favorable immigration status. For instance, if the female parent is on a temporary visa but the male parent holds the permanent visa, the child will be granted a permanent visa in Australia. 

What is Meant by that Child is Ordinarily Resident in Australia?

If a child is born to non-citizens in Australia but is considered  “ordinarily resident” until age 10, they will be eligible to apply for citizenship in Australia.

During this period, the child might have been temporarily absent; their regular home must have been in Australia. So, to determine whether the child is an ordinarily resident in Australia, the Department considers the following factors: 

While the child may have been temporarily absent from Australia during this period, their regular home must have been in Australia. To determine whether a child is ordinarily resident in Australia, the Department looks at several factors:

• The length of the time period the child lived in Australia. 
• Whether the child considers Australia to be his/her home.
• The length and nature of the time period when the child was absent from Australia. 
• Whether the child retained their right to re-enter Australia during the absence period from Australia. 
• The nature and extent to which the child binds to Australia, including family presence, school attendance, and other community involvement.

Conclusion

In this post, you have learned about the immigration status of children born to Australian citizens, permanent residents, and temporary visa holders of different categories. For further information or specific cases, consult with immigration experts and migration agents. 

If you have any questions regarding the legal status of a child born in Australia or require legal advice related to immigration matters or Australian visas, consult with our migration agent Nasir Nawaz at the Migration. He will help you with your Australian visa application and more.