the blog of Sentry Law

The best 10th birthday present $190.00 can buy: Delayed conferral of Australian citizenship by birth.

Joel McComber
joel@sentrylaw.com.au
2 March 2020

If I told you that for $190.00 you could ensure your child’s lifetime entitlements to:

  1. access Australia’s social security system;

  2. a Commonwealth Support Place at university (reducing the cost of their degree by up to a factor of four; and

  3. HECS/HELP loans covering the cost of their university fees until they are in a position to pay them back;

  4. a first home buyer’s grant; and

  5. reside in Australia despite any stupid mistakes they may make in the future,

would you pass the opportunity up? Probably not, but thousands of New Zealand-born parents in Australia miss the chance to confirm their child’s Australian citizenship until they are under severe time pressure to do so.

Acquisition of Australian citizenship by birth

This is an important point: Not all children born in Australia are automatically Australian citizens.

There are only two pathways through which children born in Australia are automatically conferred with Australian citizenship:

  1. if at least one parent of the child is an Australian citizen or permanent resident at the time of the child’s birth, then the child automatically acquires Australian citizenship at the time of their birth;

  2. if:

    • neither of the child’s parents are an Australian citizen or permanent resident; but

    • the child was ordinarily resident in Australia for the first ten years of their life.

Automatic acquisition of Australian citizenship by the children of Special Category Visa holders

As New Zealand citizens resident in Australia as holders of a Special Category Visa (SCV) are technically temporary visa holders (and not permanent residents), a child born to two SCV holders does not acquire Australian citizenship automatically at the time of their birth.

However, if the child ordinarily resides in Australia throughout the first 10 years of their life, they are taken to be an Australian citizen and are therefore entitled to all the rights, benefits and privileges of Australian citizenship.

Why apply for confirmation of Australian citizenship?

Importantly, the Department of Home Affairs, which administers the Australian Citizenship Act 2007, does not proactively maintain records of persons automatically obtaining Australian citizenship upon their 10th birthday. It is up to the person, or their parents, to apply to the Department for a certificate confirming their Australian citizenship (and, in so doing, become recognised by the Department as an Australian citizen).

While a person automatically conferred citizenship on their 10th birthday could decide not to apply for confirmation of their Australian citizenship and instead give corroborating evidence of their citizenship status every time they sought to obtain a benefit only available to Australian citizens, we would recommend applying for an Australian citizenship certificate as quickly as possible after a child turns 10. This is because:

  1. as time goes on, you may no longer hold evidence of your child’s residence in Australia from ages 0-10 (i.e. school report cards, school/sports team photos, etc);

  2. it is best to avoid putting yourself (or your child) in a position where your entitlement to receive a benefit is delayed while your/their citizenship status is investigated and resolved (e.g. unclear entitlements to HECS/HELP loans or Commonwealth Supported Places may delay your child starting university);

  3. unless the Department of Home Affairs has positive confirmation that a person is an Australian citizen, they will not recognise your child as an Australian citizen and may initiate a visa cancellation process, removal process or refuse your child re-entry to Australia.

We have assisted families to satisfy the Department that their young children, who had been charged with various offences, were Australian citizens. It was only after the Department had initiated the visa cancellation process by issuing a Notice of Intention to Consider Cancellation of their child’s visa that they realised the person was actually a citizen.

Apart from any other reason, we think that Australia, being a liberal democracy where the government is subject to the rule of law, is a pretty great place, so why wouldn’t you want your child to be a citizen?

Applications for confirmation of Australian citizenship can be more or less complex depending on your circumstances. Contact Sentry Law and we’ll let you know whether or not you’re likely to need a lawyer to assist you with the process

If you (or your child) have had a visa cancellation process initiated against you and you believe that you (or your child) are an Australian citizen by birth, we recommend obtaining legal advice as soon as possible.

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