Absence of 5 years does not prevent child from getting citizenship on 10th birthday

By Lorenzo Boccabella, Barrister-at-law and specialist in migration law

In Australia a child born in Australia whose parents are not permanent residents or Australian citizens, becomes an Australian citizen by law on the child’s 10th birthday if ‘ordinarily resident’ in Australia for 10 years.

The Full Federal Court in Minister for Immigration v Sidhu Kaur [2023] FCAFC 133 found that a child was  ‘ordinarily resident’ in Australia for 10 years even if the child was absent from Australia for 5 years.

The child was born in Australia in 2010 to parents who were Indian nationals present in Australia on student visas. About 6 months after the child was born the grandparents took the child back to India to look after the child while the mother was studying. This was a usual occurrence among families from India. In the end the child was in India for 5 years.

Section 12 of the Australian Citizenship Act states:

12    Citizenship by birth 

(1)  A person born in Australia is an Australian citizen if and only if:

(a)  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.

The overwhelming majority of children born in Australia become citizens on a child being born in Australia to one parent who is either an Australian citizen or a permanent resident. But there is this second pathway, indeed I have a case where because of litigation going up to the Full Federal Court and back to the tribunal that the child will have spent 10 years in Australia since birth on a bridging visa but will be aged 10 in March next year and will become an Australian citizen on his birthday.

The trial judge in Sidhu Kaur found as follows (extracting from the Full Federal Court decision:

As we have mentioned, the primary judge’s findings demonstrate that she took into account Master Sidhu’s significant period of absence in India, but did not consider that to be determinative, as she explained:

[56]      It is true that Gurnoor was absent from Australia for lengthy periods of time. Indeed, he was absent in totofor more than five years. Further, I accept the Minister’s submission that in the first five years of his life Gurnoor’s primary connection was to India, not Australia. But a lengthy absence is not necessarily inconsistent with a person having his or her home in Australia: Kim at [22]. Importantly, neither the length of the absence in this case nor Gurnoor’s connection to India tells one anything about the purpose or intended duration of his absence from Australia. The fact that he formed a connection with India does not undermine his parents’ intentions. Nor does the fact that passenger movement cards completed on Gurnoor’s behalf recorded that he was a resident of India and a visitor to Australia. Equally, I give no weight to the fact that the visa applications made by Ms Kaur did not include their son. Ms Kaur’s evidence, which was not challenged and I accept, was to the effect that the only reason he was not included was that she was advised by her migration agent that that was not possible while Gurnoor was “offshore”. She deposed:

Our visas were going to expire in April 2011. It took until October 2011 before we finally received another visa. By that time, I was studying again so we could not return to India. I asked my Migration Agent Sunjay Deswal to extend Gurnoor’s visa with us. The agent replied, “you cannot because Gurnoor is offshore.” He said “once you get a visa you can then add him when he comes to Australia”.

[57]      It is abundantly clear from the evidence that Gurnoor was only removed from Australia for a temporary purpose which arose from the exigencies of his family’s situation when he was but a baby: to be cared for by his grandparents in India while his mother was studying and until his parents were in a position to look after him themselves. The fact that the period was longer than the parents envisaged does not alter the nature of the arrangement or its purpose. A permanent arrangement is one which lasts or is intended to last indefinitely. Mr Sidhu and Ms Kaur always intended that their son would return to live with them as soon as practicable. When they moved into the apartment in 2013, their intention was that he would stay with them. Although they decided to allow him to return to India with his grandparents, their intention never changed.

The Full Federal Court found that the boy was still “ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born” while being absent from Australia for 5 years. That absence was temporary in the circumstances of this case during a period when the parents were moving from temporary to permanent residence.

The case demonstrates that contrary to migration law, citizenship law is inclusive. The term ordinarily resident is a flexible one. One case I am keen to run is to workout if a child born in Australia of both parents who are unlawful non-citizens can become an Australian citizen on his or her 10th birthday.

Based on this cases and others going before, that may be a possibility!