A revamped Australian Citizenship Act in 2007

 
 

A revamped act, the Australian Citizenship Act 2007 came into force on 1 July 2007 and both re-stated the law on citizenship but also made many changes to the law of citizenship.

Australian citizenship by birth

The logical place to start any analysis of Australian citizenship law is citizenship by birth. Here is how an Australian becomes an Australian citizen.

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.

This has been the case since 1986. Prior to 1986 a person born in Australia became an Australian citizen irrespective of the status of the parent. But what happened was that a number of people came to Australia on temporary visas while the mother was heavily pregnant and the child was born in Australia.  Then the parents wanted permanent residence in Australia in order to look after the Australian citizen baby. This caused policy and political controversy and so the law was changed in 1986 to require that one parent be an Australian citizen or permanent resident at birth.

Citizenship on 10th birthday

What has always been law however is the second limb about being born in Australia and on one’s 10th birthday one becomes by force of law an Australian citizen irrespective of the visa status of the parents.  Even an unlawful non-citizen becomes a citizen on that 10th birthday.  Strategically therefore on some occasions the writer has advised a child to remain in Australia until one’s 10th birthday in order to become an Australian citizen.

The term ‘ordinarily resident’ is defined thus (in s. 3):

ordinarily resident: 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 temporarily 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.

  1. 3 states that the term ‘unlawful non‑citizen has the same meaning as in the Migration Act 1958’. Thus the 2007 Act does recognise the existence of the status of ‘unlawful non‑citizen’. So there is no reason to exclude residence while a person was an unlawful non-citizen as long the definition of ordinarily resident is met. So as long as a person has escaped detection from the date of birth to the person’s 10th birthday, that person becomes an Australian citizen on his or her 10thbirthday.  There is no need for an application the person becomes an Australian citizen by virtue of s. 12(1) of the Act.

It is pointed out that there is no law in Australia which makes it a criminal offence to be or become an unlawful non-citizen (ie to overstay).  It is a criminal offence to enter illegally. The reason it is not a criminal offence to overstay is that the biggest number by far of over stayers are UK visitors (usually backpackers).

Therefore it would be permissible ethically to advise a 9 year old unlawful non-citizen child to remain in Australia until that child’s 10th birthday (assuming the child was born in Australia).

As discussed below New Zealanders are in a special category. New Zealanders via the special category subclass 444 visa are entitled to remain in Australia indefinitely (subject to visa cancellation on character grounds), ie New Zealanders get permanent temporary visas!

So the child of two New Zealanders does not become an Australian citizen at birth even if the child is born in Australia. However that child would become an Australian citizen on his or her 10th birthday provided the child ‘is ordinarily resident in Australia throughout the period of 10 years’. The term ‘ordinarily resident’ would permit short to medium term stays away from Australia (like holidays) as during those stays away the person still has residence in Australia. For example a person going on a month long holiday overseas does not cease to be resident in Australia.  What would happen in a long stay away would stay would be a matter for legal argument particularly if a person did not retain one’s abode in Australia.

In Kim v Minister for Immigration and Border Protection [2016] FCA 959, the court accepted that a temporary absence from Australia for 13 months did not break the period of being ‘ordinarily resident’ in Australia.

In essence the young boy, born in Australia of parents on temporary visas (subclass 457), went back to South Korea for 13 months for reasons based on medical treatment of a younger brother.

It is important to set out the facts in some detail (at [129] :

The evidence demonstrates that:

(1)        The applicant, his parents and brother left Australia in November 2003 to obtain medical treatment for the brother, which they did not consider they could afford in Australia. The purpose of travelling to South Korea was a special purpose, and not a purpose of taking up residency in South Korea or a purpose of leaving Australia permanently;

(2)        Having decided to leave Australia to obtain that medical treatment, the parents consistently expressed their desire to return to Australia and to resume living in Australia, as soon as possible having regard to the brother’s medical condition;

(3)        The parents left a substantial volume of possessions in Australia, which were stored by the father’s sisters and the mother’s friends, to await their planned return to Australia;

(4)        The parents maintained a mailing address in Australia, being the address of Jong Eui;

(5)        The parents also maintained contact with friends and the Church in Australia while they were in South Korea;

(6)        The parents did not establish a home in South Korea during the period between November 2003 and December 2004, but stayed with relatives;

(7)        The father did not have permanent employment in South Korea. In May or June 2004, the father commenced taking steps to secure employment in Australia;

(8)        There is no suggestion that the mother had permanent employment in South Korea. At the time, she had two small children for whom she provided care. She also had a role in providing care for her mother-in-law;

(9)        Once the purpose of the brother’s medical treatment had been satisfied, the parents’ plans to return to Australia were delayed by the need to provide care for the grandmother;

(10)      The applicant, his parents and brother returned to Australia promptly after a nursing home was found for the grandmother. They found accommodation, collected their possessions, recommenced their activities at the Church and generally resumed the life that they had been living prior to November 2003. This included sending the applicant to pre-school and, in due course, to school.

Significantly though, the family did not have an abode in Australia during that 13 month period, ie they did not own a house nor did they have a rented house. The court concluded:

137.In particular, the applicant’s position did not materially change when his family’s plans were delayed by the need to care for his grandmother. While I accept that 13 months is a significant absence from Australia, I do not consider that duration to have caused the applicant to cease to have his home in Australia when the reason for the absence was, in substance, to enable his parents to attend to the care of his brother and his grandmother. A temporary change to 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 the previous arrangements.

138.I also do not accept that the applicant’s lack of a visa (or his parents or brother’s lack of a visa) for periods while they were in South Korea materially affected his position because that situation substantially (or entirely, except in the case of the mother) reflected the absence of any need for a visa because of the supervening needs of the brother and the grandmother.

139.Accordingly, I am satisfied that the applicant was ordinarily resident in Australia throughout the period of 10 years beginning on the day that he was born, because he had his home in Australia throughout that period. For the same reasons, I am satisfied that the country of the applicant’s permanent abode was Australia while he was in South Korea, because throughout that period, Australia remained the country where he regularly or customarily lived.

The court also confirmed that being unlawful did not disqualify someone from being “ordinarily resident”  in Australia :

27.It follows that s 12(1)(b) is broad enough to encompass a person who meets the requirements of “ordinarily resident” but whose residence is pursuant to a temporary visa, or is unlawful.

The case is worth reading in full.

Stateless person

In some rare circumstances a stateless person may become eligible for Australian citizenship if not eligible for the citizenship of any other country.

Statelessness

(8)      A person is eligible to become an Australian citizen if the Minister is satisfied that:

(a)      the person was born in Australia; and

(b)      the person:

(i)      is not a national of any country; and

(ii)      is not a citizen of any country; and

(c)      the person has:

(i)      never been a national of any country; and

(ii)      never been a citizen of any country; and

(d)      the person:

(i)      is not entitled to acquire the nationality of a foreign country; and

(ii)      is not entitled to acquire the citizenship of a foreign country.

The writer can think of a couple of examples in this category like, if two Palestinians with no citizenship elsewhere who had offspring born in Australia, that child would clearly be stateless. The same would apply to Bedouins.

Barbara Davidson