Abandoned children

 
 

14 Citizenship for abandoned children

A person is an Australian citizen if the person is found abandoned in Australia as a child, unless and until the contrary is proved. 

 

This is not as simple as it sounds, a person born overseas may be presumed to be a citizen of that country so this is really a humanitarian provision and does not really give rights to citizenship. Merely because a child is found alone in Australia does not mean that person is an Australian citizen particularly if the person is obviously of recent foreign origin (like having an accent).

 

Let’s start with the general eligibility requirements for acquisition of Australian citizenship found in s 21.

 

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

(a)      is aged 18 or over at the time the person made the application; and

(b)      is a permanent resident:

(i)      at the time the person made the application; and

(ii)      at the time of the Minister’s decision on the application; and

(c)      satisfies the general residence requirement (see s 22) or the special residence requirement (see ss 22A or 22B), or satisfies the defence service requirement (see s 23), at the time the person made the application; and

(d)      understands the nature of an application under subsection (1); and

(e)      possesses a basic knowledge of the English language; and

(f)      has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

(g)      is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

(h)      is of good character at the time of the Minister’s decision on the application.

 

(2A)      Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:

(a)      the person has sat a test approved in a determination under s 23A;

(b)      the person was eligible to sit that test (worked out in accordance with that determination);

(c)      the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period) worked out in accordance with that determination;

(d)      the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.

 

Permanent or enduring physical or mental incapacity

 

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

(a)      is aged 18 or over at the time the person made the application; and

(b)      is a permanent resident:

(i)      at the time the person made the application; and

(ii)      at the time of the Minister’s decision on the application; and

(c)      satisfies the general residence requirement (see s 22) or the special residence requirement (see ss 22A or 22B), or satisfies the defence service requirement (see s 23), at the time the person made the application; and

(d)      has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person:

(i)      is not capable of understanding the nature of the application at that time; or

(ii)      is not capable of demonstrating a basic knowledge of the English language at that time; or

(iii)      is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; and

(e)      is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

(f)      is of good character at the time of the Minister’s decision on the application.

 

Person aged 60 or over or has hearing, speech or sight impairment

 

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

(a)      is:

(i)      aged 60 or over at the time the person made the application; or

(ii)      aged 18 or over at the time the person made the application and is suffering from a permanent loss or substantial impairment of hearing, speech or sight at that time; and

(b)      is a permanent resident:

(i)      at the time the person made the application; and

(ii)      at the time of the Minister’s decision on the application; and

(c)      understands the nature of the application at the time the person made the application; and

(d)      satisfies the general residence requirement (see s 22) or the special residence requirement (see ss 22A or 22B), or satisfies the defence service requirement (see s 23), at the time the person made the application; and

(e)      is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

(f)      is of good character at the time of the Minister’s decision on the application. 

 

Person aged under 18

 

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

(a)      is aged under 18 at the time the person made the application; and

(b)      is a permanent resident:

(i)      at the time the person made the application; and

(ii)      at the time of the Minister’s decision on the application .

 

Here is what the Citizenship Instructions say about this:

 

The discretion in s24(2) to refuse to approve an applicant becoming an Australian citizen despite being eligible under s21(5) would usually be exercised where the applicant does not meet the policy guidelines. In making a decision whether to refuse or approve an application, the primary considerations that need to be taken into account are the legislative requirements, the best interests of the child and the policy guidelines set out below.

5.12.2      Best interests of the child

The best interests of the child are to be considered as one of the primary considerations when assessing the application. This consideration only applies if the child is or would be less than 18 years of age at the time of decision on the application and the child is living in Australia.  . See Chapter 18 – Best interests of the child.

5.12.3      Prohibitions on approval

Decision makers must also ensure there are no prohibitions on approval – see section 5.27.1 Minister’s decision (s24) – summary.

5.12.4      Information for ICSE

In cases where the child has been adopted by an Australian citizen/s, ensure that the names of the child’s adoptive parents are entered on ICSE and linked to the child.

5.12.5      Applicants under the age of 16

A child aged under 16 can make an individual application in their own right (by applying on a form that contains no other application) or on the same form and at the same time as a responsible parent. This is set out in s46(2A).

In the case of an applicant who does not meet the policy guidelines below, decision makers must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.

Guidance on whether it may be reasonable to consider a particular set of circumstances as unusual can be obtained through the Citizenship Helpdesk.  Under policy, if an applicant is under 16 years of age a responsible parent must sign the application form.

 

Children under 16 applying individually in their own right

 

Children under 16 applying individually in their own right would usually not be approved under s24 unless they are permanent residents at the time of application and decision and also meet the following policy guidelines:

 

are under 16 when applying and living with a responsible parent, who is an Australian citizen and who consents to the application or

 

are usually resident in Australia with a permanent resident responsible parent who consents to the application, and that responsible parent would meet the residence requirement but has decided not to apply for Australian citizenship because they would lose the citizenship of another country or

 

are under 16 when applying, living with a responsible parent, who is not an Australian citizen and consents to the application, and the child would otherwise suffer significant hardship or disadvantage (see section 5.17 Ministerial discretion – significant hardship or disadvantage (s22(6)) or

are an unaccompanied humanitarian minor who falls under the Minister’s guardianship and a delegated guardian has consented to the application, see section 5.12.7 IGOC minors (previously wards Wards of the Minister) or

are an unaccompanied humanitarian minor who does not fall under the minister’s guardianship and the their responsible carer has consented to the application, see section 5.12.8 Non-IGOC minors (previously unaccompanied humanitarian minor (UHM) non-ward)s.

Other requirements which must be satisfied relating to identity, national security, offences and former citizens are set out in section 5.27.1 Minister’s decision (s24) – summary.

 

A person born overseas to Australian permanent resident does not become an Australian citizen by descent. First step in such cases is for the child to become a permanent resident by obtaining the onshore Subclass 802 – Child visa or the offshore subclass 101 child visa. Once the child has that visa the child can apply for citizenship.

 

Obviously there is some advantage to having a children born in Australia.

 

Section 21 – Person born to former Australian citizen

 

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

(a)      the person was born outside Australia; and

(b)      a parent of the person was not an Australian citizen at the time of the person’s birth; and

(c)      the parent had ceased to be an Australian citizen under section 17 of the old Act (about dual citizenship) before that time; and

(d)      if the person is aged 18 or over at the time the person made the application — the person is of good character at the time of the Minister’s decision on the application.

 

Person born in Papua

 

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

(a)      the person was born in Papua before 16 September 1975; and

(b)      a parent of the person was born in Australia (within the meaning of this Act at the time the person made the application); and

(c)      the parent was an Australian citizen at the time of the person’s birth; and

(d)      the person is of good character at the time of the Minister’s decision on the application.

Barbara Davidson