Immigration Issues Impacting Upon Children
On 1 July 2007, the Australian Citizenship Act 1948 was replaced by the Australian Citizenship Act 2007 (the Act). According to the new Legislation and its rules and regulations, Australian citizenship can be acquired either by:
- birth in Australia; or
- by descent where children are born outside Australia of Australian parents; or
- by grant.
According to section 12 of the Act, children born in Australia acquire Australian citizenship by birth only if:
- the parent of the children has Australian citizenship, or is a permanent resident at the time the children was born; or
- the children were ordinarily resident in Australia throughout the period of 10 years beginning on the day the children were born.
Children born in Australia do not become Australian citizens if at the time of birth both parents were not Australian citizens or permanent residents of Australia. This prevents children of illegal immigrants from becoming an Australian citizen only by the fact of being born in Australia. However, if such children live in Australia for a period of 10 years from the date of birth, and make an Application for Australian citizenship, they acquire citizenship. The Migration Act 1958 and the Migration Regulations 1994 support this provision.
A child who is a permanent resident of Australia under section 13 of the Act and is legally adopted in Australia under a law in force in a state or territory of Australia by an Australian citizen or by two persons, at least one of whom is an Australian citizen, shall automatically become an Australian citizen.
Though legislations relating to surrogacy differ from one state to another, however all the states follow one common principle to the extent that any payment made to a surrogate mother apart from the reasonable expenses is illegal.
Children who are born outside Australia to a Australian parent do not automatically acquire Australian nationality. An Application to become an Australian citizen has to be made and the Minister for Immigration and Citizenship (Minister) may approve or refuse the Application.
Section 15A of the Act outlines persons eligible to become an Australian citizen through descent. The eligibility criteria to become an Australian citizen under Citizenship by Descent in 2 situations are as follows:
- if a person was born outside Australia on or after 26 January 1949 and a parent of that person was an Australian citizen at the time of his birth; or
- if a person was born outside Australia or New Guinea before 26 January 1949 and a parent of that person was an Australian citizen on 26 January 1949.
According to section 16 of the Act, children who are born outside Australia needs to be registered with Australian authorities by any one or both parents who are holding Australian citizenship in order for the children to acquire Australian citizenship.
Following are the eligibility criteria for persons born outside Australia to become an Australian citizen on or after 26 January 1949:
- if a parent of the person was an Australian citizen at the time of the birth;
- if the parent was an Australian citizen under the Subdivision or Subdivision AA, or section 10B, 10C or 11 of the Australian Citizenship Act 1948 about citizenship by descent at the time of the birth:
- (i) the parent has been present in Australia, excepting as an unlawful non-citizen, for a total period of at least 2 years at any time before the person made the application; or
- (ii) the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and
- if the person is or has ever been a national or a citizen of any country, or if article 1(2) (iii) of the Stateless Persons Convention applies to the person, and the person is of 18 years of age or above at the time the person made the application.
Following are the eligibility criteria for persons born outside Australia or New Guinea before 26 January 1949:
- if a parent of the person became an Australian citizen on 26 January 1949;
- if the parent was born in Australia or New Guinea or was naturalised in Australia before the person’s birth; and
- if the person is or has ever been a national or a citizen of any country, or if article 1(2) (iii) of the Stateless Persons Convention applies to the person.
The Authorities can refuse the application on grounds relating to unsatisfactory identity, national security concerns and cessation of citizenship. An applicant also has the right under section 52 of the Act to have the Commonwealth Administrative Appeals Tribunal review the Minister’s decision.
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