Australian Citizenship

Generally, there is no change in the old Act. A child is an Australian citizen by birth if, at the time of birth, at least one of the responsible parents was an Australian citizen or permanent resident.

Hence a child born to parents who are the diplomatic or consular representatives in Australia of a foreign country would not be an Australian citizen by birth.

In the case of Minister for Immigration v Petrovski [1997] FCA 154,12 Mr, Marjan Petrovski was born in Australia in 1969 while his father was the Yugoslav Consul-General in Australia. Under s.10(2) of the Australian Citizenship Act 1948, he would not have been an Australian citizen by birth as his father was the consular representative in Australia of a foreign country. Nevertheless, Mr Petrovski returned to Yugoslavia in 1971 and subsequently applied for an Australian passport at the Australian Embassy in Belgrade by producing his Australian birth certificate.

The Embassy believed he was an Australian citizen and granted him an Australian passport, with which he travelled to Australia for some years without encountering any problems. However, when he married a Thai national and tried to sponsor her to Australia in 1992, his non-citizen status came to light and he was declared an illegal entrant.

Mr Petrovski appealed to the AAT initially without success but succeeded on appeal at the Federal Court. The Minister appealed this decision to the Full Federal Court. In a unanimous decision, the Full Federal Court had expressed sympathy for Mr Petrovski’s situation but held that he had never been an Australian citizen, and even though he had entered Australia lawfully (as his Australian passport was legitimately issued by the Australian government), his status had changed to that of “illegal entrant” when his non-citizen status was uncovered.

If an Australian passport was obtained fraudulently, it can be cancelled. Besides, Australian passports can also be refused or cancelled under ss.12 to 14 of the Australian Passports Act 2005 where an Australian citizen may be prevented from travelling because of character or security concern.

Persons born in Australia between 20 August 1986 and 1 September 1994 to NZ citizen parent(s) were not Australian citizens by birth. 

Persons born in Australia between 1 September 1994 and 26 February 2001 to NZ citizen parent(s) were Australian citizens by birth (as all NZ citizens in Australia were then ‘eligible NZ citizens’)

Persons born in Australia after 26 February 2001 to NZ citizen parent(s) are Australians by birth only if one or both of the parents was an ‘eligible NZ citizen’ or Australian permanent resident (NZ citizens who arrived in Australia after 26 February 2001 are not ‘eligible NZ citizens’, and only acquire Australian permanent resident status by applying for it and being granted a permanent visa)

A child born in Australia on or after 21 August 1986 but whose parents were not Australian citizens or permanent residents will automatically acquire Australian citizenship on the child’s tenth birthday if the child has been ordinarily resident in Australia continuously for 10 years from the date of the child’s birth.

A child born to an enemy alien in an enemy-occupied territory shall not be an Australian citizen unless the child’s other responsible parent is an Australian citizen and not an enemy alien.

A child who is a permanent resident acquires Australian citizenship automatically upon the child’s formal adoption in Australia by an Australian citizen following the laws of a State or Territory.

Note however this provision only applies in respect of a child who was already an Australian permanent resident at the time of the adoption. An Australian adoptive parent can't adopt a child from overseas or where the child was in Australia but only on a temporary visa, and use this provision to claim Australian citizenship for the child.

If a child is found abandoned in Australia, the child shall be an Australian citizen until such time as the contrary is proven.

A person may acquire Australian citizenship if a Territory becomes part of Australia, and the person is within a class of persons specified in a determination.

Persons who are born outside Australia to an Australian citizen parent may apply to the Minister for Australian citizenship by descent.

PERSONS BORN OUTSIDE AUSTRALIA OR NEW GUINEA BEFORE 26 JANUARY 1949 

• is eligible to apply for Australian citizenship if one of the parents was born in Australia or New Guinea or was naturalized as a British subject before the child’s birth, and the parent acquired Australian citizenship on 26 January 1949, and
• the person seeking Australian citizenship must be of good character

PERSONS BORN IN PAPUA BEFORE 16 SEPTEMBER 1975 (PNG INDEPENDENCE DAY) 

• is eligible to apply for Australian citizenship of one of the parents was born in Australia and was an Australian citizen at the time of the person’s birth, and
• the person is of good character.

PERSONS BORN OUTSIDE AUSTRALIA ON OR AFTER 26 JANUARY 1949 

• is eligible to apply for Australian citizenship if one of the parents was an Australian citizen at the time of the person’s birth, and
• if the parent of the child was also an Australian citizen by descent, then
• that parent must have resided in Australia lawfully for at least 2 years in total before the application, or
• the person has never been the national or citizen of any country and is not the national or citizen of any country at the time of the application, and
• the person seeking Australian citizenship, if over 18 years of age, must be of good character

A person may apply to the Minister for conferral of Australian citizenship (called ‘citizenship by grant’ under the old Act) provided the person meets several requirements, that the person

• is over 18,
• is a permanent resident of Australia,
• understands the nature of the application,
• satisfies the residence requirement or relevant defense service,
• has a basic knowledge of English,
• has adequate knowledge of the privileges and responsibilities of Australian citizenship,
• is likely to reside or continue to reside, or maintain close and continuing association with Australia, and
• is of good character.

However, citizenship cannot be conferred when the applicant is outside Australia.

RESIDENCE REQUIREMENTS

The normal residence requirement for an application for Australian citizenship under the Australian Citizenship Act 2007 is 4 years ‘lawful residence’ in Australia, the 4 years of residence can include periods of lawful temporary residence (e.g. as a student or on a temporary residence visa), as long as the person is a permanent resident for the last 12 months before the application. Also, a person is allowed to be absent from Australia for up to 12 months within the 4 year period, although the maximum period away cannot exceed 3 months in the 12 months immediately before the application for citizenship.

• have lawfully resided in Australia for at least the last 4 years
• not have been outside Australia for more than a total of 1 year in the last 4 years (and no more than 90 days during the last 12 months)
• be likely to reside in, or maintain a close and continuing connection with, Australia
• if aged 18 years or older, be of good character