Immigration Lawyers and Migration Agents

Your Australian Visa Our Focus

Australian citizenship can be acquired through various circumstances related to birth. In this blog, we'll explore the three types of citizenship by birth.

Child Born in Australia with at Least One Parent Holding Australian Citizenship

If a child is born in Australia with at least one parent holding Australian citizenship, the child automatically becomes an Australian citizen.

Child Born Outside Australia with at Least One Parent Holding Australian Citizenship

Children born outside Australia with at least one parent holding Australian citizenship them they can apply for Australian citizenship through their parents.

Child Born in Australia – Ordinarily Resident and the 10-Year Rule

If a child is born in Australia and has two parents with neither of whom are Australian Citizens or Permanent Residents, and the child has been ordinarily resident in Australia throughout the first 10 years from your birth Australia as its primary residence up until the age of 10, the Child automatically becomes an Australian Citizen.

Recent case and flexibility by the Australian government

Recent legal developments, such as the case of Minister for Immigration, Citizenship and Multicultural Affairs v Sidhu by his litigation representative Kaur [2023] FCAFC 133, have brought about flexibility by the Full Federal court in interpreting the term "ordinarily resident."

This broader interpretation of ordinarily resident was more generous on how much time the child could be outside of Australia and still get Australian citizenship. In Sidhu, the child’s parents lived and worked in Australia while the child for some years lived with the grandparents in India. The child was still able to become an Australian Citizen on its 10th birthday.

Understanding the pathways to Australian citizenship by birth is crucial for individuals and families. Recent legal developments highlight the importance of flexibility in interpreting residency requirements, providing opportunities for those whose circumstances involve periods of living outside. If you need any assistance, please book an appointment. We are happy to help you.

If you're a Permanent Resident of Australia, congratulations!  You've already come so far and done so well.  But you're looking to take things one step further, you might consider becoming an Australian Citizen.  Citizens have the privilege of voting rights, financial assistance for education, government jobs, and protection from deportation.  It's definitely worth pursuing!  So how do you become a citizen of Australia?

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On 17 September 2020 (Australian Citizenship Day), the Australian Government announced that Australian citizenship test will be updated and revised. This is the first time change in more than one decade, adding questions that focus on Australian values. After 15 November 2020, the candidates will take the updated citizenship test with new changes.  

WHAT ARE THE CHANGES

The focus of the changes is to add questions of Australian values ​​to the test. Applicants are required to have a deeper understanding and recognition of Australian values, and understand the importance of democracy and the rule of law before making a final commitment to Australia. The changes will be officially implemented on November 15, 2020.

These changes have no impact on applicants' English language and residence requirements.

The revised citizenship test will comprise of 20 multiple choice questions with 5 questions on Australian values. Applicants who take the test on and after 15 November 2020 must correctly answer 5 questions regarding "Australian Values".

HOW TO PASS THE TEST

To help prevent the spread of the COVID-19 pandemic, the Australian government has used the powers under the Biosecurity Act 2015 to prevent most travel out of Australia.

Travel Ban

The Government has banned Australian citizens and permanent residents from leaving Australia.
This is to prevent Australians from participating in the global spread of COVID-19 and to prevent them from
becoming infected overseas and returning to Australia with the virus (as Australian citizens and permanent residents are not affected by the incoming travel restrictions).
This is an important measure to help facilitate Australia’s plan to reduce the number of cases of COVID-19.

In many cases, this is a second layer of restriction, as many countries have restricted their incoming travel in a similar way to Australia.Australians looking to travel abroad at the moment may find it difficult to enter other countries, even where an outgoing travel exemption has been approved (see below).

Who is allowed to travel?

• Residents of other countries
• Aircraft or vessel crews
• Freight workers
• Essential offshore facility workers
• Travellers on official government business

• Are involved in responding to the COVID-19 pandemic, such as aid workers
• Are critical workers
• Require urgent medical treatment which needs to be carried out outside of Australia
• Have urgent/unavoidable “personal business”
• Have compassionate or humanitarian reasons for doing so
• Have a national interest reason to travel

All of these will need to be determined on a case-by-case basis and it is not necessarily clear who will fall within this and who will not.

If you plan to travel overseas in the next 3 months, travel exemption requests can be made here.

What’s the penalty for travelling without exemption?

The mantra of it being better to “ask for forgiveness than permission” doesn’t apply here.

Other considerations

There are also heavy restrictions on travel into Australia.
The circumstances for which you can be exempted from these inbound restrictions are similarly restrictive to those above for outbound travel. In many circumstances, you will need to apply for an exemption to enter Australia or risk having your visa cancelled at the Australian border.

The circumstances for requesting an exemption include:

• Immediate family of Australian citizens and permanent residents
• Persons invited by the Government to assist with the COVID-19 pandemic
• Those providing critical medical services
• Persons with critical skills examples given are engineers, ship crews and specialised medical professionals
• Certain diplomats
• Where there are humanitarian or compassionate circumstances
• An exemption must be applied for in the border restriction exemption webform, and a positive outcome must be received before travelling.

Do You Need Help?

If you meet the circumstances to request for a travel exemption, contact us for assistance. We have successfully obtained travel exemptions for our clients.

Contact us on +61 8 8351 9956 or email us at This email address is being protected from spambots. You need JavaScript enabled to view it. 

Sources

Love v The Commonwealth; Thoms v Commonwealth [2020] HCA 3 for full judgement please go to: https://www.hcourt.gov.au/cases/case_b43-2018

Who is an Aboriginal Australian? And should Aboriginal Australians be treated differently to other groups in Australia?

The High Court recently considered whether two men who were born outside of Australia and were not Australian citizens, but had spent most of their lives in Australia,

where within the reach of the “aliens power” conferred by s 51(Xix) of the Constitution.

Every year, hundreds of people who apply to renew their Australian passport or apply for citizenship by descent for their overseas-born children are notified by the Department of Home Affairs that they have ceased to be an Australian citizen some years ago. Often, this cessation comes without notice and the notification that they do not hold current Australian citizenship is shocking and can cause significant distress. Prior to 2002, many Australians who obtained the citizenship of another country were not aware that they will also automatically cease to be an Australian citizen.

Automatic Cessation of Australian Citizenship

Prior to 2 April 2002, a person of full age who by some voluntary or formal act other than marriage, did an act or thing to acquire the citizenship of another country ceased to be an Australian citizen under section 17 of the Australian Citizenship Act 1948 (Cth) (‘old Act’). There was no requirement to report the acquisition of another citizenship and the cessation occurred automatically as an operation of law.

Due to the automatic effect of section 17, the Department of Home Affairs does not have comprehensive records of those who lost their Australian citizenship under this provision. As such, errors may have been made when issuing evidence of Australian citizenship, Australian passports or in assessing citizenship applications. This means that you may hold an Australian passport without actually being an Australian citizen!

Full Age

From 26 January 1949 to 30 November 1973, a person aged 21 or over was considered of full age and would have lost their Australian citizenship once they obtain citizenship from another country.

From 1 December 1973, a person aged 18 or over was considered to be of full age.

Location of Citizenship Acquisition

Prior to 22 November 1984, section 17 of the old Act applied to those who acquired another citizenship whilst outside of Australia.

Between 22 November 1984 and 2 April 2002, an adult ceased to be an Australian citizen upon acquiring another citizenship, regardless of whether they were in or out of Australia.

Ex-Citizen Visa

Under section 35 of the Migration Act 1958 (Cth), those who were affected by section 17 automatically acquired an ex-citizen visa which allowed them to lawfully remain in Australia. Once they leave Australia, they could not re-enter without a valid visa.

How you may come to find out of your loss of Australian citizenship under section 17:

• After applying for Australian citizenship by descent for their overseas-born children

• After applying to renew Australian passport

• After applying for proof of Australian citizenship

• Attempting to re-enter Australia after a long period of time living overseas

Repeal of section 17

After much lobbying, especially from the expatriate community, major amendments were made to the old Act in 2002. From 4 April 2002, dual nationality was introduced for Australian citizens, allowing a person to simultaneously hold both Australian citizenship and the citizenship of another country. However the change was not retrospective, meaning those who lost their citizenship under section 17 do not automatically regain their Australian citizenship.

Resuming Australian Citizenship:

Resources

If you were affected by section 17 and wish to regain your Australian citizenship, speak to us today about an application to resume your Australian citizenship.

Call us on (08) 8351 9956 or +61 8 8351 9956 to book an appointment or click on the button below for online booking:

Book an Appointment

Sources:
https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd0102/02bd078

Citizenship Policy and Instructions 27 – Resuming Australian Citizenship issued on 24 May 2019
Migration Act 1958 (Cth) s 35

Key terms: Citizenship – Australia – Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 (the Bill) – High Court citizenship ruling – Dual Citizenship – Australia Citizenship requirements – Australia MPs – Banarby Joyce – Fiona Nash – Malcolm Roberts – Larissa Waters – Scott Ludlam – Nick Xenophon – Matthew Canavan

On 20 April 2017 the Australian Department of Immigration and Border Protection (DIBP) announced that changes are being introduced to the Australian citizenship requirements. The changes include:

- Increased residency requirements (from one year to four)

- Meeting an English requirement

The changes are meant to be in effect once the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 (the Bill) gets passed in Parliament. Unfortunately applications yet to be decided were also put on hold until the Bill can be passed.

Key terms: Australian Citizenship

*This is a developing story. Further details may become available at a later date.*

The Australian Prime Minister and Minister for Immigration have held a joint media conference today and announced new (tougher) criteria for the Australian citizenship application. The changes include:

·         residence of FOUR years as an Australian Permanent Resident  before applying (increase from one year)

·         demonstrate English language ability (potentially IELTS 6 but yet to be confirmed)

·         demonstrate integration and contribution to the Australian community (employment, children in school, etc.)

·         number of test attempts limited to THREE times. If you failed the test three times you will need to wait for another two years before you can take the test again

·         stricter criminal background checks

·         change to questions in the citizenship test to reflect Australian values

1. How to become an Australian Citizenship? What are the criteria for applying for Citizenship by conferral?

The relevant legislation is provided in the Australian Citizenship Act.

Birth -The most common way to become an Australian Citizenship, it to be born in Australia to one or more Australian parents.

Conferral - Outside of birth, another common way is to apply to become an Australian Citizen by conferral. This is when a person is an Australian permanent resident and applies to become a Citizen.

The basic requirements for Citizenship by conferral include:

• The residence requirements
  • Have been an Australian resident for at least 4 years (Absences of 12 months or less are permissible in this period)
  • Have been a permanent resident for at least one year (Cannot be overseas for more than 90 days in last year prior to the application.)

• The applicant must have a genuine intention to live in Australia following becoming an Australian Citizen.

• Be of good character.
  • The character requirements under the Citizenship Act are broader than under the Migration Act. For example, repeated driving offences can lead to a refusal of a Citizenship Application. 

Welcome to 2017! It was a year full of changes for Australia’s migration policies in 2016. Here is our recap of the significant changes to the migration programme for Australia in 2016 and some of the discussions and ongoing developments for 2017.

The Immigration News in 2016 has been dominated by employer scandals and crackdowns by the Department of Immigration and Border Protection (DIBP).

While it may all sound like doom and gloom, the planning levels for permanent visas continue to be significant. 

The numbers of Australian permanent visas that are granted each year are controlled by planning levels. 

I am going to make comments below about news in relation to a wide range of visas including business, skilled, visitor and family visas.