Is Every Child Born in Australia a Non-Alien?
TABLE OF CONTENTS
An Update on New Zealanders
Fighting for or being in the service ISIS can lead to a loss of Australian Citizenship
A revamped Australian Citizenship Act in 2007
Australian Citizenship by Descent
The Residency Requirement
Activities that are of benefit to Australia
Spouses and Interdependent Relationships
Security & Character
Re-acquiring Australian Citizenship
Is Every Child Born in Australia a Non-Alien?
Other Requirements for Australian Citizenship
Pledge May Be Delayed
Citizenship May Be Revoked In Special Circumstances
Appeal to the AAT
Passport Not Re-issued
Some Temporary Residence May Count For Permanent Residence For Citizenship
Rejection of Australian Citizenship on Character Grounds
Wrong Answers To Hide Criminal Conduct
No Deportation & No Citizenship
Fraud Convictions Not A Barrier To Citizenship
Absorbed person visa cancellation win in the AAT
Resident Return Visas
Student caught by Immigration ‘error’ on citizenship
In Singh v Cwth of Aust  HCA 43 (9.9.04) the High Court was concerned with a child born in Australia of parents who were illegal entrants. Gleeson CJ described the issues like this:
The proceedings challenge the validity of s 198 of the Migration Act 1958, which provides for the removal of unlawful non-citizens (defined, in effect, to mean non-citizens who do not have permission to be or remain in Australia), in its application to the plaintiff. The plaintiff is a non-citizen. She has no visa. Her parents, who are both citizens of India, entered Australia without visas in 1997. The plaintiff was born in Australia in 1998. She is a citizen of India, by descent. The Cwth contends that s 198, in its application to the plaintiff, is a valid law made pursuant to the power conferred upon Parliament by s 51(xix) of the Constitution, that is, the power to make laws with respect to “naturalization and aliens”. The plaintiff’s case is that, notwithstanding her Indian citizenship, and her lack of Australian citizenship, by virtue of the fact that she was born (albeit to non-citizens) in Australia, she is not an alien, and it is beyond the legislative competence of the Parliament to treat her as such.
But in a 5/2 result the High Court found that the child was an alien and therefore liable to removal from Australia.
McHugh J in the minority concluded:
- None of the aliens power, the immigration power, the external affairs power or any other power enables the Parliament to deport from this country a person who was born here and who remains a member of the Australian community.
Gummow, Hayne & Heydon JJ however concluded:
- Rather, the meaning of “aliens” was conveniently described in the joint reasons of six members of the Court in Nolan v MIEA where it was said that “alien” “[u]sed as a descriptive word to describe a person’s lack of relationship with a country … means, as a matter of ordinary language, ‘nothing more than a citizen or subject of a foreign state'”. It was common ground that the plaintiff is a citizen of India. She is, therefore, a citizen of a foreign state. She is a person within the naturalization and aliens power.
Callinan J in the minority concluded:
- I return to the defendants’ principal submission that the constitutional meaning of “alien” includes persons who are born in Australia of non-Australian citizens. I would reject it, in summary, for these reasons. It does not matter that the plaintiff is not a citizen within the meaning of the Citizenship Act. The conclusion that I have reached accords with the view that prevailed at the Federal Convention in 1898. It gives rise to a clear and certain rule. That rule has existed for hundreds of years. It is consistent with the assumptions implicit in s 44 of the Constitution. It is a true reflection of the legal concept of alienage at the time of Federation. It is not inconsistent with any majority holdings of this Court. It falls squarely within the language of Gibbs CJ in Pochi v Macphee, and McHugh J in Re Patterson; Ex p Taylor. Because status is involved the Court should not give “alien” any extended meaning. To classify the plaintiff as an alien would be to give the word an extended meaning. No “evolutionary process” or supposed change in the language of the Constitution could, or does require a different outcome. To the extent, if any, that, absent citizenship as conferred or recognized by the Citizenship Act, a person born in Australia as this plaintiff was, is precluded by s 23C of that Act from asserting Australian nationality, the section would be invalid in its operation in relation to her.
Adoption & abandoned children
- 13 Citizenship by adoption
A person is an Australian citizen if the person is:
(a) adopted under a law in force in a State or Territory; and
(b) adopted by a person who is an Australian citizen at the time of the adoption or by 2 persons jointly at least one of whom is an Australian citizen at that time; and
(c) present in Australia as a permanent resident at that time.
Mere adoption by an Australian citizen of a child when the child is overseas at time of adoption does not lead to the automatic grant of the visa as the criteria for the subclass 102 Adoption visa shows.
But if the child was adopted overseas then the child may be able to obtain Australian citizenship while overseas under s. 19C which states:
(2) A person (the applicant) is eligible to become an Australian citizen if:
(a) the applicant is adopted in a Convention country by:
(i) a person (the adopter) who is an Australian citizen at time of the adoption; or
(ii) 2 persons jointly, only one of whom (the adopter) is an Australian citizen at the time of the adoption; or
(iii) 2 persons jointly, both of whom (the adopters) are Australian citizens at the time of the adoption; and
(b) an adoption compliance certificate issued in that country is in force for the adoption; and
I under the Intercountry Adoption regulations, the adoption is recognised and effective for the laws of the Commonwealth and each State and Territory; and
(d) the legal relationship between the applicant and the individuals who were, immediately before the adoption, the applicant’s parents has been terminated; and
(e) if subparagraph (a)(i) or (ii) applies and the adopter is an Australian citizen under Subdivision A or this Subdivision at the time of the adoption—the adopter satisfies subsection (3); and
(f) if subparagraph (a)(iii) applies and each adopter is an Australian citizen under Subdivision A or this Subdivision at the time of the adoption—either or both of the adopters satisfy subsection (3); and
(g) if the applicant is aged 18 or over at the time the applicant made the application—the Minister is satisfied that the applicant is of good character at the time of the Minister’s decision on the application.
(3) An adopter satisfies this subsection if the adopter has been present in Australia (except as an unlawful non‑citizen) for a total period of at least 2 years at any time before the applicant made the application.
- In this section:
adoption compliance certificate has the same meaning as in the Intercountry Adoption regulations.
Convention country has the same meaning as in the Intercountry Adoption regulations.
Intercountry Adoption regulations means the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998.
Abandoned children may have citizenship status:
- 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.
Here are some other provisions about children:
- 7 Children born on ships or aircraft or after death of parent
Persons born on ships or aircraft
(1) For the purposes of this Act:
(a) a person born on a ship or aircraft registered in Australia or a foreign country is taken to have been born at the place at which the ship or aircraft is registered; and
(b) a person born on a ship or aircraft not registered in Australia or a foreign country and belonging to the government of a country is taken to have been born in that country.
Persons born after death of parent
(2) For the purposes of this Act, the status of a parent of a person at the time of the person’s birth is, for a parent who died before the birth, taken to be the status of the parent when the parent died.
- 8 Children born as a result of artificial conception procedures
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to a man; and
(b) the procedure was carried out with the man’s consent; and
(c) the child is not biologically the child of the man;
then, for the purposes of this Act, the child is taken to be a child of the man and of no other man.
(2) Subsection (1) applies in relation to a purported marriage that is void as if:
(a) the purported marriage were a marriage; and
(b) the parties to the purported marriage were husband and wife;
unless, at the time of the carrying out of the artificial conception procedure, neither party to the purported marriage believed on reasonable grounds that the purported marriage was valid.