In a historic decision, the High Court recently published its unanimous ruling on indefinite immigration detention. The decision was unanimous, by seven high court judges. The case is NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (28 November 2023).
The High Court ruled that it is unlawful to detain a person indefinitely, in circumstances where there are no real prospects of removing them from Australia. The case involved a stateless individual to whom Australia owed protection, being not a citizen of any country, and with no available country willing to resettle him.
The court examined sections 189(1) and 196(1) of the Migration Act, finding that they exceeded the Commonwealth's power.
The High Court emphasized that the Executive lacks the authority to impose criminal punishment, which falls under the jurisdiction of the Australian courts. Consequently, the court deemed indefinite detention as a form of punishment beyond the government's constitutional power, making it unlawful.
What are the facts of this case?
The applicant is a Rohyingya Muslim who arrived in Australia by boat in 2012 and was granted a bridging visa in 2014. Later found guilty of a sexual offense against a child, he was sentenced to 5 years imprisonment.
During this time, he applied for a Protection visa, and it was found that he is a person Australia owes protection obligations because he has a well-founded fear of persecution. Ultimately the protection visa wasn't granted because of his criminal conviction.
After being released on parole in 2018, he was taken into immigration detention. In April 2023, he appealed to the High Court arguing his continuing detention was not authorised.
On 30 May 2023, both parties in this case agreed to 2 very important facts:
1. The applicant cannot be removed from Australia.
2. There is no real prospect of the applicant being removed from Australia in the reasonably foreseeable future.
The High Court decided that the applicant's detention has been unlawful since 30 May 2023, and ordered his release.
The applicant is a stateless person, to whom Australia owes protection. He is not a citizen of any country, and no country will resettle him.
Why is it unlawful?
According to the Australian Constitution, an unlawful non-citizen can only be kept in immigration detention for a legitimate, non-punitive purpose.
Indefinitely detaining those who cannot be legally removed from Australia, was said to be punitive (i.e. punishment) rather than for a legitimate purpose.
The Executive (government departments and ministers) do not have the power to impose criminal punishment. Instead that power rests with the Australian courts.
The High Court decided that indefinite detention is a form of punishment that goes beyond the government's power and is therefore unlawful.
What now?
The Federal Government reacted very quickly in response to this significant decision. Immigration Minister Andrew Giles quickly introduced a Bill, which passed, which imposes strict conditions on Bridging visas granted to those who have been released. This includes requiring them to always wear a monitoring device, follow a curfew, and report regularly.
As the Federal Government moves to enforce these new laws, legal challenges are anticipated. The High Court is expected to consider and assess the constitutionality of these laws, setting the stage for potential updates and developments in the near future.
We have assisted (and currently assisting) a number of successful Global Talent Visa (GTV) applicants, and we get a lot of enquiries about it. One of the most frequently asked questions related to their income, i.e, they receive a basic salary and gets awarded company shares or bonuses, or they own the business and receive a minimum salary but receive dividends. Would their salary be assessed as equivalent to or higher than Australia’s Fair Work High Income Threshold (FWHIT)?
This issue was, previously, made more confusing when the Global Talent Visa EOI webform states that "Income includes salary, commissions, allowances, bonuses, investment dividends and other sources of personal income. For foreign income, calculate the Australian dollar amount using current exchange rates." This has now been changed.
When submitting an Expression of Interest (EOI) for the Global Talent Visa it is important to address that the applicant meets the salary requirement otherwise the EOI will most likely not be successful.
For those not familiar with the Global Talent Visa (subclass 858), it is a visa designed to attract high-performing, highly skilled and talented individuals working in particularly target sectors of Digitech, FinTech, Agri-food and AgTech, Health Industries, Defence, advanced manufacturing and space, Circular Economy, Resources, Energy, Infrastructure and tourism and Education.
Ministerial Direction 89, give directions in relation to the processing of the Global Talent visa and gives the highest priority to applications submitted in relation to the above-mentioned sectors and where the primary applicant’s current earnings are an amount equal to or greater than the FWHIT or the applicant has received a job offer from and Australian employer with an annual salary equivalent to or higher than the FWHIT or there is evidence that the applicant is likely to attract a salary equal to or higher than FWHIT.
FWHIT is assessed with reference to ‘earnings’ as defined by section 332 of the Fair Work Act 2009 which states:
Today, we are going to provide you with some basic introductions into working in Australia, such as visas, salary, tax, working hours, holidays, how to get a job in Australia, and more.
The information is general and it's not legal advice.
Get a Visa with Work Rights
Ensure you have a valid visa that allows you to work. Note that visitor visas generally do not grant work rights. Many Australian visas do permit you to work with some having restrictions on the number of hours to work. For example, a student visa currently only allows you to work for 48 hours per fortnight in most cases.
To work in Australia, obtaining a Tax File Number (TFN) is crucial. Your TFN is your number for dealings with the Australian Tax Office. Without it, the tax office may withhold your tax at a higher rate, which is approximately 50%.
Full-Time, Part-Time, and Casual jobs
Understand the nuances of full-time, part-time, and casual employment. Each comes with its own set of benefits and conditions.
Full-time employees work 38 hours per week with benefits like paid annual leave and sick leave.
Part-time employees work regular hours but less than full-time, with benefits on a pro-rata basis.
Casual employees have irregular hours, no paid sick days or annual leave, and can be terminated at any time.
The recent round of invitations in December 2023 disappointed many aspiring migrants. Invitations were limited to health professionals and teachers, excluding many with completed skills assessments and English proficiency for the 189 visa. This has raised concerns about the accessibility and fairness of the invitation process.
Looking back at 2023, there were only two invitation rounds for the 189 and family-sponsored 491, all focused on health professions and teachers. This means many of those with skills assessments and English did not receive an invitation for the 189. This seems quite unreasonable and seems to be putting unnecessary pressure on those aspiring to come to Australia and not allowing them to get an invitation.
Invitation Rounds 2023
May
Skilled Independent visa (subclass 189)
7,353
Skilled Work Regional (Provisional) visa (subclass 491) – Family-Sponsored
74
December
Skilled Independent visa (subclass 189)
8,300
Skilled Work Regional (Provisional) visa (subclass 491) – Family-Sponsored
79
State Nominations for the 190 and 491 visas
State and territory nominations offer a broader range of occupations, each with slightly different criteria based on local economic needs. Unfortunately, the Northern Territory has exhausted its nomination allocations, temporarily closing new state allocations. Limited opportunities for points-based visas have prompted increased interest in employer-sponsored applications, particularly the TSS482 and the permanent residency 186 visas. The new Skills in Demand Visa, expected in late 2024, has also generated strong interest.
Labor Market Testing for TSS482
Labour market testing requirements for the TSS482 visa have been eased, reducing the number of advertisements required and eliminating the need for Workforce Australia Advertising. However, a minimum 28-day advertising period in the four months before nomination is now mandatory. Regional employer-sponsored nominations now receive the highest priority for processing under Ministerial Direction Number 105, indicating the government's emphasis on regional visas.
Changes in Priority Processing
Offshore applicants no longer receive priority processing, possibly reflecting the government's focus on reducing pressure on housing in major cities. This shift encourages regional visas and discourages offshore applications from individuals likely to settle in urban areas.
Working Holiday Maker Updates
Starting from January 1, 2024, working holidaymakers may work for the same employer for more than six months without seeking permission under certain circumstances. Exceptions include work in different locations, plant and animal cultivation, specific industries, natural disaster recovery, aged care, healthcare, childcare, and critical sectors like tourism and hospitality.
While some exceptions exist, individuals working beyond six months in non-covered situations must seek permission, with higher chances if tied to an employer-sponsored application. These changes provide flexibility for working holidaymakers but also highlight the importance of understanding the specific conditions and seeking appropriate permissions.
How can Work Visa Lawyers help?
Our team of experienced Immigration Lawyers and Migration Agents look forward to assisting you with your potential application(s).
Based in Adelaide South Australia, we provide Australian Immigration advice to people and businesses from all over the world.
You can book an appointment online or call us at (+61) 8 8351 9956.
The Australian government announced the new Migration Strategy, bringing about significant changes across various visa programs, including student visas, graduate visas, employee-sponsored visas, Business and Investor visas, and Global Talent visas. These are reforms, so not everything is going to be positive for you. We will give you a realistic summary to help you plan your life. The housing crisis has cast a massive shadow and has a lot to do with these cuts.
The government aims to bring migration numbers back to sustainable levels. The forecast for 2023-24 is 375,000, reflecting a reduction of 65,000 compared to the previous year.
Student Visas:
The migration strategy has many suggestions for international students. The changes for students include:
Increased funding for visa integrity
Introducing a Genuine Student Test to replace Genuine temporary entrant (GTE)
Preventing course swapping
Scrutinise lower-quality education providers
Reducing the types of courses eligible for student visas with a focus on retaining tertiary university courses
Increasing minimum English language requirements in early 2024
The test score required for a student visa will increase from IELTS (or equivalent) 5.5 to 6.0.
The test score required for students undertaking an English Language Intensive Course for Overseas Students (ELICOS) before their main course of study will increase from IELTS (or equivalent) 4.5 to 5.0.
The test score required for students undertaking university foundation or pathway programs that deliver reputable English language training will be IELTS (or equivalent) 5.5.
Temporary Graduate Visas:
One of the significant changes in the Migration Strategy that will affect many people is related to the Graduate Visa. The modifications include:
Reducing the age eligibility from 50 to 35 years of age
Reducing the length of stay
Preventing graduates from moving back to student Visas
Increasing the English language proficiency requirements - The test score required for a Temporary Graduate visa will increase from an IELTS score (or equivalent) of 6.0 to 6.5
The extension of post-study work rights will no longer be available. Only applicants who studied in a regional area will be eligible for an extension
Graduate Visa streams will be re-named as ‘Post-higher Education Work’ and ‘Post-Vocational Education Work’ streams to be more descriptive for the relevant applicants
The ‘Replacement Stream’ of the Graduate Visa and the subclass 476 visa will be abolished
The processing times for the ‘Post-Higher Education Work Stream’ will be backed by a 21-day service standard
The work experience requirement for a Temporary Skills Shortage visa will be changed to give Graduate Visa holders more opportunities to move on to a skilled visa and have faster pathways to permanent residency
General Skilled Migration (GSM) Visas and Points System:
There is discussion about a new points system, but no decisions yet.
This is quite frustrating for many students and temporary visa holders currently in the system. We will provide updates when we have any more news about the GSM Visas.
Specialist Skills: This pathway recognises highly skilled migrants are hugely beneficial to Australia’s national productivity, including through their support of critical sovereign capabilities and potential to grow the skills and expertise of the Australian workforce. The Specialist Skills Pathway will be available to applicants who meet the general eligibility criteria (for example, be nominated by an
approved employer, meet the health and character requirements) and who are:
in any occupation except trades workers, machinery operators and drivers, and labourers
earning at least $135,000 (the Specialist Skills Threshold)
Core Skills: Most temporary skilled migrants will come through the Core Skills Pathway, which is designed to bring in the skilled employees Australia needs now and, in the future, to ensure that we can provide ourselves with the goods and services we need to support our way of life. The Core Skills Pathway would be available, for example, Registered Nurses, and will include trades workers, machinery operators, and drivers. The general eligibility criteria are:
Individuals with the occupation on the new Core Skills Occupation List
Individuals with a salary at or above the TSMIT
Essential Skills: A pathway for lower-paid workers with essential skills. The Government is primarily considering the pathway in the context of the care and support economy, which has become essential to the quality of life of Australians.
The distinction between the Core Skills Pathway and Essential Skills Pathway could be defined by occupation and pay. For example, in the care and support economy, Aged and Disabled Carers would have access via the Essential Skills Pathway, but most Registered Nurses or Allied Health Professionals would have access via the Core Skills Pathway. Both pathways, however, will be regulated to ensure that Australia is receiving the skilled workers it needs and that the employees concerned are protected from exploitation.
Employee Mobility:
The ability for temporary workers to move between employers, to remove employer exploitation. If the employment relationship with a sponsor ceases, visa holders will have 180 days to find another sponsor and can work during this period (currently the period is 60 days). Another change is about Trailing employer fees The Government will explore a model for employers to pay trailing charges and fees (e.g. monthly or quarterly) to make hiring a new migrant less onerous.
LMT Reform:
Reform in Labor Market Testing (LMT) requirements for the Temporary Skill Shortage (TSS) 482 visa, reducing the advertising requirements from three to two ads and removing Workforce Australia.
Priority for Regional Areas:
The government will collaborate closely with states and territories to enhance the precision in addressing regional population requirements. They will prioritize visas sponsored by employers in rural and regional Australia to enhance migrant pathways beyond cities.
They will review the regional migration settings and the Working Holiday Maker program to ensure migration supports development objectives in regional Australia and does not contribute to the exploitation of migrant workers.
Global Talent Visa:
The Global Talent program will focus on a select number of migrants in priority sectors who can make significant contributions to Australia.
With the new Specialist Skills Pathway, which will open new and streamlined pathways for highly skilled migrants, the Global Talent visa will be more sharply to a relatively small number of migrants who can make outsized contributions to the country.
Business and Investor Visas:
Potential closure of the Business Owner pathway, while the Significant Investor Visa program may continue with fine-tuning of investment options.
What will happen next?
The impact of these reforms will affect various sectors, including education, tourism, and hospitality. We are expecting reactions from some of these sectors.
The Home Affairs website publishes an Action Plan with a timeline for existing and new commitments. You can have a look at the full Action Plan to have an idea about when the changes will happen and plan your future in Australia.
All these reforms are new, and we are also awaiting more information. We will keep you updated as soon as we have any news. Follow us on our social media channels to stay informed with the latest updates.
How can Work Visa Lawyers help?
Our team of experienced Immigration Lawyers and Migration Agents look forward to assisting you with your potential application(s).
Based in Adelaide South Australia, we provide Australian Immigration advice to people and businesses from all over the world.
Trades Recognition Australia (TRA) is a skills assessment service for people with trade skills gained overseas or in Australia for the purpose of migration.
It offers skills assessment programs based on your occupation, country of passport, where you studied, and the type of visa you are seeking. There are 5 programs:
Provisional Skills Assessment (PSA)
This is for the 485 applicants. PSA must be completed before you can apply for the JRP.
Job Ready Program (JRP)
The JRP is an employment-based skills assessment program. It is for international student graduates with an Australian qualification that has been verified through a Provisional Skills Assessment. Applicants with positive outcomes can apply for a General Skilled Visa (Subclass 189/190/491) or an Employer Nomination Scheme Visa (Subclass 186) Direct Entry Stream.
Step 1: PSA
The applicant needs to complete the relevant course and
Have 360 hours work placement to be eligible.
Step 2: Job Ready Employment (JRE)
The applicant needs to demonstrate their visa which allows them to work full-time in the next 12 months.
From the date of application, the applicant needs to work in the nominated occupation for 12 months. You can change employer, but you need to register every employer that you work with.
You need to complete your logbook and the employer needs to sign it.
Once you completed 863 hours in 6 months, then you need to notify TRA to start Step three.
Step 3: Job Ready Workplace Assessment (JRWA)
You will be contacted by TRA recognized RTO to have an assessment in your workplace.
All the assessment is done in English, no interpreters are allowed.
Step 4: Job Ready Final Assessment (JRFA)
Completed Step three and have more than 12 months employment (not less than 1725 hours).
You will receive an outcome letter which can be used for GSM (491/190) application.
Temporary Skills Shortage (TSS) Skills Assessment
This is for applicants who would like to apply for a TSS Subclass 482 visa.
Step 1: RTO Documentary Evidence Assessment
This is to assess the evidence of your identity, qualifications (if any), skills and employment experience.
Step 2: Technical Interview
You will be required to participate in a technical assessment of your skills and knowledge. This will involve a technical interview of skills and gathering evidence from nominated employers or other referees, which may include documentary, oral, pictorial and/or video evidence.
Airconditioning and Refrigeration Mechanic* [342111]
Electrician (General)* [341111]
Plumber (General)* [334111]
Step 1: RTO Documentary Evidence Assessment
This is to assess the evidence of your identity, qualifications (if any), skills and employment experience.
Step 2: Technical Interview
You will be required to participate in a technical assessment of your skills and knowledge. This will involve a technical interview of skills and gathering evidence from nominated employers or other referees, which may include documentary, oral, pictorial and/or video evidence.
You need to demonstrate your skills in one of the RTO’s venues.
Migration Skills Assessment
This is for applicants who would like to apply for a General Skilled Visa (Subclass 189/190/491) or an Employer Nomination Scheme Visa (Subclass 186)
Common occupations to apply under this program are:
Electronic Equipment Trades Worker
Painting Trades Worker
Wall and Floor Tiler
You need to provide all the required documents directly to TRA through its online portal.
Obtaining a positive skills assessment is an important step in your Australian Visa application. If you are unsure of which authority is relevant for your occupation, or about the skills assessment criteria, we can help. Click here to book an appointment.
Our team of experienced Immigration Lawyers and Migration Agents look forward to assisting you with your skill assessment process and Australian visa application.
We've launched hundreds of partner visas over the years. With numerous aspects to consider, understanding the requirements and nuances of the application process is crucial. We aim to provide a guide, offering valuable insights into the Australian Partner Visa application, covering various aspects from types and stages to documentation, requirements, and common questions.
Currently, there are three types of visas related to partner relationships: the prospective marriage visa or Fiancée Visa, the partner visa offshore, and the partner visa onshore.
Prospective Marriage Visa (Subclass 300): Designed for those planning to marry their prospective spouse in Australia and subsequently apply for an onshore partner visa. The evidence required for a prospective marriage visa is generally less. You need to demonstrate your intention to be in a spouse relationship rather than being in a spouse or partner relationship.
Partner Visa Offshore (Subclass 309 and 100): For individuals in a genuine and ongoing relationship with an Australian citizen, permanent resident, or eligible New Zealand citizen, applying from outside Australia. Applicants applying outside of Australia will need to apply for an offshore partner visa Subclass 309 which goes to subclass 100 for permanent residency.
Partner Visa Onshore (Subclass 820 and 801): For applicants inside Australia, the process involves obtaining a temporary partner visa (Subclass 820) followed by a permanent partner visa (Subclass 801).
Stages of Partner Visa:
If you are in a married or de facto relationship with an Australian citizen, permanent resident, or eligible New Zealand citizen and you are being sponsored by your partner, you might apply for a partner visa. The relationship must be genuine and ongoing.
There are two stages to the partner visa:
Stage 1: is a temporary partner visa.
Stage 2: is a permanent partner visa.
Both temporary and permanent partner visas allow you to work and study in Australia and you are eligible for Medicare.
Documentation and Evidence:
We know that every relationship is different, and the Australian Department of Home Affairs may need different kinds of documents to assess your application. Include evidence relating to the nature of your household, recognition of your relationship by family and friends, and your joint financial commitments to each other.
Married relationship: If you're in a married relationship, you need to provide a legal marriage certificate or registration from in Australia or another country. The marriage document needs to be authentic and legally valid.
De facto relationship: There are two ways to meet the de facto relationship requirements.
Number 1: being in a de facto relationship, which is mutually exclusive, and you've been with your partner for at least 12 months before you apply for the partner visa in or outside of Australia. In most cases, this would mean you've been living with your partner for 12 months.
Number 2: register a relationship in an Australian state or territory. This can allow an application to proceed when the relationship is less than 12 months old.
You need to provide sufficient evidence to demonstrate that a de facto relationship exists between you and your partner. There are some exceptions to the 12-month rule. For example, if there's a child of the relationship.
Same-sex couples:
Same-sex couples can apply for partner visas. They will need to demonstrate their relationship based on a married or de facto relationship.
We’ve been successful with many applications for same-sex couples.
Genuine and Continuing Relationship Criteria:
The Australian Department of Home Affairs has some standard criteria to assess a genuine and continuing relationship. The main four criteria are:
Financial responsibilities: this could include a home loan, joint property, or rental property that is in both parties' names or an active bank account that has both parties' names.
Evidence of a shared household: this could include things like bills and utilities. It could include evidence of living arrangements, and it could include things like shared financial responsibility for food and utilities.
Social commitment: this includes statements from friends and family which attest to you being in a relationship. It can also be shown by photos from social events.
Commitment: this criteria includes considerations of how long the parties have been in a relationship and the future plans that the couple has. Such criteria might be addressed in a statutory declaration to help prove the application.
Providing strong evidence addressing these criteria is vital for a successful application.
How long does the process normally take?
Partner visa processing times can vary, typically ranging from six months to two years. Having strong evidence of your relationship can help with processing times.
Sponsors must be of good character and provide necessary documentation, including police clearances. There are limitations on sponsoring more than one partner within a five-year period.
Main reasons for partner visa refusals:
Lack of supporting evidence of the relationship.
Inconsistencies in the application, and in relation to the telephone interview with the department, if they hold one.
Not meeting schedule three requirements. This is about not having a substantive visa at the time of application.
Misleading social media posts and inconsistencies in those social media posts.
Sponsor problems, for example, failing to update Centrelink that they are in a relationship.
How can you make an application strong?
A successful partner visa application requires meticulous planning. You need to have a genuine and continuing relationship and ensure all the documents are provided as part of the visa application.
How much does a partner visa cost?
The Australian partner visa comes with a significant application fee of $8,850, making it one of the more expensive visa applications.
Obtaining an Australian Partner Visa involves a thorough understanding of the process, careful documentation, and strategic planning. If you have questions or need assistance in applying for a partner visa, our team is here to help. Contact us for personalized guidance throughout your partner visa application.
We’ve been working actively with the Global Talent Visa since it was introduced in November 2019. There have been quite a few changes in relation to the Department of Home Affairs' approach to the Expression of Interest and the Global Talent overall priority. It is no longer the top priority, which has gone to Nurses and Teachers through Direction 100.
The Global Talent Visa is taking longer, but there are still plenty of success stories. It is still a good option for those looking to go straight to Australian PR without needing to do a Skills Assessment, especially for those who are over 45 years old.
I want to give you an update on what’s been happening lately.
Expression of Interest is the toughest of the two stages. The need to demonstrate prominence and achievements in your field and earning capacity of at least the FWHIT currently AUD 167,500 are centrally important.
Some Expressions of Interest still receive priority; for example, we recently got priority for our client whose professional experience is in the area of education.
However, fewer priorities are being given, and overall, you would expect the Expression of Interest stage to take 6 to 12 months.
Welcome to our Australian Immigration News – December 2023! In this blog, we will discuss the conclusion of Covid concessions, alterations in the Temporary Graduate Visa, positive reforms affecting Partner Visas, the opportunity for permanent residency for 482 and 457 visa holders, the replacement of a top bureaucrat, international student news, and the upcoming Government Implementation Plan.
End of the Covid Concessions
The Covid era for Australian Immigration is officially over. The concessions introduced during the pandemic to address travel challenges and support temporary workers in Australia have concluded as of November 25, 2023. Notably, periods of reduced work due to Covid-19 will no longer count towards meeting work experience requirements for new ENS/RSMS TRT stream nomination applications.
Changes in the Temporary Graduate Visa Program
Starting November 25, 2023, all applications for any stream of the Temporary Graduate Visa program must be lodged in Australia.
Positive Reforms for Partner Visas
Exciting reforms have been introduced for Partner Subclasses 309 and 820 visas. Applicants can now receive grants whether they are inside or outside Australia at the time of visa approval. Moreover, Subclass 309 Partner visa applicants can apply for merits review independently, no longer relying solely on the sponsor. This change enhances accessibility for family violence victims.
PR for 482 and 457 Visa Holders
Individuals holding 482 and 457 visas for at least 2 years may be eligible to apply for permanent residency. Those with occupations listed on the Medium or Short-term Skilled Occupation List can apply for the 186 PR Visa, meeting criteria such as Competent English and being under the age of 45, unless specific narrow exemptions apply. Read more here.
Home Affairs Public Servant Replaced – Michael Pezzullo
The governor-general terminated the appointment of Michael Pezzullo, head of the Department of Home Affairs, due to breaches of the Australian Public Service Code of Conduct. The hope is for a more accessible and efficient standalone Department of Immigration.
End of Indefinite Detention
The High Court's decision in NZYQ brings an end to indefinite detention for those unable to return to their original country of passport. Legislation imposing tough conditions on those released is expected to face a high court challenge.
International Student News
Plans are underway to impose caps and potential taxes on international students, likely in response to housing shortages and a rental crisis. As international education is a key industry, there is expected pushback.
Upcoming Government Implementation Plan
Stay tuned for the awaited release of the Government's implementation plan for migration reforms. The Parkinson report hints at significant changes, including point-based visa reforms, Business Visa changes, and the end of Student Visas needing to meet GTE.
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.
