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Topic #3326 (no title)

Thats a little bit confusing maksut, I know you understand what you are asking because you have all the information but it is a little confusing to others.

I am assuming you are not a citizen or permanent resident and you may wish to relocate to your country of origin at a later date.

Your daughter who was born in this country to a mother who is a permanent resident but not but not a citizen. This would assume that your child is an Australian citizen ??? Who at this point does not appear on a passport.

Where does everyone want to relocate too ???  
Maksut said
  • I have a daughter who is neither Australian and nor permanent resident of Australia.
  • My wife is a permanent resident in Australia.
  • I am a temporary resident.
  • Currently we are in Australia.
  • My daughter was born in Australia but did not get Australian Citizenship.
  • The father intends to leave Australia eventually.
  • The child and the father have the same citizenships.
  • The mother has a different citizenship.
The mother now wants to relocate in Australia with my daughter and we are seperated. In terms of immigration, my daughter and I are not permanent resident, but I am working here under temporary work visa. Which one is more valid argument.

1. The mother wants to relocate as both father and the child are not permanent resident of Australia.

2. The father wants to relocate as all of the members of family currently in Australia regardless of immigration status.

This information is from the Australian Human Rights Commission home page

http://www.humanrights...submissions/darville.html





Nationality in Australia is governed by the Citizenship Act 1948 (Cwth). The Migration legislation is also important, as it governs the status of the child's parents. It therefore illustrates the practical circumstances of the child, as what happens to the child's parents will be a large factor in the child's effective nationality.

1. The Citizenship Act 1948

Under section 10, anyone born in Australia after the 20th of August 1986 [9], shall only become an Australian citizen if one of their parents was an Australian citizen or permanent resident, or after being 'ordinarily resident' in Australia for 10 years.

Another avenue for a child born in Australia to non-citizen parents is section 23D. Where a person was born in Australia, has never been citizen of any country and has never been entitled to acquire the citizenship of another country the Minister must grant citizenship to that person. [10] However this is limited by subsection 1A which deems a person who has had "reasonable prospects of acquiring citizenship" of another country if he/she were to apply as being entitled to acquire that citizenship (under (s23D(1)). [11]

Lastly, subject to conditions, [12] the minister has a discretion to grant citizenship to a person under the age of 18 years. [13]

2. The Migration Act 1958, the Migration (1993) Regulations

Under section 10, a child born in Australia to unlawful non-citizens, is taken to have entered Australia at birth. [14] The child is taken to be an unlawful non-citizen from birth. [15] Under section 78, if one or both of the child's parents holds a visa, the child is taken to have been granted the same kind and class of visa at birth. [16]

If the child stays in Australia for 10 years, he/she will be an Australian citizen and may apply to sponsor his/her parents under Australia's 'family stream' of migration. [17] Although priority is given to other family categories [18] (e.g. dependent children, spouses) parents are eligible to be considered. Parent applications are processed with highest priority to parents whose only child is in Australia, then those with a majority of children and so on. [19]

Apart from staying in Australia and satisfying the citizenship test, the child may apply for a protection visa on the ground that Australia has protection obligations under the Convention Relating to the Status of Refugees [20] (hereinafter: Refugee Convention). Even if the parents are unsuccessful, an application may be submitted in the child's name. It would often be the case that if it were safe for the parents to return, it would also be safe for the child. This is not always the case though, as in Chen Shi Hai v Minister for Immigration and Multicultural Affairs. [21] There a child born while his parents were in detention brought his own claim for a protection visa. The reason for the child's persecution was that he was a 'black child', born in contravention of China's one child policy. If returned to China, the child would be subject to serious disadvantage regarding education, food and health care. [22] The court held that this could amount to persecution by reason of his status as a 'black child'.[23] The child was entitled to refugee status despite the fact that his parents had earlier been denied this status. [24]


Even if this avenue were successful, the child would be left in Australia alone once his/her parents had been deported. While there is provision for a child to receive his/her parents' visa, [25] there is no 'reverse' provision granting the parents' the same visa if the child's application is successful


Maksut, reading the above, I assume that your wife was not a permanent resident at the time of your childs birth.
Be careful how you proceed and make sure you look carefully at all the reasons your X may be able to use to stay in Australia.
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