# Australian Citizenship for baby



## AJGALL (Feb 7, 2010)

Hi guys have a question that I have heard conflicting answers for.

My wife and I have been living in canberra for 2 years, about 6 months ago we both applied jointly for a PR Visa which is part way through being processed. We also had a baby on the way which was born about 2 months ago. Now this being the case the question is, because we had applied for the PR visa well before the birth does this make the baby eligible for Citizenship automatically as it would if it was already granted or does this part not come into effect until the PR Visa has been stamped and signed off etc.

Cheers for the help.


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## amaslam (Sep 25, 2008)

If your baby is born before you have a PR then that baby gets a PR and not AU Citizenship. If the baby is born after you are granted PR then the baby is an AU Citizen at birth.

Also if you continue to live in AU and the child reaches 10 yrs of age then the child is granted AU Citizenship.

See the details at Australian Citizenship - Becoming an Australian Citizen

and 
http://www.citizenship.gov.au/current/



AJGALL said:


> Hi guys have a question that I have heard conflicting answers for.
> 
> My wife and I have been living in canberra for 2 years, about 6 months ago we both applied jointly for a PR Visa which is part way through being processed. We also had a baby on the way which was born about 2 months ago. Now this being the case the question is, because we had applied for the PR visa well before the birth does this make the baby eligible for Citizenship automatically as it would if it was already granted or does this part not come into effect until the PR Visa has been stamped and signed off etc.
> 
> Cheers for the help.


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## Dolly (Feb 17, 2008)

Amaslam,

Does it make a difference that the poster is a NZ citizen? (I'm presuming this as they are originally from NZ).

Dolly


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## amaslam (Sep 25, 2008)

No, I think it did about years ago as NZ Citizens had almost the same equality as AU Citizens, but not anymore. 



Dolly said:


> Amaslam,
> 
> Does it make a difference that the poster is a NZ citizen? (I'm presuming this as they are originally from NZ).
> 
> Dolly


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## AJGALL (Feb 7, 2010)

That being the case we may have a problem. Again suggestions would be appreciated.

Apparently I am a NZ Citizen only be descent meaning I cannot apply for my child as a NZ Citizen. My wife is an American Citizen but cannot apply for him which we have checked. And as you have pointed out he is not eligible for an Australian Citizenship. We plan on flying him out to meet relatives overseas in a few months and yet can't seem to be able to get him a passport?

Surely he cant be a citizen of no country until we get our PR visa granted and then after citizenship granted for him, thus making it impossible for him to leave the country for at least a year??


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## amaslam (Sep 25, 2008)

I think I missed something, where was your baby born?

He/She must be a Citizen of a country (extremely rare to be stateless at birth).

Can you fill in the background of the Citizenships you and your wife currently hold, also where were you both born and where was baby born.



AJGALL said:


> That being the case we may have a problem. Again suggestions would be appreciated.
> 
> Apparently I am a NZ Citizen only be descent meaning I cannot apply for my child as a NZ Citizen. My wife is an American Citizen but cannot apply for him which we have checked. And as you have pointed out he is not eligible for an Australian Citizenship. We plan on flying him out to meet relatives overseas in a few months and yet can't seem to be able to get him a passport?
> 
> Surely he cant be a citizen of no country until we get our PR visa granted and then after citizenship granted for him, thus making it impossible for him to leave the country for at least a year??


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## AJGALL (Feb 7, 2010)

amaslam said:


> I think I missed something, where was your baby born?
> 
> He/She must be a Citizen of a country (extremely rare to be stateless at birth).
> 
> Can you fill in the background of the Citizenships you and your wife currently hold, also where were you both born and where was baby born.


Sorry for that I'll try and clarify a bit.

Myself: Born in Australia but moved out to NZ at 5 and was registered as a NZ Citizen by descent (therefore cannot sponser my son to become a NZ citizen). Because I was living out of Australia when the laws changed in 2001 I am not eligible to become an australian citizen which I did check with Immigration. (so cannot sponser him as an australian citizen). So I have been in Aus for the last 2 years on a NZ 444? Visa.

Wife: Is an American Citizen, but has not lived there since she was 5 but is still registered as an American Citizen. But we have also checked and since she has not lived there in a long time she is also not eligible to make him an American Citizen. She has also been in Aus for the last 2 years under various visas the latest of which is a bridging visa between her old one and the PR visa.

Baby: Born in Australia 2 months ago while we were waiting for a PR visa to be granted. But as you noted above since our visa had not been granted yet he is not an australian citizen by default.

Not simple I know!

Cheers for any help


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## Dolly (Feb 17, 2008)

Clearly I'm as in the dark about this as you, but surely the country in which a child is born will be their citizenship. So won't your child be an Australian citizen irrelevant of your visa status?

(a terribly confused) Dolly

PS I've read what the Citizenship website says (as noted by Amaslam) but the child will need a passport of some sort - what would it say for Place of Birth..... "in DIAC limbo"?


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## AJGALL (Feb 7, 2010)

Dolly said:


> Clearly I'm as in the dark about this as you, but surely the country in which a child is born will be their citizenship. So won't your child be an Australian citizen irrelevant of your visa status?
> 
> (a terribly confused) Dolly


I wish it was that simple! But apparently not in Australia, since we are only on a bridging visa for PR status and it has not actually been granted yet.


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## amaslam (Sep 25, 2008)

A complicated case for sure, have you called Immi and asked if your baby is Stateless and are you sure your baby cannot become an NZ Citizen by descent?

I just looked at the NZ Citizenship by descent and it simply says a father or mother who is NZ Citizen (that is you).

http://www.dia.govt.nz/Pubforms.nsf/URL/ApplicationforRegistrationofNZCitizenshipbyDescent.pdf/$file/ApplicationforRegistrationofNZCitizenshipbyDescent.pdf

***
So if that is OK, register your baby as NZ Citizen by descent, then you get an NZ passport for baby, after that you can add baby to your PR application.

Once your PR is fully processed (and hopefully a yes) your baby gets AU PR at the same time as you.

On your baby's 10th birthday he gets AU Citizenship if he has spent most of his life in AU. 



AJGALL said:


> Sorry for that I'll try and clarify a bit.
> 
> Myself: Born in Australia but moved out to NZ at 5 and was registered as a NZ Citizen by descent (therefore cannot sponser my son to become a NZ citizen). Because I was living out of Australia when the laws changed in 2001 I am not eligible to become an australian citizen which I did check with Immigration. (so cannot sponser him as an australian citizen). So I have been in Aus for the last 2 years on a NZ 444? Visa.
> 
> ...


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## amaslam (Sep 25, 2008)

I was looking over the various rules of Citizenship (for some reason this topic fascinates me).

If your child would be rendered stateless then I think both AU and NZ Citizenship legislation have provisions to grant citizenship to the child, perhaps it is time to contact a solicitor about this. 

I would contact DIAC and DIA NZ and discuss this specific case and ask what if the child is stateless. 

Here's what I understand from the info so far:

1. You can't get baby NZ Citizenship by descent as you also have Citizenship by descent, so DIA NZ doc says any other way you got Citizenship is fine, but you can't transmit if your own citizenship is also by descent.
2. Your wife can't transmit US Citizenship as one of the rules of that is your wife has lived in the US for 5 yrs or more after age 14 (she hasn't).
3. DIAC hasn't granted AU Citizenship to the child as neither you nor your wife are AU Citizens or AU PRs.
4. DIAC has confirmed that you (the father) cannot resume AU Citizenship (you could if your parent lost AU Citizenship before 2002).









Dolly said:


> Clearly I'm as in the dark about this as you, but surely the country in which a child is born will be their citizenship. So won't your child be an Australian citizen irrelevant of your visa status?
> 
> (a terribly confused) Dolly
> 
> PS I've read what the Citizenship website says (as noted by Amaslam) but the child will need a passport of some sort - what would it say for Place of Birth..... "in DIAC limbo"?


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## Dolly (Feb 17, 2008)

For some reason it's completely fascinated me too!

Good idea to contact DIAC.

Dolly


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## AJGALL (Feb 7, 2010)

amaslam said:


> I was looking over the various rules of Citizenship (for some reason this topic fascinates me).
> 
> If your child would be rendered stateless then I think both AU and NZ Citizenship legislation have provisions to grant citizenship to the child, perhaps it is time to contact a solicitor about this.
> 
> ...


As far as I understand it thats pretty much it summed up in those 3 points.

Can't say it was a situation I thought I would find my baby in.


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## AJGALL (Feb 7, 2010)

Ok just to throw a spanner in the works, my wife who lived in France for 10 years informs me that she has french citizenship but didnt think he was eligible for various reasons, but now apparently he may be so that could be the solution.

Although it has the same problems as the other countries, it seems like French citizenship is eligible to be granted to a child of a french citizen parent no matter what country they are born in. Not sure whether this is really the case but it may be a way out.

Only problem is ive found it hard to get details on what exactly is required for french citizenship


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## amaslam (Sep 25, 2008)

Unfortunately I don't read French, but I do know they allow dual nationality. So it's certainly worth a try.

Start at this link, the docs are in French but your wife should be able to read them.

Consular services - La France en Australie

From this English language link:
http://www.consulfrance-newyork.org/spip.php?article345
Attribution of French Nationality


- Through parentage (right of blood):
The child (legitimate or natural) is French if at least one parent is French.

In the case of an adoption, the child has French nationality only under the “full adoption” regime.

Nationality through parentage must be established while the child is still a minor (under 18). 

***
Also try posting and searching in the Expatforum France forum.

Let us know how you get on with DIAC and NZ as your case is very unique (I doubt I'd ever encounter it again).



AJGALL said:


> Ok just to throw a spanner in the works, my wife who lived in France for 10 years informs me that she has french citizenship but didnt think he was eligible for various reasons, but now apparently he may be so that could be the solution.
> 
> Although it has the same problems as the other countries, it seems like French citizenship is eligible to be granted to a child of a french citizen parent no matter what country they are born in. Not sure whether this is really the case but it may be a way out.
> 
> Only problem is ive found it hard to get details on what exactly is required for french citizenship


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## anj1976 (Apr 24, 2008)

nothing has got me so confused as your case here.. 

PS. u are the first person i know here who is in canberra.. sort out your problem and we will chat about the place (we have ACT sponsorship, waiting for the visa since forever)

cheers
anj


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## amaslam (Sep 25, 2008)

Try NZ again, got this from the NZ Nationality Law page at Wikipedia:
New Zealand nationality law - Wikipedia, the free encyclopedia

New Zealand citizens by descent cannot generally pass on New Zealand citizenship to a child born outside New Zealand, unless:

* the child would otherwise have no other nationality; or
* the child is brought to live in New Zealand and subsequently granted New Zealand citizenship


Virtually the same thing found in AU Nationality law also:
Australian nationality law - Wikipedia, the free encyclopedia

From 20 August 1986 a person born in Australia acquired Australian citizenship by birth only if at least one parent was an Australian citizen or permanent resident.

A child born in Australia (and who is not otherwise an Australian citizen) and who lives in Australia automatically acquires Australian citizenship on his or her 10th birthday, if the child has not been granted or otherwise acquired Australian citizenship in the meantime. This occurs automatically by operation of law, and applies irrespective of the immigration status of the child or his/her parents.

Children born in Australia who are stateless and not entitled to any other country's citizenship may in some circumstances be registered as Australian citizens.


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## Jowill (Feb 28, 2010)

Did you say you were born in Australia? 
I'm wondering whether you may already be an Australian citizen by birth. Most people born in Australia prior to 1986 were citizens by birth (unless they were children of diplomats or some other rare exclusions) and those born after 1986 are likely to be citizens by birth also, if either parent was an Australian citizen, Australian permanent resident or NZ citizen (prior to 2001). 

Unless you somehow lost your Australian citizenship by acquiring another citizenship or renouncing it? Since you are a NZ citizen by descent - getting NZ citizenship shouldn't've caused you to lose your Australian citizenship by birth.

(It's probably not relevant for you now, but as a NZ citizen you can take in family members under a special visa for the family of NZ citizens - that would mean your child and wife would not need to apply for specific work visas etc. But i guess you would all have Australian PR visas now).


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## amaslam (Sep 25, 2008)

Hi Jowill:

AJ looked into that, this is from an earlier posting:
_Myself: Born in Australia but moved out to NZ at 5 and was registered as a NZ Citizen by descent (therefore cannot sponser my son to become a NZ citizen). Because I was living out of Australia when the laws changed in 2001 I am not eligible to become an australian citizen which I did check with Immigration. (so cannot sponser him as an australian citizen). So I have been in Aus for the last 2 years on a NZ 444? Visa.
_


Jowill said:


> Did you say you were born in Australia?
> I'm wondering whether you may already be an Australian citizen by birth. Most people born in Australia prior to 1986 were citizens by birth (unless they were children of diplomats or some other rare exclusions) and those born after 1986 are likely to be citizens by birth also, if either parent was an Australian citizen, Australian permanent resident or NZ citizen (prior to 2001).
> 
> Unless you somehow lost your Australian citizenship by acquiring another citizenship or renouncing it? Since you are a NZ citizen by descent - getting NZ citizenship shouldn't've caused you to lose your Australian citizenship by birth.
> ...


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## Jowill (Feb 28, 2010)

amaslam said:


> Hi Jowill:
> 
> AJ looked into that, this is from an earlier posting:
> _Myself: Born in Australia but moved out to NZ at 5 and was registered as a NZ Citizen by descent (therefore cannot sponser my son to become a NZ citizen). Because I was living out of Australia when the laws changed in 2001 I am not eligible to become an australian citizen which I did check with Immigration. (so cannot sponser him as an australian citizen). So I have been in Aus for the last 2 years on a NZ 444? Visa.
> _


Yes I saw that - but i must've read it differently. 

AJ said that he checked with immigration and that he wasn't eligible for citizenship because of changes in 2001. The changes in 2001 only applied to NZ citizens living in Australia and who wants to apply for citizenship - so if he was in Australia in Feb 01, he would automatically have been considered a permanent resident for citizenship purposes (and he could apply for citizenship directly, instead of having to apply for a PR visa first). It sounds to me that he checked whether he could become an Australian citizen from his status as a NZ citizen living in Australia.

But i'm not sure whether he checked with immigration to see whether he was already a citizen *by birth*. This would've depended on when he was born - nothing to do with whether he was in Aus in 2001.

Anyone born before 1986 in Australia were citizens by birth, regardless of the citizenship or residency status of his/her parents. Unless his/her parents were diplomats or certain other exclusions.

After that, he would've been a citizen by birth if either of his parents were an Australian citizen or Australian permanent resident. Since he's a NZ citizen by descent, I'd assume either one of his parents were NZ citizens. 

NZ citizens were NOT considered permanent residents for this purpose between 1986 to 1994. NZ citizens WERE considered permanent residents for this purpose between 1994 to 2001. (After Feb 2001, NZ citizens are NOT considered permanent residents).

So in summary - he should've been an Australian citizen by birth if he was born in Australia - before 1986, or between 1994 to 2001, unless his parents were diplomats or had some special status in Australia.

The other possibility I thought of was if he had lost his Aus citizenship later on - by acquiring another citizenship or by formally renouncing it. Since his NZ citizenship was by descent, that shouldn't have been considered acquiring a new citizenship. Even if that caused him to lose his Aus citizenship (by birth), there are provisions for him to resume his Aus citizenship (these came into effect in 2007). 

Maybe AJ was born between 1986-1994 and unluckily missed out. Otherwise DIMA would've been quite careless not to have realised he was an Aus citizen already when they gave him a PR visa.


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## kiliki (May 19, 2011)

*American, Kiwi, Aussie kids*

Hi there my partner and I almost have the same situation. I am american and I have talked to a lawyer friend of my in the states and unless there are extenuating circumstances for your wife if she was born in the US it doesn't matter how many years she has spent outside of the US she is still a US citizen and her children can become US citizens through her. As long as she has a birth certificate. A social security card, and passport would help out even more. Then she can apply to immigrate to Aus for PR as US citizens. 

My partner is a NZ citizen and is in Aussie under NZ 444 special category and the girls stay under his visa NZ 444. 

I am here under the NZ relationship 476, 5 year visa which you can have even if we split up.

My girls born here in Aussie are NZ citizens by descent and US citizens. Nothing else, if they live in Aus for 10 years they automatically become Aus citizens. If they move to NZ and live for 5 years they can apply for citizenship in NZ.

All is the same for us it should apply for you. Your baby can live here under the dad since he is NZ444 with a NZ passport, baby should be able to get descent as well. Baby should definately get US citizenship through mum. The forms on the web are really straight forward if she has a passport and birth certificate and dad has his make an appointment in Perth and put the papers through for US birth abroad and apply for SS card and for a passport my girls do.

Hope this helps some.











AJGALL said:


> Sorry for that I'll try and clarify a bit.
> 
> Myself: Born in Australia but moved out to NZ at 5 and was registered as a NZ Citizen by descent (therefore cannot sponser my son to become a NZ citizen). Because I was living out of Australia when the laws changed in 2001 I am not eligible to become an australian citizen which I did check with Immigration. (so cannot sponser him as an australian citizen). So I have been in Aus for the last 2 years on a NZ 444? Visa.
> 
> ...


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