Citizenship by Evidence - Do you meet the Ordinary Resident requirement?
Under s 12 of the Citizenship Act allows children born to temporary visa holders (or even unlawful non-citizens) in Australia to be granted Australian citizenship born in Australia if they have been ordinarily residing in Australia throughout a period of 10 years.
What is the definition of Ordinary Resident for Australian Citizenship?
Ordinary Resident is defined in the Citizenship Act 2007, as a person is taken to be ordinarily resident in a country if and only if:
(a) he or she has his or her home in that country; or
(b) that country is the country of his or her permanent abode even if he or she is temporarily absent from that country.
However, the person is taken not to be so resident if he or she resides in that country for a special or temporary purpose only.
Citizenship Policy further elaborates that when assessing whether a person is or was ordinarily resident in Australia, the delegate is encouraged to include the following consideration:
the length of physical residence in Australia
whether the applicant considered that their home was in Australia
the nature and extent of any periods of absence from Australia
whether the applicant retained a right to re-enter Australia during the period of absence and
the nature and extent of ties with Australia such as presence of family, attendance at school, club memberships.
Generally speaking, temporary absence from Australia would not prima facie render a person to cease to be an ordinary resident in Australia. However, if the delegate finds that Australia has ceased to the person’s permanent place of residence, the person would no longer meets the definition of ordinary resident.
Correct Understanding of an Ordinary Resident for Australian Citizenship Caselaw
In the cases of Lee v Minister for Immigration and Citizenship [2011] FCA1458 and Kim v Minister for Immigration and Citizenship [2016] FCA959 where the Foster J and Gleeson J commented on the correct understanding of an ‘ordinary resident’ and how should the above policy considerations be understood:
The concept of ordinarily resident in a country is different from ‘being present’ in that country. It allows for some absences, depending upon the nature and extent of those absences - Lee at [57] and Kim at [135].
Particularly, Gleeson J commented,
13 months is a significant absence from Australia, I do not consider that duration to have caused the applicant to cease to have his home in Australia when the reason for the absence was, in substance, to enable his parents to attend to the care of his brother and grandmother
A temporary change to living arrangements in order to attend to the care of other family members is not the kind of matter that would ordinarily indicate that a person has moved or given up their home, particularly when it is accompanied by an intention to resume their previous arrangements’ - Kim at [137].
And if ‘the purpose of travelling to [location of home country] was a special purpose, and not a purpose of taking up residency in [location of home country] or a purpose of leaving Australia permanently’ – Kim at [123]
This is great news for children who are born in Australia as this is not definite bar to any overseas travel in their first 10 years of life, if they need to leave Australia to accompany family members overseas, or some other compelling reasons.
How Can We Help You
If your Australian born children have departed Australia multiple times and had stayed overseas for a period of time, they may still be eligible to be granted an Australian citizenship.
Our Immigration Lawyers are well trained to handle highly complex matters so book one of our lawyers to seek professional advice now by calling (02)-7200 2700 or email us to book in a time at info@ahclawyers.com.
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