Australian Immigration Daily News

Can a child who is born in Australia to parents who are not Australian citizens or permanent residents acquire Australian citizenship if there are insurmountable practical difficulties in the way of securing citizenship in the parents’ home country? 

The Administrative Appeals Tribunal was called upon to consider this issue in the recently-decided case of KKRG and Minister for Immigration and Border Protection (Citizenship) AATA 635 (27 August 2015).

As RMAs may be aware, there is a clearly-defined pathway under the Australian Citizenship Act2007 for a child whose parents are not themselves Australian citizens to obtain Australian citizenship her/himself.

Section 12(a) of the Act provides that a person is an Australian citizen by birth if they meet two conditions:  they must be born in Australia, and one of their parents must be an Australian citizen or permanent resident.  An alternative pathway is described under section 12(b): Australian citizenship can be secured by a person who is born in Australia even if neither of the person’s parents is an Australian citizen or permanent resident, so long as they are themselves “ordinarily resident” in Australia throughout the 10 year period beginning from the day they are born.

The situation is more complicated though if neither of the child’s parents is a citizen or a permanent resident, and the child has not yet reached the age of 10. That was the circumstance in KKRG.  The child-applicant in the case was only 18 months old. His parents were both from Cuba, but were apparently in Australia only under some form of temporary visa.

There was a potential pathway available to the child under section 21(8) of the Act.  This section provides that a person is eligible for Australian citizenship if they are born in Australia and the Minister is satisfied that they are not entitled to acquire the citizenship or nationality of a foreign country.  As the “chapeau” (heading) of section 21(8) indicates, the purpose of this provision is to enable a child who is born in Australia but who cannot acquire the citizenship in another country from becoming “stateless”.

The problem in the case of KKRG was that there were huge obstacles to his getting Cuban citizenship. Both his parents had left Cuba under “Permits to Travel Abroad” under Cuban migration law. They had each stayed outside of Cuba for periods of time that resulted in their being automatically declared to be “emigrants”. The consequence of this status was that each parent could stay in Cuba only for 90 days.

As the Tribunal member who presided over the case, Deputy President Frost observed, the circumstances left the child in a Catch-22 situation. Under Cuban law, he could only obtain Cuban citizenship by going back to Cuba and living there for an uninterrupted period of 90 days. Even then, Cuban law specified that “associated legal procedures” would have to be completed after the 90 day period of residency was finished. So the “Catch-22” for this child was that in order to obtain Cuban citizenship, he would have had to go back to Cuba for more than 90 days, even though his parents were themselves entitled to return to Cuba for only 90 days. 

Notwithstanding the fact that the child was trapped in a Catch-22 that was obviously not of his own making, the Minister/Department was nonetheless “not satisfied” that he was “not entitled” (as a result of the circumstances) to acquire Cuban citizenship. Consequently, the Minister/Department refused the child’s application for Australian citizenship. The appeal to the AAT then followed.

Deputy President Frost set aside the Minister/Department’s decision and substituted a decision granting Australian citizenship to the child. In doing so, the Deputy President relied on the following language from a previous decision of the AAT, Re AP and Minister for Immigration and Border Protection (2014) AATA 706:

“If the circumstances affirmatively showed that an applicant had no prospect of satisfying the application requirements of the relevant foreign country, it is difficult to accept the proposition that a decision maker could honestly and reasonably fail to be satisfied that the person was “not entitled to acquire” citizenship of that country.”

In the particular circumstances of KKRG, the Deputy President concluded that there were barriers that made it impossible for the child to obtain Cuban citizenship.  These included the fact he would have to return to Cuba and remain there for 90 days before he could even apply for Cuban citizenship (something which, as an 18 month old child, he obviously could not do on his own); that it was unclear that the child could get travel documents from the Cuban authorities allowing him to leave Cuba again; and that his parents, who would necessarily have to accompany him back to Cuba and look after him while he was there would not, due to their status as “emigrants”, be able to work in Cuba and would thus have to live on their savings.

Deputy President Frost thus determined that the steps that would have to be taken were:”so onerous that they negate his underlying eligibility for Cuban citizenship….The applicant is not entitled to acquire the citizenship of Cuba because the barriers placed in his path by the Cuban government effectively prevent him from doing so.”

This was obviously quite an unusual case, and it was fortunate for the child-applicant that section 21(8) had been included in the Australian Citizenship Act to enable him to have a pathway to citizenship and to avoid the unhappy outcome of being a “stateless” person.  And it is indeed also fortunate that Deputy President Frost appreciated the true difficulties of the child’s situation, perceived the Catch-22, and was prepared to arrive at a result that was both supported by legal precedent and was compassionate. 

Was it really necessary for this case to have to be appealed to the AAT, or should the Minister/Department taken a different approach and simply granted citizenship to the child in the first instance? What’s your opinion?

Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837