Holding an Australian passport doesn`t necessarily mean you are an Australian citizen

I am in the middle of a partner migration case, where it is important that the child of the relationship is deemed an Australian citizen.

This is despite the fact that the Australian child has already been issued with an Australian passport, and already holds an Australian Citizenship by Descent certificate.

The child's father is an Australian citizen and is also the holder of an Australian passport.

The biological mother (visa applicant for partner migration) is Korean.

I received the following email (extract):

Evidence of Australian citizenship

The extract received when your son was registered for citizenship by descent is not a formal evidence of Australian citizenship. If you wish to obtain legal evidence of Australian citizenship, you can apply for evidence on Form 119 Application for evidence of Australian citizenship. The form and details of cost and other requirements are available on our website at;

https://www.border.gov.au/Trav/Citi/Curr/evidence-of-australian-citizenship

I would like to invite you to apply for evidence of Australian citizenship for your son Master FIRST NAME LAST NAME (Date of birth).

A copy of a birth certificate is not evidence of Australian citizenship for our purposes and they will need to make a request for such evidence through our department.

-        Evidence of the father’s Australian citizenship

 -        Any formal child support arrangements, child support etc.

-        Any other material you consider relevant to the case

I have attached the form 119 for your convenience.

Please provide evidence that you have applied for the evidence of Australian citizenship of the child by DATE.  Failure to do so may result in the case being decided with the information on hand.

I then sent this email:

Thank you for the clarification but I remain confused and would be grateful for your further advice.

Is there any dispute that the father of the child (CHILD'S NAME) is an Australian Citizen by birth?

Is there any dispute that the father FATHER'S NAME is not the father ( as commonly understood) of the child CHILD'S NAME?

That “fact”, if it is not in dispute would seem to satisfy  Section 16(2) of the Act which provides as follows:

 (2)  A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:

                     (a)  a parent of the person was an Australian citizen at the time of the birth; and

                     (b)  if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act (about citizenship by descent), at the time of the birth:

                              (i)  the parent has been present in Australia (except as an unlawful non-citizen) for a total period of at least 2 years at any time before the person made the application; or

                             (ii)  the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and

I read section 16(2)(a) as meaning that if FATHER'S NAME was born in Australia and was the father of the applicant CHILD'S NAME at the time of birth then the requirements of section 16 ( 2) are met.

You have referred to Section 19A which provides as follows:
AUSTRALIAN CITIZENSHIP ACT 2007 - SECT 19A

When a person does not become a citizen despite the Minister's approval

                   Despite section 19, a person does not become an Australian citizen under this Subdivision, even if the Minister approves the person becoming an Australian citizen, unless:

                     (a)  if the person was born on or after 26 January 1949--a parent of the person was an Australian citizen at the time of the person's birth; or

                     (b)  if the person was born before 26 January 1949--a parent of the person became an Australian citizen on 26 January 1

My reading of section 19A(a) is that we would meet that requirement by the fact of the father being Australian born and entitled to Australian citizenship and is, at this stage, not a person who it is asserted is not an Australian citizen.

I would be grateful for your clarification and if you are referring to the ACI’s as a guide I would be grateful if you could identify the relevant part upon which you may be relying.

I then received this email:

Please find attached a notice of intent to annotate departmental records to show that THE CHILD is not an Australian citizen by descent.  

And then this email from the Citizenship Operations Team:

Please note that 19A is the Section of the Act under which I am considering whether FIRST NAME had an Australian citizen parent at the time of his birth.

As set out in the letters, I am providing THE FATHER with the opportunity to provide to me evidence that he was CHILD'S NAME's father at the time of his birth.  This information may include, but is not limited to:
*       evidence which would show the Australian citizen's inclusion as a parent on the birth certificate was done with their prior consent;
*       evidence that the Australian citizen was involved in providing care for the unborn child and/or the mother during the pregnancy, for example, emotional, domestic or financial support, making arrangements for the birth and prenatal and postnatal care; and
*       evidence that the child was acknowledged socially from or before birth as the Australian citizen's child, for example, the child was presented within the Australian citizen's family and social groups as being the Australian citizen's child.

You have mentioned DNA evidence in your email of 23 December 2016.  If THE FATHER would like to provide DNA evidence he is welcome to do so.  I have attached the request letter and other information to assist him in this regard.

My client, the father, provided all the documentation and evidence as requested, and also underwent DNA testing.   The DNA testing came back as a 99.9% accurate match to the child.

Result: Today we received the Evidence-of-Australian-Citizenship-letter for the child.

The Question Remains: If the Australian government doesn't believe that someone is actually a citizen of Australia, then why issue them with an Australian passport and a Citizenship by Descent Certificate?


Published on 21 February 2017, at Migration Aliance, by Liana Allan

For questions about Australian Citizenship, or to deal with Citizenship problems please email to yana@becomeaustralian.com