Can an adopted child apply for Citizenship by Descent?

Citizenship by descent may applied for if you were born outside Australia and one or both of your parents at the time of your birth, was also an Australian citizen.

Citizenship by conferral is a common way to become an Australian citizen. You need to be a permanent resident and meet certain criteria before you can apply.

Many people, who were born overseas to non-Australian citizens, and are adopted by Australian Citizens at birth, are not sure whether they can apply for Australian citizenship.

It has been established by law that the non-biological child of an Australian citizen is eligible for the grant of Australian citizenship by descent in certain circumstances.

The Federal Court of Australia – Full Court in H v Minister for Immigration and Citizenship [2010] FCAFC 119 (15 September 2010) heard the appeal of a decision made by the Administrative Appeals Tribunal which upheld the decision of the Department not to grant citizenship, based on the Australian Citizen parent not being a biological parent of the Applicant.

The Applicant applied to the Tribunal for the review of a decision to refuse his application for Australian citizenship by descent, on the ground that he has no genetic link to an Australian citizen parent. The issue for the Tribunal was whether the Applicants Australian citizen parent must be a biological parent.

The Tribunal member in their conclusion made the point that the word ‘parent’, in their view, means biological parent and upheld the decision of the Department and declared that the Applicant is not eligible for Australian citizenship because his adopted parent is not his biological parent and that the applicant did not have a biological parent who was an Australian citizen at the time of his birth.

Therefore, the fundamental question to be explored by the Federal Court of Australia – Full Court was: “Does “a parent of a person’ in s 16(2) of the Citizenship Act mean only a natural or biological parent of the person?”

The court concluded that being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological.

The further concluded that “perhaps in the typical case, almost all the relevant considerations, whether biological, legal, or social, will point to the same persons as being the “parents” of a person. Typically, parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own”.

Lastly they could discern no relevant justification for holding, as the Tribunal did, that a person can only be a “parent” within the meaning of s 16(2) where it can be established that he or she has a relevant genetic link to the applicant.

This establishes that “a parent of a person’ based on s 16(2) of the Citizenship Act does not mean only a natural or biological parent of the person. Therefore, an adopted child can apply for Citizenship by descent if the child’s adoptive parent was an Australia citizen at the time of the child’s birth.

The Full Federal Court in H v Minister for Immigration and Citizenship [2010] FCAFC 119 extended the definition of ‘parent’ for the purposes of the Act beyond a strict biological connection to make citizenship available to children of non-biological parents who are Australian citizens.

However, to succeed in such an application evidence must be provided showing that the child had been treated as the child of the Australian citizen since birth and we refer to a decision in the Administrative appeals Tribunal dated 24 June 2020 – WVZN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1920 (24 June 2020).

It is important to be able to establish and demonstrate a non-biological parent-child relationship with the Applicant at the time of the Applicant’s birth which includes:

  • the parent-child relationship between the Australian citizen and the Applicant must have existed at the Applicant’s time of birth;
  • a requirement for evidence of the length and nature of the relationship between the Australian citizen and the child, or between the claimed parents to corroborate evidence of the relationship between the Australian citizen parent and the child;
  • that it is unlikely that any one piece of non-biological evidence would be sufficient to prove the required parent-child relationship to the necessary threshold.

Evidence that the claimed parent-child relationship existed at the time of the Applicant’s birth may include, but is not limited to:

  • anything 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
  • 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.

Note: Evidence that the Australian citizen treated the child as their own from some point in time after birth would not by itself be evidence that they were the child’s parent at the time of birth, but would lend weight to evidence of the types already mentioned.

If you would like to discuss your Citizenship eligibility please feel free to contact us or call us on 0468838899.