A child born in Australia to temporary visa holders: status, the ten-year rule, and the next step

MARN 1576536

Who is a citizen at birth

A person born in Australia on or after 20 August 1986 is an Australian citizen at birth if, at the time of the birth, at least one parent is an Australian citizen or a permanent resident. Permanent resident means the holder of a permanent visa, and a New Zealand citizen on a special category visa counts only if they are a permanent resident for citizenship purposes. A child born to two temporary visa holders, two bridging visa holders, or two unlawful non-citizens is not a citizen at birth. The parents' intentions, the length of their stay and the child's place of birth do not change that. The child's status is instead decided by the Migration Act, and later, by the ten-year rule.

The visa the child holds

Section 78 of the Migration Act provides that a child born in Australia to a non-citizen parent who holds a visa is taken to have been granted that visa at birth, and where the parents hold different visas, each of them. The child holds the visa on the same terms: the same expiry, the same conditions, the same no-further-stay condition if the parent's visa carries one. The Department does not issue a grant notice for the child; the status exists by law, and it is recorded when the parents notify the birth. A child born to parents who both hold bridging visas holds a bridging visa. A child born to parents who are both unlawful is an unlawful non-citizen from birth, and the family's position is the one in the unlawful guide.

A pending application

Where a parent has an application for another visa pending at the birth, the child is taken to be included in that application as a member of the family unit, and the Department must be told so that the child is added to the file with the birth certificate. The child is then assessed as a secondary applicant, which for a permanent visa means health and, for the parents, the evidence of the relationship. A birth not notified leaves a child off an application that is then granted without them, and the child holds the temporary visa the parent held at the birth, which ends on its own date.

What to do after the birth

• Register the birth with the state or territory registry and obtain the birth certificate; this is the child's primary identity document for everything that follows.
• Obtain a passport for the child from the parents' country, through its embassy or consulate. The child cannot hold an Australian passport and cannot travel without one of their own.
• Notify the Department of the birth in ImmiAccount against any pending application and against the parents' current visas, with the birth certificate, so the child's deemed visa is recorded against a passport.
• Arrange health cover for the child from birth; see below.
• Keep a file. The ten-year rule is proved with records, and the first year's are the easiest to lose.

Medicare and health cover

A child who holds a temporary visa is not eligible for Medicare unless a parent's citizenship of a reciprocal health care agreement country extends to the child, or a parent has a pending permanent application that confers interim eligibility on the family. For everyone else the child needs to be added to the parents' overseas visitor or student health cover, and the policy's rules on adding a newborn, usually within a set number of days of the birth for cover from birth, matter. The birth itself is charged by the hospital to an uninsured temporary visa holder as a full-fee patient, which is why pregnancy cover with its waiting period is arranged early. Medicare for temporary visa holders sets out the eligibility rules.

The ten-year rule

Section 12(1)(b) of the Australian Citizenship Act provides that a person born in Australia who is ordinarily resident in Australia throughout the period of ten years beginning on the day of birth becomes an Australian citizen on their tenth birthday. It is automatic: no application is made for the citizenship itself, and the parents' visa status throughout the ten years is irrelevant, including periods when the family was unlawful, as long as the child was ordinarily resident. The child then applies for evidence of citizenship, and the application is where the ten years are proved. Ordinarily resident means that Australia was the child's home: where they lived, were schooled, received medical care, and returned to after any absence. Holidays and short trips abroad do not break it; a year living overseas usually does, and the question is one of fact decided on the whole period.

Proving ordinary residence

• The birth certificate and the child's passports over the period, with every entry and exit stamp; the Department's own movement records confirm them.
• Immunisation and medical records from birth, childcare and school enrolment and reports for each year.
• The parents' leases, utility accounts and employment records showing the family's address throughout.
• For any absence, the reason, the dates and the return: a family visit, a parent's posting, a medical trip.
• Where the family was unlawful for part of the period, the records of that period are still residence records; the status does not disqualify the child.

When a parent becomes permanent

A child born after a parent is granted a permanent visa is a citizen at birth. A child born before the grant was a secondary applicant on that application if the birth was notified and the child added, and holds the permanent visa with the parent. A child born before the grant who was not added holds the temporary visa the parent held at the birth, and the route is the Child visa, subclass 802, applied for in Australia on the parent's permanent status, or inclusion in a parent's next application. Once the child holds a permanent visa, citizenship by conferral follows on the ordinary residence requirement, with the test not required under 16, or the ten-year rule arrives first. The child visa guide covers the 802.

When the parents' visas end

The child's deemed visa ends when the parent's does. A family whose visas expire with no further application leaves with the child; a family that lodges a further application includes the child; a family that becomes unlawful has an unlawful child, who is treated as part of the family's status resolution rather than separately. The child's birth in Australia is not a ground for the family to stay; the ten-year rule is a reward for ten years of lawful or unlawful residence completed, not an entitlement to complete them. A family part-way through the ten years with no visa route has a hard problem, and it is one for advice before the visa ends, not after.

The traps

• Not notifying the birth against a pending permanent application, so that the parents are granted and the child is not.
• Travelling with the child on a parent's passport entry or no passport at all, and being refused boarding or re-entry.
• Assuming Medicare covers the birth and the child, and receiving a hospital bill in the tens of thousands.
• Letting the child's records lapse through the ten years, so that the citizenship is real but unprovable.
• Treating the child's birth as a reason to stay. It is not one, and an application built on it fails and brings the consequences of a refusal.

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General information only, current at October 2026; not advice on your own case. Section 12 of the Australian Citizenship Act 2007 and section 78 of the Migration Act 1958, as in force at the date above. Outcomes depend on the Department’s assessment of each application; no registered migration agent can guarantee a result (Code of Conduct, Migration Agents Regulations). Keshab Chapagain, MARN 1576536.