PR cancellation & citizenship cancellation – can the Department cancel or revoke a child born in Australia to a PR (permanent resident) parent the child’s Australian citizenship if the parent’s PR is cancelled?
In the case of Shaheen (Migration) [2020] AATA 2568, the child’s mother, Shaheen, first came to Australia on a student visa. She later applied and was granted a Subclass 475 visa but never worked for her sponsor. She and her family later applied for and were granted a permanent visa, Subclass 187, in 2016. In 2017, their son was born in Australia and by virtue of s. 12(1)(a) of the Australian Citizenship Act 2007 was an Australian citizen because his parents were permanent residents at the time of his birth.
In late 2016 the Department received information (a dob-in) alleging that Shaheen’s sponsorship for the Subclass 475 and Subclass 187 were not genuine as she was involved in a paying for visa sponsorship scheme. Both sponsors when contacted by the Department confirmed that they have never sponsored Shaheen for any visa. Shaheen later admitted that she has never worked for either sponsor. In 2018 the Department cancelled her permanent visa under s. 116(1AB) for giving of incorrect information. Shaheen then applied to the AAT to review the cancellation.
At the Tribunal hearing, Shaheen claimed that both jobs were secured through a paid recruitment consultant. She admitted that she never commenced working for her Subclass 457 sponsor because she claimed they told her that there was no job for her after her visa was granted.
Shaheen told the Tribunal that the same recruitment consultant helped her find a sponsor for her Subclass 187 visa. She also confirmed that she did not work for this sponsor after her permanent visa was granted because they asked her to pay $30,000 or they will give her trouble.
As s. 116 cancellation is a discretionary cancellation, the Tribunal advised that if it decided that the ground of cancellation exists it must proceed to consider whether her permanent visa should be cancelled. And there are no matters specified in the Migration Act or the Migration Regulations that must be considered in exercising the s. 116 discretion. In short, they can put to the Tribunal anything they like the Member to consider in not cancelling their permanent visa.
She claimed that s. 116(1AB) does not apply to her because the incorrect information (fake docs) were provided by the recruitment consultant without her knowledge, therefore she did not provide any incorrect information in support of her sponsor’s nomination application. However, the Tribunal said that s. 116(1AB) applies to any incorrect information given which informs that grant of the visa and can relate to incorrect information provided in a linked and related nomination application. In Shaheen’s case, it was information given as part of the related Subclass 187 nomination, the approval of which informed the grant of the visa to her. The Tribunal finds the incorrect information was given by her recruitment consultant on her behalf to the Department. The incorrect information have been taken into account when granting her the Subclass 187 visa.
The Tribunal then consider whether her PR cancellation would cause her son’s Australian citizenship cancellation. Shaheen argued that her son is an Australian citizen, therefore he has a right to be able to live in Australia and enjoy all the benefits available to all Australian citizens. She also claimed that her other children who were not born in Australia but have lived most of their lives here should also enjoy the same benefits as it would be in their best interests (in accordance with CRC).
Can the Dept cancel a child’s citizenship if parent’s PR is cancelled?
The Tribunal consider whether her son’s citizenship could be cancelled or revoked under s. 34 of the Citizenship Act 2007 if there are circumstances involving offences or fraud. However, the Tribunal concluded that s. 34 does not apply to the son because he automatically acquired Australian citizenship at birth under s. 12 as Shaheen (and her husband) was a permanent resident.
If the Tribunal affirmed the Department’s decision to cancel their permanent visa, their subclass 187 visas will cease to be in effect from the date of cancellation onwards (s. 82(1) of the Migration Act). The cancellation does not have retrospective effect, causing the visa to have legally never been in effect. Hence, Shaheen and her husband were in fact permanent resident as at the time of their son’s birth for the purposes of s. 12(1)(a) of the Citizenship Act.
Shaheen’s son is extremely fortunate that he retains his citizenship even though at the time of his birth his parents permanent residency was only in effect because of incorrect information and migration fraud.
To learn whether long-term permanent residents can be deported, please click here.
Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to understand the consequences of your PR cancellation & citizenship cancellation or click here to learn about other s. 116 visa cancellation or click here on how to prevent visa cancellation.
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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.
