An Update on New Zealanders

 
 

An under recognised area of migration law practice are New Zealanders both from a visa and citizenship point of view.

Regarding citizenship, broadly speaking, New Zealanders present in Australia prior to 27 February 2001 are deemed permanent residents for the purpose of Australian citizenship and can take up citizenship without having to hold a permanent resident visa. In law we call this ‘grandfathering’.

Those New Zealanders who arrived for the first time in Australia after 26 February 2001 will have to hold a permanent residence visa before being able to take out citizenship.

This all comes from s 5 of the Australian Citizenship Act 2007 which reads:

5  Permanent resident

(1)              For the purposes of this Act, a person is a permanent resident at a particular time if and only if:

         (a)              the person is present in Australia at that time and holds a permanent visa at that time; or

         (b)              both:

                  (i)              the person is not present in Australia at that time and holds a permanent visa at that time; and

                 (ii)              the person has previously been present in Australia and held a permanent visa immediately before last leaving Australia; or

         (c)              the person is covered by a determination in force under subsection (2) at that time.

(2)              The Minister may, by legislative instrument, determine that:

         (a)              persons who hold a special category visa or a special purpose visa; or

         (b)              persons who have held a special category visa; or

         (c)              persons who are present in Norfolk Island or the Territory of Cocos (Keeling) Islands;

and who satisfy specified requirements are, or are during a specified period, persons to whom this subsection applies.

Permanent resident under the old Act

(3)              If, under this Act, it is necessary to work out if a person was a permanent resident at a time before the commencement day, work that out under the Australian Citizenship Act 1948 as in force at that time.

The determination under s 5(2) is found in the Legislative Instrument Immi 07/037 dated 27 June 2007 which stated :

A New Zealand citizen who:

  • was in Australia on 26 February 2001 as the holder of a special category visa; or
  • was outside Australia on 26 February 2001 but was in Australia as the holder of a special category visa for a period of, or periods that total, not less than 1 year in the 2 years immediately before that date; or
  • has a certificate, issued under the Social Security Act 1991, that states that the citizen was, for the purposes of that Act, residing in Australia on a particular date, regardless of the date certified or when the certificate is issued; or

 

So the 3 categories are, simply being present in Australia on 26 February 2001 or having been in Australia for one year in two up to that date or having made an irrevocable commitment to move to Australia prior to 26 February 2001.

What this means is that a New Zealander fitting into one of those 3 categories is considered a permanent resident and all the time spent physically present in Australia counts for the purpose of meeting the residence requirements. Even if the person left Australia for a substantial period of time then any actual period in Australia counts as permanent residency even if that presence in Australia may be in the years up to the date of an application for citizenship made now.  There is a lottery element to all of this, a New Zealander lucky enough to have been in Australia on a backpacking holiday on 26 February 2001 is a permanent resident for citizenship purposes even if he or she returned to Australia years and years later.

There are also special concessions for air crew which is not considered here.

However certain New Zealanders who were present in Australia prior to September 1994 were generally considered an “exempt non-citizen” on arrival, their passports were stamped accordingly and they were allowed to remain in Australia indefinitely.  Their “exempt non-citizen” status was considered the equivalent of a permanent resident.

There are cases of New Zealanders who were in Australia prior to September 1994 but then went home and then came back to Australia after 26 February 2001. They were past permanent residents and these people could, even today apply for a Resident Return Visa, all of which is discussed in the Resident Return Visa section of this paper.

Barbara DavidsonAn Update on New Zealanders