The Residency Requirement

 
 

Here is the residency requirement and it needs to be studied in detail.

 

Prior to 2007, the residence requirement was 2 years presence in Australia in the 5 years before the application as a permanent resident (not dissimilar to resident return visa requirements).  Now it requires 3 years of presence in Australia in the 4 years up to the date of the application with one year holding a permanent residence visa up to the date of citizenship application with 9 months of presence in Australia during that year with no period as an unlawful non-citizen.  As one can see this requires planning.

 

22 General residence requirement 

 

(1)      Subject to this section, for the purposes of s 21 a person satisfies the general residence requirement if:

(a)      the person was present in Australia for the period of 4 years immediately before the day the person made the application; and

(b)      the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and

(c)      the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.

 

Overseas absences

 

(1A)      If:

(a)      the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and

(b)      the total period of the absence or absences was not more than 12 months;

then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.

(1B)      If:

(a)      the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and

(b)      the total period of the absence or absences was not more than 90 days; and

(c)      the person was a permanent resident during each period of absence;

then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.

 

[The writer speculates the permitted absence of 12 months – can that happen at the beginning of the 4 year period? If so a person would become a citizen on 3 straight years of presence in Australia provided one spent the last year as a permanent resident]

 

Confinement in prison or psychiatric institution

 

(1C)      Subject to subsection (5A), the person is taken not to satisfy paragraph (1)(a) if, at any time during the 4 year period mentioned in that paragraph, the person was:

(a)      confined in a prison; or

(b)      confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the person.

 

Partial exemption — person born in Australia or former Australian citizen

 

(2)      Paragraphs (1)(a) and (b) do not apply if the person:

(a)      was born in Australia; or

(b)      was an Australian citizen at any time before the person made the application.

 

Ministerial discretion — administrative error

 

(4A)      For the purposes of paragraph (1)(b), the Minister may treat a period as one in which the person was not present in Australia as an unlawful non-citizen if the Minister considers the person was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period.

(5)      For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if the Minister considers the person was present in Australia during that period but, because of an administrative error, was not a permanent resident during that period.

 

Ministerial discretion — confinement in prison or psychiatric institution

 

(5A)      The Minister may decide that subsection (1C) does not apply in relation to the person if, taking into account the circumstances that resulted in the person’s confinement, the Minister is satisfied that it would be unreasonable for that subsection to apply in relation to the person.

 

Ministerial discretion — person in Australia would suffer significant hardship or disadvantage

 

(6)      For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

(a)      the person was present in Australia during that period (except as a permanent resident or an unlawful non-citizen); and

(b)      the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.

 

Ministerial discretion — spouse, de facto partner or surviving spouse or defacto partner of Australian citizen

 

(9)      If the person is the spouse, defacto partner or surviving spouse or defacto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

(a)      the person was a spouse or defacto partner of that Australian citizen during that period; and

(b)      the person was not present in Australia during that period; and

(c)      the person was a permanent resident during that period; and

(d)      the Minister is satisfied that the person had a close and continuing association with Australia during that period.

 

(10)      In subsection (9): 

surviving spouse or de facto partner of a person who has died means a person who was the person’s spouse or de facto partner immediately before the person died and who has not later become the spouse or de facto partner of another person.

 

Ministerial discretion — person in an interdependent relationship

 

(11)      If, at the time the person made the application, the person:

(a)      holds a permanent visa granted to the person because the person was in an interdependent relationship with an Australian citizen; and

(b)      is in that interdependent relationship;

then, for the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

(c)      the person held that visa during that period and the person was in that interdependent relationship during that period; and

(d)      the person was not present in Australia during that period; and

(e)      the person was a permanent resident during that period; and

(f)      the Minister is satisfied that the person had a close and continuing association with Australia during that period.

There is a concession for significant hardship where temporary residence may be treated as permanent residence and concessions for the spouse of au Australian citizen.

Here one needs to manage the visa status of a spouse overseas. The concession only applies if the spouse holds a permanent residence visa over the 4 year period. Sometimes an overseas resident spouse of an Australian citizen lets the permanent residence visa lapse because the person thinks he or she can always get a spouse visa to return to Australia or even a resident return visa. But once the visa has lapsed then the person may not be regarded as a permanent resident.

There is an argument to put that a permanent residence visa does not lapse, it just prevents re-entry after 5 years but better not to have to run that argument which is still untested.

Barbara Davidson