Overseas absences (s22(1A) and s22(1B))
Section s22(1A) allows for absences from Australia of up to 12 months within the four years immediately before applying for citizenship. A period of time cannot be counted as an absence from Australia unless the person has already been present in Australia. This means that a person does not meet the residence requirement if they have three years continuous presence in Australia (with the last 12 months as a permanent resident) unless they were previously in Australia.
Section s22(1B) allows a person to be absent for up to 90 days within the 12 months permanent residence immediately before applying providing they remain a permanent resident during this time. Before 15 March 2009, applicants were allowed three (calendar) months absence during the 12 month permanent residence period.
Confinement in prison or psychiatric institution (s22(1C))
Under s22(1C), if a person has been confined in a prison or in a psychiatric institution in relation to a criminal offence at any time, that person will need to spend four years in Australia since last being released from that confinement before being residentially eligible for citizenship.
However, s22(5A) provides that s22(1C) does not apply in relation to a person if, taking into account the circumstances that resulted in the person’s confinement, the decision maker is satisfied that it would be unreasonable not to take those periods into account towards the residence requirement. Refer to Ministerial discretion – Confinement in prison or psychiatric institution (s22(5A)).
People working on ships or aircraft
People working as members of a crew of a ship or an aircraft should be assessed against the special residence requirement – persons engaged in particular kinds of work requiring regular travel outside Australia (s22B).
If absent from Australia on the day four years immediately before applying
If a person’s first arrival in Australia is less than four years before they apply for citizenship, they cannot meet the general residence requirement, even if they spend three years continuously in Australia.
The start date of the four-year lawful residence period is usually the date four years immediately before they lodge their application. However, if the person has not made their first entry into Australia, they need to wait at least four years after their first entry to meet this requirement.
Where a person was outside Australia on the day four years immediately before applying, but had previously been in Australia as the holder of a permanent visa, they may still use the day four years immediately before applying as a start date (for the purposes of being eligible to satisfy the four year lawful requirement), providing that on that day they held a permanent visa.
If these conditions are met, then the person may use the full four year period immediately before applying towards meeting the general residence requirement.
Calculations for New Zealand citizens
Unlike most other visas, the Special Category visa (SCV) (subclass 444) ceases immediately when a person leaves Australia, and the person therefore does not hold a visa while outside Australia. To ensure New Zealanders are not disadvantaged by virtue of the unique status they hold under the Migration Act the calculation of the four-year lawful residence period is different to that of other nationals.
New Zealand citizens who were outside Australia four years immediately before applying for citizenship, but had previously entered Australia on a SCV at any time within eight years before lodging their application, may count the four years before lodging their application towards the general residence requirement.
New Zealand citizens who hold a SCV are no longer considered as permanent residents for Australian citizenship purposes, unless:
- they were in Australia on 26 February 2001 as holders of a SCV or
- were outside Australia on 26 February 2001 but were in Australia as the holder of a SCV for one or more period totalling 12 months in the two years prior to 26 February 2001 or
- did not fall within the above two categories but have a Centrelink certificate, issued under the Social Security Act 1991, that states that the person was, for the purposes of social security, residing in Australia on a particular date.
Partial exemption to the general residence requirement (s22(2))
There is a partial exemption set out in s22(2) that may be applied to certain applicants to assist them to satisfy the general residence requirement.
The partial exemption in s22(2) only applies to the general residence requirement in s22. It cannot be used to assist a person to satisfy the s22A or s22B special residence requirements, or the defence service requirement in s23.
Under s22(2), applicants who were born in Australia or are former Australian citizens need only have been present in Australia as a permanent resident for 12 months immediately before the application. Absences from Australia in that period of no more than 90 days are allowed (s22(1B) refers).
Under s24(7) a former citizen cannot be approved for Australian citizenship by conferral unless more than 12 months have passed from the date upon which the person ceased, or last ceased, to be an Australian citizen. Some former Australian citizens may also be eligible to apply for resumption of Australian citizenship. Refer to Chapter 8 – Resuming citizenship.
Discretions to the general residence requirement
There are a number of ministerial discretions that may be applied to certain applicants to assist them to satisfy parts of the s22 general residence requirement. These are set out in s22(4A) to s22(11).
These ministerial discretions apply only to the s22 general residence requirement and cannot be used to assist a person to satisfy the s22A or s22B special residence requirements, or the defence service requirement in s23.
Ministerial discretion – Confinement in prison or psychiatric institution (s22(5A))
Under s22(1C), if a person has been confined in a prison or in a psychiatric institution in relation to a criminal offence at any time, that person will need to spend four years in Australia since last being released from that confinement before being residentially eligible for citizenship.
However, s22(5A) provides that s22(1C) does not apply in relation to a person if, taking into account the circumstances that resulted in the person’s confinement, the decision maker is satisfied that it would be unreasonable not to take those periods into account towards the residence requirement.
Circumstances that may be taken into account are not prescribed in citizenship legislation therefore any information that an applicant puts forward must be considered. It is envisaged that the circumstances where this discretion may be exercised include:
- convictions quashed (set aside by the court)
- a pardon, that is, a free and absolute pardon granted because the person was wrongly convicted.
Statement to be provided
Applicants seeking exercise of the residence requirement ministerial discretion under s22(5A) – confinement in prison or psychiatric institution will also need to provide a statement giving reasons as to why it would be unreasonable not to take those periods into account.
Ministerial discretion – Administrative error (s22(4A) and s22(5))
Under s22(4A) and (5) the Minister has a discretion to count for the purposes of s22(1)(b) and (c) (respectively) periods spent in Australia during which the necessary legal status was absent, provided certain requirements are met (the specific sections do not apply to people who were permanent residents immediately before 1 July 2007 – in these circumstances use s5B of Schedule 3 of the Transitional Act apply instead).
Under s22(4A) 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’.
Under s22(5) 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.
The discretion can only be exercised on condition that the legal status is absent ‘… because of an administrative error’. The condition can be divided into two parts:
- there must be an administrative error (in other words, an error of a particular kind) and
- the error must be the reason why the person lacks the necessary legal status (in other words, the error is the cause).
See:
- Definitions for further guidance on lawful presence / residence and unlawful non-citizen status
- Administrative error.
Ministerial discretion – Significant hardship or disadvantage (s22(6))
Under s22(6) periods of lawful residence, other than permanent residence, can be treated as periods of permanent residence if the applicant can demonstrate that they would suffer significant hardship or disadvantage if those periods were not treated a periods of permanent residence. This section makes explicit reference to s22(1)(c) of the Act. Refer to Significant hardship or disadvantage/detriment.
Section 5B of the Transitional Act was amended with retrospective effect from 1 July 2007, providing that the section also applies to applicants who are permanent residents on commencement of the Act.
Use of this discretion may be appropriate for persons who have become permanent residents of Norfolk Island. Until 1 July 2016 Norfolk Island had its own migration legislation (the Norfolk Island Immigration Act 1980) which required that a person must have been ordinarily resident in Norfolk Island for five years in the past seven years to be eligible for permanent residence. As such, it is considered that such a person would suffer significant disadvantage compared with other applicants for citizenship by conferral if they were required to spend a further period of time as a permanent resident to satisfy the residence requirement.
If an applicant satisfies all the requirements under s21 except the residence requirements, but has spent the appropriate periods in Norfolk Island as a temporary resident prior to being granted permanent residence of Norfolk Island, use of this provision would be appropriate. Such a person would not be expected to show further evidence of hardship or disadvantage for this discretion to be exercised. Further information on arrangements regarding Norfolk Island, refer to Norfolk Island.
Statement to be provided
Applicants seeking exercise of the residence requirement ministerial discretion under s22(6) – significant hardship or disadvantage will also need to provide a supporting statement concerning the significant hardship or disadvantage that would be suffered by the applicant if the discretion was not exercised and they could not become an Australian citizen.
Ministerial discretion – Spouses and de facto partners (s22(9) and s22(10))
From 15 March 2009, the same-sex de facto partner of an Australian citizen who is seeking a residence discretion should be assessed against the criteria at s22(9) of the Act, and not s22(11), as was the case previously.
Under s22(9), periods spent overseas by a permanent resident who is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time of making an application, can be counted as periods of permanent residence in Australia.
The discretion to treat periods spent overseas by an applicant as periods during which the applicant was present in Australia as a permanent resident can only be applied to periods when:
- the applicant was the spouse or de facto partner of a person who was an Australian citizen and
- the applicant was a permanent resident and
- the applicant had a close and continuing association with Australia.
If the applicant is the surviving spouse or de facto partner of an Australian citizen and is applying for discretion on that basis, they must not have entered into another spouse/de facto relationship after the death of their spouse/de facto partner in order for the time to be counted.
In all cases, applicants must provide evidence that they maintained close and continuing association with Australia while overseas. Factors that may demonstrate this close and continuing association with Australia include, but are not limited to:
- evidence that the person migrated to and established a home in Australia prior to the period overseas
- Australian citizen children
- long term relationship with Australian citizen spouse or de facto partner
- extended family in Australia
- regular return visits to Australia
- regular periods of residence in Australia
- intention to reside in Australia
- the person has been on leave from employment in Australia while accompanying their spouse or partner overseas
- ownership of property in Australia
- evidence of income tax paid in Australia over the past four year and
- evidence of active participation in Australian community based activities or organisations.
In assessing whether a person has a close and continuing association with Australia for the purposes of s22(9)(d) more weight should be given to the listed factors if the person has been lawfully and physically present in Australia for at least 365 days in the four years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given to these factors if they have not been present in Australia for at least this period.
Evidence to be provided for s22(9)
Applicants seeking exercise of the residence requirement ministerial discretion under s22(9) – spouse, de facto partner or surviving spouse or de factor partner of an Australian citizen will also need to provide:
- evidence of their spouse’s, or de facto partner’s, Australian citizenship. For example, a full Australian birth certificate or citizenship certificate
- their marriage certificate or, if a de facto partner, evidence of their de facto relationship. The definition of ‘de facto partner’ provided in the Acts Interpretation Act 1901 lists circumstances that can be taken into account when determining whether two people are in a de facto relationship. These include:
- the duration of the relationship
- the nature and extent of their common residence
- whether a sexual relationship exists
- the degree of financial dependence or interdependence, and any arrangements for financial support, between them
- the ownership, use and acquisition of their property
- the degree of mutual commitment to a shared life
- the care and support of children
- the reputation and public aspects of the relationship.
- evidence that they were overseas with their Australian citizen spouse or de facto partner, and they maintained a close and continuing association with Australia during that period
- evidence of their spouse’s, or de facto partner’s, death, if applicable.
Interaction with s24(5) – Person not present in Australia
If the applicant does not need the discretion to be applied in order to meet the general residence requirement but is overseas at the time of decision, the s22(9) discretion may be applied to avoid a refusal under s24(5) of the Act, provided the applicant meets the criteria.
Ministerial discretion – Interdependent relationships (s22(11))
From 15 March 2009, the discretion at s22(11) applies only to people who are in an interdependent relationship other than a same-sex de facto relationship. The same-sex de facto partner of an Australian citizen is now able to access the discretion at s22(9) of the Act.
Under s22(11) periods spent overseas by a permanent resident who was granted their permanent visa because they were in an interdependent relationship with an Australian citizen and is still in that interdependent relationship at the time of making the application, can be counted as periods of permanent residence in Australia for the purposes of s22(1)(c) of the Act.
The discretion to treat periods spent overseas by the applicant as periods during which the person was present in Australia as a permanent resident can only be applied to periods when:
- the applicant was a permanent resident and
- the applicant was still in the same interdependent relationship with the Australian citizen and
- the applicant had a close and continuing association with Australia (refer to below).
In all cases, applicants must provide evidence that they maintained close and continuing association with Australia while overseas. Factors that may demonstrate this close and continuing association with Australia include but are not limited to:
- Australian citizen children
- long term relationship with Australian citizen interdependent partner
- extended family in Australia
- regular return visits to Australia
- regular periods of residence in Australia
- intention to reside in Australia
- employment in Australia where the person has been on leave to accompany their spouse overseas
- ownership of property in Australia
- evidence of income tax paid in Australia over the past four years and
- evidence of active participation in Australian community based activities or organisations.
The amendments to the Act allowing the same-sex de facto partner of an Australia citizen to access the discretion at s22(9) apply to all undecided applications from 15 March 2009.
Evidence to be provided for s22(11)
Applicants seeking exercise of the residence requirement ministerial discretion under s22(11) – interdependent relationship with an Australian citizen will also need to provide:
- evidence of their interdependent partner’s Australian citizenship. For example, a full Australian birth certificate or citizenship certificate
- evidence that they were overseas with their Australian citizen interdependent partner and that during that time they maintained a close and continuing association with Australia during that period.
Interaction with s24(5) – Person not present in Australia
If the applicant is the interdependent partner of an Australian citizen and they are overseas at the time of decision, this discretion may be applied to avoid a refusal under s24(5) of the Act, provided the applicant meets the criteria. The s22(11) discretion may be applied for the purposes of s24(5) if the applicant is not present in Australia even though the discretion may not be required for the purposes of meeting the general residence requirement.
