Exemptions and discretions to the residence requirements for Australian Citizenship

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.