JAJ

That won't happen until you make a formal application for citizenship and it is either granted or refused. If refused, you can appeal to the Administrative Appeals Tribunal but they will, in general, simply review the policy instructions to see have they been applied correctly.

Realistically - the only way to be sure your wife will get Australian citizenship is to stay in Australia until the citizenship application is processed and here ceremony is complete.

It's surprising that you are putting a U.S. E-3 visa ahead of this. This E-3 is only temporary residence in the United States, and has a number of significant day to day disadvantages (like the 457 in Australia). And while it's not impossible to get permanent residence (green card) it's not necessarily easy or automatic and the wait may take years.

us-aspirant

JAJ, thanks for your reply.

I am not putting my e3 visa ahead of her citizenship (although it may seem that way). I definitely want her to get citizenship first and if that means that we have to forgo e3 then we won't go.

We are confused because there is a spouse provision where she 'may' apply from overseas. And so first of all, I am trying to 'understand' what is the law and if anyone has gone down the same path. I read the policy document that you gave me (thanks for that. It is very useful) and also spoke to citizenship hotline. But like you mentioned, there is only one way to know for sure.

Pollyana

The best view that you will get on BE on any citizenship issues like this is the one you got from JAJ - he's acknowledged as our local expert on these questions

Me.Me

Hi US-Aspirant

Any luck with further information on s22.9. I am in the same boat and would appreciate your response, please.

To my understanding, the only issue with s22.9 is the following excerpt

"more weight should be given if they have been lawfully and physically present in Australia for at least 365 days in the 4 years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given if they have not been present in Australian for at least this period."

Few on this forum have claimed that they successfully used s22.9 but I am unsure about their time as PR (if it was more than 3 months).

Cheers

us-aspirant

Me Me, i cant tell you what will happen in my wife's situation as she won't be eligible for Australian Citizenship before May, 2013.

The information that i have gathered so far gives me hope that "most likely" she will be fine as she has lived in Oz for 3.5 years including more than 1 year as PR. Got other ties to Australia too e.g. Australian spouse, active bank accounts, paying taxes, long term full-time employment before coming to US etc.

I had called Australian Citizen Info line twice and both times, i was told as long as she qualifies, she should not have any problem getting citizenship from overseas. They wouldn't discuss (understandably) how strong our case is. It is a ministerial discretion and it is applied on a case by case basis.

The only way to find out is to make an application if you qualify.

Good luck. Please keep us all posted.

Me.Me

Thank you US-Aispirant.
Well, she would only come to know in May 2013 but I think your case is quite straight forward as she fulfils all conditions as stated in that policy excerpt i.e more than 365 days stay in last 4 years plus more than 90 days as a PR.

If I were you, I would have been quite confident but my issue is to check if there is a mandatory requirement of minimum 90 days stay as a PR. I am also looking to an overseas employment but the safest way is to spend three months as a PR and it should be fine then.

I wish you all the best and will keep you posted. Please share if you have some more info about the 90 days PR thing.

Thank you.

mingster

hi everyone,

Just stumbled upon this thread while looking for information on the likelihood of success for our case and hoping to pick your brains here. I'm an Australian citizen and my wife is currently a PR in her own right. We've been married for 2.5 years and have a 6 month old who is an Australian citizen. We're thinking of applying for citizenship for my wife under the ministerial discretion exception as she hasn't fulfilled the residency requirements. The reason for this is because she was working in Tokyo when we first started our relationship however before she could join me, I was seconded from Sydney to London in Sep 2008 so she joined me in London in July 2009 after waiting for her UK work permit to come through. We got married in April 2010 and moved to Singapore in 2011.

How do you view our chances of getting the time spent overseas with her Australian partner to count towards the 4 years required. Do they count it only from when we were married or physically together? The Australian bank I work for had her listed as my partner for my secondment and are willing to write a letter stating that so do you think that will carry some weight in the decision as that would be from Sept 2008. Also, do you think that having an Australian child will also help our case. The main reason we are looking to apply is that having an Australian passport would help in terms of travel as she has to apply for visas everytime we go to Japan or the US.

Was contemplating looking for an immigration lawyer but as mentioned previously in this thread, most of the citizenship applications are handled by the applicants themselves so have not had much luck so far.

Thanks in advance for taking the time to read this and any feedback would be greatly appreciated.

mingster

Me.Me

I do not know the specific details of your circumstances but my understanding is that S 22.9 can be successfully used in the following scenario:

1. 'a close and continuing association with Australia' manifested by a long term association with Australian Spouse or having Australian Children (valid in your case)
2. Be a permanent resident.
3. Have atleast spent 365 days in Oz during the last four years INCLUDING atleast 90 days as a PR.

This opinion have been formed on the following excerpt from the policy document on the citizenship website:

"In assessing whether a person has a close and continuing association with Australia for the purposes of paragraph 22(9)(d), more weight should be given if they have been lawfully and physically present in Australia for at least 365 days in the 4 years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given if they have not been present in Australian for at least this period."

This of course is my understanding and I can be wrong but the immigration agents may not be of much help here (my personal experience). Only those who have successfully used this ministerial discretion can confirm and I welcome comments by them, please.

Thank you.

mingster

thanks for the response Me.Me

My wife fulfills parts 1 and 2 however she has not spent zero time in Australia in the past 4 years as she has been with overseas with me.

Hoping to hear from others who have successfully the ministerial discretion.

kind regards

mingster

Me.Me

Thanks Mingster. Your wife did not spend any time in Australia but it may not rule her out completely for citizenship. The excerpt that I quoted says

"more weight should be given if they have been lawfully and physically present in Australia for at least 365 days in the 4 years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given if they have not been present in Australian for at least this period.

I think a legal expert will be able to decipher this 'more or less weight assignment' but on the face of it, there is still hope for you. Please also seek advice from the Department of Citizenship.

I would be keen to hear any positive developments regarding your case.

All the best.

madankumars

I am on the same boat.

I have been in the U.S. for about 5 months now. I became a citizen early this year.

My wife was only 4 days away from satisfying the residency requirements in her own right, but we had to leave as I was transferred and had a start date that couldn't be moved.


Our situation is:

1. Australian born child
2. Over 3.5 years physical presence by my wife - employed throughout
3. Still holding on to our property in Sydney
4. Wife filed tax returns this July - from the U.S.
5. Still working for the same (US based) company. Transferred to the U.S on L1 visa intra company transfer.

We fully intend to return back to Sydney when my project gets over.

We mailed the documents to DIAC's Overseas Citizenship Unit in Melbourne. I will let everyone know how it goes.

My question is - how long does it take before DIAC responds after receiving the documents at the Overseas Citizenship Unit? Do we need to follow up with a phone call?


ps: And thanks to George Lombard for everything. If not for him none of this would have been possible!

ajw

My question is - how long does it take before DIAC responds after receiving the documents at the Overseas Citizenship Unit? Do we need to follow up with a phone call?


---- Hello, just stumbled on this. We applied to the OCU in March 2012 and it was August 2012 before a case officer looked at it. Good Luck!

ajw

And for anyone following this thread. Citizenship application has been approved! Waiting for the ceremony now to make it all official. Good luck with your applications.

Ajw

xhuyx

congratulation! Hope applications under this discretion will be processed quicker in the future.

mingster

Thanks for the update and congratulations ajw. May I ask what were the circumstances under which you were able to apply for the ministerial discretion?