Application of Australian Citizenship
 

Hi All

My family and I landed and activated our PR in August 2007 and returned to permanently settle here in February 2008. I came across recently and found out that my previous temporary visa( I was Australia as a student from 1982 to 1987) stay can be counted towards the 4 years i.e minimum period before one can applies for the Australian citizen. I would like to ask if anyone out there has experienced this. I would appreciate any comments on this issue.
Many thanks.

I am currently collating all necessary documents for the Australian citizenship. Wish me luck.

Regards
Mikail

Re: Application of Australian Citizenship
 

For time to count, it has to be in the last four years, so your student time is too far in the past to be relevant to that.

However, you will only need three years presence to qualify (as 12 months absence is ignored/counted as presence), so you will qualify in February 2011 - length of validation trip + any foreign trips between Feb 2008 and Feb 2011.

Re: Application of Australian Citizenship
 

Incorrect.

Any time spent outside Australia in the preceeding 4 years where you have lived in Australia is not counted.

The OP still needs to have resided in Australia for a total of 4 years (365*4 = 1460 or 1461 days) and atleast 1 year (365 or 366 days) as a permanent resident.

Any time spent outside of Australia is not taken into account. The "upto 12 month absence" requirement only serves to not reset the "4 year in Australia" clock.

I OP's case, the clock starts on August 2007 and the earliest that the OP will be able to apply for citizenship is August 2011 + days spent outside Australia (which from his post, certainly pushes it back to February 2012 + days spent outside Australia between Feb 2008 and Feb 2012)

Re: Application of Australian Citizenship
 

That's not what the Citizenship Act says ...

Re: Application of Australian Citizenship
 

Then what does the 12 month period refer to?

How is the 4 years residence requirement calculated?

Re: Application of Australian Citizenship
 

Hi
It's all in the Citizenship Act (extract, excluding the further specific provisions of Section 22) ...

----------
Section 22

(1) Subject to this section, for the purposes of section 21 a person satisfies the 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.

----------

Noteworthy is the fact that while the Act does mandate a minimum of 12 months of permanent resident status before eligibility, nowhere does it insist that a person be present in Australia at the start of the 4 year period.

Also noted that the residence calculator at DIAC may not be legally compliant, observed that anyone refused citizenship has the right to appeal to the AAT and/or the courts who have the final say on what the Act really means.

Re: Application of Australian Citizenship
 

I will - because I think you won't be eligible until August 2011 (dependent on any further absences you haven't mentioned).

Re: Application of Australian Citizenship
 

It may be what you think .... but if instead you apply the Citizenship Act provisions you get to February 2011.

Re: Application of Australian Citizenship
 

And not being an unlawful non-citizen (i.e. being a lawful non-citizen) as well? Which in English refers to the valid visa bit.

Either way, certainly not eligible soon as the OP currently thinks.

Re: Application of Australian Citizenship
 

No it doesn't.

A person outside Australia is not an unlawful non-citizen.

Re: Application of Australian Citizenship
 

Not normally, no. However, for the Citizenship Act, as you quoted above, during acceptable absences the person is taken to have been present in Australia during each period of absence.

If the person is taken to have been present in Australia during absences, then there should be a valid visa during those absences for them to be a lawful non-citizen, otherwise they would be an unlawful non-citizen.

Re: Application of Australian Citizenship
 

Once again. The Act doesn't say that. Recommended to read it again, paying special attention to subclause 1A.

Re: Application of Australian Citizenship
 

From the Citizenship Act: (1) a person satisfies the 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.

In (1A) and (1B) it then deals with allowable absences, and says for the purposes of (1)(a), the person is taken to have been present in Australia during each period of absence.

Back to (1) now: a person satisfies the residence requirement if (b) the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period.

As a person is taken to be in Australia during absences, the unlawful non-citizen bit applies during absences as well. The definition of a lawful non-citizen is "A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen." And the definition of an unlawful non-citizen is "A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen."

It is from this definition (from the Migration Act 1958, to which the Citizenship Act 2007 refers) which requires a valid visa during the entire 4 year period.

Re: Application of Australian Citizenship
 

No it doesn't. And we're not talking about unlawful non-citizens anyway. People with legal status do not become unlawful simply because they leave Australia. And a person who hasn't entered Australia by that point isn't unlawful either.

You have just made an inherently contradictory statement. In order to be an unlawful non-citizen you have to be in the migration zone ... if absent from Australia, you cannot be one.

Unclear how you are trying so hard to find something that isn't there.

No point in this descending into an "yes, no, yes, no etc." discussion which is pointless. Again read the legislation (properly) don't try to read into it things that aren't there. It does not mandate that someone be present in Australia at the beginning of the 4 year residence period, or at least at some date before then. Now, a court might say that the term "absence" implies just that. On the other hand, it might not. It could well confirm that the residence requirement is really a "3 years in 4" requirement.

Bottom line in all of this is that if someone was refused citizenship after 3 years continuous presence in Australia (with 12 months as PR) they would have a good case before the AAT. Nothing guaranteed, but a good case.

Re: Application of Australian Citizenship
 

Unclear on how you understand "the person is taken to have been present in Australia during each period of absence"
I have never suggested that it does. My point is that there needs to be a valid visa for that entire time (whether or not the person is in Australia at the start of the 4 year period), which is stated quite a bit on official citizenship information including the 1300t application form.

(btw - unhelpful when you edit your post 2 or 3 times within a short period of time after your original post)

Re: Application of Australian Citizenship
 

Because the Act says that any absence in the 4 years preceding application is automatically taken into account, providing . It doesn't say anything about needing to be the holder of a valid visa during any of those absences.


It doesn't matter what the "official citizenship information" says. It only matters what the Act says!

I have been involved with other situations where DIAC interpreted the Act incorrectly and backed down once they understood they were acting illegally.

You are of course entitled to an opinion, even if it is wrong, but what you cannot do is state your opinion as fact unless you can refer it back to the Act (references to DIAC forms, website, etc. won't do where there is a conflict with the Act).

Re: Application of Australian Citizenship
 

Care to finish that sentence? It seems only half written.

Re: Application of Australian Citizenship
 

doesnt it state that any time within the 4 years , time ouside of australia isnt counted unless it's for more than 90 days ?? or do i have it all wrong ???

Re: Application of Australian Citizenship
 

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.

----------

Re: Application of Australian Citizenship
 

Dear All,
I had a look of recent posts in the thread.I just want to share my experience.If you fulfill residence criteria according to rule,you are eligible for applying regardless you have any visa or not in that absence(still you need to be PR for atleat 1 year).I came in Australia in Jan.2006 on visitor visa and spent about 10 months and then went back to my home country once visa was about to expire.I came again in september 2007 on 457 and got PR in May 2009.I applied citizenship as I fulfilled criteria last month and it is recently approved.So it doesnt matter whether you have any visa or not in your absence except last year when you should be a PR.I hope it will clarify.

Re: Application of Australian Citizenship
 

Thanks for that :)

Re: Application of Australian Citizenship
 

Providing total absences are less than 12 months. That's it.

Re: Application of Australian Citizenship
 

So in this case, was the date you entered Australia on your tourist visa regarded as your Lawful residence date? I arrived on a tourist visa in Dec 06 and stayed for 6 weeks (leaving in Jan 07). I then arrive on a PR visa in Jan 2008 and have been here ever since. So does that mean I can use the date I entered on my tourist visa (Dec 06) as my lawful residence date, for the purpose of the residency calculator, rather than the date I entered on my PR visa in Jan 08?

Re: Application of Australian Citizenship
 

But total absence should not be more than 12 months.It looks to me your are absent already for one year between your visitor and permanent visa.But you can calculate exactly through residence calculators if you think you are not absent for more than 12 months. Luckily for me total absence was just few days less than 12 months so i was able to apply.

Re: Application of Australian Citizenship
 

Yes, you can. You will qualify for citizenship three years after you arrived on your PR visa in January 2011, plus the number of days of any overseas trips less any days in January 2007 which fall within four years before the date you apply. Bit difficult to explain that but the citizenship calculator should get it right as long as you put your lawful residence date as December 2006.

Re: Application of Australian Citizenship
 

Ok so I took the following dates from my passport and plugged them into the calculator:-

Arrived on Torist Visa (12/12/06) Departed on Tourist Visa (9/1/07)
Arrived as PR (12/01/08) Departed as PR (27/2/08)
Arrived as PR (28/3/08) Departed as PR (10/6/09)
Arrived as PR (21/7/09) - Have remained here ever since

If I use the date of 12/12/06 as the Lawful residence date, the calculator says I can apply on 20/3/2011.

So the question remains, can I use 12/12/06 as my lawful residence date for the purpose of citizenship, I'm still not clear on this.

Re: Application of Australian Citizenship
 

Ask DIMA they are the experts!

Re: Application of Australian Citizenship
 

I don't know if this is intended to be a joke but calling the DIAC helpline is the last thing someone with a complex question should do.

Much better option is to download the Australian Citizenship Instructions at http://www.citizenship.gov.au

These should confirm that any legal presence in Australia is acceptable towards the 3 years in 4 requirement.

Re: Application of Australian Citizenship
 

I think if residence calculator is saying then it would be right.check with citizenship hotline and tell them your passport no. they will immediately tell you your application date.

Re: Application of Australian Citizenship
 

Not necessarily.


Perhaps read post #28 before suggesting a reliance on the citizenship hotline.

Re: Application of Australian Citizenship
 

Thanks horizon,

I just phoned them and they confirmed that I could apply in March 2011, as predicted by the calculator. I only gave them my passport number.

JAJ - I will bear in mind what you said about the accuracy of this information though - thanks for your input.

Re: Application of Australian Citizenship
 

Yes, be wary, they have fed me so much complete rubbish I wouldn't trust a word they say anymore. I've been told things that vary from "once you have sent the application form there is no limit on how far ahead you can sit the test, could be a years time" and "your visa and the passport it is in (thats the UK one!) are both invalid as soon as you sit the test" and "we will sned your test dates by email, but the email system isn't working so when you don't get the email you will need to ring us again" (I kid you not, thats what they said :confused:)
All complete tosh, and that's just part of it.

Re: Application of Australian Citizenship
 

On the whole, it seems the citizenship calculator is correct, as long as you put the correct lawful residence date in, unless you qualify for citizenship within four years of the (correct) lawful residence date. However the guidance with the citizenship calculator on the lawful residence date is incorrect/misleading, so it's good to hear that you were given the right date when you rang.

Re: Application of Australian Citizenship
 

I filled in the online calculator and it gave me a date. When I did my test (pre Nov 09) they gave me a different date two days earlier than the calculator :confused:

Re: Application of Australian Citizenship
 

That's pretty close then ;) Might have been something to do with including days of arrival and departure possibly. Either way, I checked JohnnyE dates and agree with the citizenship calculator, not that that necessarily proves anything....

Re: Application of Australian Citizenship
 

Hi Louie, yes you are correct about the calculator giving misleading information about lawful residence date. It s very unclear as to its meaning.

Re: Application of Australian Citizenship
 

Pollyana, I've been reading your posts and you have definitely had a bad experience, I hope I don't have the same bad experience when I eventually apply. Reading all this information makes me aware of what to look out for though.

Re: Application of Australian Citizenship
 

Well that's interesting (hadn't seen it before) - see couple of pages attached. To summarise, the instructions contend that you cannot be absent if you have not previously been present. So if you arrive for the first time ever in Australia on day 1, you do not qualify for citizenship until four years later, even if you never leave Australia in that time.

Not sure I follow the bit on page 65 (and I have to say I think it is badly written). It seems to be saying that you have to have had a valid visa on the day four years immediately before you apply (as opposed to having been lawfully present in Australia at some point prior to that). Which would imply that if you had previously visited on a tourist visa/ETA, which had expired by the day four years before you apply, you would not qualify.

So in Johnny's case, if we assume he applied for an ETA in September 2006 (which would have expired in September 2007), he would qualify from March to September 2011, but not between September 2011 and the fourth anniversary of his return to Australia in January 2012. Which seems very odd to me.

I look forward to hearing your thoughts, JAJ.....

Re: Application of Australian Citizenship
 

Louie, the dates you quote there are bang on. I applied for the eta in Sept 06, but did not use it until dec 06. So the visa was still valid in March 07 even though I was not present in Australia.

Re: Application of Australian Citizenship
 

Louie, just read the article and now seems to make sense. That trip I made as
a tourist to watch England lose 5-0 at cricket was worth it after all. Thanks for that very useful information.