Mikail

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

louie

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.

ColonialCousin

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)

JAJ

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

ColonialCousin

Then what does the 12 month period refer to?

How is the 4 years residence requirement calculated?

JAJ

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.

roaringmouse

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

JAJ

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

roaringmouse

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.

JAJ

No it doesn't.

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

roaringmouse

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.

JAJ

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

roaringmouse

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.

JAJ

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.

roaringmouse

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)