dbj_brennan

Hi All,

I called the DIAC help line, and they told me that my wife is not eligible to apply for Australian citizenship until August 2013. I don't think that's true, but would like the opinion of all the learned people here:

1) My wife first came here on a tourist visa in September 2008, and left after two weeks. The visa subsequently expired

2) She then applied for a fiance visa, and came over here in August 2009

3) She was granted onshore PR while on holiday in Thailand in November 2011, arriving in Australia on that visa in January 2012

4) In total, she has spent more than three years in Australia since the grant of that initial tourist visa, and less that 90 days out of Australia in the last one year as a PR

5) Although she has had a break in visas (between her tourist and fiance visa), this happened while she was abroad and she has never been here unlawfully

DIAC is saying that the breaks in visas count for breaks in lawful residence, and that she needs to apply in August (disregarding the first visit on a tourist visa).

Am I wrong about this? The online form rejects her on residence grounds at the first page, so we would need a paper application, The DIAC helpline does not have the best track record for being right. Section 22 of the Act does not mention breaks in visas, all it mentions is presence as an unlawful non-citizen, stating:

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

Does anyone have experience in this? Is she eligible, as the Act would seem to state, or not, as the DIAC operator and the online form insist?

Best,

jey007

Hi

What DIAC say, is always true. If they tell you so, then it is that way it will work. so dont waste your time and money. wait some few months

I also agree with DIAC because of this :
the person was present in Australia for the period of 4 years immediately before the day the person made the application; and

Your financee was on a tourist visa which is completely different. So it cannot be counted. They will count from Aug 2009 (Financee Visa) + 4 YEARS THAT IS AUG 13

Hope it helps

Good luck

JAJ

Absolutely wrong.

Why do you think that the courts and AAT regularly rule against DIAC?

Sherlock Holmes

The help line is not staffed by experts. Sometimes what they tell you may be correct, other times it wont be.

It is true that any time spent lawfully in Oz CAN count towards citizenship but there are time restraints.

Check the calculator here: http://www.citizenship.gov.au/

dbj_brennan

So what's your advice JAJ? The way I see it, my wife is legally eligible to apply.

Is there any precedent here?

jey007

Yea,

Good point. Do have number of decision reversed by courts and AAT againsts DIAC??

Thanks for sharing

JAJ

From the Australian Citizenship Instructions:

36.4 Calculation of the 4-year lawful residence period when a person has been absent from Australia on the day 4 years immediately before applying

If a person’s first arrival in Australia is less than 4 years before they apply for citizenship, they cannot meet the general residence requirement, even if they spend 3 years continuously in Australia.

The start date of the 4-year lawful residence period is usually the date 4 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 4 years after their first entry to meet this requirement.

Where a person was outside Australia on the day 4 years immediately before applying, but had previously been in Australia, they may still use the day 4-years immediately before applying as a start date (for the purposes of being eligible to satisfy the 4 year lawful requirement), providing that on that day they held a visa which was in effect on that day (a visa granted in Australia is in effect from the day of grant, a visa granted offshore comes into effect when the person enters Australia on that visa).

If these conditions are met, then the person may use the full 4 year period immediately before applying towards meeting the general residence requirement.

For the purposes of the residence calculator, the lawful residence date will be the date that the ‘in effect visa’ that was held ‘on the day 4 years immediately prior to the day of application’ came into effect.



So - I think the question you need to answer was whether you wife's tourist visa was still "in effect" after she left Australia in September 2008, and if so, for how long.

JAJ

Search at http://www.austlii.edu.au
AAT, Federal Court etc.

dbj_brennan

Hi JAJ - My wife's multi entry tourist visa was granted offshore late September 2007. She arrived in Australia on this visa in mid September 2008 (two weeks before the expiry of its re-entry facility) and was granted a three month entry permit. She left Australia in early October 2008, after a three week stay.

dbj_brennan

The following statement would seem to preclude my wife from applying, as she was 'between visas' this time four years ago (and will be until August 2013):

"Where a person was outside Australia on the day 4 years immediately before applying, but had previously been in Australia, they may still use the day 4-years immediately before applying as a start date (for the purposes of being eligible to satisfy the 4 year lawful requirement), providing that on that day they held a visa which was in effect on that day (a visa granted in Australia is in effect from the day of grant, a visa granted offshore comes into effect when the person enters Australia on that visa)."

I'm also confused as to how DIAC can draw up rules around residence that are not specifically stated in the Citizenship Act ....

JAJ

They have the right to put in place policies on how the Act should be implemented. Policies cannot contradict the Act, however are assumed to be lawful unless determined otherwise by the courts.

dbj_brennan

Thanks JAJ.

I guess that there is no point applying now, since doing so mean taking DIAC to court against the alternative of waiting a few more months.

The policy statement doesn't contradict the Act per se, but it does add additional conditions to the Act. I am left wondering whether courts generally have success in throwing such amendments out.

madankumars

I agree with DIAC's assessment. If you had no valid visa & you were outside Australia at that time, where does the concept of "residency" apply?

That means anyone who has obtained a tourist visa in the past can claim "residency" during the period between visits. come on... that's absurd.

dbj_brennan

Thanks, but I'm not interested in what you do or don't personally agree with.

All I wanted to know was factual information on whether this was or wasn't possible from a legal basis, given the rather ambiguous wording of the Citizenship Act which would appear to allow it.

roaringmouse

The only way to find out the legal position is for your wife to apply, and then fight the refusal in the courts/AAT. This topic has been discussed previously on this forum in quite some detail with people disagreeing on exactly what the Act means, but ultimately it would be down to the courts to decide what the Act means in your wife's circumstances.

(I'm not suggesting your wife either applies now or doesn't apply now - it is up to her when she applies)