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MINISTERIAL DISCRETION - SPOUSE, DE FACTO PARTNER OR SURVIVING
SPOUSE OR DE FACTO PARTNER OF AN AUSTRALIAN CITIZEN (S22(9) & (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 22(9) of the Act, and not 22(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 (see below).

If the applicant is the surviving spouse or de facto partner of an Australian citizen, they can only count
time while their Australian citizen spouse or de facto partner was alive.
Policy is that this discretion would usually only be exercised if the applicant was overseas with their
Australian citizen spouse or de facto partner.

Factors that may contribute to a close and continuing association with Australia include:
������ Australian citizen children
������ length of relationship with Australian citizen spouse or de facto partner
������ extended family in Australia
������ return visits to Australia
������ periods of residence in Australia
������ intention to reside in Australia
������ employment in Australia (eg public or private sector)
������ ownership of property in Australia
������ evidence of income tax payment in Australia and
������ current bank accounts in Australia.
Where the applicant is the spouse, de facto partner, or surviving spouse or de facto 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 legislative and policy criteria
as outlined above. It may be applied even though the discretion may not be required for the purposes
of meeting the residence requirement.

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