JAJ

Bear in mind that the existing 2 year rule and new 4 year rule are based on totally different methods of calculating residence.

ectomorph

so in other words you would only qualify for the two year rule if your visa was either issued /or/ you validated before the new legislation AND you completed 2 years residency no later than 3 years post new legislation ? (apologies if that makes no sense )

srdegnan

The big thing for me is whether it's

if your visa was either issued /or/ you validated before the new legislation

or

if your visa was either issued and you validated before the new legislation


Preferably the former!

JAJ

That's correct.

My reading of the Citizenship Act suggests that an issued visa will be enough to qualify under the 2 year rule (but the Act is very complex and if DIMA don't interpret it the same way someone might have to go to court).

But in any case, it will be necessary to clock up 2 years in Australia within 3 years of Commencement Day. So if the law takes effect on 1 July 2007, then 30 June 2010 is the last day to make an application under the 2 year rule.

alkristensen

Is there anyone i can contact about this as in DIMIA or someone else to make sure as im worried that by coming in august instead of before july will scupper my chances of gaining citizenship quicker. It would be a huge finacial loss if i were to have to arrive to live in Australia before i was suppposed to even though its only a months further on?


I got pr136 visa grant may 2005, i validated it in the november 2005. I came back here to finalise business and earn enough to be finiancially alot better off for the rest of my life in oz by doing this. My plan was to get in to australia by mid August to live forever. Will date date (1st July 07) affect me then and wioll i have to enter the country before july or is it still ok to come in August and still qualify under the 2 year rule thus being with the years after first comencement on the 1st July 2007.

Thankyou for any help and clarification on this should there be any.

Your s gratefully

Alan Kristensen

JAJ

If you can get in touch with the top people in Citizenship Policy section then you might be able to get something more specific than what's already posted. But I would not rely on advice from the "public enquiry line".

As for whether validation is enough - it's strongly recommended to read this whole thread. And remember that DIMA are bound by the Citizenship Act. They can be overruled by the Administrative Appeals Tribunal or the courts.

Why not look at the legislation for yourself?

alkristensen

Thanks jeremry. Would you see my case as straight forward then?

as i have read it it seems even tho i will come in Ausugt that i can still qualify under the next 3 years with no problems.

Is that how it looks to you for my predicament..

Thanks again,

Al

JAJ

One piece of simple advice. Read the legislation at source and make up your own mind.

You can find it all at http://www.aph.gov.au

alkristensen

Thanks i did say that "as i have read uit ...... i think this........what do you think?

I thiough you knew more than me but are just guessing too , am i correct?

Im going to contact them direct for closure on thidss subject.

Thanka

alkristensen

Just thought i would update after contacting the aus high commision about me having already validated and returned to the uk for a bit before moving there permanently soon

Here is their answer

Dear Client,

Thank you for your enquiry.

The new laws are not retroactive, so it will not apply to applicants who were granted their permanent residency prior to the changes. You have already been granted permanent residency, and your visa is a valid visa since you activated it before the initial entry date.

http://www.citizenship.gov.au/law-and-policy/legislation/changes200406-announce.htm

We hope this information has been of assistance.

Yours sincerely


London Contact Centre
Migration Branch
Australian High Commission
Strand London WC2B 4LA

Hope this helps someone

al

srdegnan

Ta - just received my Visa - so just need to make sure I activate it before the law kicks in.

JAJ

Validation is required to avoid a visa being cancelled - it is NOT required for the visa to be valid in the first place. So this advice is not quite correct technically.

>40

Following up on JAJ's comment above, perhaps the Australia High Commission should have added the word "still" to make the last part of their answer less ambiguious:

"The new laws are not retroactive, so it will not apply to applicants who were granted their permanent residency prior to the changes. You have already been granted permanent residency, and your visa is [STILL] a valid visa since you activated it before the initial entry date."

Even without making the word "still" explicit, however, I have no problem in interpreting the answer as it is the grant of the visa (rather than its validation) that makes its holder a permanent resident under the current Citizenship Act. However, I do look forward to continued discussion and further "pieces of evidence" in this forum.

>40

There have been some "pieces of evidence" provided in this thread regarding whether visa grant or visa validation (aka. activation, initial entry) is sufficient to be a permanent resident under the current Citizenship Act. In addition to the answer from AHC in London that I commented on above, I have found the following:

London Embassy's answer, posted by karmagirls on 22 Sep 2006, is quite non-informative taken in isolation. However, given that the question was whether one has to validate, or if it suffice to have the visa before the law change comes in (without validating), I do believe that they should have differiented their answer further if validation meant any difference. Instead they answered: "When a person applies for citizenship they must meet the residency requirements at the time of application. The citizenship law changes apply to all permanent residents who have not yet become citizens.

However, clearly supporting the view that validation is needed is the reply from the Assistant Secretary to the Minister for Immigration and Multicultural Affairs, posted by karmagirls on 5 Oct 2006: "If you make your initial entry to Australia before the date of commencement of the new legislation, you will only need to meet the current requirement of a minimum period of two years as a permanent resident in Australia in the five years before application for citizenship, including at least 12 months in the two years before the application. This is provided that an application for citizenship is made within three years of the changes coming into effect. If you make your initial entry after the commencement of the new legislation, the new residence requirements will apply."

The answer from DIMA London Office, posted by john_w on 7 Nov 2006, I interpret as supporting the view that visa grant is sufficient: "Permanent residency is granted when the visa is granted subjected to visa holder complying to the visa condition 8504 from the migration regulation which states that: 'The holder must enter Australia as the holder of the visa to which the condition applies before a date specified by the Minister'. The visa will be subjected to cancellation if this condition is not complied."

Contributing to the differences are a lot of confusion and the fact that the current Citizenship Act 1948 is quite hard to interpret. Although the new Citizenship Bill 2006 and the Citizenship (Transitionals and Consequentials) Bill 2006 still can change, it does seem fairly sure that the question when one becomes a permanent resident under the Citizenship Act 1948 will indeed be the key one (cf. my previous post on 30 Nov 2006). As always, I urge you to be careful with all views expressed, and to make up your own mind if this issue is important to you. Hopefully, we can together add further pieces to the puzzle in the coming months.

DunRoaminTheUK

This reads like a Microsoft license agreement....

Are you a lawyer?