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Whoa, 4-year residency requirement for spouse can be time spent abroad?

Whoa, 4-year residency requirement for spouse can be time spent abroad?

Old Apr 15th 2013, 6:13 pm
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Default Whoa, 4-year residency requirement for spouse can be time spent abroad?

5. If you are the spouse or de facto partner of an Australian
citizen, or are the surviving spouse or partner of an
Australian citizen at the time you make your application,
you may treat periods of time spent outside Australia as
a permanent resident as time in Australia if your spouse
or de facto partner was an Australian citizen during those
periods of absence and you can demonstrate that you
maintained a close and continuing association with Australia
during those periods of absence.


I'm a bit shocked here and not quite sure how to "dismantle" the above.

Since I am a citizen, and my wife was recently granted 100-PR status, does that mean that after validating the visa we could move back to Singapore (due to my work) and the time then spent living in Singapore would qualify for the 4-yr total?

Is the above simply a helping hand to situations in which the spouse is an Australian citizen, or does the general residency requirement of not living abroad for more than 12 mths in those 4 years (or more than 90 days in the last year before applying) still kick-in and cancel the above?
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Old Apr 15th 2013, 6:30 pm
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Default Re: Whoa, 4-year residency requirement for spouse can be time spent abroad?

You should check the Australian Citizenship Instructions - Section 5.18, which is on page 59. This is at the Minister's discretion, so not guaranteed and there's an expectation that the applicant has spent at least 1 year in Australia.
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Old Jan 7th 2014, 5:36 pm
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Default Re: Whoa, 4-year residency requirement for spouse can be time spent abroad?

I see that there is some leeway when it comes to spending part of the required 4 years overseas if circumstances necessitate this.

But I take it that overall you can/should only apply after 4 years have passed from becoming PR and not earlier?
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Old Jan 8th 2014, 12:33 am
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Default Re: Whoa, 4-year residency requirement for spouse can be time spent abroad?

Read the Australian Citizenship Instructions carefully.

The residence requirement can be reduced for spouses, but it generally is not waived. There is no entitlement to Australian citizenship simply due to marriage.
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Old Jan 8th 2014, 12:59 am
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Default Re: Whoa, 4-year residency requirement for spouse can be time spent abroad?

Thanks, 5.18 is definitely something that might help us when it comes to having our stay in Singapore count towards those 4 years.

I'm just wondering if in general 4 years need to pass since becoming PR before one can apply. Otherwise by logic won't they just say, "hang on, it's too early for this. 4 yrs haven't even passed so you still have time!"
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Old Sep 20th 2014, 10:58 am
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Default Re: Whoa, 4-year residency requirement for spouse can be time spent abroad?

Right, so what should I do in the following scenario which might well play out in my case:

1. PR status granted (and visas "validated") for wife and kids in mid 2013.

2. Kids are already citizens due to the above (no waiting/residency period was applicable).

3. Still haven't moved to Australia due to work here in Singapore, but thinking of moving to Queensland in mid 2015. Have visited Australia with entire family biannually since then, both for school holidays and Christmas, so have maintained as close a relationship as possible with Australia since wife's PR status was granted.

4. If we make the move in mid 2015 (already 2 yrs into her PR status), when would you recommend that she applies for citizenship?
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Old Sep 20th 2014, 11:19 pm
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Default Re: Whoa, 4-year residency requirement for spouse can be time spent abroad?

Originally Posted by astera
Right, so what should I do in the following scenario which might well play out in my case:

1. PR status granted (and visas "validated") for wife and kids in mid 2013.

2. Kids are already citizens due to the above (no waiting/residency period was applicable).

3. Still haven't moved to Australia due to work here in Singapore, but thinking of moving to Queensland in mid 2015. Have visited Australia with entire family biannually since then, both for school holidays and Christmas, so have maintained as close a relationship as possible with Australia since wife's PR status was granted.

4. If we make the move in mid 2015 (already 2 yrs into her PR status), when would you recommend that she applies for citizenship?
Mid 2018. Four years living in Australia is required but she is allowed one year out of the country.
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Old Sep 20th 2014, 11:58 pm
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Default Re: Whoa, 4-year residency requirement for spouse can be time spent abroad?

Originally Posted by Bermudashorts
Mid 2018. Four years living in Australia is required but she is allowed one year out of the country.
I think you'll find it may be sooner than that for spouses of Australian citizens ... 1 year residence required, provided permanent residence has been held for at least 4 years (the 4 years could be 3 years in certain circumstances) and if there was a close and continuing association with Australia while overseas. The relevant law is section 22(9) of the Australian Citizenship Act. Details on policy are in section 5.18 of the Australian Citizensip Instructions. It's usually quite case-specific.
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Old Sep 21st 2014, 12:08 am
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Default Re: Whoa, 4-year residency requirement for spouse can be time spent abroad?

Originally Posted by JAJ
I think you'll find it may be sooner than that for spouses of Australian citizens ... 1 year residence required, provided permanent residence has been held for at least 4 years (the 4 years could be 3 years in certain circumstances) and if there was a close and continuing association with Australia while overseas. The relevant law is section 22(9) of the Australian Citizenship Act. Details on policy are in section 5.18 of the Australian Citizensip Instructions. It's usually quite case-specific.
I thought that required ministerial discretion? Or is that something very easy to come by?
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Old Sep 21st 2014, 12:28 am
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Default Re: Whoa, 4-year residency requirement for spouse can be time spent abroad?

Originally Posted by Bermudashorts
I thought that required ministerial discretion? Or is that something very easy to come by?
Nearly every application for Australian citizenship by naturalisation (conferral) requires Ministerial discretion. In most situations, that discretion is exercised by a delegate of the Minister. Policy is outlined in the Australian Citizenship Instructions.
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Old Sep 21st 2014, 2:56 am
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Default Re: Whoa, 4-year residency requirement for spouse can be time spent abroad?

Many thanks, my initial thoughts were to apply after 4 years have passed since the PR validation/first arrival on PR visa date since 4 years' residency is required (so cannot apply earlier anyway) and there is some leeway to treat time spent abroad with an Australian spouse as time in Australia.

In this case we'd be looking at roughly 2 of those years still being in Singa and the following 2 in Australia. Since the application would take some time to be processed, the latter will obviously continue to add up (not sure if this has any meaning though once the application is lodged).

Are the chances of having the application approved quite decent in our case? What happens if for some reason it doesn't go through - is there a min. waiting time (either by law or by "common sense") before applying again?
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Old Sep 23rd 2014, 5:09 am
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Default Re: Whoa, 4-year residency requirement for spouse can be time spent abroad?

Hi Astera,

This is an area where the Department does not seem to apply the discretion all that liberally.

There are quite a few AAT decisions and they go both ways, for example these are from the last couple of weeks:

XQMD and Minister for Immigration and Border Protection [2014] AATA 633 (2 September 2014)

Sabumei and Minister for Immigration and Border Protection [2014] AATA 648 (5 September 2014)

Generally though, I don't think it's an easy pathway, for example here is a case where someone's husband and children were all Australians and she had previously met the standards for citizenship, but was unable to attend a ceremony because of post-natal depression:

Davies and Minister for Immigration and Border Protection [2014] AATA 245 (28 April 2014)

Proceed with caution.

Cheers,

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Old Sep 23rd 2014, 6:13 pm
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Default Re: Whoa, 4-year residency requirement for spouse can be time spent abroad?

Many thanks - I didn't even know such resources were available online.

The last case seems very unfortunate but hopefully in our case there will be no issues with attending a citizenship ceremony when it comes to that.

As for the first and second cases it seems that these are quite drastic cases regarding the residency criteria:

Case #1:
- he was only present in Australia for a total of 50 days in the period of four years immediately before the day he made the citizenship application, and was only present in Australia for 22 days in the 12 months immediately prior to making that application

Case #2:
- In the four years immediately before the Citizenship Application, Mr Sabumei was physically present in Australia for 173 days. These 173 days were accumulated over short intermittent visits to Australia and most of these visits were 24 to 36 hour stop overs...
- The longest continuous period Mr Sabumei spent in Australia in the four years immediately before the Citizenship Application was 10 days
- The longest period Mr Sabumei has spent in Australia since becoming a permanent resident has been no longer than one month

In these cases the factors that come under a "close and continuing association with Australia" could be difficult to prove. Especially those concerning the "intention to reside in Australia," (obviously much easier if you are actually living there after a period of non-residence) "ownership of property" (where the fact whether you live there or just treat it as a rental property whilst living abroad makes a difference), "income tax paid over the last 4 years" (non-resident vs resident), etc.

Also in the second case the situation is the complete opposite of what the lawmakers had in mind because he was the one working abroad (as a non-citizen) with his Australian wife tagging along, whereas the law is supposed to help the non-citizen partner living abroad with their Australian spouse, who is there instead of back in Australia due to employment or contractual reasons for instance.

Anyway, overall it seems to me like a lot of these cases are about people who are applying for citizenship without actually living there at present or even hardly at all during the previous 4 yrs. As mentioned in our case everything would revolve around the first two years still living in Singapore due to my job, with the following two years (before applying) being resident in Australia in every sense of the word.
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Old Sep 23rd 2014, 8:37 pm
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Default Re: Whoa, 4-year residency requirement for spouse can be time spent abroad?

Good luck with it. The AAT decisions on s.22(9) seem to run roughly 50/50 - there are hundreds of them at Administrative Appeals Tribunal of Australia - and each case turns on its own facts, I hope it works for you. The AAT decisions also indicate how tough a line the Department takes at first instance - every case on the AAT database involves an initial refusal.

I see you've attracted JAJ's attention in this thread. He's a very good person to talk to about citizenship issues generally.

Cheers,

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Old Sep 23rd 2014, 9:14 pm
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Default Re: Whoa, 4-year residency requirement for spouse can be time spent abroad?

Originally Posted by George Lombard
Good luck with it. The AAT decisions on s.22(9) seem to run roughly 50/50 - there are hundreds of them at Administrative Appeals Tribunal of Australia - and each case turns on its own facts, I hope it works for you. The AAT decisions also indicate how tough a line the Department takes at first instance - every case on the AAT database involves an initial refusal.

I see you've attracted JAJ's attention in this thread. He's a very good person to talk to about citizenship issues generally.

Cheers,

George Lombard
Guessing a bit here, but after the recent thread where we were discussing citizenship refusal on character grounds, if they are tighening up in that area, presumably there's a reasonable chance of them getting tougher in areas like this as well?
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