The General Residency Requirement must be adhered to, in order to be eligible for an Australian citizenship. The Residency Requirement criteria is outlined below:
- The applicant must be present in Australia for at least 4-years prior to the date of lodging an application for citizenship. This is the lawful residence date.
- The applicant must not be an unlawful non-citizen during that period.
- The applicant must have been a permanent resident for at least 12 months prior to the date of lodging an application for citizenship. This is the permanent residence date.
- If all other requirements are met, then overseas absences during those periods is considered acceptable.
What is an unlawful non-citizen?
An unlawful non-citizen is someone that is currently in Australia and remains in Australia without a valid visa. Entering Australia without a visa will automatically make you an unlawful non-citizen and so will overstaying a visa, or breaching the conditions of a visa. A person that is residing in Australia on a valid visa, but has their visa cancelled by the Department of Home Affairs is also classified as an unlawful, non-citizen.
Can I still obtain an Australian Citizenship if I have previously been an unlawful non-citizen?
Fortunately, there are exemptions that have seen unlawful, non-citizens obtain their Australian Citizenship. Last year, a Tribunal decision used Ministerial Discretion to exempt a period of unlawful presence due to administrative error made by the Department. In this case, it was argued that the period in which the applicant was deemed unlawful, could actually be treated as a period in which he was lawful, on the basis that his temporary unlawful status was actually the product of an ‘administrative error’ caused by the Department. The decision made by the Department was therefore overruled by the Tribunal and the applicant was able to successfully obtain their Australian Citizenship.
What counts as an ‘overseas absence’?
Those that have travelled overseas during the period outlined are in the clear, as long as:
- The total period of absence(s) in the previous 4-years, before the date of lodging the application, was not longer than 12 months.
- The total period of absence(s) in the previous 12 months, before the date of lodging the application, was not longer than 90 days. Furthermore, during the period of absence(s), the applicant was a permanent resident of Australia.
If you have spent too much time outside of Australia, or have not adhered to the General Residence Requirement, then you may not be granted an Australian citizenship. Fortunately, there are some exceptions to the rule, which may overrule any decisions made and allow you to obtain a grant for an Australian Citizenship. These exemptions may apply through Ministerial Discretion, such as:
- Proving administrative error occurred.
- Proving that a person in Australia would significantly suffer disadvantage or hardship if Australian citizenship was not granted. This may apply to a spouse, de facto partner, surviving spouse or defacto partner of an Australian citizen, or a person that is in an interdependent relationship with an Australian citizen.
- Proving that the person was in confinement in prison or in a psychiatric institution.
If an applicant has spent periods outside of Australia, whilst as a spouse, or defacto partner of an Australian citizen, then they may be exempted from being counted as ‘absent’. If an applicant was a permanent resident during a period spent outside of Australia, may also be exempted from being counted as an absence. If an applicant has a ‘close and continuing association with Australia’ during the period of time outside of Australia, this may not be counted as being ‘absent’.
What does it mean to have a close and continuing association with Australia?
Having a close and continuing association with Australia, includes circumstances such as:
- Having a spouse, or de facto partner that is an Australian citizen.
- Having children that are Australian citizens.
- Having an extensive relationship with spouse, de facto partner or interdependent partner that is an Australian citizen.
- Having extended family that lives in Australia.
- Making multiple return visits to Australia.
- Having multiple periods of residence in Australia.
- Being employed within Australia, either in the public or private sector.
- Owning property in Australia.
- Having evidence of income tax payment in Australia.
It is expected that you have a reasonable amount of evidence to support your claims. You should continuously document and record your life in Australia, just in case you ever need it as evidence.
Evidence could include:
- SMS history
- Email history
- Statutory Declarations
- Relationship Documents
- Log of calls
- Witness statements
If you are an applicant who has had your citizenship application refused due to failure to satisfy the general residence requirement, you may want to consider getting help from an Immigration Lawyer in Australia that can refute your grant refusal and help you obtain Australian citizenship.
You do not have to meet the residence requirement when applying for your Australian citizenship, if you:
- Were born to a former Australian citizen who has lost their citizenship before the 4th of April 2002.
- Are under 16 years of age.
Are you ready to become an Australian citizen? Results Migration are the best in the field, with a team of experienced migration lawyers and registered migration agents that are available to guide you through this complex area of law. Call Results Migration on 1800 808 717 or email us on [email protected] and book your free consultation today!