Australian Immigration Daily News

Is it possible for a person who is married to, or the de facto partner of, an Australian citizen to get Australian citizenship even if the person lives overseas most of the time? And if it is possible, under what circumstances may the person qualify for citizenship?

These questions were presented to the Full Court of the Federal Court in the recent case of Minister for Immigration and Border Protection v Han, (2015) FCAFC 79 (4 June 2015). In its decision, the Court provided clear and unequivocal answers. And in the process, the Court adopted an interpretation of the Australian Citizenship Act that had previously been accepted in some judgments of the Administrative Appeals Tribunal, but rejected in others. In other words, there was a “split”, or “difference of opinion” in the AAT about the requirements of the legislation. The decision of the Full Court in Han resolves that “split”.

The issue that was before the Court in Han was about the exercise of the Minister’s discretion to grant relief from the residency requirements that normally apply when a person is seeking citizenship on the basis of “conferral” – that is, where the applicant is not entitled to an automatic grant of citizenship as a result of being born in Australia with one or both parents holding Australian citizenship or permanent residency at the time of the person’s birth.

Under “normal circumstances”, section 22(1) of the Act requires that a person meet the following residency requirements:

1. That the person be present in Australia for a period of 4 years immediately before the date the application is lodged;

2. The person not have been present in Australia as an unlawful non-citizen at any time during the 4 year period; and

3. The person be present in Australia as a permanent resident during the 12 month period immediately before the application is lodged.

The Act describes a number of situations in which these residency requirements can be “relaxed”, or, as the Federal Court put it in more “legalistic” terms, “ameliorated”.

The situation that was in controversy in the Han case was the one dealt with under section 22(9) of the Act. That section enables the Minister to exercise discretion to treat periods when a person is, as a matter of fact, absent from Australia as if the person were actually present in Australia as a permanent resident. Section 22(9) says that the periods of absence may be so treated if the following requirements are satisfied:

1. The person was the spouse or de facto partner of an Australian citizen during the period (emphasis added);

2. The person was not present in Australia during the period;

3. The person held the status of a permanent resident during the period; and

4. The Minister is satisfied that the person had a “close and continuing association with Australia” during the period.

The Full Court was called upon to decide how section 22(9) should be applied because of the particular facts of the Han case. Those facts were as follows: The applicant for citizenship, Mr Han, was a Vietnamese national. He migrated to Australia with the status of a permanent resident with his wife and children in 2008. Mr Han’s wife became an Australian citizen in June 2013, and Mr Han applied for citizenship about 3 months later, in September 2013. During the 4 year period immediately before he made his citizenship application, he had been in Australia for only 458 days. In the year before the application, he had been in Australia for only 58 days. Accordingly, Mr Han needed the benefit of the “ameliorative” provisions of section 22(9) in order for his application for citizenship to succeed.

The critical question in the Han case was whether the applicant’s spouse or de facto partner must be an Australian citizen for the entire period of time that the applicant has been outside of Australia, or whether it is sufficient for the applicant’s spouse or de facto partner to be an Australian citizen just at the time that the application is made.

It was on this question that the previous judgments of the AAT had been divided, with some decisions saying that the person’s spouse or partner must have been a citizen for the entire period for which “relaxation” of the residency requirement is sought, and others saying that it was enough that the spouse or partner be a citizen at the time that the application was made.

In the proceedings before the Full Court, the Minister pressed for acceptance of the more restrictive interpretation of the Act – namely that the spouse or partner must have been a citizen for the entire period.

However, the Court rejected the Minister’s preferred interpretation of the law. The ruling of the Court was that it is enough that the applicant’s spouse or partner be an Australian citizen at the time that the application for citizenship is made. According to the Court’s judgment, if that is the case, then the periods of the applicant’s absence from Australia can “be counted” towards the residency requirement (of course provided that the other requirements of section 22(9) are met.

The reason that the Court arrived at this conclusion was that section 22(9) does not contain any language that requires that the applicant’s spouse or partner be an Australian citizen during the entire period. Applying accepted principles of “statutory construction” (interpretation) the Court declined to “read into” the legislation a requirement that the actual words of the legislation do not impose (section 22(9) does not specify that the spouse or de facto partner of the applicant must be a citizen for the “relevant period” of absence, but only that the spouse or partner be a citizen at the time that the application is made.

For faithful readers of my articles on this blog (!!) this principle of statutory construction should sound familiar, as it was also applied by the Full Court in its recent decision in  SZOXP v Minister for Immigration and Border Protection, (2015) FCAFC 69 (11 June 2015).

The practical implications of the interpretation of the Act that was applied by the Full Court in Han was that the periods that he was absent from Australia were effectively “credited” toward the residency requirements, even though Mr Han’s wife had not been an Australian citizen during the majority of the time that he was absent from Australia and had in fact herself only been an Australian citizen for 3 months before his own application was lodged. The only thing that mattered was that his wife was a citizen at the time that the application was made.

Indeed, it is my view that under the Han decision, the applicant for citizenship’s spouse or partner could conceivably receive Australian citizenship the day before the application is made in order for the “ameliorative” provisions of section 22(9) to be brought into play so that periods of actual absent can be treated as if they are periods of residency.

 This article was prepared by Michael Arch, Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837