Australian Immigration Daily News

Can a New Zealand citizen who is present in Australia on a “Special Category”, Subclass 444 visa, qualify for Australian citizenship?

Or to put the question slightly differently, are there any circumstances under which a New Zealand citizen who is the holder of a Special Category visa acquire the status of a permanent resident of Australia?

These questions were raised in a decision that was handed down by the AAT on 25 August, Carr v Minister for Immigration and Border Protection (Citizenship) (2017) AATA 1361 (25 August 2017).

The case provides a good opportunity for a “refresher” on the pathways by which a New Zealander can become an Australian citizen.

This case involved a person who had made several trips back and forth between New Zealand and Australia, and who had lived in Australia for extended periods of time, including from July 1995 – December 1998, January 2008 – July 2014 and September 2014 – until the present. 

Were these extended periods of residency in Australia sufficient to enable the applicant to satisfy the eligibility requirements to become an Australian citizen?

Unfortunately for the applicant, they were not.

Under section 21(2) of the Australian Citizenship Act, a person must be a permanent resident both at the time that an application for citizenship is made, and at the time that a decision on the application is made.

Of course, a Special Category visa is only a “temporary visa”, as per clause 444.511 of Schedule 2 of the Migration Regulations, and therefore does not confer permanent residency status, or a path to citizenship.

However, section 5(2) of the Citizenship Act does provide that the Minister may, by legislative instrument, determine that certain holders of Special Category visas do meet the requirements for permanent residency.

The relevant legislative instrument is IMMI07/037.

This instrument provides that the holders of Special Category visas who were present in Australia on 26 February 2001 meet the requirements for permanent residency.

The instrument also provides that persons who were outside of Australia on the critical date,                  26 February 2001, but who had been present in Australia as the holders of Special Category visas for a period of 1 year in the 2 year period immediately before 26 February 2001, are also permanent residents.

A third way specified by the instrument for a New Zealander to be a permanent resident is to obtain a certificate under the Social Security Act stating that the person was residing in Australia “on a particular date”.  Under the Social Security Act, such a certificate could certify that the person was residing in Australia on 26 February 2001, but was temporarily absent from Australia on that day, or commenced, or recommenced residing in Australia during the 3 month period commencing on 26 February 2001.

The problem is that the Social Security Act provided only a very limited “window” for applying for a residency certificate, which slammed shut for all persons on 26 February 2004.

The difficulty for the applicant in the Carr was that even though she had been resident in Australia as the holder of a Special Category visa prior to the critical cutoff date of 26 February 2001, she was absent from Australia on that date. And she was not able to satisfy the requirement of having been in Australia for a total of 1 year in the 2 year period immediately before the cutoff date.  She was only in Australia for 65 days during that time frame.

So, her citizenship application “crashed and burned”, and the Tribunal affirmed the Department’s refusal of the application.

Of course, there is now an alternative pathway to permanent residency and Australian citizenship for New Zealanders who commenced “usual residence” in Australia on or before 19 February 2016, who have lived in Australia for a period of 5 years, and who can demonstrate income equivalent to the Temporary Skilled Migration Income Threshold (or demonstrate entitlement to an exemption from the income threshold), through the new Subclass 189 visa that was introduced on 1 July 2017.

But for new arrivals after 19 February 2016, there is still no pathway.

Should Australia really be making it this hard for New Zealanders?

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