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Alternative Pathways to becoming an Australian Citizen

The ever-growing anxiety over imminent changes to the Australian Citizenship laws is forcing migrants to investigate alternative ways of becoming an Australian Citizen.  Most migrants become eligible for Australian Citizenship by way of conferral, there are however other ways of becoming an Australian citizen as outlined below. 

Citizenship by descent

To acquire Australian citizenship by descent under the current Citizenship Act a person must satisfy one of the two sets of eligibility requirements set out in s16 of the Act, if born outside Australia on or after 26 January 1949 (the day that the old Act came into effect), the person is required to satisfy section 16 (2) which states that a person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:

(a)  a parent of the person was an Australian citizen at the time of the birth; and

(b)  if the parent was an Australian citizen at the time of the birth:

(i)  the parent has been present in Australia (with no period of being unlawful) for a total period of at least 2 years at any time before the person made the application; or

(ii)  the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and

(c)  if the person is or has ever been a national or a citizen of any country

If an individual is unable to satisfy the above criteria, they may still be eligible for Australian Citizenship by Descent under s16(3).  This section is applicable to individuals born prior to 26 January 1949 (that is, the person was born before the old Act came into effect), the person is required to satisfy s16 (3).  This section of the Act states that a person may be eligible for Australian Citizenship provided they meet the following criteria: 

A person born outside Australia before 26 January 1949 is eligible to become an Australian citizen if:

(a)  a parent of the person became an Australian citizen on 26 January 1949; and

(b)  the parent was born in Australia or New Guinea or was naturalised in Australia before the person’s birth; and

(c)  if the person is or has ever been a national or a citizen of any country

Citizenship by Adoption

There are several different types of adoption and the adopted person’s pathway to citizenship will be determined by the type of adoption process they were adopted under.

The main consideration should be given where a person born overseas who was adopted by an Australian citizen will not be eligible to acquire Australian citizenship by descent unless they also had a parent at the time of their birth who was an Australian citizen at the time that the person seeking to acquire citizenship was born.

Where a person was adopted under a Simple Hague Convention the following procedure will apply:

  • Adoption needs to be contracted off-shore, however, finalised in Australia
  • Australian Adoption Authorities are involved during the process
  • Adoption compliance certificate must be issued for the adoption to be recognised under Australian law
  • Where such certificates are not issued, this process is known as “Simple Hague Convention” adoption
  • For the child to travel to Australia, they will require to apply for a subclass 102 adoption visa
  • If the adoption is not finalised in Australia an application may be made for citizenship by conferral under the conferral pathway that is applicable given the person’s age and circumstances (for example, a child under 18 years of age would apply to be considered against s21(5) of the Act)
  • Child is adopted offshore
  • Australian adoption authorities are usually involved
  • Child is adopted by Australian citizen/s under Hague Convention adoption arrangements for intercountry adoptions or a bilateral arrangement between Australia and another country. The adoption is finalised overseas with the issue of a valid adoption compliance certificate. One or more documents may be provided by authorities to meet requirements of an adoption compliance certificate. These are known as ‘full Hague’ convention adoptions.
  • The adoption is recognised under Australian law.
  • Application may be made for Australian citizenship under Subdivision AA - Citizenship for persons adopted in accordance with The Hague Convention on Intercountry Adoption or bilateral arrangement. Section 19C sets out the application and eligibility requirements. A child adopted under a full Hague Convention or bilateral arrangement is not required to obtain a permanent visa to apply under this provision.

Full Hague Convention

The Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption commenced operation in Australia on 1 December 1998. Australian citizenship under these provisions is therefore only available for children adopted under The Hague Convention on or after 1 December 1998.

Generally, the following procedure needs to be followed in order to qualify for Australian citizenship under the full Hague Convention: 

Ministerial Discretion and Special Residence Requirement 

Australian Citizenship Act allows for several concessions to the residency requirement as well as Ministerial Discretion in limited circumstances.  For example, under s22, the Minister has a discretion to count periods spent in Australia as unlawful non-citizen towards meeting the residency requirement.  Generally, such periods are only counted in the event where there was an administrative error made (for example, a person who was entitled to a Bridging Visa was not granted a Bridging Visa due to administrative error). 

Further an applicant for Australian citizenship may be eligible under s22B for consideration of special residence requirement.  This is particularly useful for those who travel regularly for work purposes outside Australia if they are performing work specified in the legislative instrument.  Examples of type of work considered acceptable includes: 

  • a member of the crew of a ship; or
  • a member of the crew of an aircraft; or
  • engaged in work on a resources installation or a sea installation; or
  • a Chief Executive Officer of an S&P/ASX All Australian 200 listed company; or
  • an Executive Manager of an S&P/ASX All Australian 200 listed company; or
  • a Scientist employed by:
    • an Australian university who has attained a PhD in their field of speciality and is undertaking research and development of benefit to Australia; or
    • Commonwealth Scientific and Industrial Research Organisation; or
    • a medical research institute which is a member of the Association of Australian Medical Research Institutes (AAMRI).
    • a medical specialist, internationally renowned in their field

To meet this special residence requirement, during the four-year period immediately before they submitted their application, a person must also have been:

  • engaged for at least two years in that kind or work
  • ordinarily resident in Australia, with the last 12 months as a permanent resident of
  • present in Australia for at least 480 days in total, with at least 120 days of this being during the last 12 months immediately before applying and
  • not have been present in Australia as an unlawful non-citizen 

The Australian Citizenship Legislation Amendment (Strengthening the Commitments for Australian Citizenship and Other Measures) Bill 2018 is currently before the Senate and can be tracked here: 

https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1123

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    mohamed Friday, 14 September 2018

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