Ministerial discretions for the general residence test in Australian citizenship by conferral applications

Broadly speaking, s 21 of the Australian Citizenship Act (2007) (Cth) (Citizenship Act) allows for applications for Australian citizenship by conferral in 7 situations, with the most common being that an applicant satisfies the general eligibility criteria. Within the general eligibility criteria, applicants are required to pass one of the four residence requirements at the time of application, being the:

• general residence requirement;
• special residence requirement (persons seeking to engage in activities that are of benefit to Australia);
• special residence requirement (persons engaged in particular kinds of work requiring regular travel outside Australia); or
• Defence service requirement.

This article does not examine the general eligibility criteria for citizenship by conferral in detail (which you can read about here), but rather the general residence requirement and the available discretions.

What is the general residence requirement?

An applicant satisfies the general residence requirement if they meet a two tiered test:

Requirement	Permissible absence
They have been present in Australia for a period of 4 years immediately before the day they made the application. During this time, they must not have any periods of stay as an unlawful non-citizen (4 year requirement).	The total absence or absences in the 4 year period must not be more than 12 months (allowable absences in the last 4 years).
They have been present in Australia as a permanent resident for a period of 12 months immediately before the day they made the application. During this time, they must not have any periods of stay as an unlawful non-citizen (12 month requirement).	The total absence or absences in the 12 month period must not be more than 90 days (allowable absences in the last 12 months).

To keep track of the above, it is helpful to obtain a copy of your movement records from the Department here before you apply for Australian citizenship by conferral.

What are the ministerial discretions for the general residence test?

While there is no power under the Citizenship Act to waive the residence requirements, a number of ministerial discretions may assist a person in meeting the general residence requirements when they otherwise would not.

The ministerial discretions in the Citizenship Act include where there is:

• an administrative error in relation to:
  1. unlawfulness during the 4 year requirement; or
  2. permanent residence status during the 12 month requirement;
• confinement in a prison or psychiatric institution;
• an applicant in Australia who would suffer significant hardship or disadvantage;
• an applicant who is a spouse, de facto partner or surviving spouse or de facto partner of Australian citizen; or
• an applicant who is in an interdependent relationship.

The applicant must request consideration of a discretion and provide a statement and supporting documents when lodging the citizenship application.  If an applicant does not provide a statement or supporting evidence at the time of lodgement and there is no information available on departmental records that indicates a discretion may apply, delegates are not obliged to request further information from the applicant and may proceed to a decision based on the information before them.

What is the ministerial discretion for an Administrative error (in relation to unlawfulness)?

This discretion applies to the 4 year requirement.

The Minister may treat any period of unlawfulness in the last 4 years as a period in which “the person was not present in Australia as an unlawful non-citizen” if the Minister considers the person was present in Australia during that period but because of an administrative error, was an unlawful non-citizen during that period.

Department policy provides examples of this, such as:

• The Department advised the applicant that they were a lawful non-citizen when in fact, they were unlawful, and consequently, the applicant did not apply for a visa. The discretion may be applied from the time the incorrect advice was provided until the applicant became aware, or could reasonably be considered to have become aware, that they were unlawful. Note that the period before the incorrect advice was given would not form part of the period covered by this discretion.
• A person makes a valid application for a substantive visa and an associated bridging visa, but the bridging visa is not granted prior to the person’s current visa ceasing, resulting in the person becoming an unlawful non-citizen.

Importantly, administrative errors are not the same as jurisdictional errors.

What is the ministerial discretion for an Administrative error (in relation to permanent residence)?

This discretion applies to the 12 month requirement.

The Minister may treat any period in the last 12 months as a temporary resident as one in which the applicant was in Australia as a permanent resident. To do so, the Minister must determine that the person was present in Australia during that period but, because of an administrative error, was not a permanent resident.

Importantly, administrative errors are not the same as jurisdictional error, and Department policy provides the example of where an applicant was eligible for a permanent visa but applied for a temporary visa because of incorrect advice from an officer of the Department.

What is the ministerial discretion for confinement in a prison or psychiatric institution?

This discretion applies to the 4 year requirement.

The context of this exemption is that under s 22 (1C) of the Citizenship Act, a person is taken not to meet the four year residency period if at any time they were:

• confined in a prison; or
• confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the person.

However, this discretion allows the Minister to disregard the period of confinement in a prison or psychiatric institution if it would be unreasonable.  In making the assessment, the Minister would consider the circumstances that resulted in the person’s confinement. For example, this discretion may be applied if the conviction is quashed or the person is pardoned.

If the discretion is not applied, the applicant’s four year residency period will commence from the day the person is/or was released from confinement.

What is the ministerial discretion for a person in Australia who would suffer significant hardship or disadvantage?

This discretion applies to the 12 month requirement.

Periods of lawful residence in Australia can be treated as periods of permanent residence for the purpose of meeting the 12 month requirement if the Minister is satisfied that the applicant would suffer significant hardship or disadvantage if those periods were not treated as periods of permanent residence. In practice, it should be very difficult or impossible – and put the person in considerable hardship – for the person to take steps to meet the 12 month requirement.

Department policy provides typical examples of claims (noting that each claim will need to be assessed in the individual circumstances):

• claimed inability to obtain work in Australia because the employment is restricted to Australian citizens and that comparable or alternative employment is not reasonably available
• difficulty of international travel because the person cannot obtain a passport from their country of nationality/citizenship or is unable to use a passport issued by that country for safety or similar reasons
• difficulty in obtaining visas when required to travel overseas during a person’s employment in Australia.
• the person claims they would be safer travelling as an Australian citizen
• the person claims they cannot access educational opportunities until they become an Australian citizen.
• the person is ineligible to be selected to represent Australia in an international event unless they are an Australian citizen.

Though these are common claims, this does not mean they are commonly accepted.

What is the ministerial discretion for a spouse, de facto partner or surviving spouse of an Australian citizen?

This discretion applies to both the:

1. 4 year requirement; and
2. 12 month requirement.

This is the most commonly sought discretion, and allows periods spent outside Australia as a permanent resident to be counted as time spent in Australia for the purposes of meeting both the 4 year residence requirement and the 12 month permanent residence requirement. The discretion can only be applied to periods when the applicant:

• was a spouse, de facto partner of the Australian citizen during that period;
• was not present in Australia during that period;
• was a permanent resident during that period; and
• had a close and continuing association with Australia during that period.

The first three requirements are straight forward. Under Department policy, the words “likely to maintain a close and continuing association” should be given their ordinary meaning in the context in which they appear. The Macquarie Dictionary Online defines:

• ‘maintain’ as to keep in existence or continuance; preserve; retain;
• ‘close’ as near, or near together, in space, time, or relation;
• ‘continuing’ as to last or endure;
• ‘association’ as the act of associating … connection or combination. It is important to note that the requirement to maintain a close and continuing association refers to an association with Australia, not with Australians.  This means that a close and continuing association with immediate / extended family or other social relationships or networks in Australia may not be sufficient to meet this legal requirement. However, the merits of every case must be carefully considered.

What is the ministerial discretion for a person in an interdependent relationship?

This discretion applies to the 12 month requirement.

If at the time the person made the application, the person holds a permanent visa granted to the person because the person was in an interdependent relationship with an Australian citizen, then, for the purposes of the 12 month requirement, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

1. the person held that visa during that period, and the person was in that interdependent relationship during that period; and
2. the person was not present in Australia during that period; and
3. the person was a permanent resident during that period; and
4. the Minister is satisfied that the person had a close and continuing association with Australia during that period.

This discretion only applies if the person was granted a visa on the basis of an interdependent relationship (i.e. the applicant holds a Subclass 110 (Interdependency) visa or a Subclass 814 (Interdependency) visa). However, these visa subclasses were repealed on 1 July 2009, so in practice, this provision is unlikely to be used.

Any questions?

This article has only covered the ministerial discretions for the general residence requirement. Alternative residence requirements may apply such that the ministerial discretions are not required, including the Special residence requirements (for persons seeking to engage in activities that are of benefit to Australia or persons engaged in particular kinds of work requiring regular travel outside Australia) or the Defence service requirement. The discretions can appear simple, but in practice can be convoluted and hard to demonstrate. With significant experience in relation to Australian citizenship applications, we have the knowledge and experience to understand your circumstances and provide appropriately tailored advice.

Please feel free to contact us by email at [email protected] or phone +61 3 9016 0484 if you have further comments or queries or would like some guidance.

This document does not constitute legal advice or create an attorney-client relationship. Please consult an immigration professional for up to date information.