Changes to Australian Citizenship - Guide for Applicants

webster By Mark Webster
Monday, 24 April 2017

The Australian Government has announced changes to Australian citizenship requirements which are effective 20 April 2017.

The changes will require:

  • That applicants hold their Australian permanent residence for longer
  • Formal English language testing
  • A revised Citizenship test
  • Evidence that applicants show that they have integrated into Australian society
This article explains the changes and gives guidance for people affected by the changes.

Changes to General Residence Requirement

Applicants for citizenship by conferral would generally need to show that they meet the "General Residence" requirement.

This would mean showing that they have been present in Australia for at least:

  1. The last 4 years, on any temporary, permanent or bridging visa, with a maximum of 12 months overseas; and
  2. The last 12 months, on a permanent visa, with a maximum of 3 months overseas
Previously, it was possible to count time spent in Australia on a temporary visa or bridging visa towards the 4-year requirement in (1) above.

The announced changes would require that applicants hold a permanent visa for 4 years before applying. This would potentially require applicants to wait a further 3 years before applying for Australian citizenship.

Who Will Be Most Affected?

It is quite common for people to spend a significant amount of time in Australia on temporary or bridging visas ahead of obtaining permanent residence. Examples would include:
  • International students who complete studies in Australia ahead of applying for General Skilled Migration
  • 457 visa holders who work for their employer in Australia for several years, then apply for permanent residence through the Employer Nomination Scheme (ENS)
  • Partner visa applicants who first obtain a temporary partner visa, then qualify for a permanent partner visa 2 years after lodging their initial partner visa application

Are There Exceptions to the Residence Requirement?

There are concessions to the general residence requirement currently in the Citizenship Act - these include:
  • Partners of Australian citizens - in this case time spent outside Australia can be counted towards the residence requirement, providing you hold a permanent visa at the time
  • Significant hardship - time spent in Australia on a temporary visa can be considered towards the requirement for holding a permanent visa, if otherwise significant hardship would result

You can also apply under the Special Residence pathway - this would generally require that you are supported by an Australian sporting agency, have completed defence service or need to travel regularly due to your employment. For the employment pathway, only certain types of work can be considered, including:
  • a member of the crew of a ship or aircraft;
  • work on a resources installation or a sea installation;
  • CEO or Executive Manager of an S&P/ASX All Australian 200 listed company;
  • Scientists employed by a university, CSIRO or medial research institute
  • Medical specialists internationally renowned in their field
  • Writer or person engaged in the visual or performing arts and who is the holder of, or has held, a Distinguished Talent Visa.

When do the Changes come into Effect?

The Department of Immigration citizenship eligibility page has been updated and indicates that the residence requirements come into effect as of 20 April 2017.

However, it also notes that the legislation to bring the changes into effect has not yet been passed by Parliament. The Government has indicated that the legislation will be put to Parliament by the end of 2017, and it is possible that it will take some time for the legislation to be passed.

If the legislation is not passed by Parliament, then the previous rules would continue to be in effect.

If the legislation is passed by Parliament, it is likely to be retrospective and affect applications lodged on or after 20 April 2017. Pending applications which don't meet the 4-year permanent residence requirement are likely to be put on hold and processed once the legislation is passed.

What are my Options if I'm Affected by the Changes?

Option 1 - Lodge Now

If you meet the previous General Residence requirement for Australian citizenship, you have the option of still proceeding with lodgement. The online lodgement system is not currently available, so you would need to lodge a paper application.

If the legislation is not passed, your application might then be successful.

If the legislation is passed, your application is likely to be refused. This would not affect your the permanent visa you hold. You would lose the application fee of $285, but would not have any other adverse consequences.

Another possibility would be that the legislation is passed, but does not come into effect retrospectively. In this case, there would be an advantage to lodging ahead of the legislation being introduced to Parliament.

If considering this option, we would recommend you do this without delay as it's possible Immigration will stop accepting paper applications to close this application pathway.

Option 2 - Wait Until Legislative Process is Completed

As the legislation is not yet passed, you could wait until it is clear whether the legislation will come into effect or not.

At the moment, it is not clear that the Government has the numbers in the lower house to pass the legislation.

Even if it is passed, it may need to be amended to get it through Parliament.

This option gives the greatest certainty, but requires you to keep a close eye on developments.

Option 3 - Apply Based on one of the Concessions to the Residence Requirement

This may be possible if you can show significant hardship or that you are required to travel due to your employment.

Option 4 - Wait Until You Meet the 4-Year Permanent Residence Requirement

This may require you to wait up to an additional 3 years, during which time you may need to spent the majority of your time in Australia.

Changes to English Requirement

Applicants will need to show Competent English when applying for Australian citizenship going forward - this will require many applicants to do an English test. English testing was not previously required.

Competent English would require a score of 6 in each band of IELTS, or one of the alternative tests of English.

Passport holders from the UK, Ireland, USA, Canada and New Zealand are usually exempt from English language testing in demonstrating competent English - we would expect this to also apply to the citizenship requirement.

English tests are usually valid for 3 years - we would hope that applicants who have previously done an English test for their permanent residence application would be exempt for English language testing.

Integration Requirement

According to the discussion paper, applicants will need to demonstrate their integration into the Australian community by providing documentation on their integration into Australian society.

This is likely to include providing evidence that you are:

  • Working, are actively looking for work or seeking to educate yourself
  • Actively involved in community or voluntary organisations
  • Properly paying your taxes
  • Ensuring your children are attending school

If there is evidence of the following, your application might be refused:
  • Criminal records
  • Breaching social security laws
  • Family Violence including any AVOs
  • Involvement in gangs and organised crime
Applicants previously needed to show that they were of good character, but the changes give Immigration more discretion to refuse applicants who are not sufficiently integrated into Australian society.

Citizenship Test

A new citizenship test will be developed which tests Australian values more thoroughly.

Applicants will be able to attempt the test a maximum of 3 times. If a person is found to be cheating on the test, this will result in an automatic fail.

The current citizenship test has a low faiure rate. The most important aspect of this change will be to reinforce Australian values and make the importance of integration into the Australian community more clear.

Can I Do Anything to Prevent the Change Happening?

There is a discussion paper on the proposed changes to Australian citizenship.

If you are going to be affected, we would recommend that you make a submission to citizenship.submissions@border.gov.au. Submissions close on 1 June 2017.

Conclusion

If you are affected by the changes and wish to discuss your options, please book a consultation with one of our advisors.

We can then explain the changes in more detail and come up with an application strategy for you.

References

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