Detail Question Of The Week



Citizenship Application - 4 years requirement - Ongoing Partner Visa application

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Question asked

Dear Agent,

In advance, thank you so much for your time and help with my query. It is great to have discovered this resource.

I would like to apply for Australian Citizenship. I understand, as per the immigration department website, that to be eligible you should not have been out of Australia for more than 12 months in the past 4 years. In the past 4 years I have been out of the country a number of time for 2 purposes: for my Australian registered business and to be with my partner who is a US Citizen. One of the periods spent out of Australia went over 12 months though only by 2.5 weeks. I left Australia 7 Oct 2014 and returned 24 October 2015 - I have been in Australia since (1 year and 4 months currently). I want to know if I would still be approved for Australian Citizenship if I apply, given that I have been a Permanent Resident for over 35 years (since 1981 just after my birth) and given that my partner is now residing and working in Australia (working at university of Western Sydney teaching English) and we are awaiting his partner visa to be approved (that application is linked to me and my current permanent residency) and so we do show a commitment and tie to Australia.

My parents have recently become Australian Citizens and my sister also a number of years ago. I would like to add that my business, and reason for much of my travels, is an Australian registered one with ASIC since 2009, and that I do have a somewhat public profile being featured in national Australian newspapers such as The Australian.

I believe I have all the ties and commitment to Australia and no longer wish to live as a PR nor travel as one (my partner and I will be setting up roots here too). Can you please advise if I should proceed and apply for Australia Citizenship without worry about those 2.5 weeks? Can you also advise the length of time it takes to receive approval (final ceremony date) if I do apply?

My business require me to travel again later this year in September and I would like to travel and return, and continue living as an Australian Citizen. Thank you kindly, I look forward to hearing.

Answer provided by our agents

Dear R.

Thank you for your inquiry.

We note that you currently do not satisfy the residence requirement. As you are aware, the Minister has discretionary powers to vary residence requirement;
1. If you were in Australia unlawfully as the result of an administrative error, then that period of time may be treated as lawful residence.
2. If you were in Australia lawfully but not as a permanent resident as the result of an administrative error, then that period of time may be treated as a period of permanent residence.
3. If you were in Australia lawfully, but not as a permanent resident, then that period of time may be treated as a period of permanent residence if you would otherwise suffer significant hardship or disadvantage.
4. If you were in prison or a psychiatric institution, then that period of time may be counted towards the residence requirement if it would be unreasonable not to do so, taking into account the circumstances that led to your confinement.
5. If you have spent time outside Australia as a permanent resident with your Australian citizen spouse or partner, or are the surviving spouse or partner of an Australian citizen and have a close and continuing association with Australia, then that period of time may be treated as time spent in Australia.
6. If you spent time outside Australia and are a permanent resident in an interdependent relationship with an Australian citizen and you have had a close and continuing association with Australia, then that period of time may be treated as time spent in Australia.

Given your circumstances, discretion 5 is most applicable to you.
You will need to provide sufficient evidence to demonstrate your strong ties to Australia while you were absent. Since your partner is not an Australian citizen, the threshold applicable to your matter in demonstrating reason for absence would be much higher. You will focus on showing that your absence from Australia was beyond your control and that you maintained close and continuing association with Australia to a degree that you would be deemed to have spent time in Australia. You will show the Department your family circumstances, circumstances surrounding the Australian registered business, your financial, social circumstances and reasons why you were required to spend time overseas etc. Your claims must be supported by documentary evidence that can be verified.

We advise that you understand that there is no definitive answer when it comes to forecasting an immigration outcome. Matters are dealt with on a case by case basis and your application will be decided on its own merit – how you demonstrate the reason for your absence and whether you maintained strong ties to Australia. You might also wish to consider the fact that case officers have discretionary power to waive or refuse to waive the residence requirement based on your claim and as such different case officers can reach different decisions on the same matter. For this reason, being able to lodge an application is one thing and having it approved is another.

My opinion is that you do have reasonable prospects of success, given the period of your PR status in Australia, your Australian family members as well as your social status.

You will be able to lodge an application now and see whether the Department requests further evidence once a case officer has been allocated.

After receiving a request to provide further information, if you feel the case officer is not likely to approve it, you can either withdraw the application or provide further information so that the case officer proceeds with making a decision on your matter.

In any case, if the Department decides not to grant you an Australian citizenship, you can either have the decision reviewed at the Administrative Appeals Tribunal, or wait to lodge a fresh application once you meet the residence requirement. I would advise on the latter option.

You will also be given an option to contact me to hire my services once this question has been finalized. If you need further services from myself or a registered migration agent, please contact Amy at amy.jacobson@ask-an-agent.com.au

Hope this helps.
Thanks.

Migration Agent