Become an Australian citizen by conferral or applying to become an Australian citizen under s. 21 of  Australian Citizenship ACT 2007 – you must be an Australian permanent resident and satisfy a number of criteria, including general residence requirement (click here to learn if you need this requirement), must be of good character (click here to learn more) and the Department must be satisfied with your identity (click here to learn more).

When you apply to become an Australian citizen by conferral, you are required to complete an online application and provide a number of documents to support your application. It is very important that you must take care when completing or when answering the questions in the application form as your application may be refused under s. 24(1) of the Act.

Section 24(1) of the Act states if “a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the become becoming an Australian citizen”.

When applying to become an Australian citizen by conferral, you must not provide incorrect answer(s) or fake document because “the grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home” (Fenn v MIMA [2000] AATA 931 at [8]).

In the case of Bongely and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2360 (15 July 2021), Bongely was born in Congo (DRC) first arrived in Australia as child on his father’s Partner subclass 309 visa (click here to learn more about subclass 309). In March 2017 (aged 21 and having lived in Australia for over years), he lodged an application to become an Australian citizen by conferral. In his application he gave date of birth as 20 September 1995. He provided his Document of Travel showing his date of birth as 20 September 1995, a DRC birth certificate showing his date of birth as 20 September 1995 and a WA driver’s license showing his date of birth as 20 September 1995.

Bongely produced his DRC school records (to support his identity pursuant to s 24(3) of the Act) which he paid a family friend to obtain, the records turned out not to be genuine. He then advised the Department that he did not pay close attention to the records and if he did he would have known that they were fraudulent documents and would not have submitted them to the Department. It was on this that cause the Tribunal to consider whether he is of good character pursuant to s. 21(2)(h).

Identity

There is no discretion in s. 24(3) available to the Department to grant Australian citizenship unless they are satisfied of the identity of the applicant. “Identity” is not defined in the Act but is covered in chapter 13 of the Australian Citizenship Policy (CPI). CPI 16 states that (at [4.12]):

“It is not sufficient to be satisfied of a person’s identity at one point in time, as a person’s identity is not a point in time concept; it must be verified incrementally throughout a person’s life and considered historically”.

CPI 16 provides 3 pillars of identity to be used when assessing identity and they are:

1. Biometrics – personal identifiers such as fingerprints, facial images or signature.
2. Documents – genuine documents that are issued with robust identity proofing processes with issuance protocols and security features. For e.g., documents contain biodata, or personal information, such as name, date of birth, nationality, and containing biometric information.
3. Life story – a narrative of the events that happened to them from birth to present. It should include descriptions of family composition, education, employment countries of residence, countries visited, social footprint, and online presence

Applying to become an Australian citizen by conferral, you must satisfy the Department as to your identity, the Department will rely on each of the above 3 pillars of identity. The Department must reach an affirmative belief as to your identity (Rezai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 145).

Good character

Section 21(2)(h) of the Act states that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.

“Good character” is not defined in the Act. In Irving v MILGEA (1996) 68 FCR 422, Lee J said at 431-432 “the words ‘good character’ should be taken to be used in their ordinary sense, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. . . . . A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless, may show that he or she has reformed and is of good character …. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.”

In short, when applying to become an Australian citizen by conferral you must be of good character, good character is not a reputational test, but an objective assessment. It requires ‘consideration of an aggregate of qualities” and a single adverse incident of ‘sufficient weight and seriousness’ can outweigh many good qualities (Prasad and MIEA [1994] AATA 326 at [7]).

CPI 15 (Assessing character under the Citizenship Act) states “An applicant who is a person of good character would generally be expected to exhibit the following characteristics:

• not practise deception or fraud in dealings with the Australian Government, or other organisations. For e.g., intentionally providing false personal information (such as fraudulent work experience or qualification) or other material deception during visa and citizenship applications.

CPI 15 also provides “it also necessary to consider other information that is relevant to a person’s character such as family life, for e.g., raising children, in a stable home environment, employed, paying taxes, and doing community work. In addition, expressing genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing.

In Taradel and MILEA [2005] AATA 1255, the Tribunal observed at [23] that “dishonesty in dealings with the department is a very serious matter …. [because] the integrity of the immigration system depends on individuals telling the truth about their personal circumstances and history …. When dishonesty comes to light, it must be dealt with firmly to deter others who might intend acting dishonestly.”

Dishonesty includes providing documentation that you knew or ought to have known is unlikely to be of any probative value, without providing the necessary explanation and qualification that would enable the Department to appreciate the value of the evidence: Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1729 at [73].

When Bongely’s father apply for Partner subclass 309 visa listing him as being born on 20 September 1995 in Q 38 of form 47SP and on Q 64 of the same form, his date of birth was listed as 21 October 1995. On form 40SP, his mother listed his date of birth as 21 October 1995. He provided his birth certificate showing his date of birth to be 21 October 1995. However, his mother provided a statutory declaration declaring that he was born on 21 October 1995. He further provided a pathology report listing his date of birth as 21 October 1995. When he was applying for the subclass 309 visa, his migration health check-up recorded his date of birth as 26 October 1995. He later provided a replacement birth certificate which listed his date of birth as 20 September 1995. Sometime in November 2019 his mother told him that he was born on 21 October 1995.

When his application to become an Australian citizen by conferral was refused by the Department he applied to the AAT and gave his date of birth as 20 September 1995. When asked by the Tribunal why he put 20 September 1995 as his date of birth when applying to the AAT, he could not explain why even though he already knew from his mother that he was born on 21 October 1995.

The Tribunal finds that Bongely’s date of birth is 21 October 1995. And on his school records the Tribunal could not be certain if they were fraudulent documents. The Tribunal concluded that Bongely was careless in providing evidence because he admitted that he did not pay due care and attention to, and which he says he would likely have considered to be fraudulent if he had paid sufficient attention.

Furthermore, Bongely made a number of errors in his application to become an Australian citizen by conferral even though he has a good command of English and the questions were plain and simple. Here the Tribunal finds that he has at best been flippant in completing his application to become an Australian citizen by conferral. On balance, the Tribunal finds it more likely that he has been careless in completing the application form, rather than intentionally dishonest.

The Tribunal was satisfied with Bongely’s identity prior to coming to Australia and after coming to Australia on the basis of his biometric evidence.

However, the Tribunal is concerned with his incorrect answer given on his application to become an Australian citizen by conferral. The Tribunal concluded that the failure to answer simple questions in a forthright manner raises questions concerning his honesty. The Tribunal do not know why Bongely had lied in his application, finds that he simply did not give sufficient weight to the need to ensure that the information he provided was complete, truthful and correct in every detail. On this basis, the Tribunal is not satisfied that Bongely is of good character.

With regard to his school records, the Tribunal said that Bongely should have included information about how he went about obtaining it and the fee he paid. The Tribunal said that this is further evidence that he lack appreciation for the level of detail and diligence required when making an application to become an Australian citizen by conferral.

The Tribunal said that it does not make a finding that Bongely is not of good character, it simply unable to be satisfied, on evidence before it, that he was of good character at the time of its decision, in the context of his lack of demonstrated appreciation for the need to be both honest and forthcoming in his dealing with the Department, irrespective of any personal cost.

Australian migration law and Citizen law are complex and difficult to understand, contact our immigration lawyer for consultation (fee applies) to assist you on becoming an Australian citizen by conferral.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration or citizenship legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Become an Australian citizen by conferral appeared first on Ozzie Visa.

Australian citizenship residency discretions & exemptions – residence requirements or having lived in Australia is necessary to ensure that a person who wishes to become an Australian citizen has spent sufficient time in Australia to gain an understanding of Australia and the responsibilities and privileges of becoming an Australian citizen. Click here to learn more about Australian citizenship general residence requirements.

There is no general power under the Act to waive the residence requirements, however there is a number of ministerial discretions or Australian citizenship residency discretions & exemptions that may be applied to assist a person to meet the residence requirements for conferral of Australian citizenship.

While it is accepted that policy and procedures do not have the force of law, but when exercising powers or making decisions under the Act, decision-maker should give policy documents due weight. It is also accepted that policy and procedures should not be applied inflexibly, and merits of each individual case should be considered.

Certain CPI applies to those who are applying for Australian citizenship by conferral under:

• section 21(2) – general eligibility; or
• section 21(3) – incapacity; or
• section 21(4) – applicants aged 60+ or who have a sight, hearing or speech impairment;

who are required to satisfy 1 of the 4 residence requirements:

• section 22 – general residence requirement;
• section 22A – special residence requirement for those seeking to engage in activities that are of benefit to Australia and for which they are required to be an Australian citizen;
• section 22B – special residence requirements for those engaged in particular kinds of work requiring regular travel outside of Australia.

Section 22 – General residence requirement

You will meet the section 22 general residence requirement if you:

• were present in Australia for 4 years immediately before the day you apply; and
• were not present in Australia as an unlawful non-citizen at any time during the 4 year period; and
• were present in Australia as a PR for the period of 12 months before the day you apply; and
• were not absent from Australia for more than an accumulated period of 365 days during the 4 year, including no more than 90 days in the 12 months while you are holding a permanent resident visa and before you apply.

You will not satisfy the 12 months permanent residency period if, during the 12 month period:

• you were granted a temporary visa. You will need to wait 12 months from the day you last became a PR; or
• you were granted a temporary visa (for e.g., a Subclass 773 – click here to learn more) allowing you to enter Australia and failed to apply for a RRV Subclass 155 (click here to learn more) before the temporary visa expired, as a result you became an unlawful non-citizen. You will need to satisfy s 22(1) to re-apply; or
• your PR visa ceased when you departed Australia; or
• your PR visa ceased while outside of Australia and before you were granted a RRV.

Meaning of  in “Australia”

Section 3 defines “Australia” in a geographical sense, includes the external Territories (include Norfolk Island, Cocos (Keeling) Islands, Christmas Island, the Australian Antarctic Territory, Ashmore & Cartier Islands, the Coral Sea Islands and Heard and McDonald Island).

Working on ships, airplanes and other facilities outside Australia

If you are travelling on a plane or a ship and the vessel does not enter another country, it is taken that you did not leave Australia if you are transiting or remains a passenger, or a member of the crew; and you are outside the migration zone for no longer than the prescribed period (s. 80 of the Migration Act 1958). The prescribed period is 30 days (reg. 3.07). Notwithstanding s. 80, for the purposes of meeting the residence requirement when the vessel is outside Australia, you are deemed not to be present in Australia. However, you may be assessed against the special residence requirement in s. 22B (persons engaged in particular kind of work requiring regular travel outside Australia – Australian citizenship residency discretions & exemptions).

Imprisoned or in a psychiatric facility (s 22(1C))

You will not meet the 4 year residency requirement if you:

• are in a jail; or
• are confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law

If you are affected by the above, you could request for Australian citizenship residency discretions & exemptions – section 22(5A) ministerial discretion.

Former Australian citizens and people born in Australia (s 22(2))

If you are born in Australia or was an Australian citizen before making the application, you may not be required to meet:

• s 22(1)(a) – present in Australia for the 4 years before making the application; or
• s 22(1)(b) – not present in Australia as an unlawful non-citizen during the 4 years before making the application.

But you are still required to meet s 22(1)(c) – present in Australia as a PR for the 12 months before making the application. If you have been an unlawful non-citizen during the 12 month period, you will not satisfy this requirement.

Who are former Australian citizens

Former Australian citizens, include (not limited to):

• those born in the former Australian territory, the External Territory of Papua (before PNG Independence Day on 16 September 1975) – ceasing to be Australian citizens in accordance with the PNG Constitution; and
• those who renounced their Australian citizenship.

Ministerial discretions – general residence (Australian citizenship residency discretions & exemptions)

If you do not meet the general residence requirements, you may request the Minister to use his discretions. When making a request, you must provide a statement and supporting documents when you lodged your application. If you do not provide a statement or supporting evidence at the time of lodgement and there is no information available on the Department records that indicates you have applied for a discretion, the decision-maker is not obliged to request for further information and may proceed to a decision on the information before them.

Section 22(4A) – unlawful due to an administrative error

If the Department has made an administrative error recording that you were present in Australia as an unlawful non-citizen for a period of time, the Minister may disregard this period (s 22(4A)). However:

• there must be an administrative error; and
• the error must be the reason why you lack or lacked the necessary legal status.

Examples:

• The Department advised that you are lawful non-citizen when in fact your were unlawful, as a consequence you did not apply for a visa. If s 22(4A) discretion is applied, the time you were given the incorrect advice till when you became aware, or could reasonably be considered to have become aware, that you were unlawful.
• You lodged a valid application for a substantive visa, but a bridging visa was not granted prior to your current visa expiring, resulting you in becoming an unlawful non-citizen.

Section 22(5) – not a PR due to an administrative error

Example, if you are eligible for PR but made an application for a TR because of incorrect advice given by the Department, the Minister may treat this period as being present in Australia as a PR.

This discretion does not apply:

• you travelled on a NZ passport and is a PR but on arriving in Australia you were granted a SCV (click here to learn more about Subclass 444). If this applies, the granting of the SCV is affected by jurisdictional error because a PR cannot make a valid application for a SCV (Item 1219 of Sch1). The grant of the SCV will be treated as a nullity.
• the Department delayed in processing your PR application unless the delay was unreasonable and a mistake or an oversight.
• the AAT or a court sets aside a decision of the Department.

Section 22(5A) – In prison or in a psychiatric institution

If you are confined in a prison or a psychiatric institution, s 22(5A) allows the Minister to disregard the period you are confined if it is unreasonable for s 22(1C) to apply to you. The Minister, when deciding whether to use his discretion, must take into account the circumstances of your confinement:

• Whether your conviction is quashed, or you are pardoned
• If discretion is not applied, your 4 year residency period will commerce from the day you are released from confinement.

Section 22(6) – person in Australia would suffer significant hardship or disadvantage

Section 22(6) allows for periods of lawful residence, other than permanent residence, to be treated as periods of permanent residence for the purpose of meeting the 12 month PR requirement if the Minister is satisfied that you would suffer significant hardship or disadvantage if those periods were not treated as periods of permanent residence.

You must provide a supporting statement to allow s 22(6) to be assessed.

Subsections 22(9) and (10)

This discretion allows for the periods of time spent outside Australia to be counted as time spent in Australia for the purposes of satisfying s 22(1)(a) and s 22(1)(c) when you have exceeded the allowable s 22(1A) absences.

However, this discretion can only be applied to periods when:

• you are a partner of the Australian citizen during that period; and
• you were not presence in Australia during that period; and
• you were a PR during that period; and
• you have a close and continuing association with Australia during that period.

In addition, you must be the spouse, de facto partner or surviving partner of an Australian citizen at time of application. This discretion is only available if the surviving spouse or de facto partner has not become the spouse or de facto partner of another person after the death of their partner and before making the application (s 22(10)). In addition, s 22(9) does not require your partner to have been an Australian citizen during your periods of absence (MIBP v Han [2015] FCAFC 79). The test is whether you and your Australian citizen partner were in the spousal or de facto relationship at the time of making the application and not whether your partner was an Australian citizen for all the period of the relationship.

You will need to provide:

• evidence of your partner’s Australian citizenship; and
• evidence of relationship (e.g., marriage certificate or evidence of de facto relationship).

You should explain the circumstances of your relationship and may include:

• duration of your relationship
• nature and extent of your common residence
• whether a sexual relationship exists
• degree of financial dependence or interdependence
• ownership, use and acquisition of your property
• degree of mutual commitment to a shared life
• care and support of children
• reputation and public aspects of your relationship
  
  

You should note that an absence of the above does not necessarily mean you are not in a relationship.

Section 22(11) – interdependent relationship

This discretion is for those whose who has exceeded the 90 days allowable in the 12 months before making an application for the purposes of s 22(1)(c). However, this discretion is only for those who was granted a visa on the basis of being in an interdependent relationship (note that subclasses 110 and 814 were removed in July 2009) or same sex couple (s 22(9)).

SPECIAL RESIDENCE REQUIREMENTS

Section 22A – engaging in activities that are of benefit to Australia

This only applies to certain activities listed under s 22C(1).

Generally, these activities are:

• employment with the Commonwealth in a Department, an Executive Agency or Statutory Agency of the Commonwealth requiring a Negative Vetting 2 or higher security clearance; or
• participating in an Australian team (Olympic or Paralympic) in certain international sporting competitions.

The benefit to Australia must be something more than just your desire or the desire of a sporting association to compete in international sporting events. In addition, you must also be an Australian citizen to be able to compete (including qualifying events).

Furthermore, you must also demonstrate that there is insufficient time for you to satisfy the general residence requirement in order to engage in that activity (s 22A(1)(a)(iv)). And as letter from the head of a specified organisation that you have a reasonable prospect of being engaged in that sporting activity.

Section 22B – engaging in particular kinds of work requiring regular overseas travel

In order to request for section 22B discretion, you must be engaged in certain kind of work (s 22B(1)(a)) requiring regular overseas travel. Generally, you must be:

• a member of a crew of a ship;
• a member of the crew of an aircraft;
• working on a resources installation or sea installation;
• a CEO of an S&P / ASX All Australian 200 listed company;
• an Executive Manager or Executive Director of an S&P / ASX All Australian 200 listed company;
• a Scientist employed by:
  • an Australian university and having a PhD, and is undertaking R & D of benefit to Australia; or
  • Commonwealth Scientific and Industrial Research Organisation (CSIRO); or
  • a medical research institute (AAMRI)
• a medical specialist with certain qualification
• a writer or is engaged in the visual or performing arts holding or held a Distinguish Talent visa (click here to learn more).

Section 22B(1)(c)-(g) discretion – other criteria

You must also:

• be present in Australia for at least 480 days in the 4 years before making the application, including 120 days in the 12 months (s 22B(1)(c); s 22B(1)(d));
• be an ordinarily resident in Australia throughout the 4 years before making the application (s 22B(1)(e));
• be a PR throughout the 12 months before making the application (s 22B(1)(f)); and
• not be in Australia as an unlawful non-citizen at any time throughout the 4 years before making the application (s 22B(1)(g)).

Sections 22A(1A) & 22B(1A) – alternative residence requirements

The Minister with personal, non-compellable powers to apply an alternative residence requirement for those requiring Australian citizenship to engage in an activity of benefit to Australia but unable to satisfy the s 22 general residence requirement, or the special residence requirement set out in sections 22A or 22B.

However, the alternative residence requirement cannot be applied unless you also meet all the other criteria for conferral of Australian citizenship, including intention to reside or continue to reside or maintain a close and continuing association with Australia.

You must also be able to demonstrate that you are engaged in certain activities of benefit to Australia or are engaged in certain types of specific work.

Section 22A(1A) – engaging in activities that are of benefit to Australia

In order to require for alternative residence requirement consideration Australian citizenship residency discretions, you must:

• be seeking to engage in certain activities of benefit to Australia (s 22A(1)(a)(i) and you need to be an Australian citizen in order to engage in the activity but there is insufficient time for you to satisfy the general residence requirement;
• provide a letter from the head of certain organisation stating that you have a reasonable prospect of engaging in that activity and need to be Australian citizen to engage in that activity, and there is insufficient time for you to satisfy the general residence requirement;
• be or have been in Australia for at least 180 days in the 2 years before making the application;
• have been a PR for at least 90 days before making the application;
• have not been present in Australia as an unlawful non-citizen at any time in the 180 days before making the application;
• give the Minister an undertaking that if you become an Australian citizen, you will be ordinarily resident in Australia for 2 years after becoming a citizen and will be present in Australia for a total of at least 180 days during that 2 years. Section 34A allows the Minister to revoke your citizenship if you failed to keep your undertaking;
• your work requires you to travel regularly outside Australia;
• you have been working in that kind of work (requiring you to travel overseas regularly) for at least 2 years during the 4 years before you apply; and
• your work must be of benefit to Australia.

Australian citizenship law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you determine if you are eligible for Australian citizenship residency discretions & exemptions.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Australian citizenship residency discretions & exemptions appeared first on Ozzie Visa.

Citizenship by conferral and identity requirement – if you are applying for Australian citizenship by conferral under the Australian Citizenship Act 2007, the Department must be satisfied as to your identity pursuant to s. 24(3).

Section 24(3) states that the Department must not approve an Applicant becoming an Australian citizen unless it is satisfied of the identity of the Applicant. The decision maker in deciding whether the Applicant’s identify is satisfied, will be assisted by the Australian Citizenship Policy Statement including the Citizenship Procedural Instruction 16 and Chapter 13.

Citizenship by conferral and identity requirement – to fulfil the identity requirement, there are 3 pillars of identity to be considered and they are:

• biometrics;
• documents; and
• life story.

The term “identity’ is not defined in the Citizenship Act. However, the Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 states:

“There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.”

The Australian Citizenship Policy Statement provides at Chapter 13:

“The identify provisions prohibit the approval of a citizenship applicant in cases where the decision maker is not satisfied of the person’s identity.”

The Policy makes reference to the National Identity Proofing Guidelines 2016 which states:

“A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.”

The Citizenship Procedural Instruction 16 (Assessing Identity under the Citizenship Act) identities 3 pillars of identity: biometric, documents and life story. It also states that:

“Officers should not rely on a single pillar to establish a person’s identity. Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity. In order to comprehensively test and evaluate a person’s claims with regard to their identity, decision-makers should consider each pillar.”

It also states with regard to being “satisfied of a person’s identity”:

“Reaching the point where a decision-maker is satisfied or not satisfied of a person’s identity is a process of exercising informed judgement. It should reflect a process of reasoning where the decision-maker has turned their mind to the issue(s) and the evidence and information has been rationally and impartially weighed.”

For the decision maker to be “satisfied”, s/he must consider whether or not s/he is persuaded on the basis of evidence of a person’s identity. What this mean is that the decision maker cannot be satisfied simply as a result of a “mere mechanical comparison of probabilities independently of any belief in its reality”. Similarly, the decision maker does not require incontrovertible evidence of a person’s claimed identity to be satisfied of that identity.

It is not just about information and documents, but its quality, plausibility and relevance of the information provided in the context of how it supports or refutes a person’s claimed identity. So, more documents do not necessarily result in better identification of a person.

It should be noted that while the production of documents to establish identity is not legally essential, however not producing requires a cogent and acceptable explanation: CDWB and WLVM v MIBP [2018] AATA 757 at [9]. In addition, failing to show positive steps in obtaining identity or supporting documents or provided an acceptable reason for not doing so, that failure will weight against an applicant: Dhayahpa and MIBP [2015] AATA 310 at [117].

To explain the citizenship by conferral and identity requirement, we will refer to the case of Karimi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1018 (26 April 2021).

Karimi arrived in Australia as an unauthorised maritime arrival on 21 December 2010. He claimed that he was born on 28 September 1977 and his citizenship was Iranian Kurd and had a Green card.

In his Unauthorised Arrival interview, he said he was born in Iraq in August 1975 and was stateless, he and his family were expelled from Iraq in 1978 and moved to IIam, Iran and did not have a Green card.

When he applied for a Protection visa he completed Form 80 (Character Assessment) he stated that he was born in Iraq on 27 May 1975.

In July 2011, Karimi requested his date of birth be changed from 27 May 1975 to 27 May 1972.

On 24 August 2015, Karimi applied for Australian citizenship by conferral stating that he was born on 27 May 1972 in Iran.

On 29 August 2018, he was granted a RRV (click here to learn more about subclass 155 visa) and departed the country on 8 November 2018. On 16 June 2019 on his incoming passenger card Karimi stated that he spent most of the time in Iran visiting friends and relatives.

The AAT noted that Karimi had provided 4 different birth dates more than 5 years apart. Karimi claimed that this was due to error of translation and calendar conversions.

The AAT said that Karimi has provided inconsistencies and implausibilities regarding his life story such as receiving payments for work done before coming to Australia. He also claimed that he had borrowed monies from his parents and brother, but no repayments were made in the last 10 years, no one has asked for him to repay yet the “debt is still in place”.

Karimi also claimed that he used fake passport to depart Iran, but the Tribunal did not accept that it was possible because all passports were checked against a computer system and there are multiple persons being responsible for the ultimate authority to board a plane. Hence, the Tribunal said many people would need to be  bribed if Karimi was to leave using a fake passport.

The Tribunal also said that it would be extremely dangerous, undesirable, difficult and even fatal for Karimi to return to Iran on his RRV. The Tribunal did not accept that Karimi’s claim that he was smuggled in and out of Iran for his visit. In addition, Karimi’s wife and children currently live in Iran as undocumented stateless persons and that they voluntarily choose to live in Iran.

More importantly, the Tribunal finds that Karimi return to a country where he claimed to fear great harm and danger, this undermines his credibility. The Tribunal finds that Karimi’s life story in this regard is implausible.

As Karimi did not provide biometric and documents, the Tribunal can only assess his “life story” pillar of the 3 pillars of identity. On balance, the Tribunal cannot be satisfied, as required under s. 24(3), of Karimi’s identity.

When completing the citizenship application or providing supporting document, it is important that you put effort into completing the task or risk refusal – click here to prevent your application being refused.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you understand Australian citizenship by conferral and identity requirement. Click here to learn about citizenship test; or click here for character requirement; or click here for residence requirements or click here for general residence requirement discretion.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Citizenship by conferral and identity requirement | s 24(3) appeared first on Ozzie Visa.

Australian citizen test – if you apply for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007, you will be required to satisfy the Minister, amongst other things, that you understand the nature of the application, possess a basic knowledge of the English language and have an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship. You can only satisfy these requirements if you have successfully completed an Australian citizenship test.

You are required to score at least 15 out of 20 in the Australian citizenship test.

Australian citizenship test – do I have to sit for the test?

Generally, all applicants will have to sit for the Australian citizenship test unless you are granted an exemption under subsection 21(3)(d) of the Act. You may be granted an exemption if you have a permanent or enduring physical or mental incapacity at the time you lodge the application which would prevent you from completing the Australian citizenship test.

How do I get an exemption for not sitting the Australian citizenship test?

You will need to provide sufficient evidence to show that you have an incapacity that would satisfy the criteria required to be exempt from taking the Australian citizenship test.

You should note that if you suffer from depression and generalised anxiety disorder and you have letters from your psychologist confirming this, this may not be enough to satisfy the exemption criteria (see Akhlaghi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2837 (11 August 2020).

Permanent or enduring physical or mental incapacity

You may be exempt from completing the Australian citizenship test if the Minister satisfied that you (s. 21(3)):

• are not capable of understanding the nature of the application at that time; or
• are not capable of demonstrating a basic knowledge of the English language at that time; or
• are not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.

If you are able to satisfy the above, you are not required to sit for the Australian citizenship test in order to obtain Australian citizenship.

So, what is the meaning of “permanent or enduring physical or mental incapacity”? The Act does not define permanent or enduring physical or mental incapacity. However, the Citizenship Policy provides guidance and states:

…. To qualify, incapacity must be either permanent, or sufficiently long-term  as to be enduring. An enduring incapacity is one for which there cannot be a predicted recovery, or where if there is, it is long-term and it would be unreasonable to expect the person to recover before becoming eligible for  Australian citizenship. Examples may include a person suffering from long-term depression, post-traumatic stress disorder, or where a person has suffered a stroke.

  A temporary physical or mental condition does not meet the requirement.

Applicants claiming permanent or enduring mental incapacity may provide  evidence from a:

• psychiatrist who is a fellow of the Royal Australian and New Zealand  College of Psychiatrists or
• medical practitioner who is a fellow of the Australian Society of           Psychological Medicine or
• psychologist who is registered with the Psychology Board of Australia,  has a practice endorsement in an area relevant to the problem, and is  registered with Medicare for these purposes. Examples of psychologists who are likely to have a relevant area of practice        endorsement are clinical psychologists, forensic psychologists and    clinical neuropsychologists.

It is anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis.

What do you need to be exempt from the citizenship test?

• your treating medical practitioner or psychologist must meet professional qualifications or areas of specialty;
• they must make reference to any testing they had performed;
• their reports cannot be based on what you have told them, or information received from another professional;
• they must make formal diagnosis of your condition;
• their reports must use words such as “not being capable of” and must not focus on why you cannot complete the Australian citizenship test.

Other reasons not accepted for exemption from sitting the Australian citizenship test

In the case of Mikha and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3007 (19 August 2020):

• providing reports not from “appropriately qualified medical practitioner” or qualified psychiatrist, eg (a psychiatrist who is a fellow of the Royal Australian and New Zealand College of Psychiatrists)
• reports that do not contain information about whether your medical condition has a permanent or enduring physical or mental incapacity
• providing old reports – reports should contain contemporaneous evidence of your physical or mental capacity at the time of your application for Australian citizenship
• reports that do not provide a clear diagnosis of your condition or do not set out a process of psychological assessment or explain the basis of any diagnosis
• stop seeing appropriately qualified medical practitioner or specialist after a few consultations

In the case of Husseiyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3011 (19 August 2020):

• reports from general practitioners who do not meet the definition of a “specialist”
• reports that do not state whether you have a permanent or enduring physical or mental incapacity
• reports that do not provide evidence to support a finding that you have a permanent or enduring physical or mental incapacity at the time you applied for the Australian citizenship
• providing conflicting reports from different specialists

Australian migration law and Citizen law are complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) regarding your Australian citizenship test. Click here if you would like to learn more about Australian citizenship and character requirements.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Australian citizenship test | Do I have to sit? appeared first on Ozzie Visa.

Citizenship for children abandoned in Australia because they are Australian citizen as defined in section 4 of the Australian Citizenship Act  2007 (‘ACA”) by reason of them being a “person …. found abandoned in Australia as a child” within the meaning for section 14.

Section 14 of the ACA states a “person is an Australian citizen if the person is found abandoned in Australia as a child, unless and until the contrary is proved.”

Citizenship for children abandoned in Australia requires a finding of fact on whether the child satisfies the requirements of section 14.

The citizenship for abandoned children is automatic however it requires a finding of fact as not all children considered abandoned into the care of a child protection agency will necessarily be found to be an Australian citizen.

It can be difficult for children abandoned in Australia to acquire Australian citizen because (‘unless and until the contrary is proved”) they must not be found to have born overseas and have travelled to Australia on a passport issued by another country.

Evidence of Australian citizenship

Citizenship for children abandoned in Australia can apply for evidence of Australian citizenship under section 37. If any abandoned children are found to be Australian citizens, they will be given a notice stating that they are Australian citizens under section 37(2). However, before they are granted citizenship, the Department has to be satisfied as to their identities. If a child does not have any identity document, a person who know the child well may provide a declaration attesting to the child’s identity.

Abandoned children wanting to apply for evidence of Australian citizenship should provide a police statement certifying they were abandoned. It is a common knowledge that abandoned children have limited identity documentation.

If an application for evidence of Australian citizenship is refused, there is no AAT review rights. However, you can request the Secretary of the Department of Immigration and Citizenship (PO Box 25, Belconnen ACT 2616) to review the refusal decision.

If your child was born in Australia and has been living here for at least 10 years, your child may be deemed to be an Australian citizenship, click here to learn more.

Australian citizenship law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you understand more about Citizenship for children abandoned in Australia or to help you decide if you are eligible to apply for an Australian citizenship. Click here to find a visa.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Citizenship for children abandoned in Australia appeared first on Ozzie Visa.

Giving up Australian citizenship or cessation of Australian citizenship – there are 7 ways you can lose your Australian citizenship.

Australian citizenship is governed by the Australian Citizenship Act 2007.

You may cease to be an Australian citizen by:

1. Renouncing under s 33
2. Engaging in certain terrorist or other related conduct under s 33AA (renunciation by conduct)
3. The Minister revoking under s 34 (for offences or fraud) and s 34A (special residence requirements)
4. By fighting for, or being in the service of, a declared terrorist organisation overseas under s 35 (service outside Australia in armed forced of an enemy country or declared terrorist organisation) or s 35AA (declared terrorist organisation)
5. By serving in the forces of a country at war with Australia under s 35
6. By being convicted for terrorism offences and certain other offences under s 35A
7. Being a child of responsible parents who cease to be citizens under s 36 (this is discretionary in line with Australia’s international obligations to the Universal Declaration of Human Rights and the Convention on the Rights of the Child in relation to arbitrary deprivation).

Before losing or giving up Australian citizenship, the government must ensure that you are also a citizen of another country (this is to ensure you do not become a stateless person) and you have acted inconsistently with your allegiance to Australia (Australian Citizenship Amendment (Allegiance to Australia) Act 2015). Your conduct must be incompatible with the shared values of the Australian community and your conduct must demonstrates that you have severed the common bond of Australian citizenship and you repudiated your allegiance to Australia.

If you are in Australia when losing or giving up Australian citizenship, you will automatically (by operation of s 35 of the Migration Act 1958) hold an ex-citizen visa. This is a permanent visa giving you permission to remain in Australia but does not allow you to travel outside of Australia.

If you are outside of Australia when losing or giving up Australian citizenship, you do not hold a visa unless you applied and granted one.

Renunciation by application: s 33

You can apply, in accordance with s 46, to renounce your or giving up Australian citizenship under s 33(1). The Minister must approve or refuse your application (s 33(2)).

You must be over 18 and is a national or citizen of another country (s 33(3)) or you will become a national or citizen of another country (s 33(7)) for the Minister to approve your application.

The Minister must not approve your application if he is not satisfied of your identity (s 33(4)).

The Minister may refuse your application if you are a national or citizen of another country and is engage in a war with Australia (s 33(5)).

Similarly, the Minister must not approve your application if it is not in the interests of Australia to do so (s 33(6)).

Once the Minister approved your renunciation application, you will cease to be an Australian at the time of the approval (s 33(8)).

Some people renounce their Australian citizenship not to retain or acquire another citizenship, or to avoid significant hardship or detriment. Under policy, if you renounced your citizenship for other reasons, you may not be eligible to resume your Australian citizenship. However, you may be eligible for citizenship by conferral or by descent, or by adoption (s 19C).

Once a decision has been made, you will be notified (s 47).

Renunciation by conduct: s 33AA

Another way for losing or giving up Australian citizen is by your conduct (s 33AA). You must be over 14 and is also a citizen of another country if you acted inconsistently with your allegiance to Australia by engaging in specified conduct.

You are taken to have renounced your Australian citizenship if you engaged in the following specified conduct:

• Engaging in international terrorist activities using explosive or lethal devices
• Engaging in a terrorist act
• Providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act
• Directing the activities of a terrorist organisation
• Recruiting for a terrorist organisation
• Financing terrorism
• Financing a terrorist and
• Engaging in foreign incursions and recruitment.

The above conduct can be engaged offshore or onshore but left Australia before being charged and brought to trial (s 33AA(7)).

For s 33AA to apply, your conduct is engaged in with the intention of advancing a political or ideological cause and with the intention of coercing or influencing an arm of the Australian Government or a government of a foreign country or intimidating the public. This is a question of fact.

If s 33AA applies, the losing of Australian citizenship come into effect immediately upon you engaging in the terrorist-related conducted (s 33AA(9)).

If the Minister becomes aware that you have renounced your Australian citizenship under s 33AA, he must give, or make reasonable attempts to give, written notice as soon as practicable (s 33AA(10)).

The Minister also have the power to rescind a notice or determination that you ceased becoming an Australian citizen by your conduct (s 33AA(14)).

Losing Australian citizenship for service in enemy country or a declared terrorist organisation: s 35

If you are 14 or older, you may lose your Australian citizenship if you are also a citizen of another country and serves in the armed forces of a country at war with Australia or fight for, or is in the service of, a declared terrorist organisation under s 35AA and your service or fighting occurs outside Australia (s 35). However, the Minister may exempt you from effect of s 35 in relation to certain matters (s 35(9)).

Your Australian citizenship will cease at the time you commenced to service or fight for an enemy country or a declared terrorist organisation (s 35(2)).

You will not be in the service of a declared terrorist organisation if (s 35(4):

• Your action is unintentional
• You acted under duress or force of
• You provided neutral or independent humanitarian advice

If the Minister intend to revoke your Australian citizenship, he must, unless exempted, give, or make reasonable attempts to give, written notice as soon as practicable and your rights to review (s 35(6)).

The Minister has the discretionary power under s 35(9) to make a determination rescinding the notice of cessation under s 35(5) and exempt you from the operation of s 35. However, the Minister does not have a duty, and is not obliged, to consider whether to exercise this power (s 35(10)).

The Minister’s s 35(9) decision can be reviewed.

Losing Australian citizenship if convicted for terrorism and related offences: s 35A

You may lose your Australian citizenship if:

• You have been convicted of a specified terrorist-related offence (s 35A(1))
• You have been imprisoned for at least 6 years
• You are a dual citizen
• Your conduct demonstrates that you have repudiated your allegiance to Australia
• The Minister is satisfied that it is not in the public interest for you to remain an Australian citizen

You do not automatically lose your Australian citizenship the Minister has to make a determination (s 35A(1)).

If a determination is made, you will be notified (s 35A(5)) unless exempted, you ceased to be an Australian citizen at the time when the determination is made (s 35A(2)).

If your conviction is overturned on appeal or quashed and no further appeal can be made to a court, the Minister must revoke the determination to revoke your Australian citizenship (s 35A(8), (9)). In the alternative, you may request the Minister under s 35A(1) to revoke.

Losing Australian citizenship for offences or fraud: s 34

The power to revoke Australian citizenship for offences or fraud under s 34 can only be made by the Minister because this power cannot be delegated.

You be convicted of an offence under s 50, or under the Criminal Code or you become an Australian citizen as a result of a third-party fraud (see s 34(8)) and the Minister is satisfied that it would be contrary to the public interest for you to remain an Australian citizen (s 34(1); s 34(2)) and you are able to become a national or citizen of another country.

If you have been convicted of a serious offence against an Australian law or a foreign law and you have been sentenced to death or to a serious prison sentence of at least 12 months before you became an Australian citizen, your citizenship may also be cancelled under s 34(5).

If you obtained Australian citizenship as a result of migration-related fraud, your citizenship may also be cancelled (s 34(6)) unless the act or omission that constituted that offence was not in any way material to you becoming a PR (s 34(7)). Similarly, if there was a third-party fraud (s 34(8)).

Child losing Australian citizenship due to parents ceasing to be citizens: s 36

A child’s Australian citizenship may be revoked under s 36 if the child has a responsible parent who ceases to be an Australian citizen by renunciation under s 33 or revocation under s 34.

However, the child’s citizenship cannot be revoked while the child has another responsible parent who is an Australian citizen or if the revocation will cause the child to become stateless.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you understand the implication of giving up Australian citizenship. Click here to learn how you may request for evidence that you are an Australian citizen.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Giving up Australian citizenship | 7 ways to lose appeared first on Ozzie Visa.

Australian citizenship by birth – children born before 20 August 1986 acquired Australian citizen by simply using their birth certificate issued by an Australian Registry of Births, Deaths and Marriages. This is enough to confirm you are an Australian citizen provided your parents were not in Australia as foreign diplomats or consular officers at the time of your birth.

Australian citizenship by birth : section 12

If you are born in Australia on or after 20 August 1986, you are an Australian citizen by birth if one of your parents was an Australian citizen or permanent resident. However, you will need to provide your parent’s birth certificate showing him or her was born in Australia before 20 August 1986. Or his or her Australian citizenship detailing their acquisition of citizenship before your birth.

If both of your parents are not Australian citizens or PRs at the time of your birth but you have lived in Australia for at least 10 years, you may still be entitled to Australian citizenship (click here to learn more).

Obtaining evidence for Australian citizenship

You can apply for evidence of Australian citizenship if one of the following applies:

• Born in Australia before 20 August 1986 and is an Australian by birth
• Born in Australia on or after 20 August 1986 and at least one parent was an Australian citizen or PR at the time of birth
• Born in Australia on or after 20 August 1986 and spent the first 10 years in Australia
• Previously issued with an Australian citizenship certificate (including being listed on a parent’s citizenship certificate) and is seeking to replace it
• Previously issued with an extract which showed your registration as an Australian citizen by descent
• A PR and adopted in Australia on or after 22 November 1984 and became an Australian citizen
• Born in the former Australian Territory of Papua before 16 September 1975 and retained your Australian citizenship
• Born outside Australia before 26 January 1949 to a father who was born in Australia, and you arrived in Australia before 1 May 1987 and acquired Australian citizenship

Eligibility for Australian citizenship certificate

Having an Australian citizenship certificate shows you are n Australian citizen. You can apply to get a certificate or replace one that has been lost, destroyed or damaged.

To be eligible for an Australian citizenship certificate, you must be:

1. Born in Australia between 26 January 1945 and 5 May 1966 and your father must be an Australian citizen and not a foreign diplomat
2. Born in Australia between 22 November 1984 and 19 August 1986 and at least one of your parents was an Australian citizen or PR and one of your parents must not be a consular officer of a foreign country or was entitled to diplomatic privileges and immunities
3. Born in Australia on or after 20 August 1986 to at least one parents who was an Australian citizen or PR when you were born.
4. Born in Australia on or after 20 August 1986, and you were ordinarily resident in Australia for the first 10 years after you were born. You do not need to be in Australia on your 10^th birthday, if you meet the other requirements. Your parents must not be foreign diplomats as you would not have been ordinarily resident in Australia
5. Previously issued with a citizenship certificate or extract because you have lost the original certificate, or you were a child on your parent’s citizenship certificate, or you applied for and became a citizen by descent
6. Born in the former Australian Territory of Papua before 16 September 1975 and did not lost your Australian citizenship when PNG achieved independence on 16 September 1975 or acquired PNG citizenship by making a Declaration of Loyalty to PNG.
7. Adopted in Australia on or after 22 November 1984. You must be adopted under a law of an Australian state or territory, or adopted by an Australian citizen on or after 22 November 1984, or you were a PR in Australia at the time of your adoption
8. Born in Australia to NZ parents:
9. born between 26 January 1949 and 19 August 1986 to NZ parents who were not a diplomat, consular officer or entitled to diplomatic privileges and immunities
10. born in Australia between 1 September 1994 and 26 February 2001 and at least one of your parents as ordinarily resident in Australia held a permanent resident visa, SCV 444 or Special Category visa as an airline crew member or airline positioning crew member at the time of your birth. You were not an Australian citizen at birth if one of your parents:

            * held a special purpose visa on a different basis; or

            * was a diplomatic representative of NZ; or

            * the spouse or dependent child of a diplomatic representative of NZ

       c. born in Australia on or after 27 February 2001 and at least one of your parents held a permanent residence visa

       d. born in Australia on or after 27 February to NZ parents present in Australia on a SCV 444 if at least one of them:

            * was in Australia on 26 February 2001; or

            * had been in Australia for a period, or periods that total at least 1 year in the 2 years immediately before 26 February 2001; or

            * had been issued with a Centrelink certificate stating that they were resident in Australia on a particular date.

xi.        Born in Australia before 26 January 1949 and were a British subject on 25 January 1949 unless your father was a foreign diplomat.

x.         Born in New Guinea before 26 January 1949 and you were a British subject on 25 January 1949.

xi.        British subject born outside of Australia before 26 January 1949 and you were:

            * a British subject on 25 January 1949 and lived in Australia for the 5 years from 26 January 1944 till 25 January 1949, or

            * born to an Australian father and you entered Australia before 26      

              January 1949 on an unrestricted basis or were granted PR in             

              Australia before that date, or

            * a woman who was a British subject on 25 January 1949 and married an Australian before 26 January 1949, and you entered Australia and were granted a PR before 26 January 1949, or

            *  born in New Guinea and were a British subject on 25 January 1949.

Assessment of claimed Australian citizenship by birth

If the Department of Home Affairs or Australian Passport Office is not satisfied that one of your parent who is an Australian citizen or PR is your parent at the time of your birth, you will be invited to undertake deoxyribonucleic acid (DNA) testing. This is not mandatory but is a useful mean to establish a biological relationship when documentary evidence such as birth certificate is not sufficient to show the parent-child relationship.

If you decided to provide a DNA testing result, you will need to complete Form 1526 DNA Consent declaration. By completing this form, you are agreeing to disclose your information to the Department.

In addition, you are also required to complete Form 1527 and Form 1528.

DNA testing centres

The followings are Australian based laboratories for DNA testing:

i).         NSW

• DNA Labs (1300 663 244 or 02 9855 5369)
• International Biosciences (02 9098 8450)

ii).        Queensland

• DNA QLD (1300 172 837 or 07 3054 4302)
• Easy DNA (1300 482 165)
• Identilab (1300 114 294)

iii).       Victoria

• DNA Solutions Pty Ltd (1800 000 362 or 03 9800 1550)
• Genomics Diagnostics (1800 822 999 or 03 9918 2020)
• Insight Genomica (1800 436 663)

Other alternative evidence to prove parent-child relationship

If you choose not to provide DNA testing, you may provide any other evidence that can demonstrate the parent-child relationship at the time of your birth.

You can provide the following (but is not limited to):

• Evidence to show your Australia citizen or PR parent is named as a parent on your birth certificate and was included with their prior consent;
• Evidence to show your Australia citizen or PR parent was involved in providing care for you and/or your mother during the pregnancy. This can include, for e.g., emotional, domestic or financial support, making arrangements for your birth and prenatal and postnatal care; and
• Evidence that you have been acknowledged socially from or before birth as your Australian citizen or PR’s child. This can include you have been presented to your parents’ family and social groups as being their child.

There are 7 ways you could lose your Australian citizenship, click here to learn how.

A child abandoned in Australia could also acquire Australian citizenship, click here to find out how.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you determine if you are able to obtain Australian citizenship by birth.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Australian citizenship by birth | How to obtain evidence appeared first on Ozzie Visa.

Australian citizenship application and character requirements

Australian Citizenship and Character Requirements – when applying for Australian citizenship you are required to be of good character. Why is Australian Citizenship and Character Requirements so important and what is the meaning of good character?

Australian Citizenship Act 2007

By law (Citizenship Act 2007) you are eligible to apply for Australian citizenship by conferral if you meet certain requirements, including character requirements. These requirements are found in section 21(2)(a) to (h) and all of these requirements must be met, including residence requirements (click here to learn more about residence requirements) before you can be granted Australian citizenship. Click here to learn how to provide evidence of your citizenship if you are born in Australia.

You will only become an Australian citizen once you have taken the mandated pledge of commitment (section 26).

Good Character

One of the section 21(2) requirements require you to be of good character at the time of decision to grant or refuse your Australian citizenship application. What this mean is that the decision-maker must be satisfied that you are of good character when the decision on your Australian citizenship application is made.

The meaning of “good character” is not defined in the Citizenship Act. The decision-maker must therefore be guided by court interpretation of what constitute good character and by the Australian Citizenship Policy.

The decision-maker is required to consider the issues of character until they are “satisfied” on a reasonable basis that you are, or are not, of good character when considering your application for Australian citizenship.

Good character is defined by the Court

The Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432 said the words good character should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. What this mean is that, for example, a person who has been convicted of a serious crime may show that he or she has reformed and is of good character (an objective assessment proven by fact). While a person who is of good repute (a subjective public opinion) may be shown by objective assessment to be a person of bad character.

Community Standards

An assessment of whether a person is of good character must have regard to the community standards. In Zheng v Minister for Immigration and Citizenship (2011) AATA 304 at [120], community standard is loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australian and obedience to and observance of the law.

In addition, there should be some evidence of what the Australian citizenship applicant says, does or what they are heard to say or seen to do as evidence of their acceptance of the values and norms to which they are expected to adhere and be loyal.

Characteristics of good character in an Australian citizenship application

According to the Citizenship Policy, you are of good character if you respect and abide by the law in Australia and other countries. In addition, you:

• must be honest and financially responsible, for example, pay taxes and not be in dishonest receipt of public funds;
• must not be violent, involves in drugs or unlawful sexual activity, and not cause harm to others through your conduct, for example, recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance;
• must not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia;
• must not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people;
• must not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
• must not be the subject of any extradition order or other international arrest warrant
• must not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia
• must not be the subject of any verifiable information causing character doubts and
• are truthful and not practice deception or fraud in their dealings with the Australian Government, or other governments and organisations, for eg:
  • providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
  • involvement in bogus marriage
  • concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
  • involvement in Centrelink or ATO fraud
  • giving false names and/or addresses to police

The decision-maker in deciding your Australian citizenship application is not allowed to apply their own personal standards but to apply community standards. The decision-maker will ask themselves:

• would a person of good character have behaved the way the applicant did;
• what is there to demonstrate that the applicant has upheld and obeyed the law;
• has the applicant behaved in accordance with Australia’s community standards; and
• does the applicant share Australia’s democratic beliefs and respects its rights and liberties

Criminal history

AFP National Police Certificate list your criminal history

If you have bad character because of your criminal history, can you apply for Australian citizenship as you may not be able to satisfy the character requirements?

If you have a criminal history, the decision-maker will consider the seriousness of the crime, the length of time since you committed the offence and whether you have been rehabilitated: Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14].

Serious offence

What is a serious offence, with respect to Australian citizenship and character requirements, is not defined but if you have been convicted of an offence against an Australian law or a foreign law and has been sentenced to death or a prison sentence of at least 12 months, you are considered to have committed a serious offence: section 34(5); Kalakoda and Minister for Home Affairs (Citizenship) [2019] AATA 3408 at [31].

Length of time since offending

The length of time since your last offending is calculated from the date of the last commission of the offence and the granting of an application for Australia citizenship: Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132.

Rehabilitation

If a sufficient length of time has lapsed or your sentence has been converted to a good behaviour bond or Community Corrections Order and you have completed your community work and rehabilitation programs, it can be said that you have demonstrated enduring moral qualities of which good character is demonstrated objectively: Assafiri and Minister for Immigration and Border Protection [2014] AATA 35.

If since your last offending you have not engaged in any criminal conduct or disrespected or disregarded any of Australian laws or foreign laws, and you completed your rehabilitation programs, it can be said that your rehabilitation has been of lasting benefit to you: Mahmood and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2033. It can also be said that your character has been restored to the required level and you should be given credit for maintaining a record without any further convictions for any offence: Seo and Minister for Home Affairs (Citizenship) [2019] AATA 3649.

What other evidence to establish good character?

1. Character references from friends and work colleagues. They must be aware of your offending
2. Evidence of employment history
3. Evidence of courses completed
4. Evidence that you have cooperated with the Department of Home Affairs and/or the authorities
5. Evidence of your age at the time of offending
6. Evidence of supporting your community, your place of worship, your or your children school, etc
7. Evidence of you helping others
8. Evidence of the sentencing magistrate or judge comments on your offending
9. Reports from psychologist and/or social worker of your successful completion of your rehabilitation programs and their opinion as to the likelihood of future offending
10. Evidence of how you have made effort to improve your life and avoid further offending: The Trustees for Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018]  AATA 3272 at [65].

In addition, with respect to your Australian citizenship application and character requirements, it is the Australian ethos to display a degree of informed tolerance for those who have committed an offence in the past and they should be given the opportunity for a second chance: Do and Minister for Immigration and Border Protection [2016] AATA 999 at [68].

The Department should, when considering your Australian citizenship application and the character requirements, also look holistically at your behaviour from the time you arrived in Australia until now. And whether you have objectively demonstrated that you are of good character, if not for your offending, since living in Australia: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; Hussaini and Minister for Immigration and Border Protection [2014] AATA 715.

There are 7 ways you could lose your Australian citizenship, click here to learn how.

Australian citizenship law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you understand Australian Citizenship and Character Requirements or click here to learn whether you have to sit for the citizenship test or click here to find other answers.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as Australian citizenship and character legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your citizenship matter

The post Australian Citizenship and Character Requirements appeared first on Ozzie Visa.

If a child is born on plane & ship, which is the child’s country of birth?

A child born on plane & ship is taken to have been born at the country where the plane or ship is registered.

If a pregnant Chinese lady is flying from Shanghai to Melbourne on a Qantas flight and suddenly give birth 1 hour into her flight, her newborn child is considered to be born in Australia.

If a child is born on a Qantas flight, does the child acquire Australian citizenship? No, the child does not acquire Australian citizen unless 1 of the parents is an Australian citizen or permanent resident. If at least 1 of the child’s parent is an Australian citizen or permanent resident, the child acquires Australian citizenship by birth.

Birthright Citizenship for children born on Plane & Ship

If a child is born on plane & ship registered in the USA or Canada, the child would acquire birthright citizenship. The child may acquire American or Canadian citizenship. This is commonly known as birthright citizenship.

Birthright citizenship or the principle of acquiring citizenship by being born in a country is known as jus soli or “the right of soil”.

Most countries in the world (195 countries) have abolished or introduced a restriction on the right of soil. For example, Australia, France, Germany, Ireland, NZ, Spain and the UK require at least 1 of the child’s parents to have citizenship or permanent residency of that country for the child to acquire citizenship by birth or descent. In Australia, section 12 of the Australian Citizenship Act 2007 ended the birthright to Australia citizenship ended on 19 August 1986. From 20 August 1986, children born in Australia are only Australian citizen by birth if at least one of the child’s parents was an Australian citizen or permanent resident. You should also be aware that the Department of Immigration (Department of Home Affairs) may request the child and both parents to provide DNA evidence of the child’s parentage when applying for evidence or certificate of citizenship. If DNA testing is not provided, the Department may accept alternative social evidence which may include personal, hospital, social work and government records linking the child to his/her parents. Having an Australian birth certificate is not conclusive proof that the child is an Australian citizen. In some instances, even if the child has been issued with an Australian passport or was previously issued with an Australian citizenship certificate the Department may still cancel the child’s Australian citizenship and passport if the Department is not satisfied that at least one of the child parents was an Australian citizen or permanent resident at the time of birth.

In countries where the right of soil is still available, the child may acquire citizenship of the country where they were born, but their parents will not acquire permanent residency or citizenship simply because their child was born in that country.

You should also be aware that your home country may not permit your child to become a citizen of more than 1 country. This may cause numerous problems for you and your child if your child live in the country of birth or both of you live in your home country.

Australian migration law and Citizen law are complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) regarding your child’s rights (click here to learn what an immigration lawyer or registered migration agent can do for you) or click here to learn more. You may also refer to our FAQs for answers regarding visa application or visa cancellation by clicking here.

041 222 4020 Or Wechat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Born on Plane & Ship | Where is the child born? appeared first on Ozzie Visa.

Australia Citizenship granted to children born and live in Australia for at least 10 years even if their parents are illegal non-citizens

Australian Citizenship may be granted to children who are born and live in Australia for at least 10 years, these children can apply for Australia Citizenship even though their parents do not have a valid visa and are living illegally.

Children born to illegal non-citizens or non-visa holders must be ordinarily resident or live permanently in Australia from their birth to their 10th birthday.

Section 12(1) of the Citizen Act 2007 provides “A person born in Australia is an Australian citizen if and only if:

(a) parent of the person is an Australian citizen, or a permanent resident, at the time the person is born; or

(b) the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.

To be granted Australia citizenship on their 10th birthday, they must satisfy the ordinarily resident requirement, that is, they are not residing in Australia temporarily so that their parents, for example, complete their studies or for any other temporarily reasons. They will be required to prove that they see and call Australia home.

Section 3 of the Citizen Act defines “ordinarily resident” as follows:a person is taken to be “ordinarily resident” in a country if and only if

(a) he or she has his or her home in that country; or

(b) that country is the country of his or her permanent abode even if he or she is temporary absent from that country.

However, the person is taken not to be so resident if he or she resides in that country for a special or temporary purpose only.

Essentially, the 10 years usually residence requirement do not break even if the child depart Australia temporarily for a special and temporary purpose. for example, the child return to their parents’ home country for special functions or occasions and they are able to return to Australia.

Section 37 of the Citizen Act provides:

Evidence of Australian citizenship

• A person may make an application to the Minister for evidence of the person’s Australian citizenship/

Notice

• The Minister may give the person a notice stating that the person is an Australian citizen at a particular time.

…

Evidentiary status

(5) A notice is prima facie evidence of the matters in the notice.

What if there is a break in the 10 years of ordinarily resident in Australia?

In the case of Kim v Minister for Immigration and Border Protection [2016] FCA 959 (“Kim”)

• Kim was born in Australia on 29 December 2001 and was granted the same visa, UC-457, as his parents. His brother was also born in Australia and has medical conditions.
• Neither of Kim’s parents were Australian citizen, or a PR, at the time of his birth.
• Kim and his family at all relevant times, when in Australia, have been lawful non-citizens (i.e. holding a visa)
• Kim’s parents purchased an apartment for them to live in; attended local Church; involved in Church’s activities
• Kim’s parents later leased their apartment and moved in with his father’s sister. And later sold the apartment.
• In November 2001, Kim’s parents purchased a car
• Kim spent the first 10 years in Australia except for the period of approximately 13 months between 5 November 2003 and 3 December 2004 his parents took his brother (and him) to Korea for medical treatment because they could not afford the treatment in Australia. While they were in Korea, none of them held a visa allowing them to enter Australia.
• Kim’s parents left their possessions with family and friends to hold until they return to Australia. They also changed their mailing address to a relative’s residence.
• While they were in Korea, Kim’s parents’ intention was to return to Australia and resume residence whether his brother’s health improved.
• In Korea, Kim’s father had a temporary casual work. Their return to Australia was delayed as they moved in to care for his grandmother. His parents maintained contact their doctor and Church members in Australia – informing them of their intention to return.
• In around mid-September 2004, Kim’s father began to take steps to return to Australia. He applied for a UC-457 visa with his family.
• On 2 October 2004, Kim’s father arranged for airline tickets and visas to return to Australia but could not travel till later.
• On 14 October 2004, Kim’s father returned to Australia to look for a house for them to stay.
• On 30 November 2004, Kim and his family were granted UC-457 visa. They returned to Australia on 4 December 2004.
• Kim and his family were granted various UC-457 visas and subclass 573 student visas.
• In Australia Kim lived with his family in various addresses and attended schools.
• The Minister accepts that Kim was “ordinarily resident in Australia throughout” the periods between his birth and 5 November 2003, and between 4 December 2004 and 29 December 2011 (his 10^th birthday) because he had his home in Australia throughout those periods.
• The Minister accepted that Kim’s parents intended to return to Australia from Korea while they were away from Australia in 2003 and 2004.

What does “ordinarily resident” mean?

In Lee v Minister for Immigration and Citizenship [2011] FCA 1458; (2011) 199 FCR 336 (“Lee”), the Court said whether a person satisfies the requirements of s 12(1)(b) is to be determined on the basis of the evidence. Foster J stated that:

• The concept of “ordinarily resident” allows for some absences, depending on the nature and extent of those absences (at [57]);
• Whether a person is ordinarily resident in Australia is a question of fact and degree (at [97]);
• Whether a temporary absence from Australia prevents a person from being “ordinarily resident” in Australia is a question of fact and degree (at [99]);
• Whether, at the time of departure and during the temporary absence, the person “intends to return to live in Australia after the temporary absence is relevant to determining” whether he or she is “ordinarily resident’ in Australia during the absence (at [99])’
• In the case of a minor, the question whether he or she is ordinarily resident in Australia will generally be determined by reference to the position of the parents (at [100]) or the intention of his parents (at [153]).
• The word “throughout” means continuity or constancy (at [102]).
• The words “has his or her home in” means a person’s “permanent abode is the place where he or she regularly or customarily lives (relying on Re Taylor; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194).

Absence from Australia during the 10 year period

A temporary absences, such as a holiday, would be unlikely to affect the facts concerning the location of a home. However, it is necessary to consider whether the circumstances of an absence warrant a conclusion that what was previously a person’s home no longer bears that description (Kim at [34]).

Hence, you must show that you was “ordinarily resident in Australia” on every single day for the 10 year.

In Kim’s case, the evidence include:

• His parents took him and his brother for medical treatment as they could not afford in Australia. The purpose of travelling to Korea was a special purpose, and not a purpose of taking up residency in Korea or a purpose of leaving Australia permanently;
• There was no evidence Kim and his family could not obtain a visa to return to Australia
• While in Korea, Kim’s parents consistently expressed their desire to return to Australia and to resume living in Australia, as soon as possible having regard to his brother’s medical condition;
• Kim’s parents left their possessions in Australia in the care of their relative and friends to await their planned return to Australia;
• Kim’s parents maintained a mailing address in Australia in the care of his father’s sister;
• They maintained contact with friends and the Church in Australia while in Korea;
• Kim’s parents did not establish a home in Korea during their absence, but stayed with relatives
• Kim’s father did not take up permanent employment in Korea
• Once Kim’s brother had received medical treatment, his parents planned to return to Australia
• They returned to Australia promptly after settling their affairs in Korea
• Once in Australia, they resume their lives, including Kim attending school.

Gleeson J accepted (at [135]) that Kim did not cease to have his home in Australia when he left the country on 5 November 2003. His Honour accepted that Kim departed Australia for a special and temporary purpose which arose from his brother’s medical conditions and his parents’ firm intention to return to Australia without delay and as soon as possible. It is true that his Kim’s intention could have been thwarted if they were unable to obtain visas to return to Australia.

Gleeson J also accept that 13 months absence from Australia is a significant absence from Australia but did not consider that duration to have caused Kim to cease to have his home in Australia when the reason for the absence was, in substance, to enable his parents to the care of his brother and his grandmother. A temporary change to his living arrangements in order to attend to the care of other family members is not the kind of matter that would ordinarily indicate that a person has moved or given up their home, particularly when it is accompanied by an intention to resume their residence in Australia (at [137]).

Even if Kim and his family are unable to obtain visas to return to Australia materially affected his position because that situation substantially reflected the absence of any need for a visa because of the supervening needs of his brother and grandmother (at [138]).

Living in Australia without a visa

Even though in the case of Kim, Gleeson J at [32] accepted that s 12(1)(b) includes those who are unlawful non-citizen or does not have permission or visa to reside in Australia. However, Gleeson J also accepted that an absence of permission (no visa) to enter Australia may, depending on the circumstances, lead to a conclusion that a person is not “ordinarily resident” because the absence of permission is inconsistent with a finding that the person satisfies the definition of “ordinarily resident” – a connection with Australia  (at [33]).

It is often very difficult for a person to live in Australia without a valid visa as this person will become an unlawful non-citizen and if detained they will be sent to immigration detention pending deportation.

If a child is born in Australia to parents who are unlawful non-citizens, they will not be entitled to all the benefits enjoyed by Australian citizens, for example, health, education and others (click here to learn more about Medicare).

Similarly, these undocumented children may be able to depart Australia, but they may not be able to return. They may be banned for 3 years from returning.

If your child is born in Australia and has been living here for the past 10 years or more, you should consult an immigration lawyer to determine if your children are entitled to Australian citizenship (click here to learn how an immigration lawyer can help you); and to apply for a section 37(2) notice that the child is an Australian citizen by virtue of section 12(1)(b).

You should note that even if your child is granted Australian citizenship, you may not be entitled to apply for Australian citizenship yourself. However, your Australian citizen children may sponsor you for a Parent visa. Unless you have reached a pension age and even if you are sponsored for a Parent visa, the Department of Immigration (Department of Home Affairs) may not grant you a bridging visa to remain in Australia while your Parent visa is being processed.

Click here to learn how you can obtain evidence of your Australian citizenship by birth in Australia.

There are 7 ways you could lose your Australian citizenship, click here to learn how.

Australian migration law and Citizen law are complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) regarding Australia citizenship granted to non-citizen children born in Australia. You may also refer to our FAQs for answers regarding visa application or visa cancellation by clicking here.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Australia Citizenship granted to Children on 10th Birthday appeared first on Ozzie Visa.