The Australian Citizenship Act 2007 (Cth) (‘the Citizenship Act’) has been operational since 2007.
Australian Citizenship is granted automatically through:
• Birth in Australia (where at least one parent is an Australian citizen or permanent resident)
Australian Citizenship can cease by renunciation (by application or by conduct) or by revocation by the Minister.
Australian Citizenship can be acquired by application in the following situations:
• Descent (where at least one parent of a child born outside Australia is an Australian citizen)
• Conferral (what was once called ‘granting citizenship’)
• Resumption (where a person previously held citizenship, lost it, and then seeks to resume their previous citizenship)
Residence Requirement For Citizenship By Conferral
Under the Citizenship Act, applicants for citizenship by conferral must meet either the general or special residence requirements. The general residence requirements require an applicant to have been present in
Australia for the period of four years immediately before applying. The applicant must have been in Australia as a permanent resident for at least twelve months immediately prior to making the application.
Applicants cannot have been present in Australia as an unlawful non-citizen at any time during that four year period. Lawful residence includes time spent in Australia as the holder of temporary and bridging
Some periods of absence from Australia are permitted. Up to a maximum of 12 months spent outside Australia in the four year period, and a maximum of up to 90 days in the 12 month period prior to application
will be counted as though the applicant was present in Australia.
There are some exemptions to the residence requirements. For example, Australian Defence Force personnel and former Australian citizens, are exempt.
Temporary residence may be treated as permanent if the applicant would otherwise suffer significant hardship or disadvantage; and spouses, de facto partners of Australians who live overseas may treat that
period as being resident in Australia.
In addition to residential requirements that apply to applicants seeking citizenship by conferral, there are a number of other requirements that applicants for Australian Citizenship must meet. An applicant is
required to be of good character but there is no definition of good or bad character in the Act or Regulations.
The Citizenship Act requires an applicant to possess a basic knowledge of the English language ‘at the time of the Minister’s decision’. An applicant is also required to have ‘an adequate knowledge of the
responsibilities and privileges of Australian citizenship’. The Amendment (Citizenship Testing) Act 2007 (Cth) amended the Citizenship Act to provide that people applying for citizenship after 1 October 2007 would
need to sit a test and inserted a section allowing the Minister to make a written determination to approve a test for the purposes of the Citizenship Act. Applicants who meet the criteria of s21 (3) – (8) do not have
to sit the test.
The test is on knowledge of Australia and Australian values. English is tested by the applicant’s ability to complete the test. The test encourages potential citizens to find out more about Australia and understand
the responsibilities and privileges of Australian citizenship.
A revised citizenship test was introduced in 2009. The key changes were:
• the test questions were rewritten in plain English
• the test no longer contains mandatory questions
• the pass mark was increased from 60 per cent to 75 per cent
In May 2010 a Determination was made by the Minister revoking the tests introduced in 2009 and approving three new citizenship tests for the purposes of the Act:
• Assisted (for people with low levels of literacy)
• Course Based (to assist people who may not be able to sit a computer test)
The Determination (currently IMMI 11/008) includes attachments which set out the criteria for sitting the tests including eligibility, the time it will take, test rules, and the questions and tasks from which the test
will be drawn. The actual questions and tasks attached to the Determination are not available to the general public. The Department claims an exemption from providing access under the Freedom of Information
Act 1982 (Cth). However, the Department does provide an Australian citizenship test resource book to intending applicants.
New Australians make a pledge to Australia and its people when becoming citizens. Studying for the citizenship test gives applicants a clearer understanding of what making that pledge really means. Making
the citizenship pledge is the final stage of the citizenship application process. Citizenship cannot be conferred if the applicant does not make the pledge.
Ministerial Discretion And Delegation
The Minister has discretion in various provisions in the Citizenship Act. This power includes:
• the right for the Minister to refuse an application for citizenship even if the applicant meets all the criteria;
• discretion for the Minister to cancel the citizenship of children whose parents cease to be Australian citizens (previously the loss of citizenship for such children was automatic); and
• Ministerial discretion can also be used to assist people seeking citizenship. Under special residence requirement, the Minister may also count periods towards the residency rules where the applicant was either
not a permanent resident, or was considered unlawful for a period, due to an administrative error.
Refusal Of Grant Of Citizenship
A grant of citizenship can be refused on the basis of bad character (established by the applicant’s criminal record).
An application for citizenship can also be refused on the basis of an adverse security assessment from the Australian Security Intelligence Organisation (ASIO), or if the Minister determines that approval would
not be in the public interest.
Some countries allow dual or even multiple citizenships. Others do not. Before amendments to the Australian Citizenship Act in 2002, an Australian citizen who deliberately took steps to acquire the citizenship of
another country automatically lost their Australian citizenship. This is no longer the case. It is now possible for Australian citizens to acquire the citizenship of another country without forfeiting their Australian
citizenship. However a person who lost their Australian citizenship as a result of taking out dual citizenship prior to 2002 must make an application if they wish to resume their Australian citizenship.
Different countries take different approaches to this issue. Potential applicants for Australian citizenship should first check the impact that a grant may have on other citizenship they hold. They can do this by
contacting the consular representative of the country in question.
People who have dual citizenship are required to enter Australia using an Australian passport. In some cases there are compelling reasons that an Australian citizen cannot travel on their Australian passport. This
may include children under 18 who usually travel on the passport of the parent that is not an Australian citizen,
Australians in an emergency situation where they cannot be issued an Australian passport, or in a situation where it may be dangerous to travel on an Australian passport. Circumstances such as these may
require application for an ‘Australian Declaratory subclass 998 visa’. This ‘visa’ is valid for five years and allows the applicant to travel and use it as long as he or she remains an Australian citizen. Please note that a
subclass 998 ‘visa’ is not literally a visa, as visas can only be granted to non-citizens under the Migration Act. However, it functions as an authority to enter and remain in Australia.