Australian Citizenship Instructions Jan 2011

ACIs - Introduction

Australian Citizenship Instructions (ACIs) 1 January 2011 Department of Immigration and Citizenship National Office Introduction - p 1

AUSTRALIAN CITIZENSHIP INSTRUCTIONS (ACIs)

INTRODUCTION TO THE AUSTRALIAN CITIZENSHIP INSTRUCTIONS (ACIs)

Australian Citizenship Instructions (ACIs)

The role of the ACIs is to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.

Latest changes

The ACIs, which are part of the centralised Departmental instructions system (CDIS), were reissued on 1 January 2011 to make some minor technical changes and update:

Chapter 3 - Citizenship by descent: incorporated procedures for processing applications from 15 September 2010

Chapter 5 - Citizenship by conferral: incorporated new policy in assessing the ‘close and continuing association with Australia’ legislative requirement in considering the Ministerial discretion Under Sections 22(9) and 22(10) Spouse, de fact partner or surviving spouse or defacto partner of an Australian citizen

Chapter 9 - Evidence of Australian citizenship: update chapter to reflect current policy

Chapter 10 - Character: updated information on obtaining overseas police clearances updated.

Owner/author

Citizenship Policy Section, Citizenship Branch, Citizenship, Settlement & Multicultural Affairs Division, National office.

Chapters: Chapter 1 - Preliminary and definitions Chapter 2 - Automatic acquisition of citizenship Chapter 3 - Citizenship by descent Chapter 4 - Children Chapter 5 - Citizenship by conferral Chapter 6 - Ceremonies Chapter 7 - Resuming citizenship Chapter 8 - Cessation of Australian citizenship Chapter 9 - Evidence of Australian citizenship Chapter 10 - Character Chapter 11 - Personal identifiers Chapter 12 - National security Chapter 13 - Offences and prosecutions under the Act Chapter 14 - New Zealand citizens in Australia Chapter 15 - People born in Papua New Guinea Chapter 16 - Citizenship test.

ACIs - Chapter 1

Australian Citizenship Instructions (ACIs) 17 September 2010 Department of Immigration and Citizenship National Office Chapter 1 - p 2

CHAPTER 1 - PRELIMINARY AND DEFINITIONS

This chapter comprises:

Overview of Chapter 1

Part 1 of the Act - Preliminary

Attachment A - Permanent resident under the old Act.

ACIs - Chapter 1


OVERVIEW OF CHAPTER 1 This chapter deals with Part 1 of the Australian Citizenship Act 2007 (the Act) which includes a definition of terms used in the Act, a simplified outline on how to become an Australian citizen, the circumstances in which a person ceases to be a citizen and other matters related to citizenship.

This chapter also contains information on the Australian Citizenship Instructions (ACIs) and the role of the Citizenship Help Desk and information on British subject status before and after 26 January 1949.

Legislation: the Act and the Regulations

The concept of Australian citizenship has existed since the commencement of the Nationality and Citizenship Act 1948, now known as the Australian Citizenship Act 1948 (the old Act), on 26 January 1949. Before the old Act, the concept of Australian citizenship did not exist - Australian-born and those naturalised in Australia had the status of British subjects.

The Act, which came into effect on 1 July 2007 sets out the conditions under which Australian citizenship may be acquired or lost. The Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Transitional Act) provide for transitional matters in relation to applications under the old Act. The Act and Regulations are distributed separately from these instructions. The Australian Citizenship Regulations 2007 (the Regulations) prescribe matters permitted by the Act for carrying out or giving effect to the Act.

The Australian Citizenship Instructions (ACIs) support the Act.

ACIs - Chapter 1


PART 1 OF THE ACT - PRELIMINARY This part comprises: Short title (s1) Commencement (s2) Simplified outline (s2A) Definitions (s3) Australian citizen (s4) Permanent resident (s5) Responsible parent (s6) National security offence (s6A) Children born on ships or aircraft or after death of parent (s7) Children born as a result of artificial conception procedures or surrogacy arrangements under a

prescribed law of an Australian state/territory (s8) Confinement in prison or psychiatric institution (s9) Personal identifiers (s10) Operation of Act (s11).

SHORT TITLE (S1)

Section 1 of the Act defines the short title:

‘This Act may be cited as the Australian Citizenship Act 2007.’

COMMENCEMENT (S2)

The Act received Royal Assent on 15 March 2007 and came into effect on 1 July 2007.

SIMPLIFIED OUTLINE (S2A)

Simplified outlines have been included within the Act (see s2A) to explain, in plain English, the operation of various parts of the Act.

DEFINITIONS (S3)

The following terms are defined in s3 of the Act:

adverse security assessment - has the meaning given by s35 of the Australian Security Intelligence Organisation Act 1979. Section 35 of the ASIO Act provides that:

‘Adverse security assessment means a security assessment in respect of a person that contains:

(a) any opinion or advice, or any qualification of any opinion or advice, or any information, that is or could be prejudicial to the interests of the person; and

(b) a recommendation that prescribed administrative action be taken or not be taken in respect of the person, being a recommendation the implementation of which would be prejudicial to the interests of the person.’

National security considerations apply to decisions on applications for citizenship under s17 (descent), s19D (citizenship for persons adopted in accordance with the Hague Convention on Intercountry adoption), s24 (conferral) and s30 (resumption).

ACIs - Chapter 1


artificial conception procedure - For definition, see Children born as a result of artificial conception procedures or surrogacy arrangements under a prescribed law of an Australian state/territory (s8). For policy and procedures see Chapter 4: Part 2 - Children born as a result of artificial conception procedures or surrogacy arrangements.

Australia - Australia’s external territories comprise of Norfolk Island, Cocos (Keeling) Islands, Christmas Island, Australian Antarctic Territory, Ashmore & Cartier Islands, Coral Sea Islands and Heard & McDonald Islands.

Norfolk Island Norfolk Island is part of Australia for the purposes of the Act but not for the purposes of the Migration Act. Norfolk Island was also part of Australia for the purposes of the old Act.

Cocos (Keeling) Islands and Christmas Island

The Cocos (Keeling) Islands have been part of Australia since 23 November 1955. Christmas Island (in the Indian Ocean) became an Australian territory on 1 October 1958.

Australian Antarctic Territory The Australian Antarctic Territory became an Australian territory on 13 June 1933.

Ashmore & Cartier Islands The Ashmore & Cartier Islands became an Australian territory on 3 May 1934.

Coral Sea Islands The Coral Sea Islands became an Australian territory on 30 September 1969.

Heard & McDonald Islands Heard & McDonald Islands became an Australian territory on 24 April 1953.

There was provision for people ordinarily resident in Norfolk Island, Cocos (Keeling) Islands and Christmas Island territories, immediately before they became Australian territories, to acquire Australian citizenship by registration of a declaration. For further information on historical provisions, see Attachment A - Historical provisions in relation to residents of Cocos (Keeling) Islands on 23 November 1955 of Chapter 5 - Citizenship by conferral.

Australian citizen - see also Australian citizen (s4).

Australian law

child - includes adopted child, stepchild, ex-nuptial child and a child within the meaning of the Family law Act 1975. This definition was expanded on 15 March 2009 to allow for the recognition of children to same-sex couples. It is a term primarily associated with the term ‘responsible parent’. See Responsible parent (s6) for further information on responsible parent.

commencement day

de facto partner - this term refers to a definition inserted into the Acts Interpretation Act 1901 as a result of the Same-sex Relationships (Equal Treatment in commonwealth Laws - General Law Reform) Act 2008. The de facto partner of a person may be their same-sex or opposite-sex de facto partner. It is relevant to the application of residence discretions at s22(9).

disclose - see also Chapter 11 - Personal identifiers.

entrusted person - see also Chapter 11 - Personal identifiers.

foreign law - A foreign country is any country other than Australia.

identifying information - see also Chapter 11 - Personal identifiers.

ACIs - Chapter 1


national security offence - The definition of ‘national security offence’ makes it clear that certain offences against Australian laws are national security offences, and allows for further offences to be covered by the definition through a determination. Section 6A of the Act provides for such determinations to be made. See also National security offence (s6A).

New Guinea - Prior to Papua New Guinea (PNG) Independence on 16 September 1975, there were two separate territories - the External Territory of Papua and the Trust Territory of New Guinea. See Chapter 15 - People born in Papua New Guinea.

old Act - The old Act was in force from 26 January 1949 up to and including 30 June 2007.

ordinarily resident

The term “ordinarily resident” is used in four provisions:

s12(1)(b) in relation to a child becoming an Australian citizen on their 10th birthday

s22A and s22B in relation to special residence requirements and

s33(3)(b) in relation to renunciation.

Relevant considerations when assessing whether a person is or was ordinarily resident in Australia during a particular period include:

the length of physical residence in Australia

whether the applicant considered that their home was in Australia

the nature and extent of any periods of absence from Australia and

the nature and extent of ties with Australia such as presence of family, attendance at school, club memberships.

Similar considerations are relevant to assessing whether a person is ordinarily resident in another country.

Ordinarily resident in another country does not mean temporarily absent from Australia but that Australia has ceased to be the permanent place of residence. See Chapter 2 - Automatic acquisition of citizenship.

Papua - Prior to Papua New Guinea (PNG) Independence on 16 September 1975, there were two separate territories - the External Territory of Papua and the Trust Territory of New Guinea. See Chapter 15 - People born in Papua New Guinea

permanent resident - see also Permanent resident (s5).

permanent visa - s3(2) Schedule 3 of the Transitional Act provides an expanded definition or permanent visa.

personal identifier

prison - also see s9 for information relating to confinement in prison or psychiatric institution.

psychiatric institution - also see s9 for information relating to confinement in prison or psychiatric institution.

qualified security assessment - s35 of the ASIO Act provides that:

‘Qualified security assessment means a security assessment in respect of a person that:

(a) contains any opinion or advice, or any qualification of any opinion or advice, or any information, that is or could be prejudicial to the interests of the person; and

(b) does not contain a recommendation of the kind referred to in paragraph (b) of the definition of adverse security assessment;

ACIs - Chapter 1


whether or not the matters contained in the assessment would, by themselves, justify prescribed administrative action being taken or not being taken in respect of the person to the prejudice of the interests of the person.’

responsible parent - see also Responsible parent (s6).

serious prison sentence - Whether a prison sentence is a ‘serious prison sentence’ depends on the length of the sentence handed down by the courts, not the amount of time the person spends in prison. For example, a sentence of 12 months in prison is a ‘serious prison sentence’, despite the fact the person may be released on good behaviour after spending less than 12 months in prison. A sentence of at least 12 months periodic detention is also considered a ‘serious prison sentence’

serious repeat offender- a serious repeat offender is a person who has previously been sentenced to a serious prison sentence and then released, and has then been convicted for another offence and sentenced to another serious prison sentence. A person who is convicted for two or more offences simultaneously and sentenced to 12 months or more (where the sentences are served concurrently) is not a ‘serious repeat offender’.

special category visa

special purpose visa

Stateless Persons Convention - Article 1(2)(iii) of the Convention Relating to the Status of Stateless Persons provides that the Stateless Persons Convention does not apply:

‘(iii) To persons with respect to whom there are serious reasons for considering that:

(a) They have committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provisions in respect of such crimes;

(b) They have committed a serious non-political crime outside the country of residence prior to their admission to that country;

(c) They have been guilty of acts contrary to the purposes and principles of the United Nations.’

The Stateless Persons Convention only applies to applications under Division 2, Subdivision A - Citizenship by Descent.

stepchild - this definition is to extend the meaning of stepchild to children in de facto relationships, including same-sex de facto relationships.

unlawful non-citizen - s3(1) of the Transitional Act provides the following expanded definition. The term ‘unlawful non-citizen’ refers to non-citizens in Australia who do not hold a visa. The term is used in several sections of the Act in relation to descent, adoptive parents under the Hague Convention on Intercountry Adoption, citizenship by conferral and responsible parents.

visa - Item 3(3) of the Transitional Act expands this definition to include valid entry permits within the meaning of the Migration Act as in force immediately before 1 September 1994 and a valid visa within the meaning of that Act as in force immediately before 1 September 1994.

AUSTRALIAN CITIZEN (S4)

Australian citizen means a person who:

is an Australian citizen under Division 1 or 2 of Part 2 of the Act or

was an Australian citizen under the old Act immediately before 1 July 2007 and has not ceased to be an Australian citizen under the new Act.

ACIs - Chapter 1


PERMANENT RESIDENT (S5)

The term permanent resident is relevant to Citizenship by birth (s12) and s21 (conferral of Australian citizenship).

Generally, a person will be a permanent resident if their presence in Australia is not subject to any time limitation; that is, a visa, issued under the Migration Act, states “permitted to remain indefinitely”. In relation to periods spent outside Australia, a person is a permanent resident if they have permission to return to Australia as a permanent resident, such as a resident return visa, an Authority to Return or a Return Endorsement.

This provision makes clear that if it is necessary to work out if a person was a permanent resident before commencement day (1 July 2007), it should be worked out under s5A of the old Act. See Attachment A - Permanent resident under the old Act.

People who are present in Norfolk Island or the Territory of Cocos (Keeling) Islands on an unrestricted basis are determined, by a legislative instrument under s5(2) of the Act to be permanent residents for the purposes of the Act.

RESPONSIBLE PARENT (S6)

The term responsible parent is used in the Act, and Regulations, in a number of provisions:

s25(4) - cancellation of child’s approval

s28(3), (4) - day citizenship begins and

s36 - children of parents who cease being Australian citizens.

See Chapter 5 - Citizenship by conferral.

A parenting order is made by the court and can cover the allocation of parental responsibility, living arrangements, contact and communication, maintenance, and any aspect of care, welfare or development of the child. The best interests of a child come first when a court is making a parenting order.

Section 6 of the Act was amended on 3 July 2008 (with retrospective effect from 1 July 2007), changing terminology to remove references to “residence order” and “specific issues order” and referring simply to “parenting order”. The changes are a consequence of amendments to the Family Law Act 1975, which aim to focus the court and the parties on parenting as the central issue.

Further advice can be sought from the Citizenship Help Desk.

NATIONAL SECURITY OFFENCE (S6A)

For policy and procedures relating to s6A, see Chapter 12 - National security.

CHILDREN BORN ON SHIPS OR AIRCRAFT OR AFTER DEATH OF PARENT (S7)

This section may be relevant to the application of s12 (birth) and s16 (descent). For s12, see Citizenship by birth (s12). For s16, see Chapter 3 - Citizenship by descent.

ACIs - Chapter 1


CHILDREN BORN AS A RESULT OF ARTIFICIAL CONCEPTION PROCEDURES OR SURROGACY ARRANGEMENTS UNDER A PRESCRIBED LAW OF AN AUSTRALIAN STATE/TERRITORY (S8)

Section 8 was amended with effect from 15 March 2009 by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008. These amendments are consistent with amendments to the Family Law Act 1975.

Section 8 applies to children who are covered by s60H (children born as a result of artificial conception procedures) or 60HB (children born under surrogacy arrangements) of the Family Law Act.

Section 8 applies to children born as a result of an artificial conception procedure either in Australia or overseas.

Section 8 applies only to surrogacy arrangements made under Australian state/territory laws that are prescribed under the Family Law Act 1975. It does not apply to surrogacy arrangements occurring overseas.

Because of the complexities involved, all cases involving children born as a result of a surrogacy arrangement must be referred to the Citizenship Help Desk for guidance.

CONFINEMENT IN PRISON OR PSYCHIATRIC INSTITUTION (S9)

If a person is sentenced to periodic detention, they are ‘confined to a prison’ for the purposes of the Act for the entire length of the sentence, not just the number of days they actually spend in prison. For example, if a person serves 6 months imprisonment as weekend detention (approximately 48 days in prison), the period during which they are ‘confined to a prison’ is the entire 6 month period.

If an applicant has been sentenced to a home detention order and detained at their home, they have not been ‘confined to a prison’.

The period during which a person is ‘confined to a prison’ does not include time spent in a prison serving a sentence for a conviction that is later overturned (quashed).

PERSONAL IDENTIFIERS (S10)

For policy and procedures relating to s10, see Chapter 11 - Personal identifiers.

OPERATION OF ACT (S11)

No further guidance on s11 is necessary.

ACIs - Chapter 1


ATTACHMENT A - PERMANENT RESIDENT UNDER THE OLD ACT The term permanent resident is relevant to such matters as citizenship by birth and by grant. For the purposes of the old Act, it is defined in s5A, with further provisions in reg 5(1A) and declarations under s5A(2). It is a very complex definition but, generally, a person will be a “permanent resident” if their presence in Australia is not subject to any time limitation under the Migration Act.

In relation to periods spent in Australia (excluding Norfolk Island and the Cocos (Keeling) Islands), a person is a permanent resident if the person:

holds a permanent visa (from 1 September 1994) or held a permanent entry permit (prior to 1 September 1994)

is a New Zealand citizen who entered Australia by evidencing their New Zealand citizenship by presentation of a valid New Zealand passport, with some exceptions and was in Australia on 26 February 2001 as the holder of a special category visa or

was outside Australia on 26 February 2001 but was in Australia as the holder of a special category visa for a period totalling not less than one year in the two years immediately before that date or

does not fall within the above two categories but has a Centrelink certificate, issued under the Social Security Act 1991, that states that they were, for the purposes of that Act, residing in Australia on a particular date.

Note: People eligible for a certificate under the Social Security Act 1991 (a “Centrelink certificate”) were New Zealand citizens who: were existing recipients of social security payments who were outside Australia on 26

February 2001 but returned within 26 weeks of that date or arrived to reside in Australia between 27 February 2001 and 25 May 2001 (inclusive) and

had a Centrelink certificate certifying that they had, under the Social Security Act, established residence in Australia. People in this category must have lodged an application for a Centrelink certificate before 26 February 2004 or

are part of a very small group who established permanent residence in Australia but were unable to be physically present in Australia in the 3 months immediately following 26 February 2001 and who applied to Centrelink by 26 February 2002. For example, this group includes business people, church workers and aid workers who would have experienced hardship if they had to return by 26 May 2001

became an “absorbed person” by being present in Australia on 2 April 1984, not having left Australia since, and having become absorbed into the Australian community before that date (see PAM3: Absorbed person visas)

was a Norfolk Island permanent resident prior to 1 September 1994 (since then, such persons are granted permanent visas on entry to mainland Australia).

A person in Australia would not be a permanent resident during periods, for example, that the person held a temporary entry permit or a temporary visa or was a prohibited immigrant, prohibited non-citizen or illegal entrant.

In relation to periods spent in a “prescribed Territory” (Norfolk Island and the Cocos (Keeling) Islands) a person is a permanent resident while lawfully present in the territory if:

the person’s presence in the territory was not subject to any limitation as to time or

had the person been elsewhere in Australia, he or she would have been regarded as a permanent resident (for example, a permanent visa holder or New Zealand citizen who is temporarily on Norfolk Island).

ACIs - Chapter 1


In relation to periods spent outside Australia, a person is a permanent resident if he or she holds permission to return to Australia as a permanent resident, such as a resident return visa, an Authority to Return or a Return Endorsement. For details, see s5A(1)(d) and regulation 5(1A). Since 1 September 1994, there has also been provision for certain New Zealand citizens who are outside Australia to be regarded as permanent residents.

Note: There are particular complexities regarding the situation of New Zealand citizens. See Chapter 14 - New Zealand citizens in Australia.

ACIs - Chapter 2

Australian Citizenship Instructions (ACIs) 1 January 2011 Department of Immigration and Citizenship National Office Chapter 2 - p 12

CHAPTER 2 - AUTOMATIC ACQUISITION OF CITIZENSHIP

This Chapter comprises: Overview of Chapter 2

Attachment A - Historical provisions - Birth in Australia and transitional provisions.

ACIs - Chapter 2


OVERVIEW OF CHAPTER 2 This part comprises: Automatic acquisition of Australian citizenship (Part 2, Division 1) Citizenship by birth (s12) Citizenship by adoption (s13) Citizenship for abandoned children (s14) Citizenship by incorporation of territory (s15).

Part 2 Division 1 of the Act covers the four circumstances where automatic citizenship may apply:

Some people automatically became Australian citizens when the old Act came into effect on 26 January 1949. See Attachment A - Historical provisions - Birth in Australia and transitional provisions.

Most Australian citizens by birth are not recorded in the Department’s data storage system. They may be recorded if they have come to the attention of the Department, for example, if they have sought evidence of their Australian citizenship, or applied to register a child as a citizen by descent, or if they have lost or renounced their Australian citizenship.

The acquisition of Australian citizenship under this Division is by operation of law. Although there is no decision to be made to approve or refuse citizenship, there is still a need for a finding of fact to be made that a person satisfied the requirements of a particular section of Part 2 of Division 1 of the Act. A finding of fact will be necessary for people seeking evidence that they automatically acquired Australian citizenship. For further information on applications for Evidence of Australian Citizenship, see Chapter 9 - Evidence of Australian citizenship.

People may come to the attention of the Department through other means such as border control or compliance activities. If there is any question about a person’s citizenship status, the matter should be referred to the Citizenship Manager in the relevant state/territory office (STO). If the Citizenship Manager makes a decision about the citizenship status of a person, the finding of fact should be recorded in the Department’s data storage system.

A person can lose Australian citizenship as a result of their actions, or as a result of their responsible parent’s actions. See Chapter 8 - Cessation of Australian citizenship.

AUTOMATIC ACQUISITION OF AUSTRALIAN CITIZENSHIP (PART 2, DIVISION 1)

Since the legal status of Australian citizenship came into force on 26 January 1949, there have been various changes to the citizenship legislation relating to the acquisition of Australian citizenship by birth.

Different rules apply according to the person’s date of birth. Refer to Attachment A - Historical provisions - Birth in Australia and transitional provisions for birth in Australia prior to commencement of the Act.

CITIZENSHIP BY BIRTH (S12)

This part comprises: Permanent residents and exempt non-citizen Children born in Norfolk Island or the Territory of Cocos (Keeling) Islands Ordinarily resident in Australia over 10 years since birth Children born to foreign diplomats.

ACIs - Chapter 2


Section 12(1)(a) is an operation of law provision. Although there is no decision to be made to approve or refuse citizenship, a finding of fact can be made on whether a person has met the requirements of s12(1)(a), see Chapter 9 - Evidence of Australian citizenship.

Permanent residents and exempt non-citizen

For further guidance on the meaning of permanent resident for the purposes of the Act, see Chapter 1 - Preliminary and definitions.

If it is necessary to work out if a person was a permanent resident at a time before commencement of the Act the definition of permanent resident in the old Act must be used. See Attachment A - Permanent resident under the old Act of Chapter 1.

Children born in Norfolk Island or the Territory of Cocos (Keeling) Islands

Children born in Norfolk Island and the Territory of Cocos (Keeling) Islands are born in Australia for the purposes of the Act.

Before 20 August 1986, a child born on Norfolk Island or the Territory of Cocos (Keeling) Islands acquired Australian citizenship by birth unless one of the parents was a foreign diplomat.

On or after 20 August 1986, a child born on Norfolk Island or the Territory of Cocos (Keeling) Islands acquired Australian citizenship by birth if at least one parent was either an Australian citizen or permanent resident at the time of the child’s birth. If a parent was a resident of Norfolk Island or the Territory of Cocos (Keeling) Islands, you will need to consult the legislative instrument under s5(2) of the Act to determine whether they are considered a permanent resident for the purposes of the Act, or Attachment A - Permanent resident under the old Act of Chapter 1.

Ordinarily resident in Australia over 10 years since birth

This provision operates regardless of the migration or citizenship status of the parent(s).

Relevant considerations in assessing ordinarily resident include:

the length of physical residence in Australia

whether the applicant considered that their home was in Australia for the first ten years of their life

the nature and extent of any periods of absence from Australia and

the nature and extent of ties with Australia such as presence of family, attendance at school, club memberships.

Temporary absences from Australia do not necessarily mean that Australia has ceased to be the permanent place of residence.

The person does not need to be in Australia on their 10th birthday for this provision to apply.

Children born to foreign diplomats

A child born in Australia of a foreign diplomat posted here for a limited period would not be taken to be ordinarily resident in Australia for the purposes of this provision.

CITIZENSHIP BY ADOPTION (S13)

Australian citizenship is automatically acquired under s13 when a child is adopted in Australia, or an overseas adoption is finalised under Australian law, and the child is present in Australia as a permanent resident and at least one adoptive parent is an Australian citizen.

ACIs - Chapter 2


Section 13 is an operation of law provision. Although there is no decision to be made to approve or refuse citizenship, a finding of fact can be made on whether a person satisfies the requirements of s13, see Chapter 9 - Evidence of Australian citizenship.

This provision does not apply to:

persons adopted in Australia before 22 November 1984 (those persons may apply for conferral of Australian citizenship)

children adopted overseas - unless they are also legally adopted in Australia or that adoption is finalised under Australian law.

For further details on citizenship by adoption, see Chapter 4: Part 1 - Adopted children.

CITIZENSHIP FOR ABANDONED CHILDREN (S14)


A child abandoned in Australia is deemed to have been born in Australia, unless the contrary is proven.

All cases must be referred to the Citizenship Help Desk together with any documentary evidence such as a report from the police force which located the child, and any report(s) from any other authority involved in deciding that the child had been abandoned.

CITIZENSHIP BY INCORPORATION OF TERRITORY (S15)

Section 15 is an operation of law provision.

If any territory becomes part of Australia, the Minister may determine, by instrument, the specified classes of persons who become Australian citizens on a specified date. A person of the specified class becomes an Australian citizen on the specified date.

The instrument can take effect before the date it is registered under the Legislative Instruments Act 2003.

All cases must be referred to the Citizenship Help Desk.

ACIs - Chapter 2


ATTACHMENT A - HISTORICAL PROVISIONS - BIRTH IN AUSTRALIA AND TRANSITIONAL PROVISIONS This part comprises: 20 August 1986 to the present 22 November 1984 to 19 August 1986 inclusive 6 May 1966 to 21 November 1984 inclusive 26 January 1949 to 5 May 1966 inclusive Before 26 January 1949 The transitional arrangements on 26 January 1949.

20 AUGUST 1986 TO THE PRESENT

People born in Australia are Australian citizens if at least one parent is an Australian citizen or a permanent resident at the time of the person’s birth in Australia.

If neither parent is an Australian citizen or a permanent resident at the time of a person’s birth in Australia, and the person is ordinarily resident in Australia until their tenth birthday, the person automatically acquires Australian citizenship on their tenth birthday.

A child is not an Australian citizen by birth if a parent is an enemy alien and the birth occurred in a place in Australia at a time that place was under occupation by the enemy, unless a parent was an Australian citizen or a permanent resident and was not an enemy alien.

22 NOVEMBER 1984 TO 19 AUGUST 1986 INCLUSIVE

People born in Australia were Australian citizens at birth unless one parent was entitled to diplomatic privileges and immunities or was a consular officer of a foreign country and neither parent was an Australian citizen or a permanent resident.

6 MAY 1966 TO 21 NOVEMBER 1984 INCLUSIVE

People born in Australia were Australian citizens at birth unless their father was entitled to diplomatic privileges and immunities or was a consular officer of a foreign country and was not an Australian citizen or a permanent resident.

People born in Papua between 26 February 1949 and 15 September 1975 were Australian citizens at birth. However, most people ceased to be Australian citizens on 15 September 1975 with the declaration of PNG Independence on 16 September 1975. See Chapter 15 - People born in Papua New Guinea.

People born between 1 December 1973 and 21 November 1984 acquired Australian citizenship at birth if, at the time of the birth, the person’s mother was an Australian citizen and the person would otherwise be stateless. See s23D(2) of the Act as in force at that time.

26 JANUARY 1949 TO 5 MAY 1966 INCLUSIVE

This part comprises:

Diplomat parents from 26 January 1949 to 24 November 1952

Diplomat parents from 25 November 1952 to 5 May 1966.

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People were Australian citizens at birth unless their father was not an Australian citizen and was a foreign diplomat “who had the immunity from suit and legal process accorded to an envoy of a foreign country accredited to His Majesty”. During this period the status of Diplomats changed.

Diplomat parents from 26 January 1949 to 24 November 1952

If a diplomat was from a Commonwealth country, their children born in Australia acquired Australian citizenship at birth. If a diplomat was from a non-Commonwealth country, their children born in Australia did not acquire Australian citizenship at birth.

Until the commencement of the Australian Diplomatic Immunities Act 1952 on 25 November 1952, diplomats from Commonwealth countries did not represent a foreign sovereign, and therefore at common law they did not have immunity from suit and legal process.

Diplomat parents from 25 November 1952 to 5 May 1966

Children born in Australia to a diplomat from a Commonwealth country were no different to children born to diplomats from non-Commonwealth countries and did not acquire Australian citizenship at birth.

BEFORE 26 JANUARY 1949

Australian citizenship did not exist before 26 January 1949. Before that date, people born in Australia were British subjects.

THE TRANSITIONAL ARRANGEMENTS ON 26 JANUARY 1949

When the old Act came into effect on 26 January 1949 some people automatically became Australian citizens as a result of the provisions of s25 of that Act. The repeal of s25 on 1 May 1987 did not affect the citizenship status of such people.

People whose circumstances are as briefly outlined below should be asked to complete a Form 119 if they seek evidence of their Australian citizenship.

Section 25(1) of the Act provided that a person became an Australian citizen, on 26 January 1949, if they were a British subject immediately prior to 26 January 1949 and:

(a) were born in Australia, provided that at the time of the person’s birth their father was not in Australia as a diplomatic representative of another country

(b) were born in New Guinea

(c) had been naturalised as a British subject in Australia. This includes: children whose names were included in a parent’s certificate and women who made declarations that they desired to acquire British nationality under the

Nationality Act 1920-1946. Such people are recorded in ICSE or

(d) had been ordinarily resident in Australia and/or New Guinea for the 5 year period between 26 January 1944 and 25 January 1949. This includes persons whose home was in Australia, or Australia was their place of permanent abode (notwithstanding temporary absence).

Section 25(3) provided for British subjects born outside Australia and New Guinea before 26 January 1949, to a father who acquired Australian citizenship under s25(1)(a), (b) or (c) on 26 January 1949 to become Australian citizens if they arrived in Australia:

before 26 January 1949 on an unrestricted basis (citizenship commenced on 26 January 1949)

between 26 January 1949 - 6 May 1966 on an unrestricted basis (citizenship commenced on the date of entry) or

ACIs - Chapter 2


between 6 May 1966 - 30 April 1987 on an unrestricted basis and was still a British subject on arrival (citizenship commenced on the date of entry).

Section 25(4) provided for a British subject woman who did not otherwise acquire Australian citizenship but had a husband who did (or dead husband who would have if he were still alive) to acquire Australian citizenship on 26 January 1949, if she had entered Australia and been married prior to that date.

Note: A woman who had lost her British nationality as a result of acquiring another nationality by marriage was deemed by s27 to still have been a British national immediately before 26 January 1949.

ACIs - Chapter 3


CHAPTER 3 - CITIZENSHIP BY DESCENT

This Chapter comprises: Overview of Chapter 3 Eligibility Application requirements Decision making Attachment A to Chapter 3 - the old Act Attachment B - Fraud Attachment C - DNA testing Attachment D - Historical provisions - cessation of Australian citizenship Attachment E - British nationality and British subjects.

ACIs - Chapter 3


OVERVIEW OF CHAPTER 3 Part 2 Division 2 Subdivision A of the Act provides that a person may be registered as an Australian citizen by descent if they were born overseas to at least one parent who was either an Australian citizen at the time of birth or, if the birth occurred prior to 26 January 1949, became an Australian citizen on 26 January 1949.

Attachment A to Chapter 3 - the old Act outlines the provisions for Australian citizenship by descent between 26 January 1949 and 30 June 2007.

If the Australian citizen parent is a citizen by descent, a person cannot be registered as an Australian citizen by descent unless the parent had been present in Australia lawfully for a total of two years at some time prior to the application, or unless the person is not a national or citizen of another country and has never been a national or citizen of another country.

If the person was born prior to 26 January 1949, a parent must have been either born in Australia or naturalised prior to the child’s birth.

An application must be refused if the decision maker is not satisfied of the person’s identity, if the person has been assessed by ASIO as a risk to national security, or if the person has ceased to be an Australian citizen within the 12 months prior to application (cessation).

The Act requires that applicants aged 18 years and over be of good character unless the applicant is a stateless person.

Decision makers considering applications for citizenship by descent need to take into account the risk of fraud in this caseload. Attachment B - Fraud has information on the circumstances in which additional scrutiny is warranted.

All evidentiary documentation must be closely examined. Where necessary, DNA testing may be used to verify the claimed parentage of the applicant. Attachment C - DNA testing has information on DNA testing.

Surrogacy arrangements

Extreme caution should be exercised in cases where the child may be born as a result of offshore surrogacy arrangements. Because of the complexities involved in these cases, all cases involving surrogacy arrangements must be referred to the Citizenship Help Desk. Further information is at Chapter 4: Part 2 - Children born as a result of artificial conception procedures or surrogacy arrangements.

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ELIGIBILITY This part comprises: Persons born outside Australia on or after 26 January 1949 Persons born outside Australia before 26 January 1949.

Persons born outside Australia on or after 26 January 1949

Section 16(2) provides that persons born on or after 26 January 1949 may be registered as citizens by descent provided they were born overseas and:

a parent was an Australian citizen at the time of the person’s birth and

the person is of good character if 18 years or over and

if the parent is an Australian citizen by descent or full Hague adoption at the time of the birth: the parent has been lawfully present in Australia for a total of at least two years or the person is not a national or citizen of another country at the time of application and has

never been a national or citizen of another country.

If the applicant’s parent was originally an Australian citizen by descent, ceased to be an Australian citizen and then resumed their Australian citizenship, the parent must have been lawfully present in Australia for a total of at least two years. Section 32(2) provides that a person resumes the same kind of citizenship they held before ceasing to be an Australian citizen, meaning they would again become an Australian citizen by descent.

Section 16(2) provides that a person to whom article 1(2)(iii) of the Stateless Persons Convention applies, if 18 years and above, must be of good character - see the definition of Stateless Persons Convention in Definitions (s3) in Chapter 1 - Preliminary and definitions.

The Citizenship Help Desk should be notified of applications from people who are stateless or to whom article 1(2)(iii) of the Stateless Persons Convention applies.

Decision makers must also ensure there are no prohibitions on approval - see An application must be approved or refused (s17).

Persons born outside Australia before 26 January 1949

Section 16(3) provides that a person born before 26 January 1949 may be eligible to be registered as a citizen by descent provided they were born outside Australia or New Guinea and:

a parent became an Australian citizen on 26 January 1949

the parent was born in Australia or New Guinea or was naturalised in Australia before the person’s birth and

the person is of good character. If the person is or has been a national of any country of where article 1(2)(iii) of the Stateless Persons Convention applies - see the definition of Stateless Persons Convention in Definitions (s3) of Chapter 1 Part 1 of the Act - Preliminary.

The Citizenship Help Desk should be notified of applications from people who are stateless or to whom article 1(2)(iii) of the Stateless Persons Convention applies.

Decision makers must also ensure there are no prohibitions on approval - see An application must be approved or refused (s17).

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Processing applications for citizenship by descent as from 15 September 2010

Applications for citizenship by descent, where it would appear that the Australian citizen parent is a non biological parent, should be sent to Citizenship Policy Section, National Office, via the Citizenship Helpdesk for decision. The decision maker should ask the parent to provide evidence of the length and nature of the relationship with the child, as well as evidence of the length and nature of the relationship with the biological parent of the child.

The following guidelines apply, for applications received both on-shore and offshore:

in cases where a person applies for Australian citizenship by descent for their child on the grounds that they are the child’s biological parent, and the decision maker is satisfied that the person is the child’s biological parent, then current procedures remain in place

in cases where a person applies for Australian citizenship by descent for their child, on the grounds that they are the child’s biological parent, it is still appropriate for a decision maker to request a DNA test in cases where the decision maker is not satisfied that the person is the biological parent of a child

if the parent refuses to undergo a DNA test, or if the results of a DNA test do not support the claims, the decision maker should ask the parent to provide evidence of the length and nature of the relationship with the child, as well as evidence of the length and nature of the relationship with the biological parent of the child. The case should then be referred to Citizenship Policy Section for decision via the Citizenship Helpdesk.

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APPLICATION REQUIREMENTS This part comprises: Applicants born before 26 January 1949 Applicants born on or after 26 January 1949 Information and documents to accompany applications (reg 12) Fees to accompany applications (reg 12A).

Applications must be on the form approved by the Minister, contain the information required by the form, be accompanied by any other information prescribed by the regulations and be accompanied by a fee (if any) prescribed by the regulations.

The approved form for applications for citizenship by descent is the Form 118 “Application for Australian citizenship by descent”.

If an applicant is under 16 years of age a responsible parent must sign the application form. Responsible parent is defined in s6 of the Act, see Chapter 1 - Preliminary and definitions.

The application must be made in the current legal name of the applicant. The following documents should support the application:

the applicant’s full birth certificate

official evidence of any change of name by the applicant

evidence that a parent was an Australian citizen when the applicant was born

the Australian citizen parent’s birth certificate or evidence of Australian citizenship if parent was not born in Australia

official evidence of any change of name by the Australian citizen parent

penal clearance certificates from overseas countries if, in the last 10 years: the applicant has lived or travelled overseas since the age of 18 years or over and

the total time spent overseas added up to 12 months or more and

the time spent in any one country was more than 90 days or the applicant is requested to do so by the Department.

Note: If the applicant is overseas and spent time in Australia, a penal clearance certificate for Australia may be required. These applicants are also required to complete the National Police Check (NPC) Application Form, which is available from the Australian Federal Police website www.afp.gov.au.

Applications made on behalf of a child under 18 years of age needs to be supported by:

an endorsed passport size photograph of the child

the child’s passport, if any

identification documents for the responsible parent which include a signature, photograph and current address (eg. passport bio page, driving licence and credit card/utilities bill).

Official translations of documents in languages other than English must be provided. In Australia, translators should be accredited by the National Accreditation Authority for Translators and Interpreters (NAATI) as qualified to do official translations from the other language into English. For overseas lodged applications the current guidelines for translations in that post apply.

APPLICANTS BORN BEFORE 26 JANUARY 1949

Check whether the applicant was born outside Australia or New Guinea and whether a parent became an Australian citizen on 26 January 1949. See Descent provisions.

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APPLICANTS BORN ON OR AFTER 26 JANUARY 1949

Check whether a parent was an Australian citizen at the time of the applicant’s birth. If the parent was an Australian citizen by descent or full Hague adoption at the time of the birth, the parent must have been present in Australia for a total of two years before the application, unless the applicant is not a citizen of another country and has never been such a national or citizen of another country.

ORIGINAL evidence can be in the form of the following:

Australian birth certificate (for parents born before 20 August 1986)

Evidence (Certificate) of Australian citizenship

unrestricted Australian passport issued after 22 November 1984.

Check the Department’s data storage system ICSE, Mainframe (CT (CAS) TRIPS), reels and microfiche) determine whether there is a record of a change to the parent’s citizenship status. The Department’s MAL system must also be checked against the name of the parents. All known cases of attempted fraud are recorded in MAL.

ORIGINAL evidence of two years’ residence in Australia:

Passport(s) with movement stamps. If assistance with movement is required, contact: [email protected]

School or employment records or documents issued by a Commonwealth, state or territory Government agency.

If the applicant is overseas and the application is lodged in Australia by an authorised person, the person should be informed that the application will be sent for processing to the overseas post closest to the applicant’s country of residence for processing.

INFORMATION AND DOCUMENTS TO ACCOMPANY APPLICATIONS (REG 12)

Under reg 12, information and documents not in English must be accompanied by an official translation. In Australia, translations should be done by National Accreditation Authority of Translators and Interpreters (NAATI) accredited translators. For overseas lodged applications the current guidelines for translations in that post apply.

FEES TO ACCOMPANY APPLICATIONS (REG 12A)

Under reg 12A, an application for Australian citizenship by descent must be accompanied by the fee mentioned in item 2 of Schedule 3.

Where applications are made at the same time by 2 or more siblings, item 1 of Schedule 3 prescribes the fee for the first sibling and a reduced fee for the second and subsequent siblings.

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DECISION MAKING This part comprises: An application must be approved or refused (s17) Registration (s18) Day citizenship begins (s19) Notification of decisions (s47) Review of decisions (s52) Revocation by Minister (s34).

AN APPLICATION MUST BE APPROVED OR REFUSED (S17)

An application for citizenship by descent must be approved or refused. If an applicant meets the eligibility requirements and there is no prohibition on approval, they must be approved. They must also be given notice of the decision. See Notification of decisions (s47).

There are a number of circumstances where an application for citizenship by descent must not be approved. These relate to:

identity

national security and

cessation of citizenship.

Identity (s17(3))

No further guidance is necessary.

National security ((s17(4), s17(4A) and s17(4B))

All cases concerning national security must be referred to the Citizenship Help Desk.

If ASIO has issued an adverse security assessment or qualified security assessment against the applicant, an application for citizenship by descent must not be approved unless the applicant is stateless (see below). Such an assessment will be made where the applicant is a direct or indirect risk to the security of Australia.

If the applicant is stateless, an application must not be approved if the person has been convicted of a national security offence.

Cessation of citizenship (s17(5))


REGISTRATION (S18)

Under s18 if the person is approved to become an Australian citizen by descent their details must be registered in the Department’s data storage system.

DAY CITIZENSHIP BEGINS (S19)

A person becomes a citizen by descent on the day the application is approved. However, s19A provides that even if an application is approved, a person does not become a citizen unless their parent was either an Australian citizen at the time of birth (on or after 26 January 1949) or became an Australian citizen on 26 January 1949 (where the birth occurred before that date).

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The law makes it clear that if a person never had a parent who was an Australian citizen they are taken to never have been an Australian citizen by descent, even if they were approved and registered.

NOTIFICATION OF DECISIONS (S47)

Under s47, a person must be given notice of the decision on their application. If the decision is a refusal, the notice must include the reasons for the decision and advice that they have a right to have this decision reviewed by the AAT.

REVIEW OF DECISIONS (S52)

Under s52(1) a decision to refuse an application for Australian citizenship by descent can be reviewed by the AAT.

REVOCATION BY MINISTER (S34)

See Chapter 8 - Cessation of Australian citizenship.

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ATTACHMENT A TO CHAPTER 3 - THE OLD ACT This part comprises: People born outside Australia on or after 26 January 1949 to an Australian citizen parent People born outside Australia or New Guinea before 26 January 1949 to a father who became

an Australian citizen on 26 January 1949 People born outside Australia or New Guinea before 26 January 1949 to a mother who became

an Australian citizen on 26 January 1949.

PEOPLE BORN OUTSIDE AUSTRALIA ON OR AFTER 26 JANUARY 1949 TO AN AUSTRALIAN CITIZEN PARENT

This part comprises: 26 January 1949 to 21 November 1984 Between 22 November 1984 and 30 June 2007 People born out of wedlock.

26 January 1949 to 21 November 1984

A person born overseas to an Australian citizen parent became an Australian citizen when the birth was registered at an Australian consulate. The requirements during the time were:

Between 26 January 1949 and 30 April 1970, s11 of the old Act required that:

at the time of the birth, the person’s father was an Australian citizen or, if a person was born out of wedlock, the mother was an Australian citizen or British subject ordinarily resident in Australia or New Guinea and

the birth was registered at an Australian consulate within one year after the birth, or such further period as allowed by the Minister. As a matter of policy, registrations were allowed after the one year period

except if:

they were born in a Commonwealth country (listed in the then s7) and became a citizen of that country by birth and

the relevant parent was not ordinarily resident in Australia or New Guinea.

Until 15 September 1975 the Territory of Papua was part of Australia for the purposes of the old Act.

Between 30 April 1970 and 21 November 1984, s11 of the old Act required that:

if the child was born in wedlock, the child’s father or mother was an Australian citizen at the time of the birth

if the child was born out of wedlock, the child’s mother was an Australian citizen or a British subject ordinarily resident in Australia or New Guinea at the time of the birth and

the birth was registered at an Australian consulate within five years after the birth, or such further period as allowed by the Minister. As a matter of policy, registrations were allowed after the five year period.

Until 15 September 1975 the Territory of Papua was part of Australia for the purposes of the old Act.

Between 22 November 1984 and 30 June 2007

Section 10B of the old Act required that a person born overseas to an Australian citizen parent be registered before the age of 18 years. From July 2002, the age limit for registration was 25 years.

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Between 1991 and 30 June 2007, s11 of the old Act provided for registration by descent for people born overseas between 26 January 1949 and 15 January 1974.

People born out of wedlock

If a person was born out of wedlock, the registration referred only to the mother. If the birth was later legitimated under the Marriages Act 1961, reg 12, the person could be re-registered.

The provision for the registration of people born to Australian mothers in wedlock was made retrospective, and allowed registration of people born to Australian mothers between 26 January 1949 and 30 April 1970.

PEOPLE BORN OUTSIDE AUSTRALIA OR NEW GUINEA BEFORE 26 JANUARY 1949 TO A FATHER WHO BECAME AN AUSTRALIAN CITIZEN ON 26 JANUARY 1949

This part comprises: Who became a citizen on 26 January 1949? Descent provisions.

Who became a citizen on 26 January 1949?

When the old Act came into effect on 26 January 1949, some people automatically became Australian citizens (s25). The repeal of this provision on 1 May 1987 did not affect the citizenship status of such people.

Section 25(1) provided that a person became an Australian citizen if they were a British subject immediately prior to 26 January 1949 and had been:

(a) born in Australia, provided that at the time of the person’s birth their father was not in Australia as a diplomatic representative of another country or

(b) born in New Guinea prior to 26 January 1949 or

(c) naturalised as a British subject in Australia. This includes: children whose names were included in a parent’s certificate and women who made declarations that they desired to acquire British nationality under the

Nationality Act 1920-1946. These people are recorded in ICSE or

(d) ordinarily resident in Australia and/or New Guinea for the five year period between 26 January 1944 and 25 January 1949. This includes people whose home was in Australia, or Australia was their place of permanent abode (notwithstanding temporary absence).

Descent provisions

Section 25(3) provided that British subjects born outside Australia and New Guinea before 26 January 1949, to a father who acquired Australian citizenship under s25(1)(a), (b) or (c) became Australian citizens if they arrived in Australia:

before 26 January 1949 on an unrestricted basis (citizenship commenced on 26 January 1949)

between 26 January 1949 and 6 May 1966 on an unrestricted basis (citizenship commenced on the date of entry) or

between 6 May 1966 and 30 April 1987 on an unrestricted basis and were a British subject on arrival (citizenship commenced on the date of entry).

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PEOPLE BORN OUTSIDE AUSTRALIA OR NEW GUINEA BEFORE 26 JANUARY 1949 TO A MOTHER WHO BECAME AN AUSTRALIAN CITIZEN ON 26 JANUARY 1949

People born overseas before 26 January 1949 to a mother who became an Australian citizen on 26 January 1949, were not eligible for citizenship by descent. However, between 18 June 1991 and 17 June 1996 inclusive, a person born outside Australia and New Guinea before 26 January 1949 to a mother born in Australia or New Guinea, or naturalised in Australia, could apply for citizenship. The requirements that:

the applicant was present in Australia for any time before 1 May 1987 and

the applicant was of good character.

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ATTACHMENT B - FRAUD An application requires additional scrutiny if one or more of the following circumstances apply:

the person stated to be the child’s mother departed from Australia in what would have been a very advanced state of pregnancy. Most airlines will not carry a passenger after the 28th week of pregnancy

the person stated to be the child’s mother is of mature age and the birth certificate shows the child to be her first born

the person stated to be the child’s mother claims to have had no pre-natal attention from a doctor in Australia

the person stated to be the child’s mother claims she had no ante-natal care

an application is lodged by a responsible parent in Australia and the child is off-shore

the birth certificate was issued many years after the birth

the travel movements of the person stated to be the Australian father indicate he was in Australia around the time the child would have been conceived.

There have been fraudulent attempts to register adopted children. This is often difficult to detect because in many countries a new birth certificate is issued without any reference to the natural parents or the fact that the child has been adopted.

Adopted children are not eligible for citizenship by descent.

Where doubt exists about the Australian citizen parentage of a child, the bona fides should be checked in one or more of the following ways:

review movements of both stated parents using their passports and the Movements Database

ask for detailed reasons why the Australian citizen mother was overseas at the time of the birth

ask for medical evidence of pregnancy from the stated mother’s doctor, preferably an Australian doctor

obtain verification of the birth and parent’s details from the hospital where the birth is stated to have occurred

a medical examination of the stated mother by a panel doctor

a DNA test

review any visa held by the child. The overseas post issuing the visa may be able to comment on why a visa was granted instead of the child being registered as a citizen by descent.

Immediately report any fraudulent attempt to obtain citizenship by descent to the Citizenship Help Desk so that details can be included on MAL.

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ATTACHMENT C - DNA TESTING DNA testing can be used to verify the Australian citizen parentage of a person who is an applicant for Australian citizenship by descent.

However, there is no legal power to compel an applicant and their stated Australian citizen parent to undergo DNA testing.

Decisions on applications should be made on the information available at the time. If the opportunity to provide DNA evidence in support of an application has not been used, the decision maker should take this into consideration when making a decision. Where there is doubt about the link to an Australian citizen, the case should be referred to Citizenship Policy Section, National Office, via the Citizenship Helpdesk for decision.

DNA evidence will be most useful in countries where there is a high incidence of document fraud or where official documentation is simply unavailable. It can also be useful where there is some doubt about the validity of the claimed relationships and/or credible documentation cannot be provided to substantiate the claims.

DNA testing facilities and procedures (how tests are conducted and details of recommended laboratories) is available in PAM3: Div1.2/reg1.12 - Member of the family unit - DNA testing. These procedures should be followed if a decision has been made to request an applicant to undergo DNA testing. Letters requesting DNA testing for Australian citizenship applicants can be found on IMMInet (at http://dimanet.immi.gov.au/DIMA_services/citizenship/citizenship_letters/intranet_only_letters). They can also be obtained from the Citizenship Help Desk.

Public information is available on the Department’s website and on Form 1259i (Information about DNA testing for visa and citizenship applicants). Translations of this form are available in Vietnamese, Mandarin, Tagalog, Amharic, Dari, Somali, French and Arabic.

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ATTACHMENT D - HISTORICAL PROVISIONS - CESSATION OF AUSTRALIAN CITIZENSHIP See Chapter 8 Attachment A - Historical provisions - Cessation of Australian citizenship.

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ATTACHMENT E - BRITISH NATIONALITY AND BRITISH SUBJECTS See Attachment E to Chapter 5 - British nationality and British subjects.

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CHAPTER 4 - CHILDREN

This Chapter comprises two parts: Part 1 - Adopted children, comprising:

Part 1 - Adopted children Overview of adoption provisions & Citizenship Automatic acquisition of Australian citizenship by adoption Acquisition of Australian citizenship by application under full Hague adoption Eligibility for citizenship - full Hague adoption Application requirements (s46) - Full Hague adoption Decision - Full Hague adoption Acquisition of Australian citizenship by application for conferral and

Part 2 - Children born as a result of artificial conception procedures or surrogacy arrangements Introduction Children born in Australia as a result of a surrogacy arrangement Children born overseas as a result of a surrogacy arrangement.

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PART 1 - ADOPTED CHILDREN This part comprises: Overview of adoption provisions & Citizenship Automatic acquisition of Australian citizenship by adoption Acquisition of Australian citizenship by application under full Hague adoption Eligibility for citizenship - full Hague adoption Application requirements (s46) - Full Hague adoption Decision - Full Hague adoption Acquisition of Australian citizenship by application for conferral.

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OVERVIEW OF ADOPTION PROVISIONS & CITIZENSHIP Adopted children may acquire Australian citizenship in a number of ways depending on the type of adoption that has taken place:

automatic citizenship by adoption (s13)

citizenship by full Hague adoption (s19) or

citizenship by conferral (s21(5)).

The table below sets out the different adoption provisions and pathways to Australian citizenship. STATE AND TERRITORY (BILATERAL) ADOPTION ARRANGEMENTS

HAGUE CONVENTION ADOPTION AUSTRALIAN ADOPTION AUTHORITIES ARE USUALLY INVOLVED

OTHER ADOPTIONS

Child arrives in Australia on a subclass 102 Adoption visa, and the adoption is finalised in Australia after a period of supervision. Australian citizenship is automatically acquired under s13 Citizenship by adoption when the adoption is finalised under Australian law, if the child is present in Australia as a permanent resident and at least one adoptive parent is an Australian citizen.

FULL HAGUE ADOPTION Generally offshore Child is adopted by Australian citizen/s under the Hague Convention’s full Hague adoption arrangements for Intercountry adoptions. The adoption is finalised overseas with the issue of a valid “adoption compliance certificate”. The adoption is recognised under Australian law. Refer Family Law (Hague Convention on Intercountry Adoption) Regulations 1998. Regulations 16 & 17. Application may be made for Australian citizenship under Subdivision AA - Citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption using form 1272 Section 19C sets out the application and eligibility requirements. A child adopted under a full Hague adoption arrangement will not be required to obtain a

SIMPLE HAGUE ADOPTION Onshore Some Hague Convention countries do not have full Hague adoption arrangements (ie, do not issue “adoption compliance certificates”). These adoptions are not recognised under Australian law unless and until they have been finalised in Australia. The child requires a visa to enter Australia, usually a subclass 102 Adoption visa. Australian citizenship is automatically acquired under s13 Citizenship by adoption when the adoption is finalised under Australian law, if the child is present in Australia as a permanent resident, and at least one adoptive parent is an Australian citizen. If the adoption is not finalised in Australia an application may be made for Australian citizenship by conferral (s21(5)) using form 1290. The child must be a

EXPATRIATE ADOPTIONS Generally Offshore Child adopted overseas by Australians residing overseas, with no involvement by Australian adoption authorities. These adoptions are not recognised under Australian law. The child requires a visa to enter Australia, usually a subclass 102 Adoption visa. Application may be made for Australian citizenship by conferral (s21(5)) using form 1290. The child must be a permanent resident at the time of application and at the time of decision to be eligible for Australian citizenship. DOMESTIC ADOPTIONS Onshore Child is adopted in Australia by Australian citizen/s with the involvement of Australian adoption authorities and under Australian law. Australian citizenship is automatically acquired under s13 Citizenship by adoption when the adoption is finalised under Australian law if the

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permanent visa to apply under this provision.

permanent resident at the time of application and decision to be eligible for Australian citizenship.

child is present in Australia as a permanent resident and at least one adoptive parent is an Australian citizen.

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AUTOMATIC ACQUISITION OF AUSTRALIAN CITIZENSHIP BY ADOPTION This part comprises: Citizenship by adoption (s13) Guardianship of adopted child (until citizenship or other significant event).

CITIZENSHIP BY ADOPTION (S13)

Australian citizenship is automatically acquired under s13 when a child is adopted in Australia, or an overseas adoption is finalised under Australian law, and the child is present in Australia as a permanent resident and at least one adoptive parent is an Australian citizen.


The adoption may be a domestic adoption (ie child born and adopted in Australia) or an intercountry adoption (ie child born outside Australia, but adoption finalised in Australia).

Section 13 would apply in the case of a domestic adoption where an Australian citizen adopts a permanent resident child. For example, a child born to a temporary resident is made available for adoption, acquires permanent residence, and is adopted by an Australian citizen under a law in force in a state or territory.

An intercountry adoption will usually involve a child brought to Australia on an adoption visa. After a period of time, usually 12 months after arrival in Australia, the adoptive parents apply to the relevant state or territory court for an adoption order. The date on which an Australian adoption order is made by the court is the date the child acquires Australian citizenship.

Intercountry adoption arrangements may include arrangements known as ‘bilateral agreements’ or “simple” Hague Convention adoption arrangements.

A “simple” Hague Convention adoption occurs when a Convention country, although a signatory to the Hague convention, does not issue an “adoption compliance certificate”, certifying that the legal ties between an adopted child and their birth parents have been severed. The Convention country agrees that the child is allowed to be moved to Australia where the adoption can be finalised under Australian law. If the adoption is not finalised in Australia the child must apply for citizenship by conferral.

Section 13 does not apply to:

people adopted in Australia before 22 November 1984; (these people may apply for conferral of Australian citizenship)

children adopted overseas (unless they are also legally adopted in Australia or that adoption is finalised under Australian law).

GUARDIANSHIP OF ADOPTED CHILD (UNTIL CITIZENSHIP OR OTHER SIGNIFICANT EVENT)

Children who enter Australia holding an Adoption visa where the adoption is to be finalised in Australia under a State and Territory (Bilateral) Adoption Arrangements (STAA), or a simple Hague Adoption, are officially under the guardianship of the Minister for Immigration and Citizenship. This guardianship is delegated to state and territory welfare authorities.

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This arrangement is set down in the Immigration (Guardianship of Children) Act 1946 (the IGOC Act). The IGOC Act provides a framework for state and territory governments to supervise the adoption process in Australia and ensure that arrangements are in the best interests of the children.

The adoptive parent(s) and the adoption/welfare authorities in the state or territory in which the family usually resides are advised when a decision is made on the child’s permanent visa application as to whether the child falls within these guardianship provisions.

The guardianship arrangements cease to apply once the child obtains Australian citizenship; when the child reaches the age of 18 years; if the child leaves Australia permanently; or when orders are made that the IGOC Act ceases to apply (usually when an Australian adoption order is made for the child). Issues with the guardianship status of the child should be referred to Family Section, Migration Branch.

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ACQUISITION OF AUSTRALIAN CITIZENSHIP BY APPLICATION UNDER FULL HAGUE ADOPTION Subdivision AA relates to Citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption.

OVERVIEW - FULL HAGUE ADOPTION

Citizenship for people adopted in accordance with the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption can be referred to as “Citizenship by full Hague adoption”.

The Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption commenced operation in Australia on 1 December 1998. Citizenship by full Hague adoption is therefore only available for children adopted under the Hague Convention on or after 1 December 1998.

Hague Convention adoptions which are considered full Hague adoptions are ones in which all legal ties between the adopted child and their birth parents have been severed. An “adoption compliance certificate” issued in accordance with the Hague Convention by the adoption authorities of the other Convention country, usually the child’s birth country, is evidence of a full Hague adoption. Once the certificate has been issued, the adoption is recognised in Australia under the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (regulations 16 and 17 refer). There is no need for the adoptive parents to seek further recognition of the adoption under Australian law.

An Australian citizen who resides in, or who is also a citizen of, a Hague Convention country other than Australia, may adopt a child from a third country that is also a signatory to the Hague Convention on Intercountry Adoption. This is known as a “Hague Convention Third Country” adoption. If an “adoption compliance certificate” has been issued and at least one of the Australian citizen adoptive parents has met the residence requirement of this section, the adopted child can apply for Australian citizenship by full Hague adoption. Otherwise, the adopted child must apply for citizenship by conferral, see Eligibility for citizenship - full Hague adoption.

Note: An “adoption compliance certificate” must comply with Article 23 of the Hague Convention. To ascertain whether the documentation provided is actually an adoption compliance certificate, decision makers must refer the document to the Citizenship Policy Section via the Citizenship Helpdesk.

The Australian Government Attorney-General’s Department has primary responsibility for developing and maintaining intercountry adoption arrangements with other countries as the central authority for adoption programs in Australia. This responsibility is shared with state and territory authorities.

The list of countries with which Australia has an intercountry adoption program is subject to change and case officers should ensure they check the Attorney-General Department’s website for a full and up-to-date list of open programs at: http://www.ag.gov.au/www/agd/agd.nsf/Page/IntercountryAdoption_Currentintercountryadoptionprograms

Adoptions other than Full Hague adoptions

Not all Hague Convention signatory countries are involved in full Hague adoption arrangements. Each member country must have signed up for the arrangements and produce an “adoption compliance certificate” in respect of the adoption. An adoption cannot be considered a full Hague adoption without the issuance of a valid “adoption compliance certificate” by the origin country.

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A simple Hague adoption occurs when a Convention country, although a signatory to the Hague Convention, does not issue an “adoption compliance certificate”, certifying that the legal ties between an adopted child and their birth parents have been severed. The Convention country agrees that the child is allowed to be moved to Australia where the adoption can be finalised under Australian law. Children adopted under these arrangements may automatically become Australian citizens following the completion of the adoption process in Australia. See Chapter 2 - Automatic acquisition of citizenship. If the adoption is not finalised in Australia the child must apply for citizenship by conferral - see Eligibility for citizenship by conferral.

Those adopted to whom an adoption compliance certificate was not issued (as defined under the Intercountry Adoption Regulations) or children adopted by Australian citizens from a country that is not a signatory to the Hague Convention on Intercountry Adoption may apply for citizenship by conferral once they are a permanent resident. Following amendments to the Act on 9 November 2009, to be eligible for Australian citizenship a person under the age of 18 applying for Australian citizenship by conferral under s21(5) must be a permanent resident (that is, they must have activated their permanent visa) at the time of application and at the time of decision.

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ELIGIBILITY FOR CITIZENSHIP - FULL HAGUE ADOPTION

APPLICATION AND ELIGIBILITY FOR CITIZENSHIP (S19C)

If the applicant is under 16 years of age a responsible parent must sign the application form. Responsible parent is defined in s6 of the Act, see Chapter 1 - Preliminary and definitions.

Applicants aged 18 years or over are eligible only if their adoption was agreed to by the adoption authorities of the two Convention countries before the person turned 18 years of age. The age limit is specified in Article 3 of the Hague Convention.

Note: An “adoption compliance certificate” must comply with Article 23 of the Hague Convention. To ascertain whether the documentation provided is actually an adoption compliance certificate, decision makers must refer the document to the Citizenship Policy Section via the Citizenship Help Desk for checking.

If the Australian citizen adopting parent acquired their Australian citizenship by descent or ‘full’ Hague adoption, they must have been lawfully present in Australia for at least two years at any time before their adoptive child made their application.

This requirement also applies where a person’s adopting parent acquired their citizenship by descent or ‘full’ Hague adoption, who ceased and then resumed their citizenship. The adoptive parent must have been lawfully present in Australia (although not necessarily as a citizen) for a total of at least two years at any time before the person’s application is made. Section 32(2) provides that a person resumes the same kind of citizenship as that held before ceasing to be an Australian citizen.

Decision makers must also ensure there are no prohibitions on approval - see Minister’s decision (s19D).

Note: A Hague extract is not formal evidence of Australian citizenship. If a person wishes to obtain legal evidence of their Australian citizenship, they should apply for evidence on form 119 Application for evidence of Australian citizenship.

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APPLICATION REQUIREMENTS (S46) - FULL HAGUE ADOPTION This part comprises: Information and documents to accompany applications (reg 12) Fees to accompany applications (reg 12A).

Under s46 applications must be on the form approved by the Minister, contain the information required by the form, be accompanied by any other information prescribed by the regulations and be accompanied by a fee (if any) prescribed by the regulations.

The approved form for applications for citizenship by full Hague adoption is form 1272 Application for Australian citizenship for children adopted under full Hague Convention arrangements.



the applicant’s full birth certificate

an adoption compliance certificate relating to the adoption of the applicant

official evidence of any change of name by the applicant

evidence that an adoptive parent was an Australian citizen at the time of the adoption

the Australian citizen parent’s full birth certificate

official evidence of any change of name by the Australian citizen parent.

Applications made on behalf of a child under 16 years of age also need to be supported by:


the child’s passport, if any

identification documents for the responsible parent which include a signature, photograph and current address (for example, passport bio page, driving licence and credit card/utilities bill).

Change of name requirements -when child’s name is changed by the adopting parent(s)

It is very common for the adopting parents to change the child’s name in some manner either at the time of the adoption or shortly after.

As with all cases of identity and change of name, each case must be treated on its own merits and it will be up to the individual decision maker as to the level of evidence required.

If the new name has not been recorded on the adoption certificate, or if the decision maker has any doubts/concerns, then the decision maker will require some other form of official evidence to support the change of name. Additional guidance can be provided by the Citizenship Helpdesk.

In general:

If the child’s name has been changed in a minor-moderate way and the new name was recorded on the adoption certificate, the decision maker could usually be satisfied with the: birth certificate (original, including original translations if required) and adoption certificate (original, including original translations if required).

If the child’s name has been changed in a moderate-major way and/or the new name was not recorded on the adoption certificate, the decision maker could usually be satisfied with the: birth certificate (original, including original translations if required) and adoption certificate (original, including original translations if required) and other form of official evidence (eg. change of name document from RBDM).

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A minor change would usually be one in which the child’s birth name was essentially retained with the family name changed to the adopting parent’s family name, for example:

Birth name: ROSA MAREE JONES

Current name: ROSA MAREE Smith

A moderate change would usually be one in which some of the child’s birth name was retained, with the adopting parent’s family name added, and additional names added/removed, for example:


Current name: Rose MAREE Smith; ROSA Marie Smith; ROSA Emily Smith; Emily ROSA Smith; Emily MAREE Smith; ROSA Smith; MAREE Smith; Emily ROSA MAREE Smith; MAREE ROSA Smith.

A major change would usually be one in which the child’s entire birth name has been changed, for example:


Current name: Rose Marie Smith; Rose Smith; Marie Smith; Marie Rose Smith; Rose Emily Smith; Emily Marie Smith; Marie Rose Smith; Emily Smith; Emily Catherine Smith.


Under reg 12, information and documents not in English must be accompanied by an official translation. In Australia, translations should be done by National Accreditation Authority of Translators and Interpreters (NAATI) accredited translators.


Under reg 12A, an application under s19C of the Act for Australian citizenship must be accompanied by the fee mentioned in item 4 of Schedule 3.

Where applications are made at the same time by 2 or more siblings, item 3 of Schedule 3 prescribes the fee for the first sibling and a reduced fee for the second and subsequent siblings.

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DECISION - FULL HAGUE ADOPTION This part comprises: Minister’s decision (s19D) Registration (s19E) Registration under s19E of the Act (reg 6) Day citizenship begins (s19F) Notification of decision (s47) Review of decisions (s52) Revocation by Minister (s34).

MINISTER’S DECISION (S19D)

An application for citizenship for a person adopted in accordance with the Hague Convention on Intercountry Adoption must be approved or refused. If an applicant meets the eligibility requirements and there is no prohibition on approval, the application would generally be approved. They must also be given notice of the decision. See Notification of decisions (s47).

There are a number of circumstances where an application for citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption must not be approved. These relate to:

identity

national security and


Identity (s19D(4))


National security (s19D(5), s19D(6), s19D(7) and s19D(7A))


If ASIO has issued an adverse security assessment or qualified security assessment against the applicant, an application for citizenship for a person adopted in accordance with the Hague Convention for Intercountry Adoption must not be approved unless the person is stateless (see below). Such an assessment will be made where the applicant is a direct or indirect risk to the security of Australia.

If the applicant is stateless and was born in Australia, an application for citizenship must not be approved if they have been:

convicted of national security offence or

convicted of an offence (in Australia or overseas) and sentenced to a period of imprisonment for at least 5 years. Note: There is a discretion for the Minister to approve an application if it would be unfair to refuse it on the basis of the person’s conviction (see s19D(7A)).

If the applicant is stateless and was born outside Australia to an Australian citizen parent, an application for citizenship must not be approved if the applicant has been convicted of a national security offence.

Cessation of citizenship (s19D(8))


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REGISTRATION (S19E)

If the person is approved to be an Australian citizen by full and permanent Hague adoption their details must be registered in the Department’s data storage system in accordance with the regulations.

REGISTRATION UNDER S19E OF THE ACT (REG 6)

No further guidance on s19E or reg 6 is necessary.

DAY CITIZENSHIP BEGINS (S19F)

Under s19F a person becomes an Australian citizen by full Hague adoption on the day the application is approved.

NOTIFICATION OF DECISION (S47)

Under s47 a person must be given notice of the decision on their application. If the decision is a refusal, the notice must include the reasons for the decision and advice that they have a right to have this decision reviewed by the AAT.


Under s52(1) a decision to refuse an application to become an Australian citizen by full Hague adoption can be reviewed by the AAT.


See Chapter 8 - Cessation of Australian citizenship.

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ACQUISITION OF AUSTRALIAN CITIZENSHIP BY APPLICATION FOR CONFERRAL

SUBDIVISION B - CITIZENSHIP BY CONFERRAL

Overview - Adoptees

The most common circumstances in which an adopted child applies for citizenship by conferral will be where children have been adopted overseas by an Australian citizen parent (expatriate adoptions) under arrangements that do not involve Australian adoption authorities. If the adoption has been arranged outside of Hague Convention arrangements or no valid adoption compliance certificate has been issued, the adopted child will need to apply for citizenship by conferral.

Following amendments to the Act on 9 November 2009, a person under the age of 18 applying for Australian citizenship by conferral under s21(5) must be a permanent resident (that is, they must have activated their permanent visa) at the time of application and at the time of decision to be eligible for Australian citizenship.

Citizenship by conferral provisions are set out in Subdivision B - Citizenship by conferral. Section 21(5) provides for citizenship for people under the age of 18 years, as follows:

Person aged under 18

(5) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

(a) is aged under 18 at the time the person made the application; and (b) is a permanent resident: (i) at the time the person made the application; and (ii) at the time of the Minister’s decision on the application.

Applications for citizenship by conferral must be on either form 1290 or form 1300t.

For all other details on application requirements and relevant law, policy and procedures, see Chapter 5 - Citizenship by conferral.

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PART 2 - CHILDREN BORN AS A RESULT OF ARTIFICIAL CONCEPTION PROCEDURES OR SURROGACY ARRANGEMENTS This part comprises: Introduction Children born in Australia as a result of a surrogacy arrangement Children born overseas as a result of a surrogacy arrangement.

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INTRODUCTION The Act contains a number of provisions that refer to a person’s parent. These include section 12 (automatic acquisition by birth in Australia), section 16 (citizenship by descent), section 21(6) (person born to former Australian citizen) and section 21(7) (person born in Papua). Sections 30(6) and 47(2) also use the term ‘parent’.

In cases where a child has been born as a result of surrogacy or artificial conception procedures it may be necessary to see additional evidence of the biological parent-child relationship such as DNA testing. It will also be necessary to see evidence of the parent’s legal guardianship of the child if they wish to lodge an application on behalf of a child aged under 16 years.

The Citizenship Helpdesk can provide further guidance on the types of evidence required to establish the biological link and legal guardianship.

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CHILDREN BORN IN AUSTRALIA AS A RESULT OF A SURROGACY ARRANGEMENT In 2008 the Family Law Act was amended to allow for the recognition of children born as a result of certain surrogacy arrangements. These are recognised in s8 of the Act.

Where a child is born as a result of a surrogacy arrangement, and a court makes an order under a prescribed law of an Australian State or Territory to the effect that one or both members of a married or de facto couple are the child’s parents, then both members of the couple are considered to be responsible parents of the child for the purposes of lodging an application for Australian citizenship on behalf of a child aged under 16 years.

Regulation 12CAA of the Family Law Regulations 1984 prescribes the relevant State or Territory laws. As at 1 September 2009, only the Surrogacy Act 2008 (WA) and the Parentage Act 2004 (ACT) are prescribed.

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CHILDREN BORN OVERSEAS AS A RESULT OF A SURROGACY ARRANGEMENT Because of the complexities involved in these cases, all cases involving surrogacy arrangements must be referred to the Citizenship Help Desk.

As a party to the United Nations Convention on the Rights of the Child and the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, Australia is committed to protecting the fundamental rights of children. These Conventions include obligations to prevent the abduction, sale, or trafficking of children. While Australia does not have obligations towards children who are not within its jurisdiction, extreme caution should be exercised in cases involving surrogacy arrangements entered into overseas to ensure that Australia's citizenship provisions are not used to circumvent adoption laws and other child welfare laws.

If there is no biological link to the child

If there is no biological link between an Australian citizen intended parent and a child born overseas as a result of a surrogacy arrangement, the child will not be eligible for citizenship by descent.

Please note that a child’s birth certificate may list people who have no biological link to the child as the child’s parents. Despite what is written on the child’s birth certificate, if there is no biological link between an Australian citizen and a child born as a result of a surrogacy arrangement overseas, the Australian citizen will need to explore the possibility of seeking an adoption order and sponsor the child for migration to Australia.

Although the Adoption visa (subclass 102) does include provision for private adoptions, the circumstances surrounding commercial surrogacy mean that most intended parents with no genetic link to a child born through a surrogacy arrangement would be unlikely to meet the requirement that the adoptive parent must be living outside Australia for more than 12 months at the time of the Adoption visa application (and that this overseas residence was not contrived for the purposes of the adoption). Adoption visa requirements are listed in Schedule 2 of the Migration Regulations 1994. Citizenship officers must refer any enquiries relating to visas to an appropriate visa officer.

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CHAPTER 5 - CITIZENSHIP BY CONFERRAL

This Chapter comprises:


Eligibility for citizenship by conferral

Application requirements

Decision making

Attachment A - Historical provisions in relation to residents of Cocos (Keeling) Islands on 23 November 1955

Attachment B - Significant hardship and disadvantage

Attachment C - Fees to accompany applications

Attachment D - Concession fee for certain Centrelink or DVA pensions

Attachment E to Chapter 5 - British nationality and British subjects

Attachment F to Chapter 5 - Evidence requirements

Attachment G to Chapter 5 - Conventions on names.

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OVERVIEW OF CHAPTER 5 The requirements for Australian citizenship by conferral (formerly called citizenship by grant) are set out in Part 2, Division 2 (Subdivision B) of the Act. This chapter sets out the relevant legislative requirements and policy guidelines.

People may be eligible to become an Australian citizen by conferral if they:

satisfy the general eligibility criteria or

have a permanent or enduring physical or mental incapacity that means they are not capable of understanding the nature of their application, or of demonstrating a basic knowledge of English or of demonstrating an adequate knowledge of Australian and of the responsibilities and privileges of Australian citizenship or

are aged 60 or over or have permanent loss or substantial impairment of hearing, speech or sight or

are aged under 18 and a permanent resident or

were born outside Australia to a former Australian citizen who ceased to be a citizen under s17 of the old Act (about dual citizenship) or

were born in Papua before 16 September 1975 to a parent born in Australia as currently defined or

are a stateless person born in Australia who has always been stateless and has never had, and currently does not have, a reasonable prospect of becoming the citizen or national of a foreign country.

An application must be refused if the decision maker is not satisfied of the person’s identity, or if the person has been assessed by ASIO as a risk to national security. The Act requires that applicants aged 18 years and over be of good character.

Most applicants must be in Australia at the time of decision and must not have ceased to be an Australian citizen within the 12 months prior to application (cessation). Other circumstances in which an application must be refused are set out in the chapter as appropriate.

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ELIGIBILITY FOR CITIZENSHIP BY CONFERRAL This part comprises: Requirements for becoming a citizen (s20) Application and eligibility (s21) General eligibility (s21(2)) Permanent or enduring physical or mental incapacity (s21(3)) Person aged 60 or over or has a hearing, speech or sight impairment (s21(4)) Person aged under 18 years (s21(5)) Applicants aged 16 years and over and under the age of 18 Applicants under the age of 16 Wards of the Minister Unaccompanied humanitarian minor (UHM) non-wards Person born to former Australian citizen (s21(6)) Other requirements Person born in Papua (s21(7)) Statelessness (s21(8)) Residence requirement (s22, s22A & s22B) General residence requirement (s22) Overseas absences (s22(1A) & (1B)) People who were permanent residents immediately prior to 1 July 2007 Confinement in prison or psychiatric institution and Ministerial discretion (s22(1C) & (5A)) Partial exemption - person born in Australia or former Australian citizen (s22(2)) Ministerial discretion - administrative error (s22(4A) & (5)) Ministerial discretion - person in Australia would suffer significant hardship or disadvantage

(s22(6)) Ministerial discretion - spouse, de facto partner or surviving spouse or de facto partner of an

Australian citizen (s22(9) & (10)) Ministerial discretion - person in an interdependent relationship (s22(11)) Applications made but not decided before 1 July 2007 Activities beneficial to the interests of Australia (for applications lodged prior to 1 July 2007) Special residence requirement - Persons engaging in activities that are of benefit to Australia

(s22A) Special residence requirement - Persons engaged in particular kinds of work requiring regular

travel outside Australia (s22B) Business Skills visa holders Relevant defence service (s23) Application requirements Information and documents to accompany applications (reg 12) Fees to accompany applications (reg 12A).

REQUIREMENTS FOR BECOMING A CITIZEN (S20)


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APPLICATION AND ELIGIBILITY (S21)


GENERAL ELIGIBILITY (S21(2))

This part comprises: Permanent resident (s21(2)(b)) Residence requirement (s21(2)(c)) Sections 21(2)(d), (e) and (f) Likely to reside, or continue to reside, in Australia or to maintain a close and continuing

association with Australia (s21(2)(g)) Good character.

Permanent resident (s21(2)(b))

Section 5 of the Act defines “permanent resident”.

Note: New Zealand citizens are regarded as permanent residents of Australia for the purposes of an application for conferral of Australian citizenship only if they:

hold a permanent resident visa or

were present in Australia on 26 February 2001 on a Special Category visa or

spent a period or periods totalling 12 months in Australia on a Special Category visa in the 2 years before 26 February 2001, if they were outside Australia on that date or

have a Centrelink certificate issued prior to 26 February 2004 stating they were residing in Australian on a particular date.

For further information on New Zealand citizens, see Chapter 14 - New Zealand citizens in Australia.

Cessation or cancellation of a permanent visa prior to decision

Applicants for Australian citizenship by conferral under sections 21(2), 21(3) and 21(4), lodged on or after 7 October 2008, are required to be permanent residents at the time they apply and at the time of decision.

Applicants for Australian citizenship by conferral under sections 21(2), 21(3) and 21(4), lodged prior to 7 October 2008, are required to be permanent residents at the time they apply. Applicants are not, however, required to be permanent residents at the time of decision on their application.

Obtaining permanent residence is a vital milestone for people seeking to become Australian citizens and the circumstances behind the cessation of that permanent residence is an important consideration in deciding an application for Australian citizenship.

If an applicant’s permanent visa ceases or is cancelled, decision makers may consider refusing the application under subsection 24(2). This discretion must not be applied inflexibly and in all cases the Citizenship Help Desk notified.

In considering whether to exercise this discretion, decision makers must consider the full circumstances of the case to determine whether the application nevertheless warrants approval given the circumstances of the application. Applicants must be given the opportunity to provide reasons why the application should not be refused.

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Circumstances that could be considered include, but are not limited to, why the applicant’s permanent visa ceased, the extent of an applicant’s connection with Australia, the applicant’s situation in Australia (such as employment and community involvement), reputation in the community (such as references, referee reports and statutory declarations from non-family members) and the reasons given by the applicant why their application should not be refused.

Definition of Australia and external territories

Section 3 of the Act defines Australia as:

“Australia, when used in a geographical sense, includes the external Territories”

This means that for the purposes of the Act, “Australia” when used in a geographical sense, includes the external territories, including Norfolk Island, Cocos (Keeling) Islands, Christmas Island, the Australian Antarctic Territory, Ashmore & Cartier Islands, the Coral Sea Islands and Heard & McDonald Islands.

Norfolk Island

Norfolk Island is part of Australia for the purposes of the Act, but not for the purposes of the Migration Act. Norfolk Island was also part of Australia for the purposes of the old Act since 26 January 1949.

In relation to periods spent on Norfolk Island, the legislative instrument under s5(2) of the Act determines that a person is a permanent resident while lawfully present in the territory if:

the person has been granted a Certificate of Residency by the Norfolk Island authorities or

had the person been elsewhere in Australia, the person would have been regarded as a permanent resident, for example, a permanent visa holder or New Zealand citizen who is temporarily in Norfolk Island.

Permanent residents of Norfolk Island are eligible for Australian citizenship by conferral under the same criteria applicable to people on mainland Australia, including the residence requirements and discretions.

For further details on the status of residents of Norfolk Island, see PAM3: Act - Outside the migration zone - Immigration arrangements on Norfolk Island.

Cocos (Keeling) Islands and Christmas Island

The Cocos (Keeling) Islands were transferred to Australia on 23 November 1955, and Christmas Island (in the Indian Ocean) became an Australian territory on 1 October 1958. Since those dates they have been part of Australia for the purposes of the old Act, and are part of Australia for the Act, including for the purposes of Australian citizenship by birth. Permanent residents of the islands are eligible for Australian citizenship by conferral under the same criteria applicable to people on mainland Australia, including the residence requirements and discretions.

Historical provisions within Australian citizenship legislation for people ordinarily resident in those territories before they became Australian territories are at Attachment A - Historical provisions in relation to residents of Cocos (Keeling) Islands on 23 November 1955.

Australian Antarctic Territory, Ashmore & Cartier Islands, the Coral Sea Islands and Heard & McDonald Islands

For the purposes of calculating time spent in Australia for persons who are present in the external territories other than Norfolk Island, Cocos (Keeling) Island and Christmas Island, as movement records are not available for these territories, applicants should be asked to provide evidence of the period they were resident in that particular external territory. Evidence such as letters from their employer or school and ship or aircraft departure and arrival records will serve for this purpose.

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Decision makers assessing applications where the applicant seeks to have time spent in the Australian Antarctic Territory, Ashmore & Cartier Islands, the Coral Sea Islands or Heard & McDonald Island considered in meeting the residence requirements should consult the Citizenship Help Desk.

Residence requirement (s21(2)(c))

Applicants for citizenship by conferral under general eligibility must meet the residence requirement. For applications received on or after 21 September 2009, applicants may meet either the general residence requirement (s22) or one of the special residence requirements (s22A or s22B).

Most applicants will be required to meet the general residence requirement (s22). However, applicants who need to travel regularly outside of Australia because of their professions, may instead meet one of the special residence requirements (s22A or s22B). See: General residence requirement (s22) Special residence requirement - Persons engaging in activities that are of benefit to Australia

(s22A) Special residence requirement - Persons engaged in particular kinds of work requiring regular

travel outside Australia (s22B) and Relevant defence service (s23).

Sections 21(2)(d), (e) and (f)

Under s21(2A) the requirements that the applicant ‘understands the nature of the application’, ‘possesses a basic knowledge of the English language’ and ‘has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship’ can only be satisfied by the successful completion of a test. See Chapter 16 - Citizenship test, for further details.

The requirement for applicants for citizenship by conferral to ‘possess a basic knowledge of the English language’ is met if a person has sufficient knowledge of English to be able to exist independently in the wider Australian community.

The requirement to have an ‘adequate knowledge of Australia and of the responsibilities and privileges of Australia citizenship’ is linked to the concepts and information people need to understand in order to make the pledge of commitment.

The Australian citizenship test is designed to assess whether a person has an adequate knowledge of Australia and the responsibilities and privileges of citizenship, and a basic knowledge of the English language.

Likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia (s21(2)(g))

Factors that may contribute to a close and continuing association with Australia include:

Australian citizen spouse or de facto partner

Australian citizen children

length of relationship with Australian citizen spouse or de facto partner

extended family in Australia

return visits to Australia

periods of residence in Australia

intention to reside in Australia

employment in Australia (eg public or private sector)

ownership of property in Australia

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evidence of income tax payment in Australia and

current bank accounts in Australia.

The application (Forms 1300t and 1290) contain a declaration which refers to an intention to reside, or continuing intention to reside, in Australia, or to maintain a close and continuing association with Australia. This declaration would generally be sufficient evidence of the applicant’s intentions unless there is evidence to the contrary.

Good character

The Act requires that applicants aged 18 years and over be of good character. See Chapter 10 - Character, for further information on the assessment of good character.

Decision makers must also ensure there are no prohibitions on approval - see Minister’s decision (s24).

PERMANENT OR ENDURING PHYSICAL OR MENTAL INCAPACITY (S21(3))

For applications received before 9 November 2009 for consideration under s21(3), refer to the Act and the ACIs in place immediately before 9 November 2009.

For applications received on or after 9 November 2009 for consideration under s21(3) applicants must produce evidence, from a qualified medical practitioner, of a permanent or enduring physical or mental incapacity that means the person is not capable of:

understanding the nature of their application

demonstrating a basic knowledge of the English language or

demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.

To qualify, an 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 too long-term and it would be unreasonable to expect the person to recover before becoming eligible for Australian citizenship. Examples include a person suffering from extreme long-term depression, post-traumatic stress, or where a person has suffered a stroke.

A temporary physical or mental condition does not meet the requirement. For policy and procedures relating to evidence requirements for applicants claiming permanent or enduring physical or mental incapacity, see Attachment F to Chapter 5 - Evidence requirements.

See permanent resident and Likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia (s21(2)(g)).

See:

Residence requirement (s22, s22A & s22B) and

Relevant defence service (s23).

See Chapter 10 - Character, for further information on the assessment of good character.

Other requirements which must be satisfied relating to identity, national security, presence in Australia, offences and former citizens are set out in the section on Minister’s Decision.

PERSON AGED 60 OR OVER OR HAS A HEARING, SPEECH OR SIGHT IMPAIRMENT (S21(4))

Applicants must provide official evidence of age (such as a birth certificate or passport), or an applicant’s hearing, speech or sight impairment.

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For policy and procedures relating to evidence requirements for applicants claiming hearing, speech or sight impairments, see Attachment F to Chapter 5 - Evidence requirements.

Applicants aged 60 and over are required to understand the nature of the application they are making. Applicants would usually be given the opportunity at an interview to demonstrate that they meet this legal requirement.

However a decision maker may consider not asking an applicant aged 60 or over to attend an interview to demonstrate that they meet this requirement if they have signed and dated the application form.

Other requirements which must be satisfied include identity, national security, and presence in Australia.

The following applicants should be invited to an interview:

those who are not able to provide sufficient documentation to verify their identity, for example they are not able to provide a document containing their photograph. In these cases applicants should be asked to attend an interview and advised that their photograph may be taken at the time of interview. They should also be requested to re-sign their application form in front of the officer so the officer can personally collect this personal identifier

those who are long term residents in Australia where there is no systems record, including no movement record, in the previous 20 years and there is no recorded contact with the Department. Original documents should be sighted at interview. Where appropriate personal identifiers should be requested including photograph and signature. An interview will assist in verifying identity and the requirement to be present in Australia.

Before deciding that an applicant is not required to attend an interview the following factors should be taken into consideration. Where one or more of the following factors apply to the applicant, careful consideration should be given to whether an interview is required:

positive match on criminal records checks

where the information held by the Department does not match the information provided by the applicant, for example, no mention of a criminal history on application but a positive criminal history check received

doubts about the integrity of identity documents provided

declarant who completed proof of identity declaration provided information different to that contained in the form or was not able to demonstrate a good knowledge of the applicant raising doubts about identity

a migration history that involves fraud

movement records not located to show evidence of presence in Australia

multiple aliases which are not documented and/or identity not verified.

If the decision is made that an interview is not required this should be recorded in an ICSE note stating the reason why an interview was not conducted.

Where a decision is made that an applicant is not required to attend an interview care must be taken to ensure that applicants who are not able to take the Australian Citizenship Pledge in English are identified and appropriate interpreter ceremonies arranged.

See:

Residence requirement (s22, s22A & s22B) and

Relevant defence service (s23).


Other requirements which must be satisfied relating to identity, national security, presence in Australia, offences and former citizens are set out in the section on Minister’s Decision.

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PERSON AGED UNDER 18 YEARS (S21(5))

For applications received before 9 November 2009, you will need to refer to the Act and ACIs in effect immediately before 9 November 2009.

For applications received on or after 9 November 2009, a person under the age of 18 years applying for Australian citizenship by conferral under s21(5), must be a permanent resident (that is, they must have activated their permanent visa) at the time of application and at the time of decision to be eligible for Australian citizenship.

Person aged under 18

(5) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

(a) is aged under 18 at the time the person made the application; and

(b) is a permanent resident:

(i) at the time the person made the application; and

(ii) at the time of the Minister’s decision on the application.

The discretion in s24(2) to refuse to approve an applicant becoming an Australian citizen despite being eligible under s21(5) would usually be exercised where the applicant does not meet the policy guidelines. In making a decision whether to refuse or approve an application, the primary considerations that need to be taken into account are the legislative requirements, the best interests of the child and the policy guidelines set out below.

Best interests of the child

The best interests of the child are to be considered as one of the primary considerations when assessing the application. This consideration only applies if the child is or would be less than 18 years of age at the time of decision on the application and the child is living in Australia.

Consent of a responsible parent

If an applicant is under 16 years of age a responsible parent must sign the application form.

Prohibitions on approval


Information for ICSE

In cases where the child has been adopted by an Australian citizen/s, ensure that the names of the child’s adoptive parents are entered on ICSE.

POLICY GUIDELINES

APPLICANTS AGED 16 YEARS AND OVER AND UNDER THE AGE OF 18

Applicants aged 16 years and over and under the age of 18 (that is, aged 16 or 17 years) must make an application on a form that contains no other application.

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Applicants aged 16 years and over and under the age of 18 would usually be approved under s24 if they are permanent residents at the time of application and decision and also meet the following policy guidelines:

satisfies the residence requirement

the applicant need not meet the residence requirements if this would cause significant hardship or disadvantage. See Attachment B - Significant hardship and disadvantage for guidance

understands the nature of an application

possesses a basic knowledge of the English language

has an adequate knowledge of the responsibilities and privileges of Australian citizenship at the time of decision

is likely to reside or continue to reside, or maintain a close and continuing association with Australia.

Applicants between the ages of 16 and 18 should be given the opportunity at interview to demonstrate that they understand the nature of their application, have an adequate knowledge of the responsibilities and privileges of citizenship; and that they possess a basic knowledge of the English language. It is important that an applicant’s ability to understand and respond to questions is not hampered by the use of complex words or sentences.

Applications from children aged 16 years and over do not need the consent of a responsible parent.

Other requirements which must be satisfied relating to identity, national security, offences and former citizens are set out in Minister’s decision (s24).

In the case of an applicant who does not meet the policy guidelines above, decision makers must consider the full circumstances of the case, including the best interest of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.

Guidance on whether it may be reasonable to consider a particular set of circumstances as unusual can be obtained from National Office through the Citizenship Help Desk.

APPLICANTS UNDER THE AGE OF 16

A child aged less than 16 years can make an individual application in their own right (by applying on a form that contains no other application) or on the same form and at the same time as a responsible parent. This is set out in s46(2A).


Children under the age of 16 applying individually in their own right would usually be approved under s24 if they are permanent residents at the time of application and decision and also meet the following policy guidelines:

are under 16 years of age when applying, are living with a responsible parent, who is an Australian citizen and consents to the application or

are under 16 years of age when applying, and living with a responsible parent, who is not an Australian citizen and consents to the application, and the child would otherwise suffer significant hardship or disadvantage or

are an unaccompanied humanitarian minor who is a ward of the Minister and the Minister’s delegate has consented to the application, see Wards of the Minister or

are an unaccompanied humanitarian minor non-ward, and the responsible carer has consented to the application, see Unaccompanied humanitarian minor (UHM) non-wards.


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In the case of an applicant who does not meet the policy guidelines above, decision makers must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.

Guidance on whether it may be reasonable to consider a particular set of circumstances as unusual can be obtained from National Office through the Citizenship Help Desk.

Children under the age of 16 applying on the same form and at the same time as a responsible parent would usually be approved under s24 if they are permanent residents at the time of application and decision and also meet the following policy guidelines:

the child was living in Australia with the relevant responsible parent and

the relevant responsible parent consented to the inclusion of the child in their application.


Note: Decision makers must make a separate decision record for each applicant included on the application.

In the case of an applicant who does not meet the policy guidelines above, decision makers must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances. The circumstances would need to be very unusual to warrant approval of an application outside policy.

Guidance on whether it may be reasonable to consider a particular set of circumstances as unusual can be obtained from the Citizenship Help Desk, National Office.

Note: Where a child under the age of 16 applies on the same form and at the same time as a responsible parent, and that parent is refused, the child must be assessed against the policy guidelines for children under the age of 16 applying individually in their own right.

WARDS OF THE MINISTER

A ward of the Minister is a non-citizen minor as defined by the Immigration (Guardianship of Children) Act 1946 (IGOC Act) who enters Australia and:

is, or intends to become, a permanent resident

did not arrive in Australia in the care of a relative over the age of 21 years

does not have a relative over the age of 21 years in Australia to care for them.

The Minister is their guardian and only the Minister’s delegate for the purposes of the IGOC Act has the authority to apply for citizenship by conferral on behalf of the minor. The delegate is usually an officer from the relevant state/territory child welfare agency. Citizenship applications are generally lodged by the Minister’s delegate, or by the minor aged between 16 and 17, with consent from the Minister’s delegate.

Wards of the Minister cannot be included in their carer’s citizenship application because the carer does not meet the definition of responsible parent. If an application is received from a ward of the Minister which has not been signed by the Minister or their delegate, you must refer the application to the state/territory UHM coordinator. The application can be processed only once consent has been given by the Minister or their delegate. You must inform the state/territory UHM coordinator of the outcome of a citizenship application lodged by a ward of the Minister.

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UNACCOMPANIED HUMANITARIAN MINOR (UHM) NON-WARDS

All citizenship applications by UHM non-wards require the signed consent of their responsible carer. This includes applications for non-wards aged 16 years or over. The application should be supported by evidence that a Commonwealth, state or territory government agency recognises that the carer has daily responsibility for the care and control of the UHM. Evidence may include, for example, the signed “Agreement to Undertake Care” form, a Medicare card listing the carer and UHM, a welfare benefits statement, or any other official Commonwealth, state or territory government documentation recognising the relationship.

UHM non-wards cannot be included in their carer’s citizenship application as the carer does not meet the definition of ‘responsible parent’ under the Act.

If an application is received from a UHM non-ward which has not been signed by the carer, you must refer the application to the state/territory UHM coordinator. The application can be processed only once consent has been given by the carer. You must inform the state/territory UHM coordinator of the outcome of a citizenship application lodged by a UHM non-ward.

PERSON BORN TO FORMER AUSTRALIAN CITIZEN (S21(6))

The definition of “Australia” for the purposes of s21(6) is the definition of Australia at the time of the person’s birth. For example, a person born in Papua prior to 16 September 1975 was not born outside Australia because Papua was part of Australia for the purposes of the old Act until PNG Independence on 16 September 1975.

Prior to 4 April 2002, an adult ceased to be an Australian citizen under s17 of the old Act if they were outside Australia and acquired the citizenship of another country as a result of a voluntary and formal act other than marriage. Section 17 was repealed on 4 April 2002.


See Chapter 8 Attachment A - Historical provisions - Cessation of Australian citizenship for further details.


OTHER REQUIREMENTS


PERSON BORN IN PAPUA (S21(7))

Section 3 defines that Australia, when used in a geographical sense, includes the external Territories.

This means that for the purposes of the Act “Australia”, includes the:

states

internal territories of the Northern Territory, Australian Capital Territory, the Jervis Bay Territory and

external territories including Norfolk Island, Cocos (Keeling) Islands and Christmas Island, the Australian Antarctic Territory, Ashmore & Cartier Islands, Coral Sea Islands and Heard & McDonald Islands.

See Chapter 15 - People born in Papua New Guinea.

See also Chapter 10 - Character, for further information on the assessment of good character.

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STATELESSNESS (S21(8))

No further guidance on s21(8) is necessary.

Other requirements which must be satisfied relating to identity and national security are set out in the section on Minister’s decision (s24).

Applications which are considered to meet the requirements of this section must be referred to Citizenship Operations Section, National Office by contacting the Citizenship Help Desk.

RESIDENCE REQUIREMENT (S22, S22A & S22B)

This part comprises: General residence requirement (s22) Overseas absences (s22(1A) & (1B)) People who were permanent residents immediately prior to 1 July 2007 Confinement in prison or psychiatric institution and Ministerial discretion (s22(1C) & (5A)) Partial exemption - person born in Australia or former Australian citizen (s22(2)) Ministerial discretion - administrative error (s22(4A) & (5)) Ministerial discretion - person in Australia would suffer significant hardship or disadvantage

(s22(6)) Ministerial discretion - spouse, de facto partner or surviving spouse or de facto partner of an

Australian citizen (s22(9) & (10)) Ministerial discretion - person in an interdependent relationship (s22(11)) Applications made but not decided before 1 July 2007 Activities beneficial to the interests of Australia (for applications lodged prior to 1 July 2007) Special residence requirement - Persons engaging in activities that are of benefit to Australia

(s22A) Confinement in prison or psychiatric institution (s22A(2) & (3)) Ministerial discretion - Administrative error (s22A(4) & (5)) Special residence requirement - Persons engaged in particular kinds of work requiring regular

travel outside Australia (s22B) Confinement in prison or psychiatric institution (s22B(2) & (3)) Ministerial discretion - Administrative error (s22B(4) & (5)) Business Skills visa holders.

GENERAL RESIDENCE REQUIREMENT (S22)

Section 22 sets out the general residence requirement. For applications received on or after 21 September 2009, some applicants who need to travel regularly outside of Australia because of their professions, and cannot meet the general residence requirement, should be assessed against the requirements of the special residence requirements - see: Special residence requirement - Persons engaging in activities that are of benefit to Australia

(s22A) or Special residence requirement - Persons engaged in particular kinds of work requiring regular

travel outside Australia (s22B).

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To meet the general residence requirement (s22) a person is required to have been lawfully present in Australia for a period of four years immediately prior to making their application, including the last 12 months as a permanent resident.

All periods of lawful residence in Australia, such as temporary visas, visitor visas, student visas, all classes of bridging visas etc, are taken into account when calculating the four year lawful residence period.

Unlawful non-citizen

A person’s presence in Australia is determined to be lawful in accordance with the Migration Act. A person is lawful if they hold a visa that is in effect.

An unlawful non-citizen is a person who is not an Australian citizen and is present in Australia without a valid visa.

Under s22(1)(b), a person cannot meet the general residence requirement if they have been an unlawful non-citizen at any time during the 4-year period immediately before applying for citizenship. This means they will need to have spent 4 years in Australia since last ceasing to be an unlawful non-citizen before meeting the general residence requirement, unless they became unlawful because of administrative error - see Ministerial discretion - administrative error (s22(4A) & (5)).

Decision makers must be mindful of SREY-affected cases. In these cases, the person may show as a BVE holder but due to a past notification error, they may in fact still hold a BVA. This means that despite the Department’s records showing periods of unlawfulness prior to the granting of a BVE, such applicants may be taken not to have been unlawful for that period. Where a client of interest note exists in ICSE indicating the person is SREY-affected, contact a Notification Contact Officer (NCO) in your office for assistance (a list of all NCOs is available on TRIM at PCD2009/3758). Most, but not all, SREY-affected cases will have a client of interest note. Further information on whether a person might be SREY-affected can be found in PAM3: Act - Notification - Notification requirements.

OVERSEAS ABSENCES (S22(1A) & (1B))

Section 22(1A) allows for absences from Australia of up to 12 months within the 4 years immediately before applying for citizenship. A period of time cannot be counted as an absence from Australia unless the person has already been present in Australia. This means that a person does not meet the residence requirement if they have 3 years continuous presence in Australia (with the last 12 months as a permanent resident) unless they were previously in Australia.

Example

Ms Jones first entered Australia on 01/01/2007, and became a PR on 01/01/2009. She has not left Australia since her first arrival. Ms Jones does not meet the 4-year lawful period until 01/01/2011.

Section 22(1B) allows a person to be absent for up to 90 days within the 12 months permanent residence immediately before applying providing they remain a permanent resident during this time. Before 15 March 2009, applicants were allowed 3 months absence during the 12 month permanent residence period.

Calculation of the 4-year lawful residence period when a person has been absent from Australia on the day 4 years immediately before applying

If a person’s first arrival in Australia is less than 4 years before they apply for citizenship, they cannot meet the general residence requirement, even if they spend 3 years continuously in Australia.

The start date of the 4-year lawful residence period is usually the date 4 years immediately before they lodge their application. However, if the person has not made their first entry into Australia, they need to wait at least 4 years after their first entry to meet this requirement.

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Where a person was outside Australia on the day 4 years immediately before applying, but had previously been in Australia, they may still use the day 4-years immediately before applying as a start date (for the purposes of being eligible to satisfy the 4 year lawful requirement), providing that on that day they held a visa which was in effect on that day (a visa granted in Australia is in effect from the day of grant, a visa granted offshore comes into effect when the person enters Australia on that visa).

If these conditions are met, then the person may use the full 4 year period immediately before applying towards meeting the general residence requirement.

For the purposes of the residence calculator, the lawful residence date will be the date that the ‘in effect visa’ that was held ‘on the day 4 years immediately prior to the day of application’ came into effect. Refer to the relevant procedural documents for further information on using the residence calculator.

Example

Mr Smith entered Australia on 01/01/2004 on a subclass 457 visa. He departs a week later, and re-enters on 01/01/2006 on the same subclass 457 visa. He remains in Australia, becomes a permanent resident on 01/01/2008 and applies for citizenship on 01/01/2009.

Mr Smith’s 4-year lawful period starts on 01/01/2005 (4 years before applying) because although he was outside Australia on this date, he was previously in Australia and was still the holder s/c 457 visa.

New Zealand citizens

Specific policy guidelines apply to New Zealanders to ensure they are not disadvantaged by virtue of the unique status they hold under the Migration Act. These apply only to the calculation of the 4-year lawful residence period, and are not relevant to those New Zealand citizens who became permanent residents before 1 July 2007 and who apply for citizenship by conferral before 1 July 2010.

Unlike most other visas, the subclass 444 visa ceases immediately a person leaves Australia, and the person therefore does not hold a visa while outside Australia.

New Zealand citizens who were outside Australia 4 years immediately before applying for citizenship, but had previously entered Australia on a subclass 444 visa at any time within 8 years before lodging their application, may count the 4 years before lodging their application towards the general residence requirement.

Example

Mr Holt is a New Zealand citizen who was in Australia continuously from 1/1/2000 - 31/12/2002 on a 444 visa. He departed Australia on 1/1/2003 and returned on 1/1/2007 on a 444 visa. On 1/7/2010 he applied for citizenship by conferral.

Because Mr Holt was absent from Australia on the day 4 years immediately before applying, but had previously been in Australia within 8 years immediately before applying, his period of lawful residence starts on the day 4 years immediately before applying (that is, on 1/7/2006).

He would therefore meet the 4-year lawful period, counting the period 1/7/2006 - 30/12/2006 as a period of absence from Australia within this period.

When using the residence calculator in such situations, decision-makers must enter the date of first arrival (in this case 1/1/2000) as the lawful residence date, and then enter any dates of departure and arrival as required.

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People working on ships or aircraft - presence in Australia is not determined by the Migration Act

A person is present in Australia if they are physically present in Australia, as defined in s3. Under s80 of the Migration Act, certain non-citizens on ships or aircrafts, may be taken not to have left the ‘migration zone’. However, such a person is taken not to be present in Australia for the purposes of meeting the residence requirement during periods when their vessel is outside Australia.

People working as members of a crew of a ship or an aircraft should be assessed against the special residence requirement - persons engaged in particular kinds of work requiring regular travel outside Australia (s22B).

PEOPLE WHO WERE PERMANENT RESIDENTS IMMEDIATELY PRIOR TO 1 JULY 2007

Schedule 3 (Application and transitional provisions) of the Transitional Act provides that in the absence of any other relevant provisions, the residence requirements of the old Act (one in two years and two in five years) apply to people who became permanent residents before the commencement of the Act, provided they apply for citizenship before 1 July 2010.

CONFINEMENT IN PRISON OR PSYCHIATRIC INSTITUTION AND MINISTERIAL DISCRETION (S22(1C) & (5A))

Under s22(1C), if a person has been confined in a prison or in a psychiatric institution in relation to a criminal offence at any time, that person will need to spend four years in Australia since last being released from that confinement before being residentially eligible for citizenship.

However, s22(5A) provides that s22(1C) does not apply in relation to a person if, taking into account the circumstances that resulted in the person’s confinement, the decision maker is satisfied that it would be unreasonable not to take those periods into account towards the residence requirement.

Circumstances that may be taken into account could include:

convictions quashed (set aside by the court)

a pardon, that is, a free and absolute pardon granted because the person was wrongly convicted.

This discretion is not available for applicants who became permanent residents before 1 July 2007 and apply for citizenship prior to 1 July 2010. Periods confined in a prison or a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law cannot be counted towards the residence requirement of two in five and one in two years before the application.

PARTIAL EXEMPTION - PERSON BORN IN AUSTRALIA OR FORMER AUSTRALIAN CITIZEN (S22(2))

Under s22(2), applicants who were born in Australia or are former Australian citizens need only have been present in Australia as a permanent resident for 12 months immediately before the application. Absences from Australia in that period of no more than three months are allowed (s22(1B) refers).

Under s24(7) a former citizen cannot be approved for Australian citizenship by conferral unless more than 12 months have passed from the date upon which the person ceased, or last ceased, to be an Australian citizen. Some former Australian citizens may also be eligible to apply for resumption of Australian citizenship. See Chapter 7 - Resuming citizenship.

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MINISTERIAL DISCRETION - ADMINISTRATIVE ERROR (S22(4A) & (5))

Under s22(4A) and (5) the Minister has a discretion to count for the purposes of s22(1)(b) and (c) (respectively) periods spent in Australia during which the necessary legal status was absent, provided certain requirements are met (although the specific sections do not apply to people who were permanent residents immediately before 1 July 2007 - in these circumstances the equivalent provisions under s5B of Schedule 3 of the Transitional Act apply instead).

Under s22(4A) the Minister ‘… may treat a period as one in which the person was not present in Australia as an unlawful non-citizen if the Minister considers the person was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period’.

Under s22(5) the Minister ‘... may treat a period as one in which the person was present in Australia as a permanent resident if the Minister considers the person was present in Australia during that period but, because of an administrative error, was not a permanent resident during that period.

The discretion can only be exercised on condition that the legal status is absent ‘... because of an administrative error’. The condition can be divided into 2 parts, namely:

there must be an administrative error (in other words, an error of a particular kind) and

the error must be the reason why the person lacks the necessary legal status (in other words, the error is the cause).

The concept of ‘administrative error’ embraces a range of administrative actions. In broad terms it will extend to administrative mistakes and circumstances in which incorrect information is provided. While each case will need to be assessed on its own merits, specific examples include the following:

the applicant may have been granted a permanent visa but the decision maker accidentally recorded the grant of a temporary visa in ICSE

the applicant was advised by the Department that they were a lawful non-citizen when in fact they were unlawful

the applicant had been entitled to a permanent visa but made an application for a temporary visa as a result of incorrect advice from an officer of the Department.

A delay in processing an application does not constitute an administrative error in itself. Where an adverse decision on an application is subject to merits or administrative review and the decision is subsequently overturned, this is still considered within the normal parameters of an application process and does not constitute an administrative error.

In order for this discretion to be applied, the onus is on the applicant to provide evidence that an administrative error has indeed occurred. All reasonable efforts should be made by the decision maker to verify the applicant's claims. The Department may on its own initiative take action where the Department can identify a clear case of administrative error and apply this discretion on the applicant's behalf.

Decision makers must be satisfied that an administrative error has in fact occurred. Most cases of administrative error will require examination of client records relating to the relevant visa. Advice can be sought from the Citizenship Help Desk, National Office.

MINISTERIAL DISCRETION - PERSON IN AUSTRALIA WOULD SUFFER SIGNIFICANT HARDSHIP OR DISADVANTAGE (S22(6))

Under s22(6) periods of lawful residence, other than permanent residence, can be treated as periods of permanent residence if the applicant can demonstrate that they would suffer significant hardship or disadvantage if those periods were not treated a periods of permanent residence. This section makes explicit reference to s22(1)(c) of the Act. Section 5B of the Transitional Act was amended with retrospective effect from 1 July 2007, providing that the section also applies to applicants who are permanent residents on commencement of the Act.

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People who became permanent residents before commencement of the Act (1 July 2007) and who applied for citizenship prior to 1 July 2010, are also subject to the policy that applied immediately prior to commencement of the Act. That is, a person who is a permanent resident before commencement of the Act is required to meet the old residence requirements of two in five years, including one in two years. Consistent with the old policy, this discretion would normally be exercised only if the applicant has 12 months continuous permanent residence in Australia prior to the date of application. The discretion would normally only be used to make up the other one year permanent residence required for the two in five year requirement. This discretion is only available for periods spend lawfully in Australia.

Use of this discretion may be appropriate for persons who have become permanent residents of Norfolk Island. Norfolk Island has its own migration legislation (the Norfolk Island Immigration Act 1980) which requires that a person must have been ordinarily resident in Norfolk Island for five years in the past seven years to be eligible for permanent residence. As such, it is considered that such a person would suffer significant disadvantage compared with other applicants for citizenship by conferral if they were required to spend a further period of time as a permanent resident to satisfy the residence requirement.

Where an applicant satisfies all the requirements under s21 except the residence requirements, but has spent the appropriate periods in Norfolk Island as a temporary resident prior to being granted permanent residence of Norfolk Island, use of this provision would be appropriate. Such a person would not be expected to show further evidence of hardship or disadvantage for this discretion to be exercised.

Guidance on what would constitute significant hardship or disadvantage, including policy which applied immediately prior to the commencement of the Act, is at Attachment B - Significant hardship and disadvantage.

MINISTERIAL DISCRETION - SPOUSE, DE FACTO PARTNER OR SURVIVING SPOUSE OR DE FACTO PARTNER OF AN AUSTRALIAN CITIZEN (S22(9) & (10))

From 15 March 2009, the same-sex de facto partner of an Australian citizen who is seeking a residence discretion should be assessed against the criteria at 22(9) of the Act, and not 22(11), as was the case previously.

Under s22(9), periods spent overseas by a permanent resident who is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time of making an application, can be counted as periods of permanent residence in Australia.

The discretion to treat periods spent overseas by an applicant as periods during which the applicant was present in Australia as a permanent resident can only be applied to periods when:

the applicant was the spouse or de facto partner of a person who was an Australian citizen, and

the applicant was a permanent resident and

the applicant had a close and continuing association with Australia (see below).

If the applicant is the surviving spouse or de facto partner of an Australian citizen, they can only count time while their Australian citizen spouse or de facto partner was alive.

Policy is that this discretion would usually only be exercised if the applicant was overseas with their Australian citizen spouse or de facto partner.



length of relationship with Australian citizen spouse or de facto partner



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employment in Australia (eg public or private sector)




In assessing whether a person has a close and continuing association with Australia for the purposes of paragraph 22(9)(d), more weight should be given if they have been lawfully and physically present in Australia for at least 365 days in the 4 years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given if they have not been present in Australian for at least this period.

Where the applicant is the spouse, de facto partner, or surviving spouse or de facto partner of an Australian citizen and they are overseas at the time of decision, this discretion may be applied to avoid a refusal under s24(5) of the Act, provided the applicant meets the legislative and policy criteria as outlined above. It may be applied even though the discretion may not be required for the purposes of meeting the residence requirement.

MINISTERIAL DISCRETION - PERSON IN AN INTERDEPENDENT RELATIONSHIP (S22(11))

From 15 March 2009, the discretion at s22(11) applies only to people who are in an interdependent relationship other than a same-sex de facto relationship. The same-sex de facto partner of an Australian citizen is now able to access the discretion at s22(9) of the Act.

Under s22(11) periods spent overseas by a permanent resident who was granted their permanent visa because they were in an interdependent relationship with an Australian citizen and is still in that interdependent relationship at the time of making the application, can be counted as periods of permanent residence in Australia.

The discretion to treat periods spent overseas by the applicant as periods during which the person was present in Australia as a permanent resident can only be applied to periods when:

the applicant was a permanent resident and

the applicant was still in the same interdependent relationship with the Australian citizen and

the applicant had a close and continuing association with Australia (see below).

Policy is that this discretion would usually only be exercised if the applicant was overseas with their Australian citizen interdependent partner.



length of relationship with Australian citizen interdependent partner





employment in Australia (for example, public or private sector)




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Where the applicant is the interdependent partner of an Australian citizen and they are overseas at the time of decision, this discretion may be applied to avoid a refusal under s24(5) of the Act, provided the applicant meets the legislative and policy criteria as outlined above. It may be applied even though the discretion may not be required for the purposes of meeting the residence requirement.

Applications on hand as at 15 March 2009 involving requests for residence discretions under s22(9) or s22(11)

The amendments to the Act allowing the same-sex de facto partner of an Australia citizen to access the discretion at s22(9) apply to all undecided applications from 15 March 2009.

APPLICATIONS MADE BUT NOT DECIDED BEFORE 1 JULY 2007

In relation to applications made and not decided before 1 July 2007, Schedule 3 of the Transitional Act provides that periods during which the applicant was a permanent resident and was outside Australia engaged in activities beneficial to the interests of Australia may be treated as periods in which the applicant was present in Australia as a permanent resident. This discretion applies to both residence requirements (that is, both “2 years in the last 5” and “1 year in the last 2”).

As a matter of policy:

the applicant must have been personally engaged in activities overseas beneficial to the interests of Australia, not just, for example, the company or organisation for which the applicant worked and

the applicant must have been engaged in a series of activities, not just a one-off transaction and

the activities must also be during the relevant period/s under consideration and

the activities must have been Activities beneficial to the interests of Australia (for applications lodged prior to 1 July 2007) during the relevant period/s. It is not intended that the provision apply where there are no current benefits irrespective of whether benefits may accrue in the future.

Policy also states that the discretion will usually only be exercised if the applicant is in Australia and was either:

required to work overseas by a Federal, state or territory Department, semi-government authority or private employer or

self-employed and frequent travel abroad was essential to the successful operation of their business, whether for an extended period or on a regular short-term basis or

engaged overseas in activities of a social, cultural, economic or political nature which are clearly beneficial to the interests of Australia and are widely recognised as such either by: the Australian community generally or prominent persons associated with the applicant’s field of endeavour (for example, persons

engaged in aid programs, artists and entertainers of world standing).

ACTIVITIES BENEFICIAL TO THE INTERESTS OF AUSTRALIA (FOR APPLICATIONS LODGED PRIOR TO 1 JULY 2007)

For applications lodged prior to 1 July 2007, in assessing whether activities are ‘beneficial to the interests of Australia’, consider the following:

It requires “something in the nature of activities providing some advantage to Australia, whether commercial or otherwise. The concept necessarily connotes some public interest of Australia … and means more than the private interests of the (applicant). This section requires some objective benefit to Australia.” (Federal Court in Roberts.)

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It requires “something in the nature of activities which achieve recognition of Australia or Australian achievements or commercial advantage for Australia, or increase the international respect and goodwill for Australia … (it) refers to the public interests of Australia.” (AAT in Fraser.)

“the claim that the applicant’s employer has enhanced the reputation of its Australian parent company and Australian companies in general, falls short of demonstrating the applicant’s activities were beneficial to the interests of Australia.” (AAT in McCarthy.)

“There should be a close nexus between the overseas activities and the subsequent benefit to Australia to exercise the discretion.” (AAT in Tsui.) The benefit should be largely as a result of the applicant’s activities and must not be residual, remote, indirect or speculative. (For example, AAT in McCarthy.)

SPECIAL RESIDENCE REQUIREMENT - PERSONS ENGAGING IN ACTIVITIES THAT ARE OF BENEFIT TO AUSTRALIA (S22A)

A person meets the special residence requirement (persons engaging in activities that are of benefit to Australia) if they are seeking to engage in an activities specified in the Minister’s instrument under s22C(1) and have the support of an organisation specified in the Minister’s instrument under s22C(2). If a person is seeking to engage in an activity that is not listed in s22C(1), or does not have the support of an organisation that is listed in the instrument, they do not meet the special residence requirement.

A person only meets this special residence discretion if they are required to be an Australian citizen in order to engage in the relevant activity (s22A(1)(a)(iii)), and there is insufficient time for them to meet the general residence requirement before they can engage in the activity (s22A(1)(a)(iv)). These requirements would normally be confirmed in their letter of support from the relevant organisation.

To meet this special residence requirement, during the 2 year period immediately before they submitted their application, a person must also have been:

ordinarily resident in Australia

a permanent resident of Australia

present in Australia for at least 180 days in total, with at least 90 days of this being during the last 12 months immediately before applying

not present in Australia as an unlawful non-citizen.

Ordinarily resident is defined in s3 of the Act. See also Chapter 1 - Preliminary and definitions.

CONFINEMENT IN PRISON OR PSYCHIATRIC INSTITUTION (S22A(2) & (3))

Under s22A(2), if a person has been confined in a prison or in a psychiatric institution in relation to a criminal offence at any time, that person will need to spend 2 years in Australia since last being released from that confinement before being residentially eligible for citizenship.

However, s22A(3) provides that s22A(2) does not apply in relation to a person if, taking into account the circumstances that resulted in the person’s confinement, the decision maker is satisfied that it would be unreasonable not to take those periods into account towards the residence requirement.


convictions quashed (set aside by the court)


MINISTERIAL DISCRETION - ADMINISTRATIVE ERROR (S22A(4) & (5))

Under s22A(4), periods spent in Australia during which a person was not a permanent resident as a result of administrative error may be treated as periods of permanent residence.

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Under s22A(5), periods spent in Australia as an unlawful non-citizen because of an administrative error can be treated as periods of lawful residence.

Examples of administrative errors include unlawful cancellation of a visa, grant of a temporary visa to a permanent visa holder, and double processing of a visa application. Administrative error does not occur when a decision is overturned as a result of merits review.

Decision makers must be satisfied that an administrative error has in fact occurred. Advice can be sought from the Citizenship Help Desk.

Note: The spouse and de facto partner ministerial discretion (s22(9)) cannot be used towards the special residence requirements.

SPECIAL RESIDENCE REQUIREMENT - PERSONS ENGAGED IN PARTICULAR KINDS OF WORK REQUIRING REGULAR TRAVEL OUTSIDE AUSTRALIA (S22B)

A person is eligible for the special residence requirement (persons engaged in particular kinds of work requiring regular travel outside Australia) if they are engaged in work of a kind specified in the Minster’s Instrument under s22C(3). If a person is engaged in work which is not of a kind specified in the Minister’s Instrument under s22C(3), they do not meet this special residence requirement.

To meet this special residence requirement, during the 4 year period immediately before they submitted their application, a person must also have been:

engaged for at least 2 years in that kind or work

ordinarily resident in Australia, with the last 12 months as a permanent resident of Australia

present in Australia for at least 480 days in total, with at least 120 days of this being during the last 12 months immediately before applying

not have been present in Australia as an unlawful non-citizen.

CONFINEMENT IN PRISON OR PSYCHIATRIC INSTITUTION (S22B(2) & (3))

Under s22B(2), if a person has been confined in a prison or in a psychiatric institution in relation to a criminal offence at any time, that person will need to spend at least 480 days in Australia during the period of 4 years in Australia since last being released from that confinement before being residentially eligible for citizenship.

However, s22B(3) provides that s22B(2) does not apply in relation to a person if, taking into account the circumstances that resulted in the person’s confinement, the decision maker is satisfied that it would be unreasonable not to take those periods into account towards the residence requirement.


convictions quashed (set aside by a court)


MINISTERIAL DISCRETION - ADMINISTRATIVE ERROR (S22B(4) & (5))

Under s22B(4), periods spent in Australia during which a person was not a permanent resident as a result of administrative error may be treated as periods of permanent residence.

Under s22B(5), periods spent in Australia as an unlawful non-citizen because of an administrative error can be treated as periods of lawful residence.

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Examples of administrative errors include unlawful cancellation of a visa, grant of a temporary visa to a permanent visa holder, and double processing of a visa application. Administrative error does not occur when a decision is overturned as a result of merits review.

Decision makers must be satisfied that an administrative error has in fact occurred. Advice can be sought from the Citizenship Help Desk.

Note - The spouse and de facto partner ministerial discretion (s22(9)) cannot be used towards the special residence requirements.

BUSINESS SKILLS VISA HOLDERS

Business Skills visa holders who were granted a subclass 127-132 visa are subject to monitoring for three years after their initial arrival in Australia or after grant date if granted onshore. If they fail to obtain a substantial ownership in an eligible business, their visa and those of their family unit may be cancelled. The Business Skills Monitoring Unit (BSMU) in Perth Office carries out the monitoring at 24 months or 36 months for the 131 investment-linked visa.

The BSMU is responsible for entering in and removing from ICSE all information about a client relevant to this monitoring. If BSMU has concerns about a person’s capacity to meet the conditions of their visa, this information should be clearly stated in ICSE.

If a person lodges a citizenship application and there is no information in ICSE suggesting that the BSMU has concerns about the client’s capacity to fulfil the condition of their visa, the application should continue to be processed in the normal way.

If there is information in ICSE indicating that the applicant’s visa may be cancelled, the citizenship officer must advise Perth BSMU that an application for citizenship has been made.

Unless the visa is cancelled, the citizenship application can be approved, provided the applicant meets all other requirements.

If the applicant has been approved and their visa is subsequently cancelled, then the approval can be cancelled under s25(2)(b)(i).

Decision makers may contact Perth BSMU in regard to the current visa status of a client by email to [email protected]

RELEVANT DEFENCE SERVICE (S23)

Schedule 3 of the Transitional Act provides ‘Defence service’ includes service in:

the permanent forces of the Commonwealth because of a notice under s26 of the National Service Act 1951 as in force at any time before 26 November 1964 and

the Naval Reserve, the Army Reserve or Air Force Reserve or in any reserve force that is a predecessor (whether immediate or otherwise) of the Naval Reserve, the Army Reserve or Air Force Reserve.

The service must have been undertaken by the applicant. For the purpose of calculating periods of service in the reserve forces, periods amounting in aggregate to 6 months’ service is the equivalent of 130 reserve force attendance days (that is, 26 weeks x 5 days = 130 days). The 130 days should comprise full day attendance, not part-day attendance.

Service as an Air Force Cadet is not “relevant defence service” as cadets are not members of the permanent forces. Service by a member of the forces of another country seconded to, or on duty with, the permanent forces or the reserve forces of the Commonwealth is not “relevant defence service” and does not count unless that person is a permanent resident of Australia.

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APPLICATION REQUIREMENTS This part comprises: Application requirements (s46) Information and documents to accompany applications (reg 12) Fees to accompany applications (reg 12A).

APPLICATION REQUIREMENTS (S46)

Under s46, applications must be:

on the form approved by the Minister

contain the information required by the form

accompanied by any other information prescribed by the regulations and

accompanied by a fee (if any) prescribed by the regulations - see Fees to accompany applications (reg 12A).

The approved form for applications for citizenship under s21(2) General eligibility is 1300t.

The approved form for applicants applying for citizenship under s21(3), (4), (5), (6), and (7) is 1290.

If an applicant is under 16 years of age a responsible parent must sign the application form. Responsible parent is defined in s6, see Chapter 1 - Preliminary and definitions.

The application must be made in the current legal name of the applicant.

If the applicant is applying on Form 1300t, the following documents should support the application an endorsed passport size photograph.

If the applicant is applying on form 1290, the following documents should support the application:

an endorsed passport size photograph

a full birth certificate of the applicant or its equivalent

passport held, if any

other identification documents which include a signature, photograph and current address (for example, driving licence and credit card/utilities bill)

official evidence of any name change.

Applicants who have spent more than 12 months outside Australia since becoming a permanent resident, and the time spent in any one country was a continuos period of more than 90 days, need to provide overseas penal certificates from the countries (other than Australia) in which they lived since being granted a permanent visa. Overseas penal certificates are not required for periods spent overseas under the age of 18 years.

Applications made on behalf of, or including, a child under 16 years of age, need to be supported by:


the child’s passport

the child’s full birth certificate, showing details of parents

identification documents for the responsible parent which include a signature, photograph and current address (for example, passport bio page, driving licence and credit card/utilities bill)

any orders related to the custody or parental responsibility of the child

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if the child was adopted overseas, or in Australia but did not acquire Australian citizenship as a result of that adoption, the original adoption order, recognition or verification of the overseas adoption order or confirmation that the adoption has taken place under Australian law must be provided and


British subjects who arrived in Australia before 1 January 1975 and do not have evidence of entry to Australia, will also need to provide evidence of residence in Australia before that date. For example, employment, taxation or school records.

New Zealand citizens who do not hold a permanent visa will also need to provide a certificate issued by Centrelink prior to 26 February 2004 stating that they were residing in Australia on a particular date. If this certificate is not available decision makers should check Department systems to establish whether the applicant was present in Australia on 26 February 2001 on a Special Category visa or if outside Australia on that date, had spent a period or periods totalling 12 months in Australia on a Special Category visa in the two years before that date. For further information on New Zealand citizens, see Chapter 14 - New Zealand citizens in Australia.

Applicants born to a former Australian citizen who ceased to be an Australian citizen under s17 of the old Act will also need to provide:

evidence that a parent was an Australian citizen before their birth. For example a full birth certificate if the parent was born in Australia and

evidence that the Australian citizen parent lost their Australian citizenship under s17 of the old Act before their birth. For example, a citizenship certificate of another country, or statement from the authorities of the other country stating how and when the parent acquired the citizenship of that country.

Applicants born in Papua to a parent who was born in Australia as we now know it will also need to provide their parent’s full birth certificate.

Applicants seeking exercise of the residence requirement ministerial discretion under s22(5A) in respect of periods of confinement in a prison or a psychiatric institution will also need to provide a statement giving reasons as to why it would be unreasonable not to take those periods into account.

Applicants seeking exercise of the residence requirement ministerial discretion under s22(6) as a person who would suffer significant hardship or disadvantage will also need to provide a supporting statement concerning the significant hardship or disadvantage that would be suffered by the applicant if the discretion was not exercised and they could not become an Australian citizen.

Applicants seeking exercise of the residence requirement ministerial discretion under s22(9) as the spouse, de facto partner or surviving spouse or de factor partner of an Australian citizen will also need to provide:

evidence of their spouse’s, or de facto partner’s, Australian citizenship. For example, a full Australian birth certificate or citizenship certificate

their marriage certificate or, if a de facto partner, evidence of their de facto relationship. The definition of ‘de facto partner’ provided in the Acts Interpretation Act 1901 (the AIA) lists circumstances that can be taken into account when determining whether two people are in a de facto relationship. These include: the duration of the relationship the nature and extent of their common residence whether a sexual relationship exists the degree of financial dependence or interdependence, and any arrangements for financial

support, between them the ownership, use and acquisition of their property the degree of mutual commitment to a shared life the care and support of children the reputation and public aspects of the relationship.

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evidence that they were overseas with their Australian citizen spouse or de facto partner, and they maintained a close and continuing association with Australia during that period

evidence of their spouse’s, or de facto partner’s, death, if applicable.

Applicants seeking exercise of the residence requirement ministerial discretion as a person in an interdependent relationship with an Australian citizen will also need to provide:

evidence of their interdependent partner’s Australian citizenship. For example, a full Australian birth certificate or citizenship certificate

evidence that they were overseas with their Australian citizen interdependent partner and that during that time they maintained a close and continuing association with Australia during that period.

Applicants claiming that they have completed relevant defence service must also provide evidence which clearly outlines the service completed, or medical discharge papers if applicable.


Under reg 12, information or documents not in English must be accompanied by an official translation. In Australia, translations should be done by National Accreditation Authority of Translators and Interpreters (NAATI) accredited translators. For overseas lodged applications the current guidelines for translations in that post apply.


This part comprises: Reduced fee payable where previous application was refused solely on grounds of not meeting

residence requirements Nil fees - refused solely on grounds of not meeting residence requirements Nil fees - other situations Refund of fees (reg 13) British and Maltese former child migrants.

Under reg 12A, an application on the form 1300t for Australian citizenship by conferral must be accompanied by the fee mentioned in:

item 14A of Schedule 3 unless the applicant is eligible for a fee concession or exemption

item 14 of Schedule 3 if the applicant is the holder of certain Centrelink or Department of Veterans’ Affairs pensioner concession cards - see Attachment D - Concession fee for certain Centrelink or DVA pensions.

Under reg 12A, an application on the form 1290 for Australian citizenship by conferral must be accompanied by the fee mentioned in:

item 15 of Schedule 3 unless the applicant is eligible for a fee concession or exemption

items 9, 10 11, 12 or 13 if the applicant is the holder of certain Centrelink or Department of Veterans’ Affairs pensioner concession cards - see Attachment D - Concession fee for certain Centrelink or DVA pensions.

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Reduced fee payable where previous application was refused solely on grounds of not meeting residence requirements

A fee of $130 (which is the test component of the of the application fee for general eligibility applicants) must accompany applications on form 1300t where applicants have previously made an application for Australian citizenship but were refused solely on the grounds of not meeting the residence grounds and applies within 3 months of being able to satisfy the residence requirement. This includes applicants who:

made an application before 1 October 2007 under the old Act or the new Act and was refused solely on not meeting the residence grounds (either in the old Act or the new Act or the Transitional Act) and

who paid $130 for their previous application or paid $20 because they were the holder of certain Centrelink or Department of Veterans’ Affairs pension holders and they are no longer the holder of that pension.

A fee of $20 (which is the test component of the concession application fee for general eligibility applicants) must accompany applications on form 1300t where applicants have previously made an application for Australian citizenship but were refused solely on the grounds of not meeting the residence grounds and applies within 3 months of being able to satisfy the residence requirement. This includes:

applicants who made an application before 1 October 2007 under the old Act or the new Act and were refused solely on not meeting the residence requirements (either in the old Act or the new Act or the Transitional Act) and

who paid $20 for their previous application or paid $130 because they were not the holder of certain Centrelink or Department of Veterans’ Affairs pension holders and they now are the holder a pension.

Nil fees - refused solely on grounds of not meeting residence requirements

Nil fee is payable where a person makes an application on form 1300t and had previously made an application for Australian citizenship on or after 1 October 2007 but was refused solely on the grounds of not meeting the residence requirements and applies within 3 months of being able to satisfy the residence requirement.

Nil fees - other situations

Nil fee is payable by applicants who:

are under 16 years of age and included in the application of a responsible parent

have completed three or more months of service in the permanent forces of the Commonwealth or, prior to 26 November 1964, three or more months of national service under the National Service Act 1951

are British and Maltese former child migrants who entered Australia between 22 September 1947 and 31 December 1967 inclusive, and were wards of the Minister under the Immigration (Guardianship of Children) Act 1946.

See Attachment C - Fees to accompany applications for Schedule 3 of the Regulations which sets out the fees.

See Attachment D - Concession fee for certain Centrelink or DVA pensions for further information on fees payable by certain Centrelink or Department of Veterans’ Affairs pension holders.

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Refund of fees (reg 13)

Regulations 13(4) and (5) provide that the component of the fee that relates to the sitting of a test may be refunded if a person made an application under the general eligibility provisions (Form 1300t) and paid the relevant fee but did not sit a test.

The citizenship application fees increased on 1 July 2009. If an applicant paid a fee in connection with an application for citizenship (see s46) before 1 July 2009 and is subsequently entitled to a refund, they must be refunded the amount specified by the regulations in force at the time the fee was paid.

British and Maltese former child migrants

Applications received from British and Maltese former child migrants who entered Australia between 22 September 1947 and 31 December 1967 inclusive, and were wards of the Minister under the Immigration (Guardianship of Children) Act 1946, should have their application processed as a priority.

Under reg 12A, applications for citizenship by British and Maltese former child migrants must be accompanied by the fee mentioned in item 6 of Schedule 3 (currently ‘Nil’).

They will, therefore, need to produce evidence of their former child migrant status with their application for Australian citizenship. The Child Migrants Trust has offices in Melbourne and Perth. The Perth office handles enquiries from Western Australia and the Melbourne Office handles enquiries from elsewhere in Australia and their contact details are as follows:

The Child Migrants Trust 228 Canning Street NORTH CARLTON VIC 3054

Telephone: 03 9347 7403

Fax: 03 9347 1791

or

The Child Migrants Trust 8 Sunbury Road VICTORIA PARK WA 6100

Telephone: 08 9472 7582

Fax: 08 9472 7549

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DECISION MAKING This part comprises:

Minister’s decision (s24)

Minister may cancel approval (s25)

Prescribed reasons for failing to make pledge of commitment (reg 7)

Pledge of commitment must be made (s26)

How pledge of commitment is to be made (s27)

Day citizenship begins (s28)

Notification of decisions (s47)

Review of decisions (s52).

MINISTER’S DECISION (S24)

An application for citizenship by conferral must be approved or refused.

If an applicant meets the eligibility requirements and there is no prohibition on approval, the application would generally be approved. They must also be given notice of the decision. See Notification of decisions (s47).

The Minister’s discretion under s24(2) may be exercised in cases where the applicant does meet the legislative requirements but does not meet the policy guidelines (and the decision maker is satisfied that the circumstances of the case do not warrant going outside of usual policy). For example this discretion:

may be used to refuse approval under s21(2), 21(3) or 21(4), lodged prior to 7 October 2008, where the applicant’s permanent visa ceased or was cancelled prior to decision (see Cessation or cancellation of a permanent visa prior to decision) or

would be used to refuse approval under s21(5) where the applicant is aged under 18 years but does not meet the additional criteria set out in the policy guidelines.

Please consult the Citizenship Help Desk if you are considering exercising the s24(2) discretion in relation to any application.

There are a number of circumstances where an application for citizenship by conferral must not be approved. These relate to:

identity

national security

when the applicant is not in Australia at the time an application is to be approved

where a person is or has been subject to court proceedings for an offence and


Identity (s24(3))


National security (s24(4), s24(4A), s24(4B), s24(4C), and s24(4D))


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If ASIO has issued an adverse security assessment or qualified security assessment against the applicant, an application for citizenship by conferral must not be approved unless the applicant is stateless (see below). Such an assessment will be made where the applicant is a direct or indirect risk to the security of Australia.

If the applicant is stateless and was born in Australia, an application for citizenship must not be approved if the applicant:

has been convicted of national security offence or

has been convicted of an offence (in Australia or overseas) and sentenced to a period of imprisonment for at least 5 years. Note: There is a discretion for the Minister to approve an application if it would be unfair to refuse it on the basis of the person’s conviction (see s24(4C)).


When the applicant is not in Australia at the time an application is approved (s24(5))

An application for citizenship by conferral made under:

s21(2) (general eligibility)

s21(3) (permanent or enduring physical or mental incapacity) or

s21(4) (person aged 60 or over or has hearing, speech or sight impairment)

must not be approved if the applicant is not in Australia at the time the decision is to be made. This does not apply in cases where the residence discretion in s22(9) or s22(11) has been applied to the general residence requirement, or where a person meets one of the special residence requirements.

Where a person is or has been subject to court proceedings for an offence (s24(6))

Section 24(6) of the Act sets out circumstances where an application for Australian citizenship by conferral must not be approved if a person has committed an offence against an Australian law or where there are proceedings in relation to the person pending for an offence against an Australian law.

Section 24(6) does not apply to applicants who are stateless and covered by s21(8). Section 24(6) applies to all other applicants, including applicants who are under 18.

If required, onshore police clearances for applicants, including applicants who are under 18, may be requested if they are relevant to an assessment under s24(6). If it is not possible to obtain a police clearance, the necessary information must be requested from the applicant.

The following terms are relevant to s24(6) and are defined by s3 of the Act:

prison

psychiatric institution

serious prison sentence

serious repeat offender

The period that a person is confined to a prison or psychiatric institution is explained in s9 of the Act.

Further guidance on the interpretation of these terms can be found in Chapter 1 - Preliminary and definitions.

Section 24(6)(a)

Section 24(6)(a) covers the period from when a person is charged with an offence until either the prosecution drops the charges or the matter is finalised by the courts.

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This includes where:

an applicant has been charged and convicted of an offence, but sentencing has been deferred

an appeal is underway or

a party to the case has the option of appealing the decision.

This does not include where:

the applicant is being investigated by police in relation to the possible commission of an offence but has not yet been charged with an offence or

the applicant has been found guilty by a court, but released on conditions relating to the applicant’s behaviour (such as a good behaviour bond - these cases fall under s24(6)(f) or s24(6)(g)).

Section 24(6)(b)

Cases of children in institutions must be checked carefully to ascertain whether they fall within s24(6)(b). Section 24(6)(b) will only apply if the applicant has been confined to a prison because a court has imposed a sentence of imprisonment after the applicant has been convicted of an offence.

Section 24(6)(c)

If required, please see Chapter 1 - Preliminary and definitions for further guidance in relation to the terms:

confined to a prison and

serious prison sentence.

Where an applicant has been confined to a prison because of a serious prison sentence, an application for citizenship by conferral must not be approved for 2 years after the person has been released from prison.

Section 24(6)(d)

If required, please see Chapter 1 - Preliminary and definitions for further guidance in relation to the terms:

confined to a prison

serious prison sentence and

serious repeat offender.

Where an applicant has been:

confined to a prison because of a serious prison sentence

released and

confined to a prison again for another serious prison sentence

an application for citizenship by conferral must not be approved for 10 years after the person has been released from prison.

Section 24(6)(e)

Before the completion of a term of imprisonment, a person can be released from prison “on parole” or “licence” to serve the remainder of their sentence outside of prison. If the person breaches a condition of their parole or their licence, action can be taken against the person under an Australian law to require them to serve the whole or a part of the balance of the term of imprisonment.

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Under s24(6)(e), an application for Australian citizenship by conferral must not be approved at any time during which a person is on parole or licence.

Sections 24(6)(f) and 24(6)(g)

The following definitions are relevant to these sections:

security A ‘security’ in this context is something that is given or deposited to ensure that a promise or obligation is fulfilled. A security could, for example, be given by paying a specified sum of money or by providing an undertaking (see recognizance) to satisfy the orders of the court.

sureties ‘Sureties’ are people who make themselves answerable for another’s actions. In the criminal law context, a ‘surety’ is a person who enters into a (usually written) undertaking that he or she will forfeit a specified sum of money (or other security) if another person fails to comply with an undertaking that that other person has entered into.

recognizance In criminal law, a ‘recognizance’ is an ‘acknowledgment’. A ‘recognizance to be of good behaviour’ is an undertaking given by an offender to a sentencing court to be of good behaviour.

Section 24(6)(f) applies where:

a person has been convicted of an offence against an Australian law and sentenced to imprisonment, but the person has been released by a court from serving all or part of that sentence

the person’s release is subject to conditions that relate to their behaviour and

the person has provided a security to comply with these conditions. This will usually be done by paying money or by recognizance.

Section 24(6)(g) applies where:

there are proceedings for an offence against an Australian law in relation to the person but a court has not imposed a sentence of imprisonment on the person

the person has been released by the court subject to conditions that relate to their behaviour and

the person has provided a security to comply with these conditions. This can be done by paying money or by recognizance.

A person released by a court on a good behaviour bond will have been ‘released subject to conditions that relate to their behaviour’, but it is important to ensure that the conditions relating to the giving of a security are also met before paragraphs 24(6)(f) and (g) apply.

If all the conditions are met, an application for Australian citizenship by conferral must not be approved at a time when action under an Australian law can be taken against the person because they have breached a condition of the security.

For example, if a person has been released by a NSW court on a two year good behaviour bond which includes a security given by the person, an application for Australian citizenship by conferral must not be approved during that two year period.

The courts are able to make a number of alternative orders, such as community based orders and community service orders. These orders may fall under 24(6)(f) and 24(6)(g) in certain circumstances. However, 24(6)(g) only applies where a person, if convicted of the offence, may be sentenced to a term of imprisonment. Where a person is charged with an offence for which the maximum sentence does not include a period of imprisonment, there is no prohibition on approval.

Please refer these cases to the Citizenship Help Desk.

Section 24(6)(h)

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Section 24(6)(h) applies where the applicant is confined in a psychiatric institution (which includes the psychiatric section of a hospital) as a result of a court order after committing an offence against an Australian law.

This section applies in cases where:

a person has been confined by a court to a psychiatric institution while proceedings for an offence against an Australian law in relation to the person are pending and

a person has been confined by a court to a psychiatric institution following the finalisation of procedures for an offence against an Australian law in relation to the person.

Cessation of citizenship (s24(7))

Section 24(7) does not apply to applicants who are stateless and covered by s21(8).

Deferral of decision not possible

Under s14 and s14A of the old Act, it was possible to defer a decision on an application under certain circumstances. The new Act does not allow for the deferral of decisions. However, it is possible instead to delay the making of the pledge of commitment under s26(3) of the Act.

When there is a “decision bar”

There may be some cases that have a “decision bar” recorded against the applicant because of previous or ongoing action by another area of the Department. In such situations, decision makers must seek approval from the relevant area for the “decision bar” to be lifted. Once a “decision bar” is lifted the case can be finalised.

If the “decision bar” is not lifted, decision makers should follow up with the relevant area on a monthly basis until the case can be finalised. Additional assistance or guidance with such cases should be sought from the Citizenship Help Desk.

MINISTER MAY CANCEL APPROVAL (S25)

Under s25, approval of citizenship given under s24 of the Act may be cancelled in prescribed circumstances.

In the case of people who have been given approval on the basis of meeting the general eligibility requirements (s21(2)), the permanent or enduring physical or mental incapacity requirements(21(3)) or the requirements relating to people aged 60 or over or with hearing, speech or sight impairment (21(4)), the approval may be cancelled if the person is no longer:

a permanent resident

likely to reside, or continue to reside, in Australia or to maintain close and continuing association with Australia or

of good character.

In the case of people who are required to make a pledge of commitment, approval may be cancelled if the person has not made the pledge within 12 months of receiving notice of approval. The approval may not be cancelled if the reason for failing to make the pledge is one of the prescribed reasons given in regulation 7. Children are not required to make the pledge of commitment. However, approval of citizenship given to a child may be cancelled if their application was made at the same time as a responsible parent and if the approval given to the responsible parent has been cancelled.

Before an approval of an application for Australian citizenship is to be cancelled because of failure to make the pledge, a series of letters should be sent to the client, in the following order:

non-attendance at ceremony

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cancel approval (Advice 6 months)

cancel approval (Advice 9 months)

You should only proceed with the cancellation of approval if no satisfactory response is received and the person has been given adequate opportunity to respond.

PRESCRIBED REASONS FOR FAILING TO MAKE PLEDGE OF COMMITMENT (REG 7)

Regulation 7(5) means that if a person has failed to make a pledge for a reason covered by reg 7(3) or (4), and the person has not provided a signed statement and supporting evidence in accordance with reg 7(5), there is no prescribed reason which would prevent consideration being given to cancellation of their approval.

PLEDGE OF COMMITMENT MUST BE MADE (S26)

See Chapter 6 - Ceremonies.

HOW PLEDGE OF COMMITMENT IS TO BE MADE (S27)

Chapter 6 - Ceremonies, includes details of people authorised by the Minister.

DAY CITIZENSHIP BEGINS (S28)

Children under the age of 16 years at the time of application are not required to make a pledge of commitment. However, if they make an application at the same time, and on the same form, as a responsible parent who is approved for Australian citizenship they do not become an Australian citizen unless and until the responsible parent becomes a citizen. If the child under the age of 16 makes an application at the same time, and on the same form, as a responsible parent, and the child is approved for Australian citizenship but the responsible parent is refused, then the child’s citizenship begins on the date the application is approved.

The following is a snapshot of the day on which citizenship begins for applications approved under s21(1) of the Act:

General eligibility (s21(2)) On making the pledge

Permanent or enduring physical or mental incapacity (s21(3))

Date application is approved

Person aged over 60 or has a hearing speech or sight impairment (s21(4))

On making the pledge

Person born to former Australian citizen (s21(6)) Date application is approved

Person born in Papua before 16 September 1975 to an Australian born parent (s21(7))


Stateless person (s21(8)) Date application is approved

Child under 16 years who applied at the same time as responsible parent when both child and parent were approved (s21(5))

Date the responsible parent becomes a citizen

Child under 16 years who applied at the same time as responsible parent when child is approved but responsible parent is refused (s21(5))


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Child under 16 years at application who applied in their own right (s21(5))


Child 16 years and over at application (s21(5)) On making the pledge

NOTIFICATION OF DECISIONS (S47)

Under s47 a person must be given notice of the decision on their application. If the decision is a refusal, or a cancellation of approval, the notice must include the reasons for the decision and advice that they have a right to have this decision reviewed by the AAT.


Under s52, generally a decision to refuse an application for Australian citizenship by conferral can be only if the applicant is a permanent resident. The two exceptions are where the applicant was under the age of 18 when they applied for citizenship, and where a decision refers to the person’s eligibility for citizenship by conferral as a stateless person.

A decision to cancel an approval can be reviewed by the AAT.

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ATTACHMENT A - HISTORICAL PROVISIONS IN RELATION TO RESIDENTS OF COCOS (KEELING) ISLANDS ON 23 NOVEMBER 1955 In certain circumstances, a person who was ordinarily resident in the Cocos (Keeling) Islands immediately before the transfer of the Islands to Australia (on 23 November 1955) could acquire Australian citizenship by registration of a declaration.

Section 14 of the Cocos (Keeling) Islands Act 1955 provided that a person who was a British subject and ordinarily resident in the Islands immediately before 23 November 1955 could make a declaration of desire to become an Australian citizen. See ordinarily resident.

The regulations under that Act prescribed that a person over 21 years of age could make a declaration to become an Australian citizen before 23 May 1959. A person under 21 years of age could lodge a declaration within two years after attaining the age of 21 years. These provisions expired on 22 November 1978.

People registered under those provisions became Australian citizens on 23 November 1955, the date the Islands became an Australian Territory. A certified copy of a declaration registered under this provision may be accepted as evidence of Australian citizenship.

The Cocos (Keeling) Islands Amendment Act 1979 (section 14A) which came into effect on 21 March 1979 provided that people who were ordinarily resident on Cocos (Keeling) Islands immediately before the transfer of the Islands to Australia (23 November 55), could make a declaration that they wished to acquire Australian citizenship provided that they were ordinarily resident in Australia or an external Territory. If the declaration was in order, it was registered. A declarant under s14A was deemed to become an Australian citizen on the date of registration. This provision was repealed on 7 July 1997.

RESIDENTS OF CHRISTMAS ISLAND ON 1 OCTOBER 1958

In certain circumstances, a person who was ordinarily resident on Christmas Island immediately before the transfer of the Island to Australia (on 1 October 1958) could acquire Australian citizenship by registration of a declaration.

The Christmas Island Act (s15) provided that a person who was a British subject and ordinarily resident on the Island immediately before 1 October 1958 could make a declaration of desire to become an Australian citizen. See ordinarily resident.

The regulations under that Act prescribed that a person over 21 years of age could make a declaration to become an Australian citizen before 1 October 1960. A person under 21 years of age could make a declaration within two years after attaining the age of 21 years. These provisions expired on 30 September 1981.

People registered under s15 became Australian citizens on 1 October 1958, the date the Island became an Australian territory. A certified copy of a declaration registered under this provision may be accepted as evidence of Australian citizenship.

The Christmas Island Amendment Act 1980 (s15A) which came into effect on 23 December 1980 provided that people who were ordinarily resident on Christmas Island immediately before the transfer of the Island to Australia on 1 October 1958, could make a declaration that they wished to acquire Australian citizenship, provided they were ordinarily resident in Australia or an external territory. If the declaration was in order, it was registered. A declarant under s15A was deemed to have become an Australian citizen on the date of registration. This provision was repealed on 7 September 1997.

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ATTACHMENT B - SIGNIFICANT HARDSHIP AND DISADVANTAGE The Macquarie Concise Dictionary and Collins Concise English Dictionary, Australian Edition make the following definitions:

significant of consequence; important or momentous

hardship conditions of life difficult to endure; something that causes suffering or privation

disadvantage an unfavourable circumstance, thing, person; injury, loss or detriment

People would normally be required to demonstrate some or all of the following circumstances:

inability to gain employment on the grounds that the employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available

difficulty of international travel because the person cannot obtain a passport from their country of nationality/citizenship, or are unable to use a passport issued by that country for safety or similar reasons

academic (eg research, academic scholarship) or other (sporting etc) potential is being limited or restricted, because the opportunities to reach that potential is available only to an Australian citizen, to the extent that it causes significant hardship.

Decision makers will need to assess each application on its merits. While policy is not to be applied inflexibly, it must be applied, unless there are special circumstances that would warrant consideration outside that policy.

Evidence of significant hardship and disadvantage is required (eg a statement in writing, with appropriate supporting documentation to demonstrate how they meet the legal requirements and policy guidelines).

The onus is on the applicant to provide the evidence to support the application.

Decision makers must be mindful of the difference between personal needs and personal wants.

Personal needs relate to situations which would give rise to significant hardship or disadvantage if a person could not meet that need. For example, if a person could not find any employment, and was unable to adequately financially support themselves or their family.

Personal wants are aspirations and generally do not constitute hardship (ie the right to vote, election to Parliament, HECS availability, representing Australia internationally in academics or sport).

Australian citizenship is not a requirement to study in Australia. Australian universities are permitted to admit students who are not Australian citizens. Permanent visa holders are eligible for a Commonwealth supported place (previously known as a Higher Education Contribution Scheme) or a domestic fee-paying place. The requirement to be an Australian citizen is only relevant to students who wish to access a loan under the Australian Government’s Higher Education Loan Programme (HELP) for their student contribution or tuition fee. Further information is available from the Department of Education, Science and Training at www.dest.gov.au.

Decision makers should also be aware of situations where it appears that a person takes a course of action for the sole purpose of availing themselves of the exercise of this discretion.

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ATTACHMENT C - FEES TO ACCOMPANY APPLICATIONS Regulation 12A prescribes the fee to accompany an application.

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ATTACHMENT D - CONCESSION FEE FOR CERTAIN CENTRELINK OR DVA PENSIONS Schedule 3 of the Regulations prescribes the concessional fee to accompany an application by certain persons in receipt of Centrelink or Department of Veterans’ Affairs (DVA) pensions.

A blue DVA Pensioner Concession Card is generally sufficient evidence that the person qualifies for a charge concession.

A Commonwealth Seniors Health card is not acceptable evidence, as not all holders are eligible for the fee concession.

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ATTACHMENT E TO CHAPTER 5 - BRITISH NATIONALITY AND BRITISH SUBJECTS This part comprises:

British nationality prior to 26 January 1949

British subject status from 26 January 1949

British nationality before 26 January 1949, including citizenship by birth and descent, naturalization, children and foreign born wives; citizenship by marriage, loss of British citizenship and British status after 26 January 1949 including citizenship in relation to Commonwealth countries, such as Burma, Ireland, South Africa and Pakistan.

BRITISH NATIONALITY PRIOR TO 26 JANUARY 1949

This section comprises:

Birth and descent

Naturalization - including children and foreign born wives

Marriage

Annexation of a territory

Loss of British nationality.

Before the old Act came into force on 26 January 1949 the status of Australian citizenship did not exist. People born in Australia automatically acquired the status of British subject. This could also be acquired by descent, naturalization, marriage or annexation of Territory, and there were also provisions for loss of British nationality.

Birth and descent

People acquired British subject status at birth if they were born within Great Britain’s dominions unless:

their father was, at the time of the birth, the diplomatic representative of a foreign power or

they were born of an alien enemy father in occupied British territory.

A person born on board a foreign ship was not deemed a British subject by reason only that the ship was in British territorial waters at the time of birth, unless they were born:

legitimately outside Great Britain’s dominions and their father was a British subject by reason of birth on British soil

outside Great Britain’s dominions before 1 January 1915 and their paternal grandfather was a British subject by reason of birth on British soil

outside Great Britain’s dominions and their father prior to the birth, had been granted a Certificate of Naturalization of the type set out in the section Naturalization - including children and foreign born wives

outside Great Britain’s dominions after 1 January 1915, of a father who was a British subject by descent only, and the birth was registered at a British consulate.

Naturalization - including children and foreign born wives

People were deemed to have acquired British subject status by naturalization if they held or were included in a Certificate of Naturalization granted by the:

Government of an Australian State before 1 January 1904

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Government of the Commonwealth between 1 January 1904 and 31 March 1937, (after 1 January 1921 details of the person’s wife were shown on the certificate if she was included in the application)

Home Secretary of the United Kingdom after 1 January 1915 or

Governments of the following Dominions, after the dates shown

Canada - after 1/1/1915

Newfoundland - after 5/6/1915

South Africa - after 21/5/1926

New Zealand - after 1/7/1929.

Children

Children of people granted Certificates of Naturalization under various Commonwealth and State Acts in force before 1 January 1921 became naturalised in certain circumstances without having their names included in a parent’s certificate. Claims to citizenship on these grounds are to be referred to the Citizenship Help Desk with particulars of the parent’s naturalization, the child’s birth and residence in Australia.

Foreign born wives

In relation to foreign-born wives of people naturalized in Australia subsequent to the marriage:

if the husband was naturalized in Australia between 1 January 1921 and 31 March 1937, the wife automatically acquired British subject status without any action on her part

if the husband was naturalized between 1 April 1937 and 25 January 1949, the wife did not acquire British subject status unless she made a Declaration of Acquisition of British subject status under s18(5) of the Nationality Act 1920-1946

if the husband was naturalized before 1 January 1921 the wife may or may not have acquired British subject status. Enquiries about such cases are to be referred to the Citizenship Help Desk.

Marriage

Prior to 26 January 1949 an alien woman who married a British subject acquired British subject status by virtue of the marriage. Dissolution of the marriage, or the death of the husband, did not affect the woman’s nationality.

Annexation of a territory

British subject status could be acquired by inhabitants of a territory annexed by the British Government. Enquiries by people claiming to have acquired British subject status by this means, but who cannot show that they have previously been deemed British, are to be referred to the Citizenship Help Desk.

Loss of British nationality

British subject status could be lost in any one of the following ways:

by naturalization in a foreign state, if the person concerned was sane, of full age, and was not a married woman

by declaration of alienage which could be made only in specified cases and were very few in number

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in the case of persons who had obtained British subject status by naturalization, by revocation on the order of the Minister responsible for nationality matters at the time or

in the case of a British woman, by marriage to an alien in certain circumstances. Section 27 of the Australian Citizenship Act provided for the restoration of British subject status to women who lost that status solely by reason of their marriage.

BRITISH SUBJECT STATUS FROM 26 JANUARY 1949


Marriage and women’s status

Burma

Ireland

South Africa and Pakistan.

Between 26 January 1949 and 01 May 1987, citizens of Australia were also British subjects for the purposes of Australian law. This was in keeping with the principles agreed to in 1947 for the adoption of a scheme of legislation combining citizenship of independent member countries of the Commonwealth with the maintenance of the common status of British subject throughout the Commonwealth.

For the purposes of Australian law, a person was a British subject if she or he was an Australian citizen or a citizen, or a citizen of one of the countries listed in s7 of the old Act or in regulations made under that provision.

Today, the most important implication of “British subject” status relates to whether a person obtained citizenship automatically on 26 January 1949 under the transitional arrangements. The countries included in s7 on that date were:

United Kingdom and Colonies

Canada

New Zealand

The Union of South Africa

Newfoundland

India

Pakistan

Southern Rhodesia and

Ceylon (currently Sri Lanka)

who did acquire citizenship automatically.

A person, who was a British subject immediately before 26 January 1949 and who did not on that date acquire Australian citizenship or hold the citizenship of another Commonwealth country or Ireland, became a British subject without citizenship.

Marriage and women’s status

A woman who was an Australian citizen and who married a citizen of another country after the commencement of the Act, (26 January 1949) did not lose her Australian citizenship by reason only of marriage, whatever her husband’s nationality and wherever the marriage took place. This was the case even if a result of the marriage was the automatic conferral of her husband’s citizenship.

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The transitional provisions of the old Act provided that a woman who lost British nationality by marriage before the commencement of the Act was deemed to have been a British subject immediately before the Act commenced. She therefore would have become an Australian citizen if she was born in Australia or in New Guinea, or before marriage was naturalized in Australia, or was ordinarily resident in Australia and/or New Guinea for the five years immediately before the Act commenced. (See the repealed s25(1) and s27 of the Act.)

A woman marrying an Australian citizen after the commencement of the old Act did not thereby acquire Australian citizenship.

Women who acquired British subject status by marriage before the Act commenced were not deprived of that status (s26A of the old Act).

Burma

Burma ceased to be a member of the British Commonwealth on 4 January 1948. Although UK legislation came into force at that time, which ceased the British subject status of people connected with Burma, in Australia the common law applied.

For the purposes of Australian law, only those Burmese who were inhabitants of Burma on 4 January 1948, and who remained there after that date, ceased to be British subjects automatically by reason of Burma’s departure from the British Commonwealth. Therefore, for example, a person born in Burma but resident in Australia on 04 January 1948 may have been continued to be regarded as a British subject and acquired Australian citizenship automatically on 26 January 1949 under the transitional provisions.

In the UK, the Burma Independence Act provided that certain people connected with Burma should cease to be British subjects, namely:

any person born in Burma whose father or paternal grandfather was born in Burma - but any such person who was born in British Territory or in a British Protected Territory, or whose father or paternal grandfather was born in such Territory, was excepted and remained British and

women who had become British subjects by reason only of marriage to such a person.

People who were domiciled in the United Kingdom or His Majesty’s dependencies were given the opportunity to elect to remain British within two years after 4 January 1948. The divergence between United Kingdom and Australian law was abolished by the Nationality and Citizenship (Burmese) Act 1950, which came into force on 29 July 1950 with the following effects:

People who ceased to be British subjects under the UK Act, but had remained British under Australian law, became aliens under Australian law (from 29 July 1950) unless they: had exercised the right of election to remain British subjects under either the United

Kingdom or Australian Act or were citizens of one of the other countries of the British Commonwealth.

British subject status was lost by any person who acquired that status during the period 4 January 1948 to 29 July 1950 by reason only of descent from, or marriage to, a person who ceased to be a British subject by reason of the Act.

Any person who was an Australian citizen immediately before 29 July 1950, and who on that date ceased to be a British subject by reason of the Act, had the right to make a declaration electing to remain an Australian citizen and a British subject, within two years after 29 July 1950. Such declarations were of no effect until registered, but upon such registration the declarants were deemed never to have ceased to be Australian citizens

People who made declarations of election and had them registered were furnished with a certified copy of their declaration, which may be accepted as evidence of their status.

No person ceased to be a British subject under the Act if the person’s father or paternal grandfather was born outside Burma in British Territory, or in British Protected Territory.

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Ireland

Ireland here refers to the country commonly known as “Eire”, and does not include Northern Ireland, which is still a part of the United Kingdom (UK).

Under Irish law, Irish citizens ceased to be British subjects on 1 January 1949. Under UK and Australian law, however, Ireland was treated in the same way as His Majesty’s dominions. The Government of Ireland objected in principle to the continuance of Australia’s position, its view being that Irish citizens should not be deemed British subjects unless they had a proven attachment to the status by virtue of residence in or other association with a country of the British Commonwealth.

The Nationality and Citizenship Act 1948 (and the UK British Nationality Act) sought to meet these objections:

people born in Ireland, or descended from people born in that country were no longer deemed by that fact alone to be British subjects

Irish citizens who also possessed the citizenship of a country of the British Commonwealth (for example, a person born in Ireland of a father born in the United Kingdom) would be regarded as British subjects by reason of that citizenship

other Irish citizens who were British subjects immediately before 26 January 1949 could give notice claiming to remain a British subject on the basis that they:

were or had been in service under an Australian Government

were the holder of an Australian passport or

had associations by way of descent, residence or otherwise with Australia, Papua or New Guinea before 16 September 1975 or subsequently had had such associations with Australia.

Upon giving such notice the claimant had the status of British subject. The person might also be an Australian citizen under s25 of the Nationality and Citizenship Act 1948 ‘transitional provisions’, if they were ordinarily resident in Australia for the 5 years before 26 January 1949 (s25(1)(d)).

An Irish citizen born after 26 January 1949 was not eligible to lodge such a claim and could only become an Australian citizen by the normal processes applicable to the grant of Australian citizenship.

Irish citizens who were not Australian citizens or British subjects were not “aliens” - they remained in an “intermediate position” and until 1 May 1987 they retained the same rights and duties as British subjects under Commonwealth laws (and territory laws passed prior to 26 January 1949).

South Africa and Pakistan

South Africa and Pakistan remained in the list of Commonwealth countries until 1 December 1973. Therefore, until that date, in Australia, citizens of Pakistan and South Africa had the status of British subjects even though the countries had ceased to be members of the British Commonwealth before then.

Amendments to the Australian Citizenship Act in 1973 had the following effects:

Pakistan and South Africa were deleted from the countries in the then s7, with effect from 1 December 1973

there was a transitional period of 2 years from 1 December 1973 during which citizens of South Africa and Pakistan, who were ordinarily resident in Australia prior to 1 December 1973, retained both the status of British subjects and their entitlement to apply for the grant of Australian citizenship on completion of 12 months’ residence. This arrangement extended to the children of such persons who were under 16 years of age

citizens of Pakistan and South Africa who were ordinarily resident in Australia as at 30 November 1973 became aliens as from 1 December 1975 (unless they acquired Australian citizenship or the citizenship of a country included in s7) and

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citizens of Pakistan and South Africa arriving in Australia on or after 1 December 1973 were aliens.

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ATTACHMENT F TO CHAPTER 5 - EVIDENCE REQUIREMENTS This part comprises:

Applicants claiming permanent or enduring physical or mental incapacity or hearing, speech or sight impairments

Hearing, speech or sight impairment

GPs

Specialist organisations and qualifications.

APPLICANTS CLAIMING PERMANENT OR ENDURING PHYSICAL OR MENTAL INCAPACITY OR HEARING, SPEECH OR SIGHT IMPAIRMENTS

Applicants claiming permanent or enduring physical or mental incapacity must provide evidence from a specialist in the field they are claiming the incapacity, following referral from their General Practitioner (GP). The specialist must also be a fellow of a specialist organisation as defined in Schedule 4.3 of the Health Insurance Regulations 1975.

Applicants claiming permanent or enduring physical or mental incapacity may also provide evidence from a psychologist who is a fellow of the Australian College of Psychological Medicine or equivalent organisation and is registered with Medicare for these purposes.

For example, if an applicant is claiming a mental condition, they need to provide evidence from a psychiatrist who is a fellow of the Royal Australian and New Zealand College of Psychiatrists.

Case officers can confirm this by using the credentials which appear on the medical certificate, or by contacting the specialist concerned. For example, a psychiatrist who is a fellow of the Royal Australian and New Zealand College of Psychiatrists should have FRANZCP on the evidence provided.

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

HEARING, SPEECH OR SIGHT IMPAIRMENT

Applicants claiming to have hearing, speech or sight impairments must also provide similar evidence.

GPS

General Practitioners (GPs), who also could be fellows of the Royal Australian College of General Practitioners (FRACGP) or the Australian College of Rural and Remote Medicine (FACRRM), are not defined as specialists under Schedule 4 of the Health Insurance Regulations 1975. Access issues for rural and regional clients should be addressed on a case by case basis. In such instances the case officer could accept evidence from a doctor who is a fellow of the Australian College of Rural and Remote Medicine.

SPECIALIST ORGANISATIONS AND QUALIFICATIONS

Schedule 4 - Health Insurance Regulations 1975 (Part 1)

Organisation Specialty Qualification Acronym

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Australasian College for Emergency Medicine

Emergency Medicine Fellowship of the Australasian College for Emergency Medicine

FACEM

The Royal Australasian College of Physicians, Division of Adult Medicine and Division of Paediatric and Child Health

General Medicine

General Paediatrics

Cardiology

Clinical Genetics

Clinical Pharmacology

Endocrinology

Gastroenterology and Hepatology

Geriatric Medicine

Haematology

Immunology and Allergy

Infectious Diseases

Intensive Care

Medical Oncology

Nephrology

Nuclear Medicine

Palliative Medicine

Respiratory and Sleep Medicine

Rheumatology

Fellowship of the Royal Australasian College of Physicians

FRACP

The Royal Australasian College of Physicians, Australasian Chapter of Palliative Medicine

Palliative Medicine Fellowship of the Australasian Chapter of Palliative Medicine

FAChPM

The Royal Australasian College of Physicians, Australasian Faculty of Occupational Medicine

Occupational Medicine Fellowship of the Australasian Faculty of Occupational Medicine

FAFOM

The Royal Australasian College of Physicians, Australasian Faculty of Rehabilitation Medicine

Rehabilitation Medicine

Fellowship of the Australasian Faculty of Rehabilitation Medicine

FAFRM

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The Royal Australasian College of Physicians, Australasian Faculty of Public Health Medicine

Public Health Medicine Fellowship of the Australasian Faculty of Public Health Medicine

FAFPHM

Australian and New Zealand College of Anaesthetists

Anaesthesia Intensive Care

Fellowship of the Australian and New Zealand College of Anaesthetists

FANZCA

Australian and New Zealand College of Anaesthetists, Faculty of Pain Medicine

Pain Medicine Fellowship of the Faculty of Pain Medicine, Australian and New Zealand College of Anaesthetists

FFPMANZCA

Royal Australasian College of Surgeons

Cardio-thoracic Surgery

General Surgery

Neurosurgery

Orthopaedic Surgery

Otolaryngology - Head and Neck Surgery

Paediatric Surgery

Plastic and Reconstructive Surgery

Urology

Vascular Surgery

Fellowship of the Royal Australasian College of Surgeons

FRACS

The Australasian College of Dermatologists

Dermatology Fellowship of the Australasian College of Dermatologists

FACD

The Royal Australian and New Zealand College of Radiologists

Diagnostic Radiology

Diagnostic Ultrasound

Nuclear Medicine

Radiation Oncology

Fellowship of the Royal Australian and New Zealand College of Radiologists

FRANZCR

The Royal Australian and New Zealand College of Psychiatrists

Psychiatry Fellowship of the Royal Australian and New Zealand College of Psychiatrists

FRANZCP

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The Royal Australian and New Zealand College of Obstetricians and Gynaecologists

Obstetrics and Gynaecology

Gynaecological Oncology

Maternal-fetal Medicine

Obstetrics and Gynaecological Ultrasound

Reproductive Endocrinology and Infertility

Urogynaecology

Fellowship of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists

FRANZCOG

The Royal Australian and New Zealand College of Ophthalmologists

Ophthalmology Fellowship of the Royal Australian and New Zealand College of Ophthalmologists

FRANZCO

The Royal College of Pathologists of Australasia

General Pathology

Anatomical Pathology (including Cytopathology and Forensic Pathology)

Chemical Pathology

Haematology

Immunology

Microbiology

Fellowship of the Royal College of Pathologists of Australasia

FRCPA

The Royal Australasian College of Dental Surgeons

Oral and Maxillofacial Surgery

Fellowship of the Royal Australasian College of Dental Surgeons (Oral and Maxillofacial Surgery)

FRACDS (OMS)

Australian and New Zealand College of Anaesthetists and Royal Australasian College of Physicians, Joint Faculty of Intensive Care Medicine

Intensive Care Medicine

Fellowship of the Joint Faculty of Intensive Care Medicine

FJFICM

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ATTACHMENT G TO CHAPTER 5 - CONVENTIONS ON NAMES In some countries, names are presented on birth certificates in a manner different from the usual Australian practice.

In some Asian countries, including Vietnam, Malaysia, Singapore and China, birth certificates and passports are traditionally written in the following way:

Family name Middle name First name

1 2 3

eg HA Hang Dinh Ngoc

In some cases, the family name may be first and there may be a combined first and middle name or no middle name at all.

In other countries, such as Spain, France and Portugal, people carry the family names of both parents and both names appear on the birth certificate. If a person decides to apply for citizenship in one family name (ie in the Australian custom), even though there is a difference between the name on the birth certificate and the name requested on the application, an official name change certificate is not required as the birth certificate (together with other identity documents required to be provided) would be sufficient evidence to prove the client’s identity.

A person with the accepted order of given names followed by family name on their birth certificate, may apply in only one of the given names. The dropping of a given name will not usually necessitate an official name change certificate as the birth certificate (together with other identity documents required to be provided) should be sufficient evidence to prove the client’s identity.

In many Islamic countries birth certificates show the person’s given name without providing a surname. It is accepted under Islamic culture that the child will take the father’s family name. In these cases, “family name” often refers to all names of the father rather than a father’s last name, ie their surname. For example, a child born to Adel Gamal SAAD, could be named Sherif Adel Gamal SAAD. In such cases, the father’s birth certificate can be requested as evidence that the practice of using the father’s full name in the child’s name has been previously adopted.

The accepted Australian policy of given names followed by surname/family name is to be applied in a way that results in an Australian-style name order on the evidence of Australian citizenship. Strict adherence to the order of names shown in passports or birth certificates of the above applicants will not necessarily achieve this objective. The names are to be re-ordered in the following way:

First name Middle name Family name

1 2 3

Dinh Ngoc Hang HA

It is important to inform applicants whose documents are not written in the Australian style order of given name followed by surname/family name, of the way in which their name will appear on their evidence of citizenship and, if they are an applicant for citizenship by conferral, that their name will be presented in this way at the citizenship ceremony. The reasons for this approach should be explained and the accuracy of the proposed change checked with the applicant.

The full name as it appears on the birth certificate is to be recorded in the Department’s database system as name type “Alias”. Notes should be added with reasons for the name used on the application and evidence of citizenship if different to the name on the birth certificate.

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NAMES IN PASSPORTS

For women from either Korea or Lebanon, it is the practice to issue the passport in the maiden name with the notation that they are the wife of “spouses’ surname”. For Korea this will be in brackets as “w/o” after the maiden name and for Lebanese passports it will after the notation “et al”.

Indian passports are also issued in the woman’s maiden name with the details of the spouse endorsed in the back of the passport.

Any future passports issued in Australia by the relevant consulates may be issued in the woman’s married name. In all cases the original overseas marriage certificate, with the official translation, would have to be sighted.

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CHAPTER 6 - CEREMONIES

This Chapter comprises: Overview of Chapter 6 Who conducts citizenship ceremonies Legal requirements for conducting a citizenship ceremony Requirements following a citizenship ceremony Australian citizenship affirmation ceremonies Attachment A - Letter of agreement Attachment B - Expression of interest to host an Australian citizenship ceremony Attachment C - Agreement between DIAC and the party organising a citizenship ceremony Attachment D - Interview / image consent form Attachment E- Overseas ceremony procedures.

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OVERVIEW OF CHAPTER 6 There are three legal requirements for conducting a citizenship ceremony:

1. Authorisation to receive the pledge of commitment

Section 27 of the Act requires that the person before whom the pledge is made (the presiding officer) must be authorised by the Australian Government minister responsible for citizenship matters.

2. Preamble

The presiding officer must read Schedule 1 of the Regulations (Preamble for citizenship ceremony) to the candidates.

3. Pledge of commitment

Section 26 of the Act requires most people 16 years of age and over to make the pledge of commitment as a citizen of the Commonwealth of Australia.

Australian Citizenship Ceremonies Code

The Australian Citizenship Ceremonies Code (the Code) provides guidance for organisations conducting citizenship ceremonies. It sets out the legal and other requirements for conducting citizenship ceremonies as well as the roles and responsibilities of those conducting ceremonies. The Code is publicly available from the Department’s citizenship website (see http://www.citizenship.gov.au).

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WHO CONDUCTS CITIZENSHIP CEREMONIES This part comprises Local government councils Community organisations The Department Other Urgent ceremonies.

LOCAL GOVERNMENT COUNCILS

This part comprises: Overview of ceremonies Department’s role Frequency of ceremonies.

Overview of ceremonies

Citizenship ceremonies are traditionally public ceremonial occasions which provide an important opportunity to formally welcome new citizens as full members of the Australian community. Citizenship ceremonies are apolitical, bipartisan and secular.

The vast majority of Australian citizenship ceremonies are conducted by local government councils. Community organisations and parliamentarians are also encouraged to host citizenship ceremonies. The Department conducts ceremonies as required and to mark special occasions as part of its program to promote Australian citizenship.

Department’s role

The Department’s role in council ceremonies will vary from office to office. Generally, offices of the Department will:

liaise with councils to ensure compliance with the Australian Citizenship Ceremonies Code, ensure that ceremonies are held to respond to demand for timely conferral of prospective citizens, and that pledge verification lists are received from councils within one week of a ceremony

distribute citizenship certificates to the councils

ensure Department systems databases are updated on the basis of the pledge verification lists received from councils and

act as a help desk for council staff.

Attendance by Departmental staff to assist with the conduct of local government ceremonies is at the discretion of the state/territory Director.

Where arrangements have been made for Departmental officers to assist at a ceremony, their assistance may include:

assisting with registration and verification of the identity of candidates on arrival

ensuring the legal and other requirements of the Code are adhered to

assisting with enquiries and other issues as they arise.

The Department may also provide assistance such as sending invitation letters to candidates and guests and helping to arrange publicity.

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Frequency of ceremonies

Citizenship ceremonies should be held regularly to meet local demand to ensure that clients wait on average no longer than three months after being notified that their application has been approved. As part of their program of citizenship ceremonies, local government authorities, as well as community organisations, should be encouraged to hold citizenship and affirmation ceremonies to mark special celebrations such as Australia Day (26 January), and Australian Citizenship Day (17 September).

COMMUNITY ORGANISATIONS

Citizenship ceremonies can also be hosted by not for profit community organisations such as Rotary, Lions and APEX Clubs especially on or near significant days such as Australia Day, Citizenship Day, special anniversaries etc.

Community organisations should indicate their interest to conduct a citizenship ceremony to the Department at least 3 months in advance of the ceremony date. Departmental staff may also send out requests for expressions of interest to community groups at least 3 months prior to significant days such as Australia Day. A template is available at Attachment B - Expression of interest to host an Australian citizenship ceremony.

Community organisations that would like to host a ceremony should provide the proposed date, venue and the maximum number of people that the venue could accommodate. If the Department approves the ceremony, the organiser must be sent a copy of the Australian Citizenship Ceremonies Code and be asked to give written assurance that they will comply with the Code. The Code is publicly available on the citizenship website www.citizenship.gov.au.

NOTE: A sample agreement (MOU) which may be used by STOs when liaising with a community organisation wishing to organise a citizenship ceremony is at Attachment C - Agreement between DIAC and the party organising a citizenship ceremony.

Community organisations may need assistance in arranging a ceremony. The Department should assist in obtaining a presiding officer for the ceremony such as a state or federal parliamentarian, local Mayor or Departmental officer.

The Department should ensure that the community organisation complies with all aspects of the Code. In some cases, this may necessitate attendance by a Departmental representative particularly where the community organisation has not previously conducted a ceremony. They should also be encouraged to consult with their local government council to ensure that the ceremony does not conflict with any planned council ceremony. Representatives of the three levels of elected government must be invited to the ceremony.

THE DEPARTMENT


Routine Departmental ceremonies

Special event Departmental ceremonies

Overseas post ceremonies.

Routine Departmental ceremonies

At time of high demand, it is expected the Department will routinely hold citizenship ceremonies to ensure clients do not wait more than 3 months on average for a ceremony. This includes where councils are unable or unwilling to schedule sufficient ceremonies to accommodate the number of approved citizenship applications in their area. During times of anticipated peak demand, such as around HECS - Higher Education Loans Program (HELP) critical dates, a proactive approach to Departmental ceremonies should be implemented to ensure that the demand for urgent ceremonies is minimised.

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Departmental ceremonies generally lack the formality and some of the symbolism of public ceremonies but nevertheless must also abide by the Australian Citizenship Ceremonies Code. Prospective citizens should be encouraged to attend a public ceremony. Invitations to (and speeches by) the Minister’s representative, members of parliament or community groups are not necessary on these occasions. However, if a member of parliament is invited, invitations must be extended to all those required to be invited to public ceremonies. The attendance of family and friends is normally kept to a minimum.

Special event Departmental ceremonies

The Department usually holds ceremonies to coincide with significant days and as part of a programme to promote the value of Australian citizenship and encourage eligible non-citizens to become Australian citizens. These ceremonies are a good opportunity for the promotion of Australian citizenship and may attract media interest. Only candidates who are comfortable with media interest should be invited to these ceremonies. Prior to the Department taking photographs or conducting media interviews, candidates should be asked to sign Attachment D - Interview / image consent form.

Overseas post ceremonies

If an applicant is approved onshore they are expected, as far as possible, to attend a citizenship ceremony onshore. If an applicant has to travel overseas prior to conferral, however, they may attend a ceremony at an agreed post. This ceremony should be arranged by Dandenong office and, accordingly, all paperwork should be forwarded to Dandenong as soon as possible.

It is important that overseas posts do not agree to conduct a citizenship ceremony until they have established with the Dandenong office that the appropriate requirements have been met for example, the client continues to demonstrate an ongoing intention to reside in Australia. A summary of the process for overseas posts ceremony requests is at Attachment E- Overseas ceremony procedures.

OTHER


Private ceremonies

Members of Parliament.

Private ceremonies

In very limited circumstances, private ceremonies may be conducted in a prospective citizen’s home aged-care facility or health-care facility. Examples include where the candidate is aged or bedridden. All requests must be assessed on a case by case basis considering compelling or compassionate circumstances.

Members of Parliament

Members of Parliament (MPs) and Senators may also make requests from time to time, to conduct private citizenship ceremonies, generally in their offices. If the MP or Senator already has authorisation to preside at citizenship ceremonies, they should liaise with their closest Departmental office in conducting the ceremony. To avoid the appearance of conflict of interest, parliamentarians should not confer citizenship on family members, close friends or members of staff at private ceremonies.

If the MP or Senator does not already have Authorisation to receive the pledge of commitment at citizenship ceremonies, a request for authorisation should be made in writing to the Minister. Requests should be made well in advance of any proposed ceremony date.

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URGENT CEREMONIES

There are some circumstances in which the Department may agree to conduct an urgent citizenship ceremony. Some points to consider when assessing requests for an urgent ceremony are:

policy is to encourage candidates to attend public ceremonies

an applicant requesting an urgent ceremony is generally asked to make the request in writing providing reasons for the request

there should be genuinely urgent and compelling circumstances.

If a person believes their circumstances warrant an urgent ceremony, they may make a formal request. The request must be made in writing and include supporting documentary evidence.

Each request for an urgent ceremony should be assessed according to the individual circumstances of the case.

Criteria to consider are:

genuinely compassionate or compelling circumstances

significant disadvantage to the person should they not be able to attend an urgent ceremony

the length of time the person has waited for a citizenship ceremony

circumstances beyond the person’s control that have arisen since the their application was approved

it would be unreasonable or unfair to the person not to grant an urgent ceremony

whether the person’s needs could be accommodated through attendance at a routine council ceremony

STOs should hold Departmental ceremonies during peak times in the academic year to cater for students who wish to apply for HECS - Higher Education Loan Program. Preference for these ceremonies should be given to persons who have been waiting more three months for a ceremony and are not scheduled to attend their routine council citizenship ceremony prior to the HECS cut off date.

The number of persons able to attend Departmental ceremonies is limited. Therefore it is important that the Department reserves places in these ceremonies for those persons who can demonstrate an urgent and compelling need. Wherever possible, in the first instance, arrangements should be made for the person to be accommodated in a council ceremony.

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LEGAL REQUIREMENTS FOR CONDUCTING A CITIZENSHIP CEREMONY This part comprises: Authorisation to receive the pledge of commitment Preamble Pledge of commitment.

AUTHORISATION TO RECEIVE THE PLEDGE OF COMMITMENT

This part comprises: Authorisation

Standing authorisations Ceremony specific authorisations.

Authorisation

Under s27 of the Act, the pledge of commitment must be made before the Minister, or a person or class of persons, authorised by the Minister.

Authorisation is arranged through the Citizenship Branch, National Office. Persons authorised by the Minister as persons before whom a pledge of commitment must be made are often referred to as presiding officers. Authorisation is given to Australian citizens only and is specific to a position or person.

Details of positions authorised by the Minister under s27(5) for the purposes of s27(3)(c) are given in the legislative instrument. This instrument specifies positions in STOs, overseas and local government councils which have authorisation to preside at citizenship ceremonies. To obtain the current legislative instrument or to submit a request for a person who wishes to be authorised by the Minister, contact the Citizenship Help Desk.

Presiding officers have no power to appoint a proxy. However, if a person is for the time being holding, occupying or performing the duties of a position which is authorised, the person will have the authority to perform the duties of the presiding officer.

To avoid the appearance of conflict of interest, it is preferable that presiding officers do not confer Australian citizenship on family members, close friends or acquaintances at special purpose ceremonies.

Standing authorisations

Since 2004, Members of the House of Representatives of the Australian Parliament (MPs) have been given, on request, standing authority to preside at citizenship ceremonies following written assurance that they will comply with the Australian Citizenship Ceremonies Code. In 2008, standing authorisation was further extended to Senators. All requests from MPs and Senators seeking authority to preside at citizenship ceremonies should be made in writing to the Minister. The MP or Senator should include with their request a signed letter of agreement (see Attachment A - Letter of agreement) indicating they will abide by the requirements for the conduct of citizenship ceremonies set out in the Australian Citizenship Ceremonies Code. The list of MPs and Senators with standing authorisation is available from the Citizenship Branch, National Office.

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Ceremony specific authorisations

On occasion, authorisation may be given by the Minister for a person to preside at a specified ceremony. For example, a state/territory parliamentarian may be asked to act as presiding officer on a particular occasion. Requests for ceremony specific authorisations are usually, but not always, associated with Australia Day and Australian Citizenship Day ceremonies. Requests should be sent to Citizenship Branch, National Office (enquiries can be sent to the Citizenship Help Desk), providing as much information as possible including the reasons for the request, the date and place of the ceremony, and the approximate number of people to be conferred at the ceremony.

PREAMBLE

Under regulation 8 of the Regulations the presiding officer must read aloud the following words as specified in Schedule 1 of the regulations Preamble for citizenship ceremony to the person making the pledge:

Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.

Persons on whom Australian citizenship is conferred enjoy these rights and undertake to accept these obligations:

(a) by pledging loyalty to Australia and its people; and

(b) by sharing their democratic beliefs; and

(c) by respecting their rights and liberties; and

(d) by upholding and obeying the laws of Australia.

PLEDGE OF COMMITMENT


Pledge of commitment must be made - s26 of the Act

How the pledge of commitment is to be made.

Pledge of commitment must be made - s26 of the Act

A person must make the pledge of commitment to become an Australian citizen unless covered by one of the circumstances mentioned in s26(1) of the Act.

People who are not required to make a pledge of commitment are nevertheless welcome to attend a citizenship ceremony and should be encouraged to do so. Children included on the application of a responsible parent may attend the citizenship ceremony with their parent/s even though they are not legally required to take part in the ceremony or make the pledge. If children wish to make the pledge, they may be able to make prior arrangements with the organisation hosting the ceremony. Children included in a responsible parent’s citizenship application acquire citizenship when the parent makes a pledge of commitment and becomes a citizen. A child’s evidence of citizenship is generally presented to their parent, together with the parent’s evidence, unless the child accompanies the parent in which case the child’s evidence can be presented to the child.

How the pledge of commitment is to be made

In accordance with Schedule 1 of the Act, the pledge of commitment may be made in either of the two forms below. Citizenship candidates may choose which version of the pledge they prefer. No other form of the pledge is legally acceptable.

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Form of pledge no. 1 From this time forward, under God,

I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect, and whose laws I will uphold and obey.

Form of pledge no. 2 From this time forward,

I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect, and whose laws I will uphold and obey.

Where reasonably practicable the pledge of commitment must be made in public. As a matter of practice, and to facilitate the making of a pledge, the presiding officer “administers” (that is, reads and the candidates repeat) the pledge. The presiding officer should ensure that each conferee makes a pledge. If a conferee fails to make a pledge during a public citizenship ceremony they should be advised that they are not a citizen and be given the opportunity to make the pledge. Conferees who fail to make the pledge do not become Australian citizens and must not be presented with evidence of citizenship.

Pledge cards, with the words of pledge No 1 and pledge No 2 can be ordered from the citizenship website www.citizenship.gov.au. It is the responsibility of STOs to distribute the pledge cards to local government councils or to ensure that they are familiar with the process for ordering pledge cards from the citizenship website. Dandenong office is responsible for forwarding the appropriate number of pledge cards to overseas posts together with citizenship certificates when a ceremony is to be conducted.

Candidates who can speak English are required to make the pledge in English. Translations of the pledge are available in several languages for conferees who are not required to possess a basic knowledge of the English language and cannot speak English. Copies are available on request from the Citizenship Help Desk.

All people who make the citizenship pledge should receive, as a memento, a pledge card displaying the words of the form of the pledge they choose to make. The cards are clearly marked on the back.

The Australian Citizenship Ceremonies Code provides more information on the pledge and the requirements for conducting citizenship ceremonies.

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REQUIREMENTS FOLLOWING A CITIZENSHIP CEREMONY This part comprises: Recording ceremony attendances in ICSE

Disclosing details of new citizens.

RECORDING CEREMONY ATTENDANCES IN ICSE

The Australian Citizenship Pledge Verification List (pledge list) is the basis on which the Department’s systems database ICSE is updated to record the acquisition of citizenship of the conferees. Unless and until this occurs, acquisition of Australian citizenship may not be recognised, including by the Department. Delays in pledge lists being received by the Department, or in the Department entering information from returned pledge lists into the database, can cause significant inconvenience to the new citizens and inaccurate Departmental records. Councils should therefore return pledge lists within one week of a ceremony being conducted. Councils who have not returned pledge lists within one week of a ceremony must be contacted and reminded of the need to return the pledge lists promptly.

STOs should have work practices in place to ensure they are aware of all council ceremonies scheduled in any given time frame and the date by which pledge lists must be returned. Pledge lists should be marked off as they are returned, enabling STOs to quickly ascertain any outstanding pledge lists. The Pledge lists should be retained for 100 years.

As candidates’ ceremony attendance information from returned pledge lists is updated in ICSE, those pledge lists should be marked off as having been entered in the Department’s database. This will enable STOs to ascertain any returned pledge lists that still require entering into the database. It is imperative that Departmental officers record attendance at a ceremony in ICSE as soon as possible and preferably within five working days of pledge lists being returned.

Where pledge lists show that a person did not attend a ceremony, STOs should ensure that the citizenship certificates are returned to the Department (by registered mail) by the organisers within 5 working days, voided on ICSE and destroyed. A new citizenship certificate can be requested when the person has been scheduled into the next suitable ceremony.

An ICSE “non attendance at a ceremony” letter should be sent to the person in the first instance of non-attendance. If a person does not make contact with the Department regarding their non-attendance, or fails to attend subsequent scheduled ceremonies, it may be appropriate to send the person the relevant ICSE “cancellation of approval” caution letters. Persons required to make the pledge, who fail to do so within 12 months of receiving notification of approval, may be subject to cancellation of approval. Further information on cancellation of approval can be found in Chapter 5 - Citizenship by conferral.

DISCLOSING DETAILS OF NEW CITIZENS

The citizenship application forms state that personal information may be disclosed to, among others:

local state/local government authorities for the purposes of administering citizenship ceremonies

the Australian Electoral Commission for the purposes of administering the Commonwealth Electoral Act 1918 and

Federal, state/territory Members of Parliament for the purposes of formally welcoming new citizens into the Australian community.

It is desirable that territory and Federal Members of Parliament have the opportunity to welcome new citizens as formal members of the Australian community, both at the citizenship ceremony and otherwise.

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Local Members of Parliament are the elected representatives of the new citizens. A welcome from a local Member of Parliament facilitates future contact between the new citizens and their representatives.

Accordingly, local councils are expected to forward, on request, the names and addresses of new citizens to their local Federal, state/territory Members of Parliament. This information should be accompanied by advice that the material is to be used only for the purposes of welcoming new citizens as formal members of the Australian community and should not be forwarded to other persons or organisations.

Provided that the information is disclosed solely for the purposes of welcoming new citizens into the community, and this is made clear to the recipient local Members of Parliament (for example, through accompanying advice as indicated above), the practice is not inconsistent with privacy legislation in the jurisdiction of local government councils. This matter is explained in the Australian Citizenship Ceremonies Code.

An important privacy principle is that the purpose of collection of personal information should govern its use. The names and addresses of new citizens are provided to local government councils for the purpose of arranging citizenship ceremonies. Generally, disclosure is permitted if it is either for the primary purpose of collection, or for a related secondary purpose that the individual might reasonably expect would lead to disclosure.

Disclosing the name and address of new citizens to local Members of Parliament for the purpose of those Members welcoming the new citizens as constituents would be a related secondary purpose. Importantly, it is noted that new citizens are informed through the application form for conferral of Australian citizenship that their information may be disclosed to Members of Parliament for this purpose.

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AUSTRALIAN CITIZENSHIP AFFIRMATION CEREMONIES Australian citizenship affirmation ceremonies provide an opportunity for Australians who wish to do so, to publicly affirm their loyalty to Australia and its people. Local councils should be encouraged to incorporate affirmation ceremonies into citizenship ceremonies.

Affirmation ceremonies are voluntary and everyone is welcome to participate. They have no legal status. No records are kept of those who take part, no certificate is provided and no proof of Australian citizenship is required.

The Australian Citizenship Ceremonies Code sets out the framework for conducting affirmation ceremonies including advice on how best to incorporate affirmation ceremonies into citizenship ceremonies. Affirmation packs containing an information brochure, poster and affirmation card can be ordered by STOs and local councils through the citizenship website www.citizenship.gov.au

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ATTACHMENT A - LETTER OF AGREEMENT

Australian Citizenship Ceremonies Code

I, …………………………………………………………………………………………,

Federal Member / Senator for …………………………………………………………………

acknowledge that I have received the Australian Citizenship Ceremonies Code, and confirm that I will abide by the requirements for the conduct of citizenship ceremonies set out in the Australian Citizenship Ceremonies Code.

………………………………………………

( Please sign and date)

Please forward the signed Letter of Agreement to:

Senator Chris Evans

Minister for Immigration and Citizenship

Parliament House

CANBERRA ACT 2601

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ATTACHMENT B - EXPRESSION OF INTEREST TO HOST AN AUSTRALIAN CITIZENSHIP CEREMONY

Citizenship ceremonies are public ceremonial occasions which provide an important opportunity to formally welcome new citizens as full members of the Australian community. Community organisations may conduct citizenship ceremonies following approval from the Department of Immigration and Citizenship. A letter of support from the head of the community organisation should accompany this form.

Name of the organisation proposing to host the ceremony

Contact person within the host organisation

Contact postal address

Email address

Home phone Work phone

Fax Mobile

Proposed date and time of the ceremony:

Please specify significance of the date and check that this date does not fall within a parliamentary sitting period

Proposed venue:

Preferred number of citizenship candidates:

Please specify whether this number includes children

Name and title of the person who will be presiding:

Please note the presiding officer must be a delegated officer under the Australian Citizenship Act 2007. If you do not have someone in mind, please indicate this and you will be contacted to discuss options

Have you hosted a ceremony before?

Please provide details

DECLARATION TO BE SIGNED BY HEAD OF THE HOST ORGANISATION:

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I ……{insert name}…… confirm that ceremonies conducted by ……{host organisation}………. will be held in accordance with the requirements for the conduct of citizenship ceremonies set out in the Australian Citizenship Ceremonies Code which I have received and read.

………………………………………………

(Please sign and date)

Please return this form and your letter of support to:

[DIAC STO to insert return details]

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ATTACHMENT C - AGREEMENT BETWEEN DIAC AND THE PARTY ORGANISING A CITIZENSHIP CEREMONY

AGREEMENT BETWEEN THE DEPARTMENT OF IMMIGRATION AND CITIZENSHIP (DIAC) AND THE PARTY ORGANISING A CITIZENSHIP CEREMONY

CITIZENSHIP CEREMONY ORGANISER

____________________________(Name of Community-Group/Organisation)

Citizenship ceremonies serve to fulfil legal requirements prescribed by the Australian Citizenship Act 2007 and the Regulations, particularly the requirement for candidates to make the pledge of commitment. To reflect the significance of the occasion citizenship ceremonies should be formal and meaningful occasions, conducted with dignity and designed to impress upon candidates the responsibilities and privileges of Australian citizenship. Organisers of citizenship ceremonies should ensure that every aspect of the ceremony is handled with respect and that candidates are aware of what is to transpire so no confusion arises.

SCHEDULING A CITIZENSHIP CEREMONY

Community organisations that wish to conduct a citizenship ceremony should approach the local DIAC office to discuss the possibility of hosting such a ceremony 6 months before the planned date of the ceremony.

If you require DIAC personnel to assist you with your ceremony, it is preferable for your event to be conducted during working hours. Where this is not possible, weekday evening events are preferable to weekends.

CITIZENSHIP CEREMONY ORGANISER RESPONSIBILITIES

To ensure that the citizenship ceremony is conducted in accordance with the attached Australian Citizenship Ceremonies Code (the Code). The Code is also available from the Citizenship website at www.citizenship.gov.au. The Code is a guide for local Government councils and community organisations on the procedures for conducting ceremonies. It highlights the legal requirements, outlines the role of those conducting ceremonies and provides a range of practical advice to assist those planning for and conducting ceremonies.

Please note in particular that the Minister for Immigration and Citizenship should be invited to all citizenship ceremonies. Invitations should also be sent to:

the local Federal Member/s of Parliament

a Senator from a different political party to that of the local Federal Member

the local Member/s of state/territory parliament and

representation from local government.

Organisers should also:

ensure that the ceremony is conducted in a meaningful, dignified, orderly and memorable way with proceedings designed to impress upon candidates the significance of the occasion.

source, as far as possible, candidates who wish to be conferred citizenship at the proposed ceremony.

ensure all candidates are informed about appropriate protocols for the citizenship ceremony (for example, dress code, punctuality etc).

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Party organising the citizenship ceremony will provide:

volunteers who are responsible for registering conferees and providing them with name-tags that correspond with the seating and the order in which certificates are presented

ushers who are responsible for ensuring there is minimal noise during the speeches and ceremony and to ensure that conferees stand at the appropriate times during the ceremony

a brief to the MC as to what is required of them in their role for example, to introduce guests, to explain the ceremony process/program to the participants/guests etc

a copy of the ceremony program to DIAC, conferees and guests

appropriate venue (with power points and a microphone)

seating for the conferees (and their children)

seating for DIAC staff

seating + table for Electoral Commission staff

seating for the guests and their children

registration staff (1 per 15 people)

registration tables (1 per 2 registration staff)

colour labels with names and numbers of the conferees (2 sets)

staff to put the above labels on the chairs

usher for the Minister

community Rep to meet and greet the VIPs

MC

gifts for the conferees (optional)

refreshments for after the ceremony (optional)

sound system.

DIAC RESPONSIBILITIES

To assess your capacity for conducting a citizenship ceremony and to provide advice on how to conduct the citizenship ceremony.

To process the applications (as far as possible) for the requested number of candidates in time for the ceremony.

Departmental officers may also assist your staff in ushering conferees and/or distributing certificates.

To provide citizenship certificates for all candidates.

DIAC will provide:

Australian Flag

Portrait of the Queen

Coat of Arms

Dated citizenship certificates

Pledge verification list

Electoral enrolment forms

CD with the National Anthem (+ lyrics)

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PRE-CEREMONY ACTIVITIES

Planned date of citizenship ceremony _______________________________

Planned date of citizenship information session ______________________

Planned date of briefing for MC __________________________________

Date your program is to be finalised and sent to DIAC___________________

Planned date of training for the volunteers/community workers _______________(should be within 2 weeks from the ceremony)

No later than 4 weeks prior to the ceremony:

The Minister’s office and the DIAC office should be advised of the invitation of the Minister to the ceremony.

No later than 2 weeks prior to the ceremony:

A program of the ceremony should be delivered to the DIAC contact person. The program should include the approximate time allocated to each speaker, the confirmed guests list and the name of the presiding officer. Speeches should be less than 5 min long. All speeches should be in English. The program should be given to all people present at the ceremony.

Date final program is to be forwarded to DIAC _____________

THE CEREMONY

MINISTER: ATTENDING □ NOT ATTENDING □

VENUE:___________________ CONTINGENCY Venue______________

Total number of conferees:______________________________________

Total number of conferees making pledge 1 ______________________

Total number of conferees making pledge 2 ____________________

Time of opening of venue _________________________________________

Time of arrival of conferees (start of the registrations) ___________________

Time of arrival of Minister__________________________________________

Parking for the Minister ___________________________________________

Start time of the official ceremony ________________________________

Time of departure of the Minister____________________________________

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SIGNATURES

I have read and agreed to conduct the citizenship ceremony in accordance with the Australian Citizenship Ceremony Code.

I am aware that the citizenship ceremony may be cancelled or re-scheduled if there is a material breach of any of the main requirements of the agreement.

Citizenship Ceremony Organiser ___________________________________

Name of representative:___________________________________________

Signature of representative:________________________________________

Contact telephone number:________________________________

Email:_________________________________________________

Witnessed by:

Name of DIAC representative:_______________________________

Signature of representative:__________________________________

Contact number:________________________________________

Email:_________________________________________________

Date:___________________________________________________

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ATTACHMENT D - INTERVIEW / IMAGE CONSENT FORM The Department of Immigration and Citizenship (DIAC) would like to photograph, video and/or interview you, so that it can use your picture or comments in its promotional material. The purpose of this promotional material is to provide information to the public and promote DIAC’s services and programs. This material is available to the public, for example in DIAC’s annual report, brochures, media releases, newspaper articles, training products, website material and television broadcasts.

In addition, DIAC sometimes receives requests from other Commonwealth government agencies to use this kind of material, which might include your image or comments made during an interview. These agencies may ask DIAC to provide this material to them so that they can use it in their training materials which are publicly available.

DIAC will not collect, use or disclose this material, which is your personal information, unless you agree. If you do agree, please refer to the consent form at page 2 of this document.

In the consent form, the Department requests your consent to it taking your photograph, interviewing you, publishing this material and/or disclosing it to other agencies for publication by them. Please note:

you provide your consent by signing the consent form where relevant

you do not have to consent to all or any of the options on the consent form; and

there will be no consequences for you if you do not consent.

I have read and understood the above information.

Signature:…………………………………………………(or parent/guardian if under 18)

Date:…../..…./………

Contact details

Name:……………………………………………………………...

Address:…………………………………........................................ State/Territory……....

Postcode:……………

Date:…../..…./………

Telephone:

(W)……………………… (H)……………………… (M)………………………………

E-mail: ………………………………………………….................

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Photography / video recording consent

I AGREE to being photographed (including still and motion photography formats) without compensation or other rewards; and for DIAC to edit, publish and otherwise make use of the photographs or video recording in current or future promotional material. (Some examples of potential uses are listed on page 1.)


Date:…../..…./………

Interview consent

I AGREE to being interviewed without compensation or other rewards; and for DIAC to edit, publish and otherwise make use of the words in current or future promotional material. (Some examples of potential uses are listed on page 1.)


Date:…../..…./………

Media consent

I AGREE to have my story/images published in both print and electronic media.


Date:…../..…./………

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Disclosure consent

I understand that DIAC may receive a request from other agencies to use my image or comments made during an interview in publicly available training materials about immigration issues or other purposes. Please indicate below whether you agree or disagree to DIAC disclosing this information.

Agree - DIAC may disclose Disagree - DIAC will not disclose

Image □ □

Interview □ □


Date:…../..…./………

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ATTACHMENT E- OVERSEAS CEREMONY PROCEDURES The Overseas Citizenship Unit (OCU) in the Dandenong Regional Office processes applications for conferral of Australian citizenship that are lodged offshore. However, in exceptional circumstances we can also help facilitate an overseas conferral ceremony request for an applicant who was approved in Australia. Generally, the applicant must first attempt to attend an onshore ceremony.

The OCU’s role, in relation to a request for an overseas conferral ceremony, is to act as an intermediary between the onshore office and the overseas post. There is no guarantee that the overseas post will host the ceremony as some overseas posts do not have the capacity or funding to perform conferral ceremonies.

When the OCU receives such requests, from either a client or an onshore DIAC office, we only facilitate the actual printing of the dated evidence and forward it to the relevant post. The OCU DO NOT decide whether the person still satisfies the “likely to reside, or to continue to reside, in Australia or maintain a close and continuing association with Australia” requirement or whether they can attend an offshore ceremony. These decisions need to be made by the approving officer or the approving office.

For your reference, the following information outlines the process for offshore ceremony requests:

1. The person should first attempt to attend a ceremony onshore. ICSE should indicate that the person has attempted to attend either a council ceremony or an urgent Departmental ceremony.

2. Before the OCU can proceed with the person's request for a citizenship ceremony overseas, the approving officer/office must re-assess if the person is still “likely to reside, or to continue to reside, in Australia or maintain a close and continuing association with Australia”. If you are satisfied that the person still meets this requirement, clearly record this in ICSE as a "client note" and in the citizenship assessment checklist. Also indicate that you have no objection for the person to attend an offshore ceremony. Indicate what evidence was provided by the client to satisfy this requirement. If you are not satisfied that this requirement is met, you may consider cancelling the approval under s25(2)(b)(ii).

3. The approving officer/office changes the Ceremony Preference to Dandenong Regional Office (Conferral Office)/Case Transfers - Dandenong (Conferral Body). Do not Transfer or Refer the case/application in ICSE to the OCU or Dandenong Regional Office.

4. The approving officer/office voids in ICSE and destroys accordingly any already requested evidence.

5. The approving officer/office up-dates and records in ICSE the person’s overseas contact details (address and telephone numbers).

6. The approving officer/office must then email the OCU ([email protected]), advising that the above steps have been completed and at which overseas post the person wishes to attend the ceremony. When writing to OCU, always provide the person's ICSE ID details.

7. The OCU will then contact the relevant post and ask them if they are prepared to conduct the ceremony for the person in question. If the post is in a position to hold this ceremony, we proceed with requesting dated evidence once the ceremony date has been scheduled by the post.

8. Once the dated evidence is printed, the OCU will send it to the overseas post via diplomatic bag.

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Note: All persons who lodged their applications in Australia and were approved for conferral of citizenship in Australia are required to attend their ceremony onshore. You should approve requests for an offshore citizenship ceremony ONLY in exceptional circumstances when satisfactory arguments and evidence are provided by the person

Once the OCU has been advised that the approving officer/office is satisfied that the person meets the “likely to reside, or to continue to reside, in Australia or maintain a close and continuing association with Australia” requirement and that there is no objection for the person to attend a ceremony overseas, we will then proceed with requesting the dated evidence once the ceremony date has been scheduled by the overseas post.

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CHAPTER 7 - RESUMING CITIZENSHIP



Eligibility


Decision making.

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OVERVIEW OF CHAPTER 7

Part 2, Division 2, Subdivision C of the Act covers the circumstances in which a person may resume their Australian citizenship after having ceased to be a citizen under the Act or the old Act.

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ELIGIBILITY This part comprises:

Cessation under this Act

Cessation under old Act.

Under s29 former citizens may resume their citizenship if they ceased to be a citizen:

because they acquired another citizenship

because they renounced their citizenship to acquire or retain another citizenship or to avoid significant hardship or detriment

because a parent ceased to be a citizen or

by residence outside Australia before 8 October 1958.

People aged 18 or over must be of good character.


If the applicant is 16 years of age or younger a responsible parent must sign the application form. Responsible parent is defined in s6 of the Act (see Chapter 1 - Preliminary and definitions).

CESSATION UNDER THIS ACT

Section 33 provides for a person to renounce their Australian citizenship. See Chapter 8 - Cessation of Australian citizenship.

Section 36 provides for the revocation of a child’s citizenship following the cessation of citizenship of the child’s parent under s33 (renunciation), s34 (revocation by Minister), or s35 (service in armed forces of enemy country). See Chapter 8 - Cessation of Australian citizenship.

Some people who renounce their Australian citizenship do so for reasons other than to retain or acquire another citizenship, or to avoid significant hardship or detriment. People who renounce their citizenship for other reasons are not eligible to resume their citizenship.

CESSATION UNDER OLD ACT

See Chapter 8 Attachment A - Historical provisions - Cessation of Australian citizenship.

Some people who renounced their Australian citizenship under the old Act did so for reasons other than to retain or acquire another citizenship, or to avoid significant hardship or detriment. People who renounced their citizenship for other reasons are not eligible to resume their citizenship.

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APPLICATION REQUIREMENTS This part comprises: Information and documents to accompany applications (reg 12) Fees to accompany application (reg 12A) Refund of fees (reg. 13).

Section 46 prescribes that applications must:

be on the form approved by the Minister


be accompanied by any other information prescribed by the regulations and

be accompanied by a fee (if any) prescribed by the regulations.

The approved form for applications for resumption of Australian citizenship is Form 132 “Becoming an Australian citizen again - Application to resume Australian citizenship”. The approved form provides for children under the age of 16 years to be included in a responsible parent’s application.


The following documents should support the application:

full birth certificate, if born in Australia


official evidence of name change (if applicable)

evidence of acquisition of a foreign citizenship

overseas penal certificates if required - see Overseas penal clearance certificates

if applicant did not renounce their Australian citizenship, evidence of acquisition of foreign citizenship (naturalisation certificate or a statement from the authorities of the other country stating how and when the applicant acquired the citizenship of that country).

If the applicant thinks they lost their citizenship as a child as a result of the actions of a parent, evidence that they held another citizenship when the responsible parent lost their citizenship and evidence that the responsible parent ceased to be an Australian citizen.

The applicant should also be advised to provide any existing Australian Citizenship certificates, issued when they initially became an Australian citizen, to the Department to be destroyed and voided on the Department’s data storage systems (ICSE).


Under reg 12, information and documents not in English must be accompanied by an official translation. In Australia, translations should be done by National Accreditation Authority of Translators and Interpreters (NAATI) accredited translators. For overseas lodged applications the current guidelines for translations in that post apply.

FEES TO ACCOMPANY APPLICATION (REG 12A)

Under reg 12A, an application to resume Australian citizenship must be accompanied by the fee mentioned in item 17 of Schedule 3.

Item 16 of Schedule 3 prescribes the fee payable by a child, under the age of 16, who makes an application at the same time and on the same form as a responsible parent (currently ‘Nil’).

ACIs - Chapter 7


REFUND OF FEES (REG. 13)

If an applicant paid a fee in connection with an application for citizenship (see s46) and is subsequently entitled to a refund, they must be refunded the amount specified by the regulations in force at the time the fee was paid.

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Registration (s31)

Day citizenship begins again etc (s32)

Same kind of citizenship

Notification of decision (s47)

Review of decisions (s52).


An application for resumption of citizenship must be approved or refused. If an applicant meets the eligibility requirements and there is no prohibition on approval, the application would generally be approved. They must also be given notice of the decision. See Notification of decision (s47).

There are a number of circumstances where an application to become an Australian citizen again must not be approved. These circumstances relate to:

identity and

national security.

Identity (s30(3))


National security (s30(4), s30(5), s30(6) and s30(7))


If ASIO has issued an adverse security assessment or qualified security assessment against the applicant, an application to resume citizenship must not be approved unless the applicant is stateless (see below). Such an assessment will be made where the applicant is a direct or indirect risk to the security of Australia.

If the applicant is stateless and was born in Australia, an application for citizenship must not be approved if the applicant:


has been convicted of an offence (in Australia or overseas) and sentenced to a period of imprisonment for at least 5 years. Note: There is a discretion for the Minister to approve an application if it would be unfair to refuse it on the basis of the person’s conviction (see s30(7)).


REGISTRATION (S31)

Under s31, if a person is approved to become an Australian citizen again, their details must be registered in the Department’s data storage system in accordance with the reg 9.

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DAY CITIZENSHIP BEGINS AGAIN ETC (S32)

Under s32 a person becomes an Australian citizen again on the day the application is approved.

SAME KIND OF CITIZENSHIP

The kind of citizenship resumed is the same as the kind held before it was renounced. For example, if the person was an Australian citizen by descent, the person again becomes a citizen by descent. If the person was an Australian citizen by grant under the old Act, the person becomes a citizen by conferral.

However, a former citizen could acquire a different kind of citizenship if they successfully applied for that other kind and met the relevant requirements, for example, a former citizen by descent applying for citizenship by conferral.




Under s52(1) a decision to refuse an application to resume Australian citizenship can be reviewed by the AAT.

ACIs - Chapter 8


CHAPTER 8 - CESSATION OF AUSTRALIAN CITIZENSHIP


Overview to Chapter 8

Eligibility


Decision making

Chapter 8 Attachment A - Historical provisions - Cessation of Australian citizenship.

ACIs - Chapter 8


OVERVIEW TO CHAPTER 8 Part 2, Division 3 of the Act outlines the circumstances in which a person can cease to be an Australian citizen.

A person may cease to be an Australian citizen by renouncing their citizenship; as a result of the Minister revoking their citizenship; or by serving in the forces of a country at war with Australia.

Cessation of a child’s citizenship, where a responsible parent ceases Australian citizenship, is discretionary. This is consistent with Australia’s international obligations in regard to the Universal Declaration of Human Rights and the Convention on Rights of the Child in relation to arbitrary deprivation.

A person who is in Australia when they cease to be an Australian citizen will automatically (by operation of law under s35 of the Migration Act) hold an ex-citizen visa. The ex-citizen visa is a permanent visa giving permission to remain in Australia but does not include permission to return to Australia for which a Resident Return Visa (RRV) is required.

A person who is outside Australia when they cease to be an Australian citizen does not hold a visa. They would need to successfully apply for a visa if they intend to travel to Australia.

The circumstances in which a person can resume their Australian citizenship are set out in Chapter 7 - Resuming citizenship.

Under the transitional arrangements for the new Act, only people who were citizens by descent under the old Act became citizens by descent under the new Act. If a person never met the criteria in the old Act because they did not have a parent who was an Australian citizen at the time of their birth, the person was never an Australian citizen and would not have become a citizen under the new Act. There is, therefore, no need to consider cessation of citizenship because the person was never a citizen and Departmental records can be amended to reflect the legal reality.

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ELIGIBILITY Section 33 makes provision for the renunciation of Australian citizenship. No further guidance on s33 is necessary.

ACIs - Chapter 8


APPLICATION REQUIREMENTS This part comprises: Application requirements (s46) Information and documents to accompany applications (reg 12) Fees to accompany applications (reg 12A).


The approved form for applications for renunciation of Australian citizenship is Form 128 “Application for renunciation of Australian citizenship”. The form allows for details to be provided of any children of the applicant who the applicant would like to cease to be citizens if the applicant ceases to be a citizen. Separate application is not required because cessation of a child’s citizenship when a responsible parent ceases to be a citizen is by revocation and is discretionary. See below for details of the provisions for revocation of the citizenship of children of parents who cease to be citizens.

The following documents should support the application:

full birth certificate


official evidence of any name change

evidence that the applicant is a national or citizen of a foreign country at the time of application or

evidence that the applicant was born or is ordinarily resident in a foreign country and will be entitled under the law of that country to acquire the nationality or citizenship of that country after they cease to be an Australian citizen.




Under reg 12A, an application to the Minister to renounce the person’s Australian citizenship must be accompanied by the fee mentioned in item 18 of Schedule 3.

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Time citizenship ceases (s33(8))

Notification of decision (s47)

Revocation by Minister (s34)

Service in armed forces of enemy country (s35)

Children of responsible parents who cease to be citizens (s36)

Review of decisions (s52(1)).


Under s33 an application must be approved or refused.

If an applicant meets the requirements in s33(3), and there is no prohibition on approval under s33(4), (6) and (7), the application must be approved unless s33(5) applies.

Policy is that evidence the applicant is a citizen of another country should include a statement from a relevant government representative that the person is a citizen of that country or, if the person was born or is ordinarily resident in a foreign country, that the person will acquire the citizenship of that country on renunciation of Australian citizenship.

The term “immediately after” should not be interpreted literally. It is sufficient that the person would acquire another nationality or citizenship within a reasonable period after ceasing to be an Australian citizen. A “reasonable period” would be that which is reasonable in all the circumstances of the case allowing for processes required by the country of acquisition such as processing of an application or attendance at a ceremony.

TIME CITIZENSHIP CEASES (S33(8))

Under s33(8) if the Minister approves a person renouncing their Australian citizenship, the person ceases to be an Australian citizen at the time of the approval.




The power to revoke a person’s citizenship under s34 has not been delegated. Decisions can only be made by the Minister.

All cases of revocation must be referred to Citizenship Law and Policy Section.

The citizenship of people who applied for citizenship under the old Act between 10 April 1997 and 30 June 2007 can be revoked for migration related fraud only within the meaning of s21(1A) and (1B) of the old Act.

These sections are: “(1A) a person is taken to have obtained a certificate of Australian citizenship as a result of migration

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related fraud if and only if: (a) at any time (including a time after the grant of the certificate) the

person was convicted of an offence against section 234, 236, 243 or 244 of the Migration Act 1948, or section 134.1, 134.2, 135.1, 135.2, 135.4 or 136.1 of the Criminal Code, that was committed at any time before the grant of the certificate (including a time before the making of the application); and

(b) the act or omission that constituted the offence was connected with the persons entry into Australia or the grant to the person of a visa or of a permission to enter and remain in Australia.

(1B) Section (1A) does not apply to a person in respect of an offence if the Minister is satisfied that the act of omission that constituted that offence was not in any way (whether directly or indirectly) material to the person becoming a permanent resident.”

The third-party fraud provisions apply only to people who applied on or after 1 July 2007, the commencement of this Act.

SERVICE IN ARMED FORCES OF ENEMY COUNTRY (S35)


CHILDREN OF RESPONSIBLE PARENTS WHO CEASE TO BE CITIZENS (S36)

Under s36 a child’s Australian citizenship may be revoked if the child has a responsible parent who ceases to be an Australian citizen by renunciation, revocation or service in the armed forces of an enemy country. A child’s citizenship cannot be revoked while the child has another responsible parent who is an Australian citizen; or if revocation would result in the child becoming stateless.

Citizenship ceases at the time the decision is made revoking the child’s citizenship. The Citizenship Help Desk must be contacted in all cases where consideration is being given to exercising the Minister’s discretion to revoke a child of their Australian citizenship.

REVIEW OF DECISIONS (S52(1))

Section 52(1) provides that a decision under s36 to revoke a person’s Australian citizenship may be made to the AAT.

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CHAPTER 8 ATTACHMENT A - HISTORICAL PROVISIONS - CESSATION OF AUSTRALIAN CITIZENSHIP This part comprises:

s17 - repealed on 4 April 2002

People who did not cease their citizenship under s17

s20 - repealed on 8 October 1958

Burma - 4 January 1948

Papua New Guinea Independence

Children whose responsible parent ceased to be an Australian citizen.

A person may have ceased to be an Australian citizen under the old Act.

S17 - REPEALED ON 4 APRIL 2002

The provisions applied to people 21 years of age and over until 30 November and on and from 1 December 1973 to people aged 18 years and over. Before 1 December 1973, a person was ‘of full age’ if they were 21 or over. After this date, a person was ‘of full age’ if they were 18 or over.

Before 22 November 1984, an adult ceased to be an Australian citizen if they were outside Australia and acquired the citizenship of another country by some voluntary and formal act other than marriage.

Where a person acquired the citizenship of another country on or after 22 November 1984, an assessment needs to be made on whether the “sole or dominant purpose” of the person’s actions was to acquire the other citizenship. The key question is: “At the time they did the act or thing which resulted in the acquisition of the foreign citizenship, was their sole or dominant purpose to acquire that citizenship?”

Purpose is not to be equated with motive. The motive for acquiring the foreign citizenship (eg to work, vote, claim unemployment benefits etc) is irrelevant (Gugerli Federal Court case). Changes of intention subsequent to performing the relevant act or thing are irrelevant.

Those who voluntarily applied for, and subsequently acquired, the citizenship of another country will usually find it difficult to establish that the “sole or dominant purpose” of the act of applying was other than to acquire that citizenship. The fact that the reason behind the application was so that they would be eligible to obtain employment, hold a licence etc does not mean that the “sole or dominant purpose” was other than the acquisition of that citizenship.

From 22 November 1984, s17 contained an element of intention to acquire a foreign citizenship and established a link between the cause and effect of the act in question.

The element of intention (purpose) also means that s17 did not apply to a person who mistakenly thought they were applying for recognition of an existing citizenship (Gugerli Federal Court case).

PEOPLE WHO DID NOT CEASE THEIR CITIZENSHIP UNDER S17

Examples of circumstances in which an Australian citizen acquired another citizenship and did not lose their Australian citizenship:

After 22 November 1984, the incidental acquisition of another citizenship or nationality as the result of doing an act or thing for another purpose (for example, to obtain resident status).

Automatic re-acquisition of Italian citizenship by Italian born Australians after one year of continuous uninterrupted residence in Italy with resident status.

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Acquisition of Rhodesian citizenship during the period of the Unilateral Declaration of Independence (11 November 1965 - 18 April 1980).

Acquisition of Singaporean citizenship during the period of internal self-government (1 November 1957 - 2 June 1959) provided that citizenship of the United Kingdom and Colonies was not acquired at the same time.

Acquisition of another nationality or citizenship automatically solely as a result of marriage. This does not include where the person was required to apply for that citizenship.

Exercise of an entitlement to a travel document, identity card, or other evidence of a citizenship of a country other than Australia, by a person who is a dual national of both Australia and that country.

Where it is clear that a person has ceased Australian citizenship under s17, the person should be advised that they may be eligible to apply to become an Australian citizen again.

Where there are doubts as to whether a person has ceased their Australian citizenship under s17, the matter should be referred to the Citizenship Help Desk for advice.

S20 - REPEALED ON 8 OCTOBER 1958

Australian citizens by registration or naturalisation automatically ceased to be Australian citizens if they were outside of Australia and New Guinea for a continuous period of 7 years between 26 January 1949 and 8 October 1958, unless:

they had given notice of intention to retain citizenship during the second and each subsequent year of their absence or at such other times, within the seven years, as specially approved by the Minister and/or

they were abroad in the service of an Australian government, an international organisation (of which Australia was a member) or an Australian employer or

they were a minor residing with their responsible parent or guardian who was an Australian citizen.

If a person holds a Certificate of Naturalisation or a Certificate of Registration, the length, and if necessary the purpose, of absences from Australia from 1949 to 1958 need to be considered. Where an absence was for less than a full period of 7 years before 8 October 1958, the person would not have ceased Australian citizenship under s20. If an absence of 7 years or more occurred during this period, the ACT and Regions Office should be asked to check compliance with the s20 requirement for an annual notice of intention to retain Australian citizenship.

BURMA - 4 JANUARY 1948

Burmese citizens domiciled in the Commonwealth on 4 January 1948 who did not make a declaration electing to remain a British subject, or Australian citizen, may have lost their British subject status.

PAPUA NEW GUINEA INDEPENDENCE

Australian citizens who automatically acquired Papua New Guinea citizenship on 16 September 1975 may have ceased their citizenship under s17 - see Chapter 15 - People born in Papua New Guinea.

CHILDREN WHOSE RESPONSIBLE PARENT CEASED TO BE AN AUSTRALIAN CITIZEN

A child may have ceased to be an Australian citizen under s23 of the old Act if a responsible parent ceased their Australian citizenship under s17 between 26 November 1949 and 3 April 2002 (the date of repeal of s17) or under s18 (renunciation), s19 (service in armed forces of an enemy country) or s21 (deprivation) and:

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the child did not have another responsible parent who was an Australian citizen (this requirement only applied in cases where s18 operated on or after 22 November 1984) and

prior to 22 November 1984, there was only one responsible parent who, in most cases, was the father and

the child was aged under 18 when the parent ceased to be an Australian citizen (or aged under 21 before 1 December 1973) and

immediately after the parent ceased to be an Australian citizen, the child became a national or citizen of another country.

The child’s other citizenship does not need to be the same as that of the relevant responsible parent.

ACIs - Chapter 9


CHAPTER 9 - EVIDENCE OF AUSTRALIAN CITIZENSHIP

This chapter comprises: Overview to Chapter 9 Application requirements Attachment A to Chapter 9 - Documents required to support name change Attachment B to Chapter 9 - Types of evidence issued since federation.

ACIs - Chapter 9


OVERVIEW TO CHAPTER 9 This part comprises:

Evidence of Australian citizenship (s37)

Form of notice (reg 10).

Part 2, Division 4 of the Act covers evidence of Australian citizenship.

A notice issued under the Act is prima facie evidence that the person whose name and date of birth appears on the notice acquired Australian citizenship on the specified date, and was an Australian citizen on the date the notice was issued.

Any person can apply for evidence of their Australian citizenship.

Applications for citizenship by conferral and for resumption of citizenship are also applications for evidence of Australian citizenship.

The Act refers to an application for “evidence” of Australian citizenship, and that the Minister may give a person notice that they are an Australian citizen at a particular time. The notice must be in a form prescribed by the regulations and contain any matters prescribed by the regulations.

With effect from 1 July 2007, all evidence given under the Act will be in the same form. See Form of notice (reg 10) for more information.

EVIDENCE OF AUSTRALIAN CITIZENSHIP (S37)

A finding of fact can be made on whether a person is in fact an Australian citizen and can be given a notice stating that the person is an Australian citizen under s37(2).

Many Australian citizens acquire citizenship automatically - see Chapter 2 - Automatic acquisition of citizenship. Others become citizens by conferral or resumption and if so the details of acquisition will be recorded in the Department’s database systems. Some people who were citizens subsequently ceased to be citizens and, if so, the details of the cessation of citizenship may or may not be recorded in the Department’s database system - see Chapter 8 - Cessation of Australian citizenship.

Processing applications for evidence of Australian citizenship, as from 15 September 2010, for children born in Australia to Australian citizen/permanent resident parent

Applications for evidence of Australian citizenship for children born in Australia to Australian citizen/permanent resident parent, where it would appear that the Australian citizen/permanent resident parent is a non biological parent, should be sent to Citizenship Policy Section, National Office, via the Citizenship Help Desk for decision. The decision maker should ask the parent to provide evidence of the length and nature of the relationship with the child, as well as evidence of the length and nature of the relationship with the biological parent of the child.

In cases where a person is born in Australia to a biological parent who is an Australian citizen/permanent resident, and subsequently applies for a certificate of evidence of Australian citizenship, and the decision maker is satisfied that the person is the child’s biological parent, and also an Australian citizen/permanent resident, current procedures remain in place.

Must be satisfied of the identity

Section 37(4) requires that evidence of Australian citizenship must not be given unless the decision maker is satisfied of the identity of the person.

In addition to being a legislative requirement under the ACA, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship where they are not satisfied of the person’s identity.

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Identity is critical to a finding as to whether a person is in fact an Australian citizen and the decision maker is to ensure that the evidence is issued in the person’s current legal identity. This is a very high bar and decision makers are to ensure that their decisions are in accordance with this legislative requirement.

When a person applied for citizenship, the personal/ biographical and personal identifiers they provided were accepted as evidence of their identity, unless there was evidence to the contrary. The necessary security and criminal checks will have taken place under the identity the person provided to the Department at that time.

Decision makers who consider that a person who is applying for evidence of citizenship has amended/ is amending their personal information to a point where there is a change of identity, are to refer the case to the Citizenship Help Desk.

Change of personal details and a finding of fact about identity

Decision makers are to take into account the change of a person’s details where they have had their records (for instance name and/or date of birth), amended under the FOI Act or by a state/territory registrar of births deaths and marriages - see Attachment A to Chapter 9 - Documents required to support name change.

This information will feed into the finding of fact about the person’s identity under s37(4) of the ACA. As indicated above, the “identity test” is specific to the ACA and decision makers must turn their minds to it.

In most instances, changes to personal/biographic details are minimal and genuine, for instance, the addition or subtraction of a letter to a name. However, a change to personal/biographical data is a serious matter where the change leads to a different identity. Where a decision maker considers that the person has reverted to a former identity that the person had prior to applying for citizenship and they believe that fraud may be involved, the case is to be referred to Investigations to ensure that there have been no offences under s50 of the ACA.

Reaching a finding of fact about identity may, on occasions, take some time. Where there is doubt about the person’s identity, it could mean recalling files, checking personal identifiers; all in all ensuring that the person and identity applying for evidence are consistent with the person who applied for and was approved for citizenship. A decision maker could call for the person’s immigration files where they suspect that there may have been some offence under s50 of the ACA - see section Investigation of possible offences.

In reaching a finding of fact about the person’s identity, decision makers are expected to consider issues such as:

the reason that the person provided the original personal information relating to their identity when they applied for citizenship

the reason for changing their personal information

whether the person has had any other amendments such as dates of birth/names and the reasons for those changes

the documentation that was provided to support the change of personal information.

This list is in no way exhaustive and decision makers are to be guided by the circumstances of each case. It is preferable that decision makers obtain such information from the applicant at interview. Officers and decision makers are to bear in mind that our client group come from various and differing backgrounds and the interviews are to be conducted in a sensitive and appropriate manner.

It is open to decision-makers to refer documents to the document examiner or the relevant overseas post where clarification is sought about the authenticity of the documents.

ACIs - Chapter 9


FORM OF NOTICE (REG 10)

Cancellation

A notice which is evidence of citizenship is an accountable document, and would usually be cancelled in the following circumstances:

a new notice is to be issued to the person

the person did not make a pledge, and as a result did not become a citizen, on the planned date

details on the notice are inaccurate

the person has ceased to be an Australian citizen

the notice has been defaced/altered.

However, if the person applying for a new notice was included on a parent’s evidence of citizenship (a citizenship certificate), and the parent’s evidence is still in use by the parent the evidence should not be cancelled but a note placed on the Department data storage system.

Cancellation of a notice must be recorded in the Department’s data storage system and, wherever possible, the notice which has been cancelled must be destroyed in accordance with Chief Executive Instruction 17 “Accountable Documents and Securities”.

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APPLICATION REQUIREMENTS This part comprises:

Application requirements (s46)

Information and documents to accompany applications (reg 12)

Fees to accompany application (reg 12A)

Refund of fees (reg 13)

Altering evidentiary notice (s39).


Applications must:

be on the form approved by the Minister


be accompanied by any other information prescribed by the regulations and

be accompanied by a fee (if any) prescribed by the regulations.

The approved forms for applications for evidence of Australian citizenship are:

Form 119 Application for evidence of Australian citizenship

Form 1290 Application for Australian citizenship by conferral - Other situations

Form 1300t Application for Australian citizenship by conferral - General eligibility and

Form 132 Becoming an Australian citizen again - Application to resume Australian citizenship.

If an applicant is under 16 years of age a responsible parent must sign the application form. Responsible parent is defined in s6, see Chapter 1 - Preliminary and definitions.


an endorsed passport size photograph full birth certificate of the applicant or its equivalent


other identification documents which include a signature, photograph and current address (for example, driving licence and credit card/utilities bill)




FEES TO ACCOMPANY APPLICATION (REG 12A)

Under reg 12A, an application for evidence of Australian citizenship must be accompanied by the fee mentioned in item 20 of Schedule 3 unless that application is made at the same time and on the same form as an application:

to become an Australian citizen (form1300t/1290) or

to resume Australian citizenship (form 132).

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REFUND OF FEES (REG 13)

The citizenship application fees increased on 1 July 2009. If an applicant paid a fee in connection with an application for citizenship (see s46) before 1 July 2009 and is subsequently entitled to a refund, they must be refunded the amount specified by the regulations in force at the time the fee was paid.

ALTERING EVIDENTIARY NOTICE (S39)

Under s39 it is an offence to alter a notice which is evidence of Australian citizenship, including by amendment or endorsement. A notice which is incorrect may be cancelled and replaced.

State/territory officers should ensure that all local government authorities within their area are aware that alterations must not be made. If a local government authority is asked to amend an evidence of citizenship, they must advise the person to contact the Department. Alterations detected must be referred to an officer of at least Executive level 1 for further action.

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ATTACHMENT A TO CHAPTER 9 - DOCUMENTS REQUIRED TO SUPPORT NAME CHANGE

REASON FOR NAME CHANGE

DOCUMENTATION WHICH IS REQUIRED TO BE PROVIDED

Marriage Marriage certificate issued by an Australian RBDM.

Note: Marriage certificates issued by marriage celebrants or religious leaders and overseas marriage certificates are not acceptable.

Clients who have married overseas and wish to have evidence of citizenship in their married name must obtain an official change of name certificate from an Australian RBDM.

Divorce Australian divorce certificate issued by the Family Court.

Note: Overseas divorce certificates are not acceptable evidence of a change of name. Clients who were divorced overseas, and wish to have evidence of citizenship in another name must obtain an official change of name certificate from an Australian RBDM.

Anglicisation of a name

Change of spelling of a name

Change of name for any other personal reasons

Change of name certificate from an Australian RBDM or, if client registers change of name with the RBDM in the state/territory in which they were born, a new full birth certificate which shows both the birth name and new name.

Death of spouse Death certificate issued by an Australian RBDM and, if necessary, full birth certificate or marriage certificate issued by an Australian RBDM.

Gender reassignment Medical certificate stating that the person had undergone a complete gender reassignment or change of details certificate - see Chapter 6 of the Citizenship Processing Manual.

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ATTACHMENT B TO CHAPTER 9 - TYPES OF EVIDENCE ISSUED SINCE FEDERATION

IDENTIFICATION OF TYPES OF EVIDENCE ISSUED SINCE FEDERATION


Naturalization Act 1903-1917

Nationality Act 1920-1946

Nationality and Citizenship Act 1948 - Now the Australian Citizenship Act 1948

Changes since 1 July 2007

Effect of naturalization of husband upon married women between 1/1/1921 and 25/1/1949.

Naturalization Act 1903-1917

(A) Naturalization Act 1903 - 1/1/1904 to 19/9/1917

Series

Numerical only Names of children not included.

1/1/1904 - 19/9/1917 Child (under 21) became naturalized by reason of father’s naturalization if he resided here at any time during infancy and during currency of Act. It made no difference whether born before or after father’s naturalization.

(B) Naturalization Act 1903-1917 - 20/9/1917 to 31/12/1920

Series

(1)

2A Series

3C Series

Numerical carried over from Act of 1903

20/9/1917 - 31/12/1920

Names of children not included on certificate. Child automatically became naturalised provided he was an infant (under 21 years) at time of father’s naturalization and has resided in Australia as an infant (and of course prior to the repeal of the Act).

* Note: Claims of citizenship on these grounds are to be referred to the Citizenship Help Desk, with particulars of parents’ citizenship and of child’s birth and residence in Australia.

Nationality Act 1920-1946

Series Dates of issue To whom issued

AA 1/1/1921 - 31/3/1937 Single persons and divorcees, widows and widowers without children affected by Naturalization.

BB 1/1/1921 - 31/3/1937 Married person without children affected by naturalization.

CC 1/1/1921 - 31/3/1937 Married applicants with children to be included.

D 1/1/1921 - 31/3/1937 Persons locally naturalized under previous legislation. (Could include children).

E 1/1/1921 - 31/3/1937 Persons with respect to whose nationality as a British subject a doubtexisted.

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F 1/1/1921 - 31/3/1937 Minor children

G 1/1/1921 - 31/3/1937 Natural-born British subject whose husband was an enemy alien.

A(1) 1/4/1937 - 25/1/1949 Any person without children affected by naturalization.

A(NG) 13/8/1946 - 25/1/1949 Residents of New Guinea.

A(2) 1/4/1937 - 25/1/1949 Applicants with children to be included.

B 1/4/1937 - 25/1/1949 Same as type D above.

C 1/4/1937 - 25/1/1949 Same as type E above.

D 1/4/1937 - 25/1/1949 Same as type F above.

E 1/4/1937 - 25/1/1949 Same as type G above.

It should be noted that during currency of Nationality Act 1920-1946 only children whose names were actually included on parent’s certificate became naturalized. Inclusion took place (a) at time of issue or (b) by subsequent endorsement. See also notes on Effect of naturalization of husband upon married women between 1/1/1921 and 25/1/1949.

Nationality and Citizenship Act 1948 - Now the Australian Citizenship Act 1948


(A) Certificates of Naturalization for Issue to Aliens

E(1) 26/1/1949 - 25/1/1955 Issued to applicants without children

E(2) 26/1/1949 - 25/1/1955 Issued to applicants with children under 21 years to be included

D&F 26/1/1949 - 25/1/1955 Issued to cases of doubt

EA 26/1/1949 - 4/2/1970 Certificates issued to minors (under 16 years)

(B) Registration Certificates for Issue to British Subjects and Irish Citizens

C(1) 26/1/1949 - 25/1/1965 For issue to applicants without children to be included.

C(2) 26/1/1949 - 25/1/1965 For issue to applicants with children under 21 years to be included.

(C) Certificates of Naturalization

EM(1) 26/1/1955 - 4/2/1970 For issue to male applicants without children

EF(1) 26/1/1955 - 4/2/1970 For issue to female applicants without children.

EM(2) 26/1/1955 - 4/2/1970 For issue to male applicants with children included.

EF(2) 26/1/1955 - 4/2/1970 For issue to female applicants with children included.

Certificate in case of doubt continued to be issued.

(D) Certificates of Registration

CM(1) 26/1/1965 - 4/2/1970 For issue to males without children.

CF(1) 26/1/1965 - 4/2/1970 For issue to females without children.

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CM(2) 26/1/1965 - 4/2/1970 For issue to males with children included.

CF(2) 26/1/1965 - 4/2/1970 For Issue to females with children included.

Note: Up to 10/5/1955 Children under the age of 21 years were included on certificates of naturalization and registration.

Act No. 1 of 1955 which came into force on 11/5/1955 provided that as from that date only children under the age of 16 years could be included on certificates.

(E) Certificates of Citizenship Issued Between 5/2/1970 and 30/11/1973

AM(1) 5/2/1970 - 30/11/1973 Issued to male aliens.

AF(1) 5/2/1970 - 30/11/1973 Issued to female aliens.

AM(2) 5/2/1970 - 30/11/1973 Issued to male aliens with children included.

AF(2) 5/2/1970 - 30/11/1973 Issued to female aliens with children included.

AE 5/2/1970 - 30/11/1973 Issued to minors (u. 16 years) or anyone excluded from taking an oath or making an affirmation of allegiance.

BM(1) 5/2/1970 - 30/11/1973 Issued to male British subjects.

BF(1) 5/7/1970 - 30/11/1973 Issued to female British subjects.

BM(2) 5/2/1970 - 30/11/1973 Issued to male British subjects with children included.

BF(2) 5/2/1970 - 30/11/1973 Issued to female British subjects with children included.

(F) The Australian Citizenship Act 1948-73

The Australian Citizenship Act 1973 changed the title of the Principal Act to the Australian Citizenship Act 1948.

As from 1/12/1973 British and aliens were placed on the same footing, met the same requirements for citizenship and were issued with the same type of certificate.

(G) Certificates of Citizenship Issued 1/2/1973 to 30/9/1976

AC(G) 1/12/1973 - 30/9/1976 Issued to all applicants over 16 years of age regardless of whether British or alien or whether children to be included. Provision made on reverse side to include children. If children were included, a facsimile signature of the Minister was added by rubber stamp.

AC(S) 1/12/1973 - 30/9/1976 Issued in cases of doubt under s32 of the Act.

AC(M) 1/12/1973 - 30/9/1976 Issued to minors.

(H) Certificates of Citizenship issued 1/10/1976 to 27/11/1980

CA(1) 1/10/1976 - 27/11/1980 Issued to people when no children included.

CA(2) 1/10/1976 - 27/11/1980 Issued to people when children under 16 included.

CA(M) 1/10/1976 - 27/11/1980 Issued to minors.

(I) Certificates of Citizenship Issued 28/11/80 to 30/9/84

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CG(1) 28/11/1980 - 30/9/1984 Issued to people when no children included.

CG(2) 28/11/1980 30/9/1984 Issued to people when children under 16 included.

CG(M) 28/11/1980 - 30/9/1984 Issued to minors.

(J) Certificates of Citizenship Issued 1/10/1984 to 8/12/1986

CAS 1/10/1984 - 23/10/1986 All grantees. Certificates issued between these dates were printed on thin paper and all details were on the front of the document.

CAS 24/10/1986 - 8/12/1986 All grantees. Certificates issued were printed on thicker paper and details of children were printed on the back of the document.

(K) Certificates of Citizenship Issued 26/11/1986 to 31/1/1989

ACS 26/11/1986 - 3/11/1989 All grantees (Note that there is some overlap with the “CAS” series).

(L) Certificates of Citizenship Issued 6/11/89 to Present

ACC 6/11/1989 - present All grantees.

(M) Declaratory Certificates of Australian Citizenship

(i) Issued since 26 January 1949 in evidence of citizenship status comprising of the series:

B, B(1), B(2), AC(D), AC(DM), CD and CD(M).

(ii) Series CAS issued 1/10/1984 - 8/12/1986.

Series ACS issued 26/11/1986 - 3/11/1989 (Note overlap with “CAS” series).

Series ACC issued 6/11/1989 - present.

(iii) Miniature declaratories were issued from 1970 - 31/10/1984 concurrently with large certificatesif requested.

(N) Evidentiary Certificates of Australian Citizenship

(i) Issued since January 1960 in evidence of acquisition of Australian citizenship in perusal for official and legal purposes. These were issued both in a large and a miniature format containingserial numbers only. The miniature series between 1965 and 1970 also contained the following prefixes: FM, F(1), F(2), F(3) and F(4).

(ii) BN was a special series of certificates issued between 1/5/1970 and 31/5/1974 to British subjects who acquired Australian citizenship by notification under s11C.

(O) Extracts from Register of Citizenship by Descent

Issued since 26/1/1949 as evidence of acquisition of citizenship by descent on registration. Prior to 22 November 1984 these documents were entitled “Extract from Register of Births Abroad”.

Changes since 1 July 2007

Citizenship Certificates/Evidences

On 1 July 2007, when the Act came into effect, the existing prefix (ACC) on the Conferral and Declaratory Certificates (now called Evidences) were retained. The numbering sequence continued from the certificates issued under the old Act to the new Act.

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The text of the “evidences” was amended to reflect that set out at Schedule 2 of the Regulations.

Extracts of Registration by Descent

The existing ROC prefix and the title “Extract from Register of Australian Citizenship” were changed on 1 July 2007 to CBD and “Citizenship by Descent”.

The inclusion of the ICSE client ID in addition to the Register and Entry number caters for the majority of posts who record and approve clients in ICSE as well as those DFAT posts who still use paper registers.

Copies of historical evidences are being gathered to form a Library of these valuable documents. Any requests for information on these can be addressed to the Citizenship Help Desk. Any historical documents that are handed in to offices can be sent to Kerry Edwards, Citizenship Operations and Systems Section, National Office.

Effect of naturalization of husband upon married women between 1/1/1921 and 25/1/1949

Married women were under disability under the Act and this meant that they could do nothing in their own right to either acquire or lose British nationality unless their husbands did so.

Between 1/1/1921 and 31/3/1937 the wife of a person who became naturalized ie, BB and CC certificates - automatically became a British subject by virtue of s18 of the Nationality Act which said “the wife of a British subject shall be a British subject”. They were not persons naturalized although reading the endorsement on the reverse side of the certificate it would appear they were naturalized. This became important later on when s20 of the Nationality and Citizenship Act 1948 was in force.

Section 18 of the Nationality Act was amended in 1937. Section 18(5) made provision for the wives of persons granted naturalization to acquire British nationality by making a Declaration of Acquisition of British nationality within twelve months of husband’s naturalization or within such extended period as the Minister allowed. The Declaration became effective as from the date upon which it was made before an authorised person and although declarations were generally registered in the Department, the act of registration did not affect validity in any way. This was the position between 1/4/1937 and 25/1/1949 when the Act was repealed.

*Note: No attempt should be made to determine a person’s national status from the information provided in this list alone, if there is any question at all of doubt.

Queries are to be directed to the Citizenship Help Desk.

ACIs - Chapter 10


CHAPTER 10 - CHARACTER



Good character requirement

Attachment A - Character summary

Attachment B - Processing applications that require an overseas penal clearance certificate

Attachment C - Quashed, pardoned and spent convictions.

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OVERVIEW OF CHAPTER 10 The Act requires that people aged 18 years and over seeking to become Australian citizens be of good character.

SUMMARY OF CHARACTER PROVISIONS BY TYPE OF APPLICATION

Descent Adoption under Hague Convention on Intercountry Adoption

Conferral Resumption

s16(2), s16(3) s19C(2) s21(2), s21(3), s21(4), s21(6), s21(7) s29(2), s29(3)

“Unless the terms of the Act and Regulations require some other meaning be applied, 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. The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion. 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.”

(Clough v MIMIA, 2005)

“Criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision maker will take that into account.”

(Clough v MIMIA, 2005)

“The standard of good character should be even higher for citizenship cases … because of the importance of citizenship and the greater responsibilities and privileges attached to it.”

(Mlinar v MIMA, 1997)

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GOOD CHARACTER REQUIREMENT This part comprises:

Key sources of information

Overseas penal clearance certificates

War crimes assessments

Applicants who are considered not to be of good character

Approved applicants who are, or may be, no longer of good character.

The term “good character” is not defined in the Act. Decision makers must therefore be guided by the ordinary use of the words in making assessments.

It is the responsibility of the applicant to show that they are of good character. If a decision maker is not satisfied that an applicant is of good character at the time the application is to be decided, the application must be refused. There is no legislative provision to defer an application made under the Act.

Note: A decision to refuse an application may be made on an assessment that a person is not of good character. If an application for Australian citizenship by conferral falls under one of the offence provisions listed in s24(6) Offences, the application must not be approved. Where a decision maker is to refuse because the applicant does not meet the s24(6) requirement, under citizenship policy, the decision maker must also assess the applicant against the relevant eligibility criteria set out in the Act, including residence and character requirements. This is required because if a case goes to review (for example, the AAT) the prohibition on approval may not still apply at the time of review. If only the prohibitions on approval have been considered the decision will be set aside and returned to the Department for a new decision which may result in another refusal if all criteria have not been assessed. For further information, see the Minister’s decision (s24) in Chapter 5 - Citizenship by conferral.

An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record. However, general conduct and associations may also be relevant. If there is evidence to suggest that an applicant may not be of good character, the applicant should be given the opportunity to respond to this evidence. An applicant’s behaviour does not have to be faultless, but the aggregate of their qualities must be weighed against ordinary community standards of behaviour.

The assessment of character for the purposes of the Act is a different and separate exercise to the assessment of whether a person meets the character requirements under the Migration Act.

An assessment that a person meets the character requirements under the Migration Act does not mean that the person is necessarily of good character for the purposes of the Citizenship Act.

A decision not to cancel a visa under the Migration Act is not a relevant consideration in the assessment of good character for the purposes of the Citizenship Act.

A decision under the Migration Act to cancel a visa is relevant only insofar as it affects the visa status of an applicant for citizenship. A person whose permanent visa has been cancelled would no longer meet the eligibility requirement for conferral under s21(2)(b).

The possible outcome of an application to the AAT for review of a decision to refuse an application for citizenship is not a relevant consideration in deciding whether or not an applicant meets the requirements of the Act. In other words, decision makers must not make decisions based on what the AAT may or may not decide if the application were to be refused and application made to the AAT for merits review.

For information on quashed, spent and pardoned convictions, see Attachment C - Quashed, pardoned and spent convictions.

ACIs - Chapter 10


Assessing good character involves:

establishing whether or not an applicant has a criminal record, and the nature of that record, if any

establishing whether or not an applicant may have been involved in crimes against humanity, without having criminal convictions, through having undertaken military or similar service or having held a position of authority in a country that has experienced conflict and serious human rights abuses

establishing whether or not there is other information relevant to the issue of character

according procedural fairness to the applicant where there is credible, relevant, and adverse information which the decision maker intends to take into account and

considering the full circumstances relating to the relevant matters, including any comments by the applicant, character references, and other evidence of the applicant’s behaviour.

A list of factors to which consideration should be given is at Attachment A - Character summary. They include:

the seriousness of any offences against ordinary community standards: crimes of violence, sexual abuse, drug trafficking, major fraud, harassment, stalking,

armed robbery, crimes against children and other crimes which have incurred a prison sentence or sentences totalling 12 months or more are ordinarily considered to be serious, and should be given due weight in an assessment

alternatively, less serious offences would be reflected by the leniency of a sentence and, possibly, in the remarks of the sentencing Judge. Decision makers may wish to obtain the comments made by the Judge in sentencing the applicant

association with persons or organisations alleged to have committed crimes against humanity

offences committed prior to the grant of a permanent visa that were concealed from the visa decision maker should not normally be given less weight. The fact of deliberate concealment may be an indicator of a continuing lack of good character.

whether or not an offence(s) committed overseas would be regarded as an offence in Australia. For example, a person charged with political offences in one country may not be considered guilty of a crime in Australia.

whether there are any on-going obligations in relation to the sentence received, such as a good behaviour bond. Section 24(6) provides that an application for citizenship by conferral must not be approved during such periods.

whether an offence was a one-off occurrence that can now be considered “out of character”, or part of an ongoing pattern of behaviour which would suggest that the applicant is not of good character. Where the offence was not out of character, consider whether the applicant has been rehabilitated (see below).

whether there were any extenuating circumstances relating to the offence. For example, an offence committed under periods of temporary psychological disturbance (including involuntary effects of medication, post-natal depression, battered wife syndrome) or under duress may be given less weight than if these circumstances did not exist. The onus is on the applicant to provide evidence supporting a claim of extenuating circumstances.

the applicants age at the time the offence(s) were committed. If the applicant committed the offence(s) at a young age, they may be given less weight depending on the nature of the crime and the applicant’s subsequent record. It may be possible that the person has matured and become more law-abiding than as a youth, and that offences from that period in their life are less indicative of their current character than their actions as an adult.

A person’s behaviour as evidenced by a criminal record is relevant to the assessment of character. Appropriate weight must be given to a person’s behaviour immediately prior to the making of a decision.

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A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.

The applicant’s behaviour since commission of a serious crime can in part be evidenced by the existence or otherwise of subsequent convictions. Other relevant factors that may be taken into account include whether or not the applicant has stable employment, their status in the community, involvement in activities indicating contempt/disregard or respect for the law or human rights.

The onus is on the applicant to demonstrate that there has been a change in their character since last offending.

The applicant’s present reputation in the community should also be considered. The applicant could demonstrate a good reputation in the community by providing references from reputable Australians, particularly employers (but not family members), attesting to their good character and whether they support the application for citizenship.

Decision makers are entitled to give substantially more weight to statutory declarations than to other statements. Declarations from character referees that acknowledge the person’s criminal background, and attest to a change in character since, should be given considerable weight.

KEY SOURCES OF INFORMATION

The key sources of information that will assist in establishing the facts as they relate to an applicant are:

the application form, which requires information relating to character online Australian police checks (OPCs) through CRIMTRAC. If checks reveal a criminal record, a print-out of the full record is provided to the Department. The record must be cross-checked to ensure that the information refers to the applicant under consideration. CrimTrac checks are to be carried out on all applicants 18 years and older

the application form which asks the applicant whether they have committed, or been involved in the commission of war crimes or crimes against humanity or human rights overseas or in Australia

if an application is made overseas, or if an applicant has spent 12 months or more overseas after grant of a permanent visa (and within the previous 10 years for all applicants except where applying for citizenship by conferral), the applicant should be asked to provide overseas penal certificates for those other countries in which they have resided. See Overseas penal clearance certificates

other Departmental systems checks including the Movement Alert List (MAL) and TRIM. Note: If there is a MAL match relating to crimes against humanity or war crimes, contact the War Crimes Section, National Office via email: [email protected]. Information about screening of citizenship applications regarding crimes against humanity and war crimes can be found in PAM3: Act - Character - Crimes against humanity - Screening of visa & citizenship applicants.

Applications for Australian citizenship by descent where article 1(2)(iii) of the Stateless Persons Convention may apply should also be referred to the Citizenship Help Desk (see the definition of Stateless Persons Convention in Definitions (s3) of Chapter 1 Part 1 of the Act - Preliminary).

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OVERSEAS PENAL CLEARANCE CERTIFICATES

The Act requires that the applicant is of good character at the time of the Minister’s decision. One of the mechanisms used to assess good character is an overseas penal clearance. The application forms state that in certain circumstances, applicants are to provide penal clearance certificates from overseas countries in certain circumstances. In the interests of having their applications assessed without unnecessary delay, applicants should provide their overseas penal clearance certificates at time of application or when requested to do so by the officers.

Time spent outside Australia

The general rule of thumb is that if a person is applying for citizenship in Australia and has spent a reasonable amount of time overseas since becoming a permanent resident they will be asked to provide an overseas penal clearance certificate.

Generally, there are 2 instances where an overseas penal clearance is required:

firstly, where the person is over the age of 18 years and, since becoming a permanent resident, has been overseas: for a period of time that cumulatively is 12 months or more and the time spent in any one country was a continuous period of more than 90 days.

secondly, where the applicant has spent less than 12 months outside Australia but spent a continuous period of more than 90 days in one country.

Decision maker can request a penal clearance certificate

Where the decision maker considers it relevant to the assessment of an applicant’s claims of good character, they can request an overseas penal clearance certificate irrespective of the amount of time a person has spent overseas or the period of time spent within a country. This is a matter of judgment and depends on the circumstances of each case. Officers can seek further assistance from the Citizenship Help Desk in regard to this matter.

Applications for citizenship by conferral

Applicants will need to provide penal clearance certificates from overseas countries if since the grant of a permanent Australian visa:

they have lived or travelled overseas since the age of 18 years or over and


the time spent in any one country was a continuous period of more than 90 days.

Application forms also state that clients must provide penal clearance certificates if requested to do so by the Department.

There is no 10 year limit for the requirement to provide overseas penal clearance certificates for applicants applying for Australian citizenship by conferral.

In the case of New Zealand citizens applying for Australian citizenship by conferral, see Attachment A - Character requirements for New Zealand citizens of Chapter 14 - New Zealand citizens in Australia.

For policy and procedure on processing applications that require an overseas penal certificate, see Attachment B - Processing applications that require an overseas penal clearance certificate.

Applications for citizenship by descent

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Although many of the legislative provisions for this stream were amended with the introduction of the 2007 legislation, the policy regarding overseas police clearances remains unchanged and penal clearances are required for the last 10 years. This instruction reiterates the long standing policy for this application stream.

The legislation requires applicants who are 18 years or older to be of “good character”.

Applications by descent differ in that most adult applicants have lived in a country other than Australia prior to lodging their application and some applicants may never have travelled to Australia. To assist decision makers in assessing the character requirement, applicants from this stream are to provide an overseas police clearance from:

the country in which they have been living

where they have visited/lived in another country for a continuous period of 90 days or more and

where the country of residence is different to the country of their nationality or

where the decision maker considers it appropriate to request an overseas penal clearance.

Note: Where the applicant has travelled to Australia, an onshore police clearance from the AFP is also required. Officers are to check the MR database in relation to any travel to Australia undertaken by the applicant.

Applications for citizenship by resumption or full Hague adoption.

Applicants will need to provide penal clearance certificates from overseas countries if in the last 10 years:

they have lived or travelled overseas since the age of 18 years and


the time spent in any one country was a continuous period of more than 90 days.

Application forms also state that clients must provide penal clearance certificates if requested to do so by the Department.

For more information on penal clearance certificates see the Character Requirements Penal Clearance Certificates (formerly known as form 47P): http://www.immi.gov.au/allforms/character-requirements/index.htm.

Applicant unable to obtain police clearance

Applicants may not be able to obtain police clearances for several reasons, for instance, certain countries may not allow individuals to obtain penal clearance certificates. The procedures for these applicants are outlined in PAM3: Sch4/4001 - Penal checking procedures. This instruction is FOI exempt and is available to Departmental staff with the appropriate security clearance upon request from the Character Section, National Office. Officers should also discuss individual cases with the Citizenship Help Desk.

Applicants aged 70 years or older

Decision makers may use their discretion to not request an overseas police clearance where an applicant aged 70 years or older who has resided in Australia and has not travelled overseas for the last 20 years. This is particularly relevant where the applicant:

suffers from permanent or enduring physical or mental incapacity and

the onshore police check indicates that the person has no convictions or spent convictions.

In all other cases, where officers consider that discretion is appropriate for applicants aged 70 years or older, officers are to discuss with the Character Team, Citizenship Helpdesk.

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WAR CRIMES ASSESSMENTS

Crimes against humanity are committed in many countries and it is recognised that individuals involved in such crimes may seek to enter, or currently reside in, the Australian community.

Involvement in the commission of crimes against humanity is an important consideration in the assessment of a person’s character for the purposes of the Act.

If citizenship applicants are suspected of having been involved in crimes against humanity, the War Crimes Unit, National Office should be requested to undertake an assessment of the applicant’s potential involvement in such crimes. Following assessment of the allegations, the War Crimes Unit will issue either an adverse or non-adverse assessment, or will indicate no assessment can be provided.

Notifying National Office

The Citizenship Helpdesk and the War Crimes Unit must be advised of all applications where allegations of war crimes are involved.

Adverse Assessments

An adverse assessment is an important consideration in the assessment of a person’s character. The War Crimes Unit will provide a copy of the assessment to the case officer.

Procedural fairness must be provided

Procedural fairness must be provided to applicants subject to an adverse war crimes assessment.

The War Crimes Unit will advise of the information from an adverse assessment that must not be released to the applicant.

Non-adverse assessments

Where the War Crimes Unit has provided an assessment about an applicant with no adverse information, processing of their application for Australian citizenship can proceed as normal.

No assessment can be provided

The War Crimes Unit may advise that an assessment cannot be undertaken as the applicant has been unable or unwilling to provide the requested information to undertake an assessment. An example of this may be that the applicant is unable, or unwilling, to provide their military service record.

In these circumstances, case officers should seek further evidence from the applicant on their attempts to obtain the requested information. The War Crimes Unit can advise whether the requested information is readily available from the particular country. Where it is impossible to obtain the requested information from a particular country, applicants should be asked to make a statement, in the form of a statutory declaration, about their military service and also complete a character statutory declaration.

In circumstances where the applicant is unwilling to provide the information requested, case officers should advise the applicant that the character assessment will be made on the available information, and in the absence of the requested information and subsequent assessment, it may not be possible for the case officer to be satisfied the applicant is of good character.

For further information regarding war crimes assessments for citizenship applicants, see PAM3: Act - Character - Crimes against humanity - Screening of visa & citizenship applicants.

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APPLICANTS WHO ARE CONSIDERED NOT TO BE OF GOOD CHARACTER

If there is credible and relevant information regarding an applicant, such that a decision maker is likely to refuse the application, the information should be put to the applicant, at interview or in writing, and the applicant invited to respond to or comment on the information.

If having considered the information, the decision maker is satisfied that the applicant is of good character, the information need not be put to the applicant.

Adverse personal information that is not relevant to the decision, or is not credible, need not be put to the applicant. The decision maker, however, should note in the decision record that the information was not taken into account.

If the checks do not reveal a criminal record and there is no other credible and relevant information, the decision maker may determine that, on the balance of probabilities, the person is of good character.

APPROVED APPLICANTS WHO ARE, OR MAY BE, NO LONGER OF GOOD CHARACTER

If, after an application for conferral of Australian citizenship has been approved, it comes to attention that the person is under criminal investigation but has not been convicted, or is being investigated for cancellation of a visa, the making of the pledge of commitment by the person may be delayed under s26(3) of the Act. If the person is considered no longer to be of good character, the approval of their application may be cancelled under s25 of the Act.

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ATTACHMENT A - CHARACTER SUMMARY

CHARACTER - SUMMARY

Criminal record considerations:

Seriousness of any offences - for example, crimes of violence, sexual abuse, drug trafficking, major fraud, harassment, stalking, armed robbery, crimes against children, war crimes, violations of human rights.

Length of any prison sentence - a sentence totalling 12 months or more, or 2 or more terms of imprisonment where the total is 2 or more years.

Repeat convictions for the same offence indicate a serious repeat offender.

Repeat criminal behaviour over time - when different offences occur.

Concealment of any offences - may be an indicator of a continuing lack of good character.

Any on-going obligations in relation to a sentence received - (eg bond, security or parole).

Length of time between last offence and application for Australian citizenship.

Convictions for offences in another country - for example, political offences which may not be criminal offences in Australia.

Existence of extenuating circumstances in relation to the crime(s) committed - for example, temporary psychological disturbance (including post-natal depression, battered wife syndrome, involuntary effects of medication).

Age at which the crimes committed - crimes committed as a juvenile may be given less weight than those of an adult.

Associations with other criminals or criminal organisations - may indicate poor character.

A single offence may be considered “out of character” - however, due weight must be given to the type of offence.

Involvement in crimes against humanity (without conviction) establishing whether or not an applicant may have been involved in crimes against humanity, without having criminal convictions, through having: a) directly participated in the commission of crimes against humanity; or b) an association with persons or organisations alleged to have committed crimes against

humanity, while undertaking military or similar service or holding a position of authority in a country that has experienced conflict and serious human rights abuses.�

Other factors:

Evidence of length of employment, stable family life and community involvement can be indicators of character.

Reputation in the community should also be considered - referee reports, references and especially statutory declarations from non-family members can indicate changes in character.

Financial debts where there is no conviction for an offence or the debts are not being pursued are not grounds for considering an applicant to be of bad character.

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ATTACHMENT B - PROCESSING APPLICATIONS THAT REQUIRE AN OVERSEAS PENAL CLEARANCE CERTIFICATE Movement records should be checked to determine whether an applicant needs to provide overseas penal clearance certificates.

Applicants who meet the relevant criteria listed below, but who have not provided the required overseas penal clearance certificates with their application should be asked to do so.

Decision makers should consider requesting a penal clearance certificate where a client has spent less than 12 months outside Australia but spent a continuous period of more than 90 days in one country.

Applications for citizenship by conferral

Movement records should be checked to determine whether an applicant, since the grant of a permanent Australian visa:

• has lived or travelled overseas since the age of 18 years or over; and

• the total time spent overseas added up to 12 months or more.

Applicants who meet the above criteria must provide penal clearance certificates from all overseas countries where they have spent a continuous period of more than 90 days since the age of 18 years.

Applications for citizenship by descent, resumption and full Hague adoption.

Movement records should be checked to determine whether an applicant in the previous 10 years:

• has lived or travelled overseas since the age of 18 years or over; and

• the total time spent overseas added up to 12 months or more.

Applicants who meet the above criteria must provide penal clearance certificates from all overseas countries where they have spent a continuous period of more than 90 days since the age of 18 years.

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ATTACHMENT C - QUASHED, PARDONED AND SPENT CONVICTIONS A quashed conviction is one that has been set aside by a court.

A pardon means a free and absolute pardon granted because a person was wrongly convicted.

Under the Crimes Act 1914 applicants are not required to disclose quashed or pardoned convictions. If a delegate does become aware of such convictions, they may not be taken into account.

A spent conviction is a conviction for which a person:

was not sentenced to more than 30 months imprisonment and

it is 10 years (5 years for child offenders) since the date of conviction and

the person has not re-offended during the 10 years (5 years for child offenders) waiting period or

has been granted a pardon for a reason other than that the person was wrongly convicted of the offence.

In relation to spent convictions, under the Crimes Act 1914 people generally do not have to disclose them. However, applicants under the new Act are excluded from the operation of the spent conviction regime. Consequently, all applicants are required to disclose all spent convictions in their applications. This also applies to crimes committed in other countries that may be spent under foreign legislation.

ACIs - Chapter 11


CHAPTER 11 - PERSONAL IDENTIFIERS This chapter comprises:


Personal identifiers under the Act

Obtaining personal identifiers

Obligations relating to identifying information

Attachment A - The relevant Information Privacy Principles (IPPs)

Attachment B - Access & disclosure.

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OVERVIEW OF CHAPTER 11 The purpose of this chapter is to provide guidance to Departmental officers on the requirement for, and collection, use, storage and destruction of, personal identifiers for the purposes of the Act.

Personal identifiers can only be collected and used to identify, or authenticate the identity of, a person making an application for citizenship or sitting a test or making an application for evidence of citizenship, or to assist in combating document and identity fraud in citizenship matters.

Under the general eligibility provisions the Minister must be satisfied of the person’s identity. If the Minister or delegate is not satisfied of a person’s identity they cannot sit a test. This is set out in the Minister’s determination made under s23A of the Act.

Sections 17(3), 19D(4), 24(3), 30(3), 33(4) and 37(4) of the Act require that, before an application is approved, the Minister must be satisfied of the person’s identity. If a person’s identity cannot be verified the application cannot be approved.

Division 5 of Part 2 of the Act provides the legislative framework for collecting personal identifiers from people seeking to sit a test, or applying for Australian citizenship or evidence of Australian citizenship.

It is important to recognise that personal information is not the same as personal identifiers.

Personal information is non-specific data such as sex, date and country of birth, occupation and marital status. The use, storage and disclosure of personal information collected for citizenship purposes are all protected under the Privacy Act. In contrast, personal identifiers are any of the following:

fingerprints or handprints of a person (including those taken using paper and ink or digital live scanning technologies)

a measurement of a person’s height and weight

a photograph or other image of a person’s face and shoulders

an iris scan

a person’s signature

and any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure as defined in s23WA of the Crimes Act 1914. For the purposes of the Act, identifying information is any personal identifier which is collected from the applicant for the purposes of the Act, and any additional information which can be used for identification purposes and is obtained either directly or indirectly from a personal identifier collected from a person.

ACIs - Chapter 11


PERSONAL IDENTIFIERS UNDER THE ACT This part comprises:

Personal identifiers (s10)

Definitions (s3).

PERSONAL IDENTIFIERS (S10)


Fingerprints or handprints of a person

Measurement of a person’s height and weight

Photograph or other image of a person’s face and shoulders

Iris scan

Person’s signature

Any other identifier prescribed by the regulations. As defined in s10 of the Act, a personal identifier is any of the following in actual or digital form.

Fingerprints or handprints of a person

Prints are not currently required to be provided. Prints could be captured anywhere an ink or paper imprint is used or a digital scan of the fingerprint or handprint is taken.

Measurement of a person’s height and weight

These measurements are not currently required to be provided. The measurement of a person’s height or weight can be taken in any form that provides a meaningful indication of the person’s actual individual measurements in order to be best able to appropriately identify the person.

Photograph or other image of a person’s face and shoulders

This personal identifier is required to be provided where a person seeks to make an application for citizenship or evidence of citizenship.

When making an application for citizenship, or evidence of citizenship, the photograph must be endorsed on the back by a person who meets the policy guidelines for the purposes of making a proof of identity declaration. Form 1195 has details on the “proof of identity declaration”. Policy is that the photograph or other image is to be similar to a passport photo, that is, to be clear and show a person’s features enough to allow a person to be recognised by the image.

“Photograph” includes a digital image taken by an officer of the Department.

Iris scan

Iris scans are not currently required to be provided. They would need to be taken by an appropriate biometrics operator and on recognised biometrics software which will enable a positive identification of that person.

Person’s signature

This personal identifier is currently required to be supplied with an application where it is a part of the declaration made in respect of that application.

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Any other identifier prescribed by the regulations

Currently, no additional identifiers are prescribed. The Act limits the types of personal identifiers that can be prescribed. Intimate forensic procedures or images of the internal parts of the body can not be prescribed. For example, requests for blood tests or the capture of ultrasound images. The definition of “intimate forensic procedures” can be found in s23WA of the Crimes Act 1914.

Identifiers can be prescribed only if necessary for assisting in the identification, or authenticating the identity, of an applicant under the Act or combating document or identity fraud in citizenship matters.

DEFINITIONS (S3)

“disclose, in relation to identifying information that is a personal identifier provided under Division 5 of Part 2, includes provide unauthorised access to the personal identifier.

Note: Section 42 deals with authorised access to identifying information.

‘Disclose’ means provide access to a personal identifier, whether the access is authorised or unauthorised.

entrusted person means:

(a) the Secretary of the Department; or

(b) an APS employee in the Department; or

(c) a person engaged under section 74 of the Public Service Act 1999 by the Secretary of the Department; or

(d) a person engaged by the Commonwealth, the Minister, the Secretary of the Department, or by an APS employee in the Department, to do work for the purposes of this Act or the regulations or of the Migration Act or the regulations made under that Act.

‘Entrusted person’ as defined includes all employees of the Department of Immigration and Citizenship, whether they be ongoing, non-going or contracted staff, and people engaged to do work for the purposes of the Act or Regulations or the Migration Act or Regulations.

identifying information means the following:

(a) any personal identifier provided under Division 5 of Part 2;

(b) any meaningful identifier derived from any such personal identifier;

(c) any record of a result of analysing any such personal identifier or any meaningful identifier derived from any such personal identifier;

(d) any other information derived from:

(i) any such personal identifier; or

(ii) any meaningful identifier derived from any such personal identifier; or

(iii) any record of a kind referred to in paragraph (c);

that could be used to discover a particular person’s identity or to get information about a particular person.”

‘Identifying information’ is any personal identifier provided by an applicant for the purposes of the Act, and any additional information which can be used for identification purposes and is obtained either directly or indirectly from those personal identifiers.

If a personal identifier or any useful identifying information is analysed for any further information, the result of the analysis is also identifying information.

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Any other information which is obtained through the further examination of a personal identifier or any of its derivatives, which can be used to confirm a person’s identity or other information about that particular person, is identifying information.

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OBTAINING PERSONAL IDENTIFIERS This part comprises:

Request for personal identifiers (s40)

Provision of personal identifier (s41).

REQUEST FOR PERSONAL IDENTIFIERS (S40)

Under s40 a request may be made for one or more personal identifiers so that the Minister or delegate can be satisfied as to the identity of a person in relation to an application for citizenship or sitting of a test or an application for evidence of Australian citizenship.

When registering for a test, people will be required to either have a digital facial image taken by a Departmental officer or provide an appropriate photograph at the time of sitting the test.

All citizenship applicants (including those applying for evidence) 16 years and over, are required to provide an endorsed photograph and sign the application form.

A specific request for one or more personal identifiers under s40 can only be made by a person delegated by the Minister under s40. A delegated person will usually be an APS4 or above.

PROVISION OF PERSONAL IDENTIFIER (S41)

Regulation 11 (Personal identifiers, for s40(2) of the Act) provides that a request must inform the applicant of the following matters:

(a) why a personal identifier must be provided

(b) how a personal identifier may be collected

(c) how a personal identifier may be used

(d) the circumstances in which a personal identifier may be disclosed to a third party

(e) that a personal identifier may be produced in evidence in a court or tribunal in relation to the applicant who provided the personal identifier

(f) that the Privacy Act 1988 applies to a personal identifier, and that the applicant has a right to make a complaint to the Privacy Commissioner about the handling of personal information

(g) that the Freedom of Information Act 1982 gives a person access to certain information and documents in the possession of the Government of the Commonwealth and of its agencies, and that the applicant has a right under that Act to seek access to that information or those documents under that Act, and to seek amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.

These matters have been included in all citizenship application forms. Any other requests need to ensure that the matters are covered on each occasion a request is made.

Applicants sitting a test will be informed of these matters at the point of the registering for the test.

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OBLIGATIONS RELATING TO IDENTIFYING INFORMATION This part comprises:

Accessing identifying information (s42)

Disclosing identifying information (s43)

Unauthorised modification or impairment of identifying information (s44)

Destroying identifying information (s45).

ACCESSING IDENTIFYING INFORMATION (S42)


Offences and Penalties

Authorised access

Authorised by the Minister

Serious and imminent threat to life or health.

Section 42 provides:

that unauthorised access to identifying information is an offence and sets out the penalties for an offence

the circumstances in which personal identifiers can be lawfully accessed and

that the Minister may authorise specified people or classes of people to access identifying information.

Offences and Penalties

It is an offence for a person to access identifying information unless they are authorised to access the information for the purpose for which they have accessed it. The penalty is imprisonment for 2 years or 120 penalty units or both.

Authorised access

The offence provisions do not apply if:

the access is for a purpose set out in s42(4) and the person is authorised by the Minister to access the identifying information for that purpose

there is reason to believe that access is necessary to prevent or lessen a serious and imminent threat to life or health of a person

the access is for a disclosure that is a permitted disclosure under s43 or

s43(1A) applies.

Authorised by the Minister

People can be authorised by the Minister to access identifying information for the purposes set out in s42(4). These purposes are intended to cover the circumstances in which people would need to access identifying information in the course of carrying out their duties as decision makers under the Act. Staff must establish that they have the required authorisation before accessing identifying information.

The s42(3) instrument can be found on IMMInet under:

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DIAC services - Policy, legislation & forms cycle - Gazette notices and instruments of delegation and authorisation - Instruments of delegation and authorisation - Secretarial instrument for personal identifiers.

Otherwise a copy of the instrument can be obtained from the Citizenship Help Desk (email: [email protected]).

Serious and imminent threat to life or health

Any disclosure of identifying information to prevent or lessen a serious threat to the life or health of a person may significantly disadvantage the person to whom the information relates. Consideration should therefore be given to whether there are any effective alternatives to accessing the identifying information.

The threatened harm must involve serious bodily injury, serious illness or death. The threat must be imminent or about to happen. The threat need not apply to a specific person. It may be a threat of serious harm to be randomly inflicted.

What is a ‘serious’ threat depends on the particular circumstances of each case. An explicit threat of murder or serious assault would usually be regarded as a serious threat, as would a threat of infection with a life-threatening condition. Threats of contracting (or being denied effective treatment for) a serious medical condition are regarded as threats to life or health. Abuse directed to staff in general does not usually count as a serious threat. Threats to finances or reputation are not threats to life or health.

DISCLOSING IDENTIFYING INFORMATION (S43)


Permitted disclosure

Serious and imminent threat to life or health.

Section 43 provides that conduct causing disclosure of identifying information is an offence unless the disclosure is a permitted disclosure under s43(2), and sets out the penalties for the offence. Section 43 also provides the following two exceptions to the offence provision:

further disclosure by a person who is not an entrusted person but who obtained the information as a result of a permitted disclosure and

where the person believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to life or health of a person.

Permitted disclosure

Some of the permitted disclosures set out at s43(2) above are self-explanatory. Further comment on others is set out below.

‘(c) is for the purpose of administering or managing the storage of identifying information…’ This includes provision of identifying information to people employed by organisations providing file management and storage services to the Department.

‘(d) is for the purpose of making the identifying information in question available to the person to whom it relates …’

This includes, for example, complying with a request by an applicant or former applicant for information under the Freedom of Information Act 1982.

‘(e) take place under an arrangement entered into with an agency of the Commonwealth, or with a State or Territory or an agency of a State or Territory …’.

Currently there are no arrangements in place.

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‘(ea) is reasonably necessary for the enforcement of the criminal law of the Commonwealth, a State or a Territory …’.

Policy is that there is a link between the proposed disclosure and the enforcement of the criminal law and that the link is strong enough to say that the use or disclosure is reasonably necessary to enforce the criminal law. As a general rule, ‘reasonably necessary’ implies that a disclosure need not be essential or critical to enforcing the criminal law. However, it must be more than just helpful, or of some assistance or expedient. In general, factors relevant to assessing this include:

whether there are other practical and less intrusive measures available whether the potential harm to the public interest in question is sufficiently strong to

outweigh the privacy interests of the persons in respect of whom the identifying information relates and

who is to receive the identifying information, and whether and how the identifying information is likely to be protected once it is disclosed.

Broadly speaking, criminal law encompasses those laws under which criminal proceedings can be initiated. These proceedings are usually initiated and prosecuted by the police or Crown prosecutors. They are usually heard in criminal courts, and may result in the accused being convicted and punished by fine or imprisonment. Enforcing criminal law means the process of investigating crime and prosecuting criminals and the gathering of intelligence about crime to support the investigating and prosecuting functions of law enforcement agencies. Identifying information reasonably necessary to the enforcement of the criminal law should be disclosed only to:

an organisation that has statutory responsibilities for investigating or prosecuting criminal offences or

a person (or organisation) who require the identifying information to assist in the investigation or prosecution.

‘(f) is for a purpose of a proceeding, before a court or tribunal, relating to the person to whom the identifying information in question relates …’

The provision does not limit disclosure for the purpose of proceedings relating to the Act but to proceedings involving the person to whom the identifying information relates.

‘(g) is for the purpose of an investigation by the Privacy Commissioner or the Ombudsman relating to action taken by the Department …’

An assessment should be made as to whether all identifying information held is or would be relevant to the investigation.

‘(h) takes place with the written consent of the person to whom the identifying information in question relates.’

Written consent on an application form is only sufficient for disclosure for the purposes listed on the form.

Serious and imminent threat to life or health

Any disclosure of identifying information to prevent or lessen a serious threat to the life or health of a person may significantly disadvantage the person to whom the information relates. Consideration should therefore be given to whether there are any effective alternatives to accessing the identifying information.

The threatened harm must involve serious bodily injury, serious illness or death. The threat must be imminent or about to happen. The threat need not apply to a specific person. It may be a threat of serious harm to be randomly inflicted.

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What is a ‘serious’ threat depends on the particular circumstances of each case. An explicit threat of murder or serious assault would usually be regarded as a serious threat, as would a threat of infection with a life-threatening condition. Threats of contracting (or being denied effective treatment for) a serious medical condition are regarded as threats to life or health. Abuse directed to staff in general does not usually count as a serious threat. Threats to finances or reputation are not threats to life or health.

UNAUTHORISED MODIFICATION OR IMPAIRMENT OF IDENTIFYING INFORMATION (S44)

Section 44 provides that a person who is not authorised or entitled to modify identifying information, or impair the reliability of identifying information, or impair the security of the storage or the operation of a storage system of identifying information commits an offence if they:

intentionally modify, or substantially contribute to the modification of identifying information or

intentionally impair, or substantially contribute to the impairment of, the reliability of identifying information, or the security of the storage of identifying information, or the operation of a storage system of identifying information; and

know that their actions are unauthorised.

Modification or impairment is not unauthorised simply because the person has an ulterior motive for causing the modification or impairment.

Section 44 also provides the following exceptions to the offence provisions:

modification or impairment of identifying information by a person who is not an entrusted person and received the identifying information as a result of a permitted disclosure (see above) and

where the modification or impairment is done pursuant to a warrant issued under an Australian law.

‘Modification’ means changing or altering. For example:

digitally altering a facial image so that it no longer looks like the person or

changing a person’s signature so that it no longer has the characteristics of the person’s signature.

The following actions are not considered to constitute modification:

scanning a hard copy of a photograph to create a digital facial image

cropping a photograph to enable it to be scanned or

photocopying a document containing a person’s identifying information and blacking it out on the photocopy before disclosing the document to a third party (in accordance with the provisions of the Act and or the Privacy Act 1988, whichever is appropriate).

‘Impairment’ means damaging or weakening or making worse. For example:

intentionally de-linking a facial image from a client record and connecting it to another person’s identity information or

intentionally allowing another person to access a system storing identifying information that the other person is not authorised to access.

DESTROYING IDENTIFYING INFORMATION (S45)


Retention and storage of identifying information

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Archives Act 1983 and the Department’s Records Disposal Authority (902) - (RDA).

Section 45 provides that failure by the person responsible for identifying information to destroy the information as soon as possible after it is no longer required to be kept under the Archives Act 1983 is an offence, unless the information is a measurement or a person’s height and weight, or a photograph or other image of a person’s face and shoulders, or a person’s signature, or information derived from or relating to those personal identifiers.

The person responsible for identifying information is the person who has:

day-to-day control of the database, if the information is stored on a database or

day-to-day responsibility for the system under which the identifying information is stored.

A personal identifier is destroyed if it is physically destroyed, or any means of identifying it with the person to whom it relates is destroyed. For example, it is shredded, burned, deleted or erased so that it no longer exists, or it becomes illegible.

Retention and storage of identifying information

The Act does not make provision for the indefinite retention of personal identifiers. The retention and disposal of identifying information is as required by the Archives Act 1938 and as provided for by the relevant associated Departmental Records Disposal Authority.

Archives Act 1983 and the Department’s Records Disposal Authority (902) - (RDA)

The Department currently has a moratorium on all Departmental records which means that no record is allowed to be destroyed until such time as the moratorium is lifted. The RDA is currently being redrafted to extend the retention period of many citizenship record types and to expand on the types of citizenship records which may need their own retention period.

If the moratorium was lifted, under the guidelines of the RDA the following applications must be destroyed (including any relating identifying information which is attached to that application) after the following periods of time after the last action is completed:

all approved applications 80 years after the last action is completed

Deferred, rejected and withdrawn applications

10 years after the last action is completed.

Requests for citizenship details (i.e. evidence of citizenship)

2 years after the last action is completed

checking a person’s identity or their character 1 year after the last action is completed.

NOTE:

If the identity or character check is attached to an approved application

OR

Attached to a deferred, rejected and withdrawn application



Note: this RDA as it relates to citizenship records is currently under review by Citizenship Law and Policy Section.

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ATTACHMENT A - THE RELEVANT INFORMATION PRIVACY PRINCIPLES (IPPS) The purpose of the Privacy Act is to protect an individual’s privacy by requiring person information to be collected and managed in accordance with Information Privacy Principles (IPPs) - for more details see the Privacy Act 1988.

The most important IPPs in relation to the Department’s collection and use of a client’s personal information are:

Information Privacy Principle Requirements

IPP 1 Manner and purpose of collection of personal information

Officers may collect personal information only if:

they have a lawful purpose for collecting it that is directly related to their functions or activities and

the collection is necessary for, or directly related to, that purpose.

IPP 2 Solicitation of personal information from individual concerned

If personal information is collected from an individual, the individual must be made aware of:

the purpose for which the information is being collected

the fact that the collection is authorised or required by law and

any bodies or agencies to whom the information may be disclosed.

IPP 6 Access to records containing personal information

Individuals are entitled to have their original documents returned to them by the Department without having to make an FOI request.

IPP 10 Limits on the use of personal information

The use of personal information for purposes other than for which it was collected is prohibited unless:

the individual concerned has consented to the other use or

there are reasonable grounds for believing that the other use is necessary to prevent or lessen a serious and imminent threat to the life or health of a person or

the other use is required or authorised under law (ie Australian law) or

the other use is reasonably necessary for the enforcement of criminal or revenue law or

the purpose for which the information is used is directly related to the purpose for which the information was obtained.

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Information Privacy Principle Requirements

IPP 11 Limits on disclosure of personal information

Disclosure of personal information to third parties is prohibited unless:

the individual concerned is reasonably likely to be aware of, or has consented to, the disclosure or

there are reasonable grounds for believing that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of a person or

the disclosure is required or authorised under law (ie Australian law) or

the disclosure is reasonably necessary for the enforcement of criminal or revenue law.

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ATTACHMENT B - ACCESS & DISCLOSURE

Citizenship application scenarios

Action Allowed? Reason

Accessing identifying information held by the Department for the purpose of processing a citizenship application.

Yes You can access a citizenship applicant’s identifying information if:

you are employed by or contracted to the Department and your duties relate to verifying a person’s identity in relation to a citizenship application (see s42 accessing identifying information) or

you are accessing the information to facilitate a permitted disclosure (see s43(2)).

However, you are to access that information only if you have an operational need to do so.

Disclosing identifying information to another Departmental officer.

Yes If the other officer is in the above category and you have an operational need to disclose the identifying information to them, that is, you need them to verify the identifying information before you can proceed with or finalise the citizenship application.

Disclosing identifying information to the AFP/state/territory police to help with the assessment of a person’s good character.

Yes You can disclose it under s43(2)(b) as this would allow you to provide identifying information to CrimTrac and the Police for the purposes of character checking in relation to visa related processing as well as citizenship processing

Disclosing identifying information to a state/territory or Commonwealth agency to verify a person’s citizenship status.

Yes You can disclose it under s43(2)(da) which allows for identifying information to be disclosed to the police in order to verify a person is an Australian citizen; or takes place under an arrangement entered into for the exchange of identifying information.

Disclosing personal information that doesn’t include identifying information to state/territory or Commonwealth law enforcement agencies for the purpose of the criminal proceeding mentioned above.

Yes Covered by IPP 11.

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CHAPTER 12 - NATIONAL SECURITY

This Chapter comprises: Overview of chapter 12 Where an adverse security assessment or qualified security assessment has been issued against

an applicant Where the applicant is stateless.

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OVERVIEW OF CHAPTER 12 All cases concerning national security must be referred to the Citizenship Help Desk.

The national security provisions prohibit the approval of a citizenship application where ASIO has issued an adverse security assessment or qualified security assessment against the applicant. Such an assessment will be made where the applicant is a direct or indirect risk to the security of Australia.

Note: In accordance with the Convention on the Reduction of Statelessness, these provisions apply differently to stateless people (please see below).

The national security provisions apply to applicants for Australian citizenship by descent (s17) by adoption in accordance with the Hague Convention on Intercountry Adoption (s19), by conferral (s24) and by resumption (s30).

Refer to the Minister’s Decision section of the relevant chapter: Chapter 3 - Citizenship by descent Chapter 4 - Children - Minister’s decision (s19D) Chapter 5 - Citizenship by conferral - Minister’s decision (s24) Chapter 7 - Resuming citizenship - Minister’s decision (s30).

The following terms are relevant to the national security provisions and are defined by s3 of the Act:

adverse security assessment

qualified security assessment

national security offence.

Further guidance on the interpretation of these terms can be found in Chapter 1 - Preliminary and definitions.

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WHERE AN ADVERSE SECURITY ASSESSMENT OR QUALIFIED SECURITY ASSESSMENT HAS BEEN ISSUED AGAINST AN APPLICANT ASIO may provide to DIAC a qualified or adverse security assessment in relation to a person who has made an application for Australian citizenship.

Within 14 days of receiving the assessment from ASIO, DIAC must:

notify the applicant under s38(1) of the ASIO Act that the assessment has been made against the applicant

attach a copy of the assessment to the notification and

inform the applicant of their right to have the assessment reviewed by the Security Appeals Tribunal (this information must be given in accordance with Form 1 in Schedule 1 to the ASIO Regulations).

All cases concerning national security must be referred to the Citizenship Helpdesk.

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WHERE THE APPLICANT IS STATELESS If the applicant is stateless and was born in Australia, an application for citizenship must not be approved if the applicant:


has been convicted of an offence (in Australia or overseas) and sentenced to a period of imprisonment for at least 5 years. Note: There is a discretion for the Minister to approve an application if it would be unfair to refuse it on the basis of the person’s conviction.


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CHAPTER 13 - OFFENCES AND PROSECUTIONS UNDER THE ACT



Offences under the Act

Action on offences

Investigation of possible offences

Time limits for prosecution.

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OVERVIEW OF CHAPTER 13 The Act offence provisions are found in Part 2, Division 4 (Evidence of Australian Citizenship), and Division 5 (Personal Identifiers), and Part 3 (Other matters).

Division 4 of Part 2 of the Act provides that it is an offence to fail to surrender evidence of Australian citizenship when requested to do so following the cancellation of that evidence, and to alter evidence of Australian citizenship given under s37 of the Act.

Division 5 of Part 2 of the Act refers to the requirement for, and collection, use, storage and destruction of, personal identifiers for applications for citizenship and evidence of citizenship under the Act. The offences relate to unauthorised access, disclosure, modification or impairment, and destroying of identifying information and they only apply where the identifying information in question is a personal identifier provided under Division 5 of Part 2 of the Act.

Part 3 provides for offences in respect of false statements or representations made in relation to an application for citizenship. Part 3 also outlines the geographical jurisdiction for the offences under the Act. False statements or representations may result in a cancellation of an approval or in cases where citizenship is already conferred, revocation of that citizenship. Revocation can only be considered when the person is convicted of an offence under that section.

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OFFENCES UNDER THE ACT This part comprises:

Division 4 - Evidence of Australian Citizenship

Division 5 - Personal identifiers

Part 3 of the Act.

DIVISION 4 - EVIDENCE OF AUSTRALIAN CITIZENSHIP

If the Minister has revoked a person’s Australian citizenship under s34 (Revocation of citizenship), or cancelled evidence under s37(6) (Evidence of Australian citizenship), the Minister can ask the person to surrender their evidence of citizenship.

A request for surrender of evidence of Australian citizenship must be made in writing and specify the day on or before which the person must surrender the evidence. The day must be at least 28 days after the day on which the request is made. The request must also specify how the person is to surrender the evidence and explain that a failure to comply with the request constitutes an offence.

A person commits an offence if they fail to comply with a request to surrender their evidence of Australian citizenship. The penalty is 10 penalty units.

Altering evidentiary notice (s39)

Under s39 a person commits an offence if they alter or cause or permit to be altered a notice (evidence) of Australian citizenship given under s37 of the Act. The penalty is 12 months imprisonment.

Alterations which would give rise to prosecution under s39 include changes to personal particulars or other information with the intent to use the evidence in a fraudulent manner. For example, where a non-citizen’s details are substituted on the evidence for the purpose of obtaining benefits only available to an Australian citizen (such as an Australian passport).

Alterations such as framing or laminating of the evidence would not of itself give rise to prosecution under s39.

DIVISION 5 - PERSONAL IDENTIFIERS





Destroying identifying information (s45).


Under s42 a person commits an offence if they access identifying information and are not authorised to access it for the purpose of which they have accessed it. The penalty is imprisonment for 2 years or 120 penalty units or both.

A person does not commit an offence if there is reason to believe that accessing the identifying information is necessary to prevent or lessen a serious and imminent threat to life or health of the person or any person. The person would need to be able to prove that they reasonably believed the threat to life and health was the purpose of the access.

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A person does not commit an offence if the access of the personal identifier is through a disclosure that is a permitted disclosure. See Chapter 11 - Personal identifiers, specifically s42(2)(a).

Offence provisions do not apply to people who access information via a ‘secondary disclosure’ to which s43(1)(a) applies. See Chapter 11 - Personal identifiers, specifically s42(2)(b).

A note is included at the end of s42(2) which specifies that the defendant bears an evidential burden in relation to any offence under the section.


Under s43 a person commits an offence if that person’s conduct causes disclosure of identifying information and the disclosure is not a permitted disclosure. The penalty is imprisonment for 2 years or 120 penalty units or both.

A person does not commit an offence if there is reason to believe that disclosing the identifying information is necessary to prevent or lessen a serious and imminent threat to life or health of the person or any person. The person would need to be able to prove that they reasonably believed the treat to life and health was the purpose of the disclosure. See Chapter 11 - Personal identifiers, specifically s43(1B)).

Where there has been a disclosure to a person who is not an entrusted person and the disclosure is a permitted disclosure, the offence provision does not apply to any further disclosure of the identifying information to a person who is not an entrusted person. This is called a ‘secondary disclosure’. See Chapter 11 - Personal identifiers, specifically s43(1A).

A note is included at the end of the section to say that while ‘secondary disclosures’ are not covered by this Act, Information Privacy Principle (IPP) 11 of the Privacy Act 1988 may apply.

A note is also included to specify that the defendant bears an evidential burden in relation to any offence under the section.


Modification or impairment by a person is unauthorised if the person is not entitled to cause it.

It is an offence if a person causes, or intends to cause, any unauthorised modification to identifying information, and the person knows the modification is unauthorised. The penalty is imprisonment for 2 years or 120 penalty units or both.

It is an offence if a person causes, or intends to cause, any unauthorised impairment of the reliability of identifying information, the security of the storage of identifying information or the operation of a storage system of identifying information. The penalty is imprisonment for 2 years or 120 penalty units or both.

Where there has been a disclosure to a person who is not an entrusted person and the disclosure is a permitted disclosure, the offence provision does not apply to any modification or impairment of that identifying information by a person who is not an entrusted person. These are the circumstances relating to ‘secondary disclosure’. See Chapter 11 - Personal identifiers, specifically s43(1A).

Modification of identifying information, impairment of the reliability of identifying information, impairment of the security of identifying information, and impairment of the operation of a system by which identifying information is stored is unauthorised if the person is not entitled to cause that modification or impairment. See Chapter 11 - Personal identifiers, specifically at s44.

Having an ulterior purpose is no excuse for knowingly causing an unauthorised modification or impairment.

A person is said to have caused any such unauthorised modification or impairment if the person’s conduct substantially contributes to it. If so, the person may also have committed an offence.

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An unauthorised modification or impairment of the identifying information is allowed if it is required under a warrant issued under an Australian law, unless identifying information is lawfully disclosed by an entrusted person to someone who is not an entrusted person who afterwards modifies or impairs the information, in the manner described above.

Destroying identifying information (s45)

Under s45 identifying information is to be kept by the Department for as long as it is required to be kept by law.

If there is no longer a purpose or reason for keeping the information, the identifying information must be destroyed. Further information on “destroying identifying information” can be found at Chapter 11 - Personal identifiers, specifically at s45.

An offence is committed if a person is responsible for identifying information and the person fails to destroy the information as soon as possible after the person is no longer required under the Archives Act 1983 to keep the identifying information. The penalty is imprisonment for 2 years or 120 penalty units or both (s45(1)).

The offence provision does not apply if the identifying information is a measurement of a person’s height and weight, a photograph or other image of a person’s face and shoulders and a person’s signature cannot be destroyed. This also includes any secondary information which has been taken indirectly from these types of identifiers.

PART 3 OF THE ACT


False statements or representations (s50)

Geographical jurisdiction for offences (s51).

False statements or representations (s50)

Under s50 a person commits an offence if they knowingly make, or cause to be made, a false or misleading statement or representation for a purpose of or in relation to the Act. For example, they might knowingly provide false or misleading information in their application for citizenship. The penalty is imprisonment for 12 months.

A person also commits an offence if they behave in a way which conceals a material circumstance for a purpose in relation to the Act. For example, they may neglect to mention the conviction of a ‘serious offence’ in their application for citizenship. The penalty is imprisonment for 12 months.

Where the alleged offence under s50 comes to notice after conferral of citizenship, a primarily consideration is whether the application was likely to have been refused had the decision maker, at the time of decision, been in possession of the information withheld or obscured by the applicant.

If the outcome of the application is likely to have been affected by this information, serious consideration should be given to the commencement of prosecution action. A conviction under s50 is necessary to enable consideration to be given to revocation of a person’s citizenship.

In some situations the provision of false statements or representations in the citizenship application may replicate a deception that occurred in the person’s application for entry to Australia. A person may be prosecuted for such an offence under s234, s236, s243 or s244 of the Migration Act or s134.1, s134.2, s135.1, s135.2, s135.4 or s136.1 of the Criminal Code. If convicted under these sections, and if the false information was material to the person obtaining permanent residence, consideration may be given to revocation of citizenship. Prosecution under the Migration Act or the Criminal Code may, in some situations, be an alternative to prosecution under s50.

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However, if the provision of false or misleading information was only in respect of the citizenship application, a successful prosecution under s50 would be necessary if revocation of citizenship is to be considered. The Crimes Act provides that a person cannot be punished twice, which effectively means that a conviction under a different statute would preclude a subsequent conviction under s50.

If the information would not have affected the decision, for example a minor conviction or one that occurred many years ago, it is unlikely that prosecution action would be appropriate.

If an alleged offence under s50 (including failure to disclose charges or convictions as specified in s24(6)) comes to notice before approval of citizenship, it would be appropriate to consider whether or not the person is prosecuted in relation to the alleged offence. If a conviction in relation to an alleged offence of the type referred to in s24(6) is not recorded, the application may proceed to approval or refusal. If a conviction is recorded after approval but before conferral, cancellation of approval may be considered under s25(2)(b)(iii) of the Act.

Geographical jurisdiction for offences (s51)

Section 51 of the Act provides that s15.4 of the Criminal Code applies to all offences against the new Act. Section 15.4 of the Criminal Code states:

“If a law of the Commonwealth provides that this section applies to a particular offence, the offence applies:

(a) whether or not the conduct constituting the alleged offence occurs in Australia; and (b) whether or not a result of the conduct constituting the alleged offence occurs in Australia. Note: The expression offence is given an extended meaning by section 11.2(1), section 11.3 and

section 11.6(1).”

This provides that if an offence under this Act occurs outside Australia, it still constitutes an offence under Australian law. This is the widest form of geographical jurisdiction for offences.

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ACTION ON OFFENCES The action that should be taken where offences under the Act have occurred, or are alleged to have occurred, depends on a number of issues including:

whether the act constituting the offence is material to the decision to approve a citizenship application

the seriousness of the offence

the need to maintain the integrity of the Australian citizenship process

the prospects of securing a conviction and

the need to pursue revocation under s34, see Chapter 8 - Cessation of Australian citizenship.

Prosecution may be an appropriate response in some situations, particularly the alleged offender has acquired Australian citizenship through deceit. A conviction is a pre-condition to consideration of revocation of Australian citizenship under s34.

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INVESTIGATION OF POSSIBLE OFFENCES Investigations in relation to alleged fraud on Departmental programmes are the responsibility of the Department’s Investigations units in Sydney, Melbourne, Brisbane, Adelaide, Perth and, in certain circumstances, the National Investigation Section in National Office. The Department Dob-in Line receives and deals with allegations of fraud made by members of the public. Department staff who become aware of any cases of fraud or possible fraud should refer the information to the National Office’s Fraud Investigations Mailbox:

[email protected]

This mailbox is only for referral by Departmental staff and is not for use by members of the public. Cases are referred to the respective state or regional Investigations Unit for appropriate action.

Where sufficient evidence of an alleged offence has been obtained, the Investigations Unit may prepare a brief for evidence for the Commonwealth Director of Public prosecutions (CDPP).

Other possible outcomes include administrative actions such as visa refusal or cancellation. Decisions are made by the relevant programme areas based on information received from the Investigation units.

Allegations of fraud in relation to the citizenship program, including possible offences under s50 (false statements or representations) or s39 (altering evidentiary notice), and involving possible offences under s38 (surrender of evidentiary notice) or s41, s42, s43, s44 and s45 (personal identifiers) should be referred to the relevant state/territory Investigation unit for consideration. The National Investigation Guidelines provide detailed guidance to Departmental Investigations staff on the investigation and prosecution of offences under Citizenship and Migration legislation.

Where it is clear that an offence under s50 has occurred (as opposed to an allegation of an offence), citizenship staff should consider the factors at Action on offences before referral to an Investigation Unit. Referral to an Investigation Unit for action would not be necessary where the incorrect information provided would clearly have been no consequence to the outcome of the application. Only those s39 offences involving deliberate fraud should be referred to an Investigation Unit. Decisions on referral in STOs should be made by the Citizenship Manager. Advice can be sought from the Citizenship Help Desk.

Where a person is convicted under s50 the Citizenship Help Desk should be immediately informed so that consideration can be given to revocation of Australian citizenship.

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TIME LIMITS FOR PROSECUTION Sometimes there is a time limit on commencing a prosecution for a particular offence.

A prosecution for an offence under s50 can be commenced at any time. Otherwise, s15B of the Crimes Act 1914, provides that unless a time limitation is specified in the relevant Act, a person may be prosecuted at any time for any offence which carries a penalty of more than 6 months imprisonment and a prosecution for any other offence must be commenced within 12 months after the commission of the offence.

HISTORICAL PROVISIONS

From 1958 to 1997 s50(2) of the old Act stated: “a prosecution for an offence against section (1) may be commenced at any time within 10 years after the commission of the offence”

On 10 April 1997 the Act was amended with the addition of the following: “(3) If a person:

(a) is an Australian citizen pursuant to a certificate of Australian citizenship; and (b) made the application after the commencement of this section

a prosecution of the person for an offence against section (1) in connection with the person’s application for the certificate may be commenced at any time.”

In summary, there is no time limit for the prosecution of fraud in relation to a citizenship application if the application was lodged on or after 10 April 1997.

The migration fraud provisions commenced on 10 April 1997.

The serious offences provision (serious offences committed prior to the grant of citizenship for which the person was convicted) was introduced in November 1984.

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CHAPTER 14 - NEW ZEALAND CITIZENS IN AUSTRALIA



Status of New Zealand citizens in Australia

Australian citizenship status of children born in Australia to New Zealand citizen parents

Attachment A - Character requirements for New Zealand citizens.

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OVERVIEW OF CHAPTER 14 Under various arrangements since the 1920s, there has been a free flow of people between Australia and New Zealand. The most recent of these arrangements, the 1973 Trans-Tasman Travel Arrangement, allows Australian and New Zealand citizens to enter each others’ country to visit, live and work, without the need to apply for authority to enter the other country.

However, the status of New Zealand citizens in Australia for the purposes of Australian citizenship legislation has changed over time. The key dates are from 26 January 1973 to 31 August 1994; from 1 September 1994 to 26 February 2001 and from 27 February 2001 until the present time.

This chapter covers the status of New Zealand citizens during the above periods in relation their eligibility for Australian citizenship as well as the Australian citizenship status of their children born in Australia.

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STATUS OF NEW ZEALAND CITIZENS IN AUSTRALIA This section comprises: 26 January 1973 to 31 August 1994 1 September 1994 to 26 February 2001 27 February 2001 to present Centrelink certificates Overview of Status of New Zealand citizens.

26 JANUARY 1973 TO 31 AUGUST 1994

Between 26 January 1973 and 31 August 1994, a New Zealand citizen could enter Australia on presentation of their New Zealand passport. They were considered to be an “exempt non-citizen” for the purposes of the Migration Act. This meant that an entry permit was not required.

An “exempt non-citizen” in Australia was regarded as a “permanent resident”, for the purposes of the old Act. This was achieved through a declaration made under s5A(2) of the old Act which provided that certain non-citizens could be regarded as permanent residents for the purposes of that Act.

The declaration only extended to periods spent in Australia. There was no provision to regard “exempt non-citizens” as permanent residents while outside Australia.

In certain circumstances a New Zealand citizen was considered not to be an “exempt non citizen”. These related to matters of health and character concern. For example, if the person suffered from certain health conditions, had criminal convictions, presented bogus documentation when entering Australia or had been deported from Australia or another country.

1 SEPTEMBER 1994 TO 26 FEBRUARY 2001

On 1 September 1994 amendments to the Migration Act required all non citizens to hold visas. A Special Category Visa (SCV) was introduced for New Zealand citizens.

A New Zealand citizen who was already present in Australia and did not hold any other visa automatically became a holder of an SCV from 1 September 1994. A New Zealand citizen who arrived in Australia on or after 1 September 1994, and presented to an immigration clearance officer a valid New Zealand passport and an incoming passenger card, was generally granted an SCV. The SCV is not a permanent visa. However, for the period from 1 September 1994 to 26 February 2001, New Zealand citizens who held a SCV were considered to be permanent residents for citizenship purposes unless:

the New Zealand citizen was present as a diplomatic representative (or their spouse or dependent child) of New Zealand and

was the holder of a special purpose visa (granted to certain diplomats, officials, crew or armed forces and their families).

This was achieved through a declaration under s5(A2) of the old Act.

The declaration under s5A(2) of the old Act was extended on 29 November 2004 to include certain New Zealand crew members as permanent residents for citizenship purposes if they:

were holders of special purpose visas, granted on the basis of the person’s status as an airline crew member or an airline positioning crew member and

were ‘ordinarily’ resident in Australia.

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27 FEBRUARY 2001 TO PRESENT

On 26 February 2001 a revised social security arrangement was announced jointly by the Governments of Australia and New Zealand. On the same date, the Australian Government also announced that New Zealand citizens would no longer be considered as permanent residents for Australian citizenship purposes, unless:

they held a permanent visa granted under the Migration Act

were in Australia on 26 February 2001 as holders of a SCV or

were outside Australia on 26 February 2001 but were in Australia as the holder of a SCV for one or more period totalling 12 months in the 2 years prior to 26 February 2001 or

did not fall within the above two categories but have a Centrelink certificate, issued under the Social Security Act 1991, that states that the person was, for the purposes of social security, residing in Australia on a particular date.

The declaration made under s5A(2) of the old Act continued to include certain New Zealand crew members as permanent residents for citizenship purposes if they:

were holders of special purpose visas, granted on the basis of the person’s status as an airline crew member or an airline positioning crew member and

were ‘ordinarily’ resident in Australia.

These people are still considered as permanent residents for the purpose of the new Act.

CENTRELINK CERTIFICATES

A Centrelink certificate provides evidence that the person whose name and other particulars appear on the certificate falls under the transitional provisions and is deemed to be a permanent resident for citizenship purposes (on or after 27/2/01) in Australia.

Centrelink issued certificates to people who contacted them and who met one of the following requirements:

were existing recipients of social security payments who were outside Australia on 26 February 2001 but returned within 26 weeks of that date

arrived to reside in Australia between 27 February 2001 and 25 May 2001 (inclusive) and have a Centrelink certificate certifying that they have, under the Social Security Act, established residence in Australia. People in this category must have lodged an application for a Centrelink certificate before 26 February 2004 or

were part of a very small group who established permanent residence in Australia but were unable to be physically present in Australia in the 3 months immediately following 26 February 2001 and who applied to Centrelink by 26 February 2002. For example, this group includes business people, church workers and aid workers who would have experienced hardship if they had to return by 26 May 2001.

Centrelink issued certificates until 26 February 2004, for those who had commenced to reside in Australia within 3 months of 26 February 2001.

For those who were in Australia on 26 February 2001 but ‘temporarily absent’ and not on income support, certificates were issued until 26 February 2002. Those on income support and temporarily absent were contacted by Centrelink and issued with certificates as appropriate.

OVERVIEW OF STATUS OF NEW ZEALAND CITIZENS

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Status of New Zealand citizens

Visa granted Considered as permanent residents for citizenship purposes?

26 January 1973 to 31 August 1994

No entry permit required. Considered as “exempt non-citizens”.

Only for periods present in Australia.

Special category visa (SCV) Yes. 1 September 1994 to 26 February 2001

Special purpose visa (SPV) Only if the SPV was granted on the basis of the person’s status as airline crew member or airline positioning crew member and were ordinarily resident in Australia.

Special category visa (SCV) No, unless covered by transitional provisions, detailed below.

Permanent visa Yes.

27 February 2001 to present

Special purpose visa (SPV) Only if the SPV was granted on the basis of the person’s status as airline crew member or airline positioning crew member and were ordinarily resident in Australia.

Transitional provisions: Outside Australia on 26 February 2001

Special category visa (SCV) Only if they:

(1) were in Australia as the holder of a SCV for a period or period totalling 12 months in the previous 2 years OR

(2) have a Centrelink certificate stating that they were residing in Australia.

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AUSTRALIAN CITIZENSHIP STATUS OF CHILDREN BORN IN AUSTRALIA TO NEW ZEALAND CITIZEN PARENTS The Australian citizenship status of children born to New Zealand parents has changed over time, depending on the date of birth and the residence status of the New Zealand parents. An overview of requirements is given below for the following:

27 February 2001 to the present

1 September 1994 to 26 February 2001

20 August 1986 to 31 August 1994

26 January 1949 to 19 August 1986

Automatic acquisition of citizenship on 10th birthday Overview of status of the children of New Zealand citizens born in Australia.

27 FEBRUARY 2001 TO THE PRESENT

A child born in Australia to New Zealand citizen parents is an Australian citizen by birth only if the New Zealand citizen parent/s:

held a permanent visa at the time of the child’s birth

was present in Australia on 26 February 2001 as the holder of a special category visa

was outside Australia on 26 February 2001 but had been in Australia as the holder of a special category visa for a period totalling not less than one year in the two years immediately before that date

does not fall within the above two categories but has a Centrelink certificate, issued under the Social Security Act 1991, that states that they were, for the purposes of that Act, resident in Australia or

the parent is the holder of special purpose visas, granted on the basis of the person’s status as an airline crew member or an airline positioning crew member; and ‘ordinarily’ resident in Australia.

A child born in Australia to New Zealand citizen parents is not an Australian citizen by birth if the parent is:

the diplomatic representative of New Zealand (or the spouse or dependent child of one) or

the holder of a special purpose visa (granted to certain diplomats, officials, crew or armed forces and their families) unless the parent is the holder of special purpose visas, granted on the basis of the person’s status as an airline crew member or an airline positioning crew member; and ‘ordinarily’ resident in Australia.

1 SEPTEMBER 1994 TO 26 FEBRUARY 2001

A child born in Australia to a New Zealand citizen parent was an Australian citizen at birth if at the time of birth the New Zealand citizen parent was a permanent resident as defined for the purposes of the old Act in force at that time. That is, the New Zealand parent was at the time of the birth the holder of a permanent visa or a special category visa and was not:

a diplomatic representative of New Zealand (or a spouse or dependent child of one) or

the holder of a special purpose visa (granted to certain diplomats, officials, crew or armed forces and their families) unless the parent is the holder of special purpose visas, granted on the basis of the person’s status as an airline crew member or an airline positioning crew member; and ‘ordinarily resident’ in Australia.

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20 AUGUST 1986 TO 31 AUGUST 1994

Between 26 January 1973 and 31 August 1994 a New Zealand citizen was an exempt non citizen if they last entered Australia by presenting a New Zealand passport as evidence of their New Zealand citizenship.

From 20 August 1986 to 31 August 1994 a child born in Australia to New Zealand citizens who were exempt non-citizens did not automatically acquire Australian citizenship. These children may have acquired Australian citizenship automatically on their 10th Birthday if they were ordinarily resident in Australia since their birth in Australia. See Automatic acquisition of citizenship on 10th birthday.

26 JANUARY 1949 TO 19 AUGUST 1986

A child born in Australia was an Australian citizen at birth unless they were the child of a diplomat.

AUTOMATIC ACQUISITION OF CITIZENSHIP ON 10TH BIRTHDAY

A child born in Australia on or after 20 August 1986, who did not acquire Australian citizenship at birth, automatically acquires it on their 10th birthday if they have been ordinarily resident in Australia for 10 years from birth. This provision operates regardless of the parent’s migration or citizenship status, unless the parent was a diplomat.

Hence, a child born in Australia in 1986 and who did not acquire citizenship at birth, but was ordinarily resident in Australia would have automatically become an Australian citizen on their 10th birthday in 1996.

For further information on the interpretation of ordinarily resident, see Chapter 1 - Preliminary and definitions.

OVERVIEW OF STATUS OF THE CHILDREN OF NEW ZEALAND CITIZENS BORN IN AUSTRALIA

A child born in Australia

Is an Australian citizen Is NOT an Australian citizen

27 February 2001 to present

At birth - only if the parent is a permanent resident for the purposes of the Act; or has a Centrelink certificate; or held a special purpose visa (SPV) on the basis of the parent’s status as airline crew member or airline positioning crew member and they were ordinarily resident in Australia.

10th birthday - only if the child was ordinarily resident in Australia since their birth in Australia.

If the parent is a diplomatic representative of New Zealand, spouse or dependent of one, or holder of a special purpose visa.

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A child born in Australia

Is an Australian citizen Is NOT an Australian citizen

1 September 1994 to 26 February 2001

At birth - only if the parent held a special category visa or held a special purpose visa (SPV) on the basis of the parent’s status as airline crew member or airline positioning crew member and they were ordinarily resident in Australia.

10th birthday - only if the child was ordinarily resident in Australia since their birth in Australia


20 August 1986 to 31 August 1994

At birth - only if the parent held a permanent visa.

10th birthday - only if the child was ordinarily resident in Australia since their birth in Australia


26 January 1949 to

19 August 1986

At birth - unless the parent was a diplomat.

If the parent was a diplomat.

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ATTACHMENT A - CHARACTER REQUIREMENTS FOR NEW ZEALAND CITIZENS

CHARACTER REQUIREMENTS FOR NEW ZEALAND CITIZENS APPLYING FOR AUSTRALIAN CITIZENSHIP BY CONFERRAL

New Zealand citizen applicants who do not hold a permanent visa are required to obtain overseas penal clearance certificates because generally they have not provided those certificates prior to becoming resident in Australia.

This applies to New Zealand citizen applicants aged 18 years or over regardless of how long the person has resided in Australia. New Zealand citizens who arrived in Australia before the age of 18 years and have not left Australia since are not required to provide the personal records information.

Decision makers must consider the personal records information along with the results of CrimTrac and other checks conducted by the Department as part of the character assessment for conferral of Australian citizenship.

New Zealand citizens are required to complete a Form F1, which is available from htttp://www.justice.govt.nz/privacy/, or any local district court in New Zealand, or “The Privacy Unit, Ministry of Justice, National Office, PO Box 2750, Wellington, New Zealand”, or by phoning +64 4 9188800 of by fax +64 4 9188974. They will need to mail it or fax it to the above address or fax number. They must check the box on the Form F1, requesting a Full Record of Convictions.

The Full Record of Convictions should be attached to the citizenship application.

If there is a need to verify the document or the information contained on the document applicants should be requested to complete a Form 80 Personal particulars for character assessment (available from www.immi.gov.au) as well as a Consent to Disclosure of Information Form. Clients should use the form at www.citizenship.gov.au and NOT the form at http://www.newzealand.embassy.gov.au/wltn/CONSENTFORM.html), which are visa forms.

Once the forms have been lodged by the client the processing office should initiate a case referral in ICSE to request a penal check. They should then insert their office location at the bottom of the Consent to Disclosure of Information Form, where it states “DIAC Office Use: Initiating DIAC Processing Office / Post (insert location)”.

Once this part of the Form has been completed, it and Form 80 should be sent to Auckland Post in the Diplomatic Bag.

The Diplomatic Bag should be addressed as follows:

Referral Officer Citizenship Section DIAC Auckland Consulate NZ

In the top hand corner write “Auckland Dip Bag”

Upon receipt in Auckland it will be forwarded to New Zealand Police. The New Zealand Police will then process the Forms and return the result to Auckland. Auckland will then finalise the referral in ICSE and return the results to the processing office, listed on the Consent to Disclosure of Information Form, by Diplomatic Bag.

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CHAPTER 15 - PEOPLE BORN IN PAPUA NEW GUINEA



Citizenship by descent

Citizenship by conferral

Citizenship by resumption

Evidence of Australian citizenship (s37).

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OVERVIEW OF CHAPTER 15 Papua New Guinea (PNG) became a sovereign nation on 16 September 1975, PNG Independence Day.

Prior to that date the External Territory of Papua (Papua) and Trust Territory of New Guinea (New Guinea) were two separate territories. Papua was part of Australia for the purposes of the old Act but New Guinea was not.

Assessing applications for Australian citizenship from people born in Papua, prior to Papua New Guinea (PNG) Independence on 16 September 1975 can be difficult. This is because of the interaction between Australian law and the PNG Constitution which together created the independent country of PNG.

This chapter provides guidance on assessing applications for Australian citizenship and evidence of Australian citizenship under the Act. The emphasis is on the eligibility of people born in Papua prior to 16 September 1975, PNG Independence Day.

Descent, evidence and resumptions applications from people born in PNG prior to 16 September 1975 must be sent to the Dandenong Office for processing. Applications for Australian citizenship by descent should also be referred to the Dandenong Office where the claimed Australian citizen parent was born in PNG prior to 16 September 1975.

INTRODUCTION


Papua prior to Independence

New Guinea prior to Independence

From Independence Day, 16 September 1975.

Papua prior to Independence

Papua was defined as part of Australia for the purposes of the Australian Citizenship Act 1948, but not for the purposes of the Migration Act.

As a result, people born in Papua acquired Australian citizenship at birth. However, people born in Papua of indigenous descent who wanted to travel to the Australian States and internal territories were required to apply under the Migration Act for permission to do so. Those of non-indigenous descent were not required to apply.

New Guinea prior to Independence

New Guinea was a Trust Territory and was not defined as part of Australia under either the Australian Citizenship Act 1948 or the Migration Act.

People born in New Guinea who did not have the status of British subject or the citizenship of another country were Australian protected persons but were not Australian citizens by birth. People born in New Guinea from 26 January 1949 could be registered as Australian citizens by descent if they had at least one parent who was an Australian citizen at the time of the birth. People born in New Guinea could also apply to be naturalised as Australian citizens.

From Independence Day, 16 September 1975

From 16 September 1975, the former territories of Papua and New Guinea were no longer part of Australia.

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Most Australian citizens of indigenous descent, and Australian protected persons, automatically became PNG citizens on 16 September 1975 and automatically lost their Australian citizenship, or Australian protected person status, under the PNG Independence (Australian Citizenship) Regulations 1975.

The PNG Independence (Australian Citizenship of Young Persons) Regulations 1980, provided that people who were under the age of 19 years on 16 September 1975, and who, if born in Papua, had a right of residence in Australia or, if born in New Guinea, had been granted Australian citizenship or registered as an Australian citizens by descent under the Migration Act, reacquired their Australian citizenship on Independence Day. The regulations also provided that these people ceased to be Australian citizens if, before the age of 19 years, they renounced their Australian citizenship and made a Declaration of Loyalty to PNG.

People under 19 years of age and held a foreign citizenship did not reacquire their Australian citizenship under the PNG Independence (Australian Citizenship of Young Persons) Regulations 1980.

People born in Papua and over the age of 19 years of age, on Independence Day, and who held a foreign citizenship in addition to their Australian citizenship did not acquire PNG citizenship and did not lose their Australian citizenship on 16 September 1975.

Australian citizens who did not automatically acquire PNG citizenship on 16 September 1975 retained their Australian citizenship.

An Australian citizen who acquired PNG citizenship between 16 September 1975 and 4 April 2002 by making a Declaration of Loyalty to PNG would have lost their Australian citizenship under s17 of the old Act.

Australian citizens covered by the PNG Independence (Australian Citizenship of Young Persons) Regulations 1980, and who made a Declaration of Loyalty, lost their Australian citizenship under Regulation 3 of those regulations.

Important: Decision makers should not to attempt to interpret PNG legislation. Any concerns about the citizenship status of a person born in Papua prior to 16 September 1975 should be referred to the Citizenship Policy Section in National Office.

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CITIZENSHIP BY DESCENT This part comprises:

People born in Papua before 16 September 1975

People born in New Guinea before 16 September 1975

People born in PNG on or after 16 September 1975.


People born in the External Territory of Papua prior to 16 September 1975 are not eligible for Australian citizenship by descent because they were born in Australia. See Chapter 3 - Citizenship by descent.

People born in New Guinea before 16 September 1975

People born in the Trust Territory of New Guinea prior to 16 September 1975 may be eligible for Australian citizenship by descent.

Eligibility will depend on whether they had, at the time of their birth, at least one parent who was an Australian citizen (or became an Australian citizen on 26 January 1949) and whether they are of good character.

A person born in New Guinea before 16 September 1975 with Papuan born Australian citizen parents would have ceased to be an Australian citizen on 16 September 1975 and would not be eligible for Australian citizenship by descent.

People born in the Trust Territory of New Guinea prior to 16 September 1975, and who did not have the status of British subject or the citizenship of another country (excluding Australia), automatically became an Australian Protected Person (APP). An APP could be granted Australian citizenship by naturalisation under the old Act.

People born in PNG on or after 16 September 1975

A person born in PNG on or after 16 September 1975, may be eligible for Australian citizenship by descent if, at the time of their birth, at least one parent was an Australian citizen and if, aged 18 years or over, they are of good character.

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CITIZENSHIP BY CONFERRAL There are two circumstances in which a person born in PNG may be eligible for citizenship by conferral:

if they were born after a parent lost their Australian citizenship because of the operation of s17 of the old Act (repealed on 4 April 2002) - s21(6) or

if they were born in Papua, between 26 January 1949 and 16 September 1975, to a parent who was born in Australia as geographically defined at the time the person applies - s21(7).

A person would have lost their Australian citizenship, because of the operation of s17 of the old Act, if they retained their Australian citizenship on 16 September 1975 at PNG Independence but subsequently made a declaration of loyalty to PNG before 4 April 2002.

People born in Papua who were under the age of 19 on 16 September 1975, and had a right of permanent residence in mainland Australia, or people born in New Guinea who were under the age of 19 years on 16 September 1975 and had been naturalized or registered by descent, reacquired their Australian citizenship under the PNG Independence (Australian Citizenship of Young Persons) Regulations 1980. If they made a Declaration of Loyalty to PNG before the age of 19 years they lost their Australian citizenship under those regulations and not s17.

See Chapter 5 - Citizenship by conferral.

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CITIZENSHIP BY RESUMPTION People who lost their citizenship under s17 or s18 of the old Act may be eligible to resume their Australian citizenship. See Chapter 7 - Resuming citizenship.

People who lost Australian citizenship under the legislation designed to create of an independent PNG are not eligible to resume Australian citizenship.

The two categories of people born in Papua prior to 16 September 1975 who ceased to be Australian citizens on Independence Day are not eligible to resume Australian Citizenship are:

people who had two PNG grandparents and did not have a right of permanent residence in Australia on 16 September 1975 (the PNG Independence (Australian Citizenship) Regulations 1975) and

people who had two PNG grandparents and the right of permanent residence in Australia, and before the age of 19 years renounced their Australian citizenship and made a Declaration of Loyalty to PNG. (PNG Independence (Australian Citizenship of Young Persons) Regulations 1980).

PNG grandparents are grandparents born in Papua, New Guinea, the Solomon Islands, Irian Jaya or certain Torres Straight Islands.

The two categories of people born in New Guinea prior to 16 September 1975 who ceased to be Australian citizens on Independence Day and are not eligible to resume Australian citizenship are:

people who had two PNG grandparents and had not been registered as Australian citizens by descent or naturalised as an Australian citizen prior to 16 September 1975 (PNG Independence (Australian Citizenship) Regulations 1975) and

people who had two PNG grandparents and had been registered as an Australian citizen by descent or naturalised as an Australian citizen prior to 16 September 1975 and made a Declaration of Loyalty to PNG before they turned 19 years of age (PNG Independence (Australian Citizenship of Young Persons) Regulations 1980).

People born in Papua and New Guinea who did not automatically cease to be Australian citizens on Independence Day may have subsequently lost their Australian citizenship under s17 of the old Act by making the Declaration of Loyalty to PNG or by acquiring the citizenship of another country, or lost their Australian citizenship as a child on or after 16 September 1975 when a responsible parent lost under s17.

Children did not lose Australian citizenship under s23 when their responsible parent made a Declaration of Loyalty and lost under s17 of the old Act if the children had become PNG citizens on 16 September 1975. If the children subsequently made a Declaration of Loyalty to PNG they lost under the PNG Independence (Australian citizenship of Young Persons) Regulations 1980 and are not eligible to resume.

People may also have ceased to be citizens if they renounced their citizenship under s18 of the old Act, or lost their Australian citizenship as a child on or after 16 September 1975 when a responsible parent renounced their citizenship.

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EVIDENCE OF AUSTRALIAN CITIZENSHIP (S37) This part comprises:


People born in New Guinea before 16 September 1975.

PEOPLE BORN IN PAPUA BEFORE 16 SEPTEMBER 1975

Most people born in Papua prior to 16 September 1975 who acquired PNG citizenship automatically on Independence Day are not Australian citizens and are therefore not eligible for evidence of Australian citizenship.

The PNG Constitution provided that Australian citizens born in Papua automatically became Papua New Guinea citizens on 16 September 1975 if:

they had at least two grandparents born in Papua, New Guinea, the Solomon Islands, Irian Jaya or certain Torres Strait Islands and

in the case of a person over 19 years of age born in Papua, they did not have a right of permanent residence in Australia nor the citizenship of a country other than Australia.

People born in Papua prior to PNG Independence who did not lose their Australian citizenship on 16 September 1975 are those:

who had no grandparents born in Papua, New Guinea, the Solomon Islands, Irian Jaya or certain Torres Strait Islands and who held the citizenship of a country other than Australia on PNG Independence Day or, and whose Australian citizen parent was born in one of the Australian states or internal territories or

who had at least two grandparents born in Papua, New Guinea, the Solomon Islands, Irian Jaya or certain Torres Strait Islands and had been granted the right of permanent residence in Australia or if over 19 years of age, held the citizenship of another country on PNG Independence Day .

Decision makers should consider whether an applicant in one of these categories has since lost their Australian citizenship. For example, by making a Declaration of Loyalty to PNG.

PEOPLE BORN IN NEW GUINEA BEFORE 16 SEPTEMBER 1975

Most people born in New Guinea prior to 16 September 1975 who acquired PNG citizenship automatically on Independence Day are not Australian citizens and are therefore not eligible for evidence of Australian citizenship.

A person born in New Guinea prior to 16 September 1975 may be eligible for evidence of Australian citizenship if they:

were naturalised as Australian citizens under the old Act or

had been registered as an Australian citizen by descent under the old Act or

were born in New Guinea and were a British subject immediately prior to 26 January 1949 or

were a British subject or

ordinarily resident in New Guinea and Australia for the 5 year periods between 26 January 1944 and 26 January 1949 and

did not make a Declaration of Loyalty to PNG.

See Chapter 9 - Evidence of Australian citizenship.

ACIs - Chapter 16


CHAPTER 16 - CITIZENSHIP TEST


Overview of Chapter 16.

ACIs - Chapter 16


OVERVIEW OF CHAPTER 16 The requirements for Australian citizenship by conferral are set out in Part 2, Division 2 (Subdivision B) of the Act - see Chapter 5 - Citizenship by conferral.

Applicants satisfying the criteria under s21(2) of the Act must: (a) be aged 18 years or over (b) be a permanent resident (c) satisfy the residence requirements or have completed relevant defence service (d) understand the nature of the application (e) possess a basic knowledge of the English language (f) have an adequate knowledge of Australia and of the responsibilities and privileges of

Australian citizenship (g) be likely to reside, or to continue to reside, in Australia or maintain a close and continuing

association and (h) be of good character.

The requirement for citizenship applicants to ‘possess a basic knowledge of the English language’ is understood as having a sufficient knowledge of English to be able to exist independently in the wider Australian community.

The requirement to have an ‘adequate knowledge of Australia and of the responsibilities and privileges of Australia citizenship’ is linked to the concepts and information people need to understand in order to make the Pledge of Commitment.

The Australian citizenship test is designed to assess whether a person has an adequate knowledge of Australia and the responsibilities and privileges of citizenship, and a basic knowledge of the English language.

Section 21(2A) provides that the only way the Minister can be satisfied that the applicant meets s21(2)(d), (e) and (f) is that the person has successfully completed a test approved in a determination (made by the Minister under s23A).

The Minister’s determination specifies that a person must successfully complete the citizenship test within 6 months of lodging their application for citizenship by conferral.

The Minister has approved three citizenship tests under s23A of the Act:

a Standard Test

an Assisted Test, for people with low levels of literacy or with a physical impairment that prevents them from completing the standard test and

a course-based test for vulnerable clients who require assistance in learning and are unable to undertake a computer based test even with assistance.

The Minister has also, by determination, set out the criteria which a person must meet to sit an approved test. If a person does not meet the criteria they cannot sit an approved test.

Applicants who satisfy s21(3) - (8) are not required to sit a test. However there is no legal barrier to them doing so unless they do not meet the eligibility criteria in the Minister’s determination.

A copy of the Minister’s determination is in LEGEND (and LEGEND.com) under the Legislative instruments or similar tag. It is also on the Department’s website.

Australian Citizenship Instructions Jan 2011

Documents

Transcript of Australian Citizenship Instructions Jan 2011