Citizenship - do you have to hold a visa continuously for 4 years? - Page 2

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Citizenship - do you have to hold a visa continuously for 4 years? - Page 2


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  #11 (permalink)  
Old 04-09-2019, 02:17 AM
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So the Citizenship Act states:

22 General residence requirement

(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application;

Overseas absences
(1A) If:
(a) the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and

(b) the total period of the absence or absences was not more than 12 months; then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.

So based on this, I can't see how holding a visa continuously for the 4 year period is a requirement.

Thus, Month 0 would be the "lawful residence date"??

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Old 04-09-2019, 02:57 AM
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Any adult who became a permanent resident on or after 1 July 2007 must have been lawfully residing in Australia for four years immediately before applying for Australian citizenship.

So, how would this work:
Arrived 1/1/16 on 3 month visitor visa (1/1/16-31/3/16)
Left on 28/2/16, after 2 months in the country.
No visa for legal stay in Australia between 31/3/16 and 31/12/16.
Arrived 1/1/17 on new 3 month visitor visa.
Applied PR on 1/2/17
Granted PR on 1/1/19
12 months PR is up on 1/1/20

1/1/16 to 1/1/20 = 4 years, but only 3 years and 3 months allowed legal stay in the country.

Apply for Citizenship on 1/1/20 means must have been lawfully residing in Australia since 1/1/16 ie: for four years immediately before applying for Australian citizenship.

But the gap without a visa (31/3/16 and 31/12/16) reduces this to only 3 years and 3 months legal in the four years immediately before applying for Australian citizenship.

If the absence between 31/3/16 and 31/12/16 had been with a valid visa, then it would be counted as lawfully residence.

Has anyone actually applied for, and been granted, Citizenship without having a valid visa for part of the four years immediately before applying for Australian citizenship.


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Old 04-09-2019, 03:01 AM
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Quote:
Originally Posted by Yerevanits View Post
So the Citizenship Act states:

22 General residence requirement

(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application;

Overseas absences
(1A) If:
(a) the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and

(b) the total period of the absence or absences was not more than 12 months; then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.

So based on this, I can't see how holding a visa continuously for the 4 year period is a requirement.

Thus, Month 0 would be the "lawful residence date"??
If the person is actually treated as having been present in Australia during each period of absence, but did not have a valid visa, then surely that would be a complication. Present in Australia without a valid visa would normally result in deportation instead of citizenship.

The official wording could be done better, to avoid this confusion we face.


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Old 04-09-2019, 03:05 AM
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Based on the act (it seems) that if you are absent for less than 12 months then you are still "taken to have been present in Australia". Thus satisfying the criteria.

(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application;

(b) the total period of the absence or absences was not more than 12 months; then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.

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Old 04-09-2019, 03:27 AM
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Quote:
Originally Posted by Yerevanits View Post
Based on the act (it seems) that if you are absent for less than 12 months then you are still "taken to have been present in Australia". Thus satisfying the criteria.

(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application;

(b) the total period of the absence or absences was not more than 12 months; then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
absent for less than 12 months, but still a lawful resident, ie: still holding a valid visa even if out of the country.

I have read that the Lawful residence date is reset by entry after any period where a valid visa was not in effect.

The important thing appears to be that the applicant had 4 years of Lawful residence, whether in the country for all of it or not, during the 4 years immediately before the day the person made the application.

And of course, 3 years of that 4 years lawful residence must have been in Australia.

A person cannot be a Lawful resident of Australia without some form of valid visa.


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Old 04-09-2019, 03:59 AM
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Just looked at the latest Citizenship pages on this, at the residence calculator:

At the time you apply you must have been living in Australia on a valid visa for the past 4 years.
Living in Australia allows for trips overseas (up to 12 months) to be still counted as residence assuming you had a valid visa during those trips.



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Old 04-09-2019, 05:13 AM
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It all depends on where you put the emphasis.

"Living in Australia on a valid visa" - that is at any time when you are in Australia you hold a valid visa.

"For the past four years" - includes time when you are not in Australia but are "taken to be in Australia" as absences are less than 12 months.

The Act does not specify a requirement to hold a visa during absences in Australia. The only requirement is that you have not been present in Australia as an unlawful non-citizen. Being offshore and not holding a visa shouldn't effect that the requirement.

22 General residence requirement

(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:

(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application; and

(b) the person was not present in Australia as an unlawful non‑citizen at any time during that 4 year period; and

(c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.

Overseas absences

(1A) If:

(a) the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and

(b) the total period of the absence or absences was not more than 12 months;

then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.

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Old 04-09-2019, 05:43 AM
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Quote:
Originally Posted by Yerevanits View Post
It all depends on where you put the emphasis.

"Living in Australia on a valid visa" - that is at any time when you are in Australia you hold a valid visa.

"For the past four years" - includes time when you are not in Australia but are "taken to be in Australia" as absences are less than 12 months.
Clearer information on the Citizenship website might be handy on this topic.

The requirement to have been 'Living in Australia on a valid visa for the past 4 years' appears in one way to say you must have a valid visa for that 4 years.

This 2018 thread (https://www.australiaforum.com/visas...ml#post1817122) shows how confused it can get, with the date being put back by 10 months due to time overseas.

This one, from 2015, (https://www.australiaforum.com/visas...tml#post720513) shows the opposite, allowing Citizenship even with time without a visa.

I wonder how often the official interpretation also varies.


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Old 04-09-2019, 06:06 AM
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JandE - the issue with the first thread seems to be that they were outside Australia for 17 months. And four years immediately before they weren't in Australia.

It seems that even amongst the migration agents that have responded to this thread there is still a difference of opinion, so what hope do the rest of us have!!

For us, given the time difference between the two dates, it is worth having a go and seeing if we are eligible for the early date. If so good, if not hopefully we get an answer before the second eligibility date and we haven't lost anything (other than the fee).

Depending on the election result, the Citizenship Act could change in the future so the earlier we apply the better!!

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Old 04-09-2019, 06:59 AM
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Quote:
Originally Posted by Yerevanits View Post
JandE - the issue with the first thread seems to be that they were outside Australia for 17 months. And four years immediately before they weren't in Australia.
That's where it does get confusing, they changed his Lawful Residence date from 16/12/13 to 22/10/14, because he had been out of the country.
(In 2017 they gave his Lawful Residence Date as 15/12/13, the date he arrived on his first visitor visa.
In 2018 they changed it to 22/10/14, the date of his 489 visa, after being out of the country with no visa, between 24/12/13 and 22/10/14)


We are supposed to know what our lawful residence date is, to use the calculator, to be able to work out our dates... Feels like there's a circle there somewhere.

In 2011, when I did mine, I would have been thinking, was it 1984, 1986, or 2001? It didn't really matter, for me, but it shows the confusion.

Now I am looking at it for my wife, when the time comes, and wondering what date would be the right one, the 1st Visitor visa, or the 2nd. Not sure it will matter though, with partner visas taking so long, by the time the one year on PR is up she will have been here continuously for over 4 years.

I am not sure if Immigration actually know the rules themselves.


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