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

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


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  #31 (permalink)  
Old 07-26-2020, 05:44 AM
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Originally Posted by manabeins View Post
I read the Citizenship Act of 2007. The act is very clear in the point 22:

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

So as you can see it doesn't say anything about having a visa at all when you are absent. It only says you need to be lawful while living in Australia.
If the person is taken to 'have been present in Australia during each period of absence', but didn't have a valid visa, it raises another question. "Being present in Australia without a valid visa is OK to get Citizenship.. "?

It does need better clarification.

Coming for a weeks holiday. Then applying for residency and coming back a year later, and then being able to apply for citizenship in three years, does seem to be possibly at odds to the intention?

But then, there are many irregularities in laws.

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  #32 (permalink)  
Old 07-26-2020, 07:18 AM
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Originally Posted by manabeins View Post
So as you can see it doesn't say anything about having a visa at all when you are absent. It only says you need to be lawful while living in Australia.

And it is not 3 years duration, it needs to be 4 years since you arrived the first time, and during that time you can leave up to 13 months in the first 3 years, and 90 days in the last year with PR.

In my personal opinion, it seems that it doesn't matter if you didn't have a visa overseas from what I have read. But I am still waiting for confirmation from someone, or I would have to pay an immigration lawyer to check.
Yes and no: you can be offshore without a visa during the first three years, but you do need to hold a valid permanent visa in the final 12 months, even if offshore. You can be offshore for a total of 12 months in the 4 year period of which 90 days can be in the final year.

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  #33 (permalink)  
Old 07-26-2020, 07:21 AM
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Originally Posted by JandE View Post
If the person is taken to 'have been present in Australia during each period of absence', but didn't have a valid visa, it raises another question. "Being present in Australia without a valid visa is OK to get Citizenship.. "?

It does need better clarification.

Coming for a weeks holiday. Then applying for residency and coming back a year later, and then being able to apply for citizenship in three years, does seem to be possibly at odds to the intention?

But then, there are many irregularities in laws.
Being present in Australia without a valid visa is not OK, but as the previous poster says, if you are offshore without a valid visa that is not being unlawful in Australia. The rules are different for the final 12 months, and this does catch people fairly often.

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  #34 (permalink)  
Old 07-26-2020, 08:04 AM
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Being present in Australia without a valid visa is not OK, but as the previous poster says, if you are offshore without a valid visa that is not being unlawful in Australia. The rules are different for the final 12 months, and this does catch people fairly often.
The question I have a query on is where the person is outside Australia, due to not having a valid visa, but it is still "counted as being present in Australia" for Citizenship.

It seems odd.

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  #35 (permalink)  
Old 07-26-2020, 08:31 AM
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The question I have a query on is where the person is outside Australia, due to not having a valid visa, but it is still "counted as being present in Australia" for Citizenship.

It seems odd.
It is what it says on the tin ... if the person is outside Australia then they don’t need a visa for Australia. Different rules around what constitutes ‘permanent resident’ for the final 12 months as the definition of permanent resident requires you to be holding an in-effect permanent visa.

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  #36 (permalink)  
Old 07-26-2020, 10:21 AM
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Ok I have been giving this a longer thought. It does seem that non having a visa "offshore" wouldn't be a issue:

1) According to the citizenship act: if 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.


2) However, if the person is "taken to have been present in Australia", then the question arise that they were "present in Australia" without a visa. Which in turn would make them "unlawful". ?

3) If true, you will indeed need a valid visa for the past 4 years.

However, I was non convinced you can be "unlawful non-citizen" while not in Australia. So I continued by checking the definitions.

If you further check the Section 3 of the Citizenship ACT definition of unlawful_non-citizen, it says that an "unlawful non-citizen" has the same meaning as in the Migration Act 1958 .

If you then look at the Migration Act, Section 14, it does define unlawful non-citizens as follows:
"Unlawful non-citizens
(1) A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.

(2) To avoid doubt, a non-citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non-citizen."


The key words are "IN THE MIGRATION ZONE", which is also defined in the migration ACT as "the area consisting of the States, the Territories, Australian resource installations and Australian sea installations "

SO IN A SUMMARY:
"You can only be unlawful if you are IN Australia, and not otherwise" That we are "deemed to be present", cannot make us unlawful as per the migration act. Therefore, having a period without a visa overseas, won't stop the time to count towards the citizenship if all other criteria are completed.

I guess now we can all go check with this a lawyer, and if anyone gets an answer, let us know!!!


Last edited by manabeins; 07-26-2020 at 10:24 AM.

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  #37 (permalink)  
Old 07-26-2020, 11:39 AM
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Originally Posted by manabeins View Post
Ok I have been giving this a longer thought.

SO IN A SUMMARY:
"You can only be unlawful if you are IN Australia, and not otherwise" That we are "deemed to be present", cannot make us unlawful as per the migration act. Therefore, having a period without a visa overseas, won't stop the time to count towards the citizenship if all other criteria are completed.

I guess now we can all go check with this a lawyer, and if anyone gets an answer, let us know!!!
Yes, this is effectively correct. However, as I mentioned above, note that the situation is different for the final 12 months as you need to be a permanent resident during this period and, in this case, you DO need an in-effect permanent visa when you are offshore to maintain your permanent residence status.

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  #38 (permalink)  
Old 07-26-2020, 12:47 PM
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Originally Posted by paulhand View Post
Yes, this is effectively correct. However, as I mentioned above, note that the situation is different for the final 12 months as you need to be a permanent resident during this period and, in this case, you DO need an in-effect permanent visa when you are offshore to maintain your permanent residence status.
Hi Paul,

Indeed you need to get in to activate the PR, so that can be an issue in case someone haven't arrived. However I raised this issue because the immigration website says:

"You must have held a valid Australian visa for 4 years immediately before applying, including 1 year as a permanent resident immediately before applying."

I am assuming this is just wrong, but it is the reason for the confusion.


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