NZ Citizens, Permanency and Citizenship of Australia
We are often asked whether there is a “short cut” method for New Zealanders living in Australia, to become Australian citizens.
The answer can be a little complicated, depending upon the person’s travel history to Australia. Thus, the first issue will be whether they had arrived in Australia before or after 26 February 2001. If a New Zealand citizen arrived before that date, generally speaking they are not required to become permanent residents before seeking citizenship. Those who arrived after that date are generally required to be granted an Australian permanent visa first (and therefore meet similar criteria as any other nationality), before they can make an application for citizenship of Australia. However, it may also depend whether or not the New Zealand citizen had previously entered Australia before 1 September 1994. This is because such a person was considered a permanent resident of Australia under legislation in place prior to that date. In such a case, it might be possible for a New Zealand citizen to obtain what is called a Resident Return Visa “RRV”, which is a permanent residency visa, on the basis that they are considered a former Australian permanent resident. However, such a person would also need to prove “substantial business, cultural, employment or personal ties which are of benefit to Australia” and where the person has been physically absent from Australia for 5 years or more, that there are “compelling reasons” for that absence. The scope of this article is not sufficient to explain each of these in full, but it’s important to understand that each application is treated on a case-by-case basis. We have certainly had success in the past in satisfying both of these requirements.
DIBP’s RRV policy supports the position that a former permanent resident includes any person who was recognised as a permanent resident of Australia within the context of the relevant migration legislation that applied when official permission was first given to them to settle permanently in Australia, but who has subsequently lost that status (other than through visa cancellation).
This approach helps ensure that no applicant, regardless of their origin or date of migration, is inadvertently disadvantaged by variances in wording of the definition of ‘permanent resident‘ within Australian migration legislation over time. Analysis of relevant cases indicate that the courts have accepted that a person who previously lived in Australia as a permanent resident, however defined, is a former Australian permanent resident.
It’s important to understand that any New Zealander arriving in Australia with a valid New Zealand passport after 26 February 2001, (subject to health and character considerations) is entitled to be granted a Special Category visa “SCV” (Subclass 444). Such a visa is recorded electronically against the person’s passport. Again generally speaking, this visa allows a New Zealand citizen to live and work in Australia for as long as they wish, but it is not a permanent residency visa. It is a temporary visa and does not automatically lead to permanency or citizenship. Similarly, New Zealand citizens arriving after 26 February 2001 also need to obtain (or renew) permanent status if they wish to access certain social security payments or to sponsor their family members for permanent residency. Bear in mind however, that a New Zealand citizen even on a Subclass 444 visa, may be able to sponsor a family member on a temporary basis under Subclass 461.
There may be methods of obtaining citizenship for a New Zealand citizen who arrived in Australia after 26 February 2001 on their current stay, but (as above) that may depend on them having arrived and being resident on an earlier occasion, prior to 1 September 1994.
Of course there’s much more to this than can be set out in a small article such as this. For instance, the child of a New Zealand citizen might well already be a permanent resident in the following circumstances.
If the New Zealand citizen parent is a permanent resident or holds an SCV, his or her children may already be Australian citizens if they were:
- born in Australia on or after 27 February 2001 and the parent held an Australian permanent resident visa or they were present in Australia on 26 February 2001 as the holder of a Special Category visa, or
- born in Australia between 1 September 1994 and 26 February 2001 and the parent held a permanent visa or a Special Category visa, or
- born in Australia between 26 January 1949 and 19 August 1986 unless the parent or his/her spouse were entitled to diplomatic privileges, or
- born in Australia and reached 10 years of age having lived in Australia most of their life.
If in doubt about your or your children’s status, contact Australian Visa Law.