General information only, not legal advice. Immigration law changes; contact Onside for advice about your circumstances.
Australian Citizenship and Residence Requirements
For many permanent residents, Australian citizenship is the final stage of their migration journey.
While the citizenship process may appear straightforward, the residence requirement can be more complicated than simply counting the number of days you have spent in Australia.
Applicants may have spent significant periods overseas because of work, family circumstances or other commitments. Others may have circumstances that bring them within the special residence provisions or may need to consider whether a Ministerial discretion could be relevant.
Understanding which residence requirement applies to you is an important part of preparing your citizenship application.
What is the general residence requirement?
For most applicants applying for Australian citizenship by conferral, the general residence requirement requires you to have:
lived in Australia on a valid visa for the four years immediately before applying;
held a permanent visa or Special Category (subclass 444) visa for the 12 months immediately before applying;
been outside Australia for no more than 12 months in total during those four years; and
been outside Australia for no more than 90 days in the 12 months immediately before applying.
If you have spent significant periods outside Australia, it is important to carefully check your travel history and the dates on which your lawful residence and permanent residence commenced.
What if I do not meet the general residence requirement?
Not meeting the ordinary residence requirement does not necessarily mean that there are no provisions relevant to your circumstances.
There are special residence requirements that apply to certain applicants, as well as specific Ministerial discretions that may, in limited circumstances, allow certain periods to be treated as satisfying aspects of the residence requirement.
These are separate provisions and should not be treated as automatic exemptions.
What is the special residence requirement?
The special residence requirement applies only to specific categories of applicants whose activities or employment fall within the relevant provisions.
There are two broad categories.
Activities of benefit to Australia
The special residence requirement may apply to certain applicants who need to become Australian citizens to engage in specified activities and who do not have sufficient time to meet the general residence requirement.
This can include certain athletes seeking to participate as members of Australian teams supported by recognised sporting organisations, as well as certain Commonwealth employees whose positions require a Negative Vetting 2 or higher security clearance.
For this category, applicants generally need to have been ordinarily resident in Australia as a permanent resident for the two years immediately before applying, and to have lived in Australia for at least 180 days during those two years, including at least 90 days in the 12 months immediately before applying.
Certain occupations requiring regular travel outside Australia
The special residence requirement may also apply to people engaged in certain specified types of work that require regular travel outside Australia.
The Department's categories include certain:
crew members of ships or aircraft;
workers on resources or sea installations;
chief executive officers or executive managers of qualifying ASX/All Ordinaries companies;
scientists and academics undertaking qualifying research and development of benefit to Australia;
scientists employed by CSIRO or qualifying medical research institutes;
internationally renowned medical specialists meeting the relevant requirements;
people working in qualifying areas in connection with certain Distinguished Talent or Global Talent visas; and
ministers of religion in senior leadership positions within religious organisations.
For this category, applicants generally need to have been ordinarily resident in Australia for the four years immediately before applying, including one year as a permanent resident, and to have lived in Australia for at least 480 days during those four years, including at least 120 days in the 12 months immediately before applying.
The special residence requirement is subject to specific eligibility criteria. Simply travelling overseas frequently for work does not, by itself, mean that an applicant qualifies.
What is Ministerial discretion?
Ministerial discretion is not an automatic exemption from the citizenship residence requirements.
There are specific circumstances in which the Minister may have discretion to treat certain periods as satisfying aspects of the residence requirement.
The Department identifies circumstances including where:
an applicant was an unlawful non-citizen because of an administrative error;
an applicant was a lawful temporary resident rather than a permanent resident because of an administrative error;
an applicant was a temporary resident during the relevant period and would suffer significant hardship or disadvantage if that period were not treated as time spent as a permanent resident;
certain periods were spent in prison or a psychiatric institution, subject to the applicable requirements;
an applicant was the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen and spent certain periods overseas while a permanent resident, while maintaining a close and continuing association with Australia; or
an applicant held a permanent visa based on an interdependent relationship with an Australian citizen and spent certain periods overseas while maintaining that relationship and a close and continuing association with Australia.
These provisions are highly fact-specific and are not automatic entitlements.
If an applicant wishes to have a Ministerial discretion considered, supporting evidence should be provided with the citizenship application. The Department also states that eligibility for a Ministerial discretion cannot be assessed in advance of an application for citizenship.
What evidence may be relevant?
The evidence required will depend on the particular circumstances of the applicant and the residence issue being considered.
Depending on the case, relevant evidence may include travel and passport records, evidence of residence in Australia, employment records, evidence concerning an Australian citizen spouse or partner, evidence explaining periods spent overseas, financial or property records, and evidence supporting any claimed hardship, administrative error or continuing connection with Australia.
Where an applicant is seeking consideration of a Ministerial discretion, it is particularly important that the supporting evidence directly addresses the circumstances relied upon.
What if I have spent a lot of time overseas?
Extended periods overseas do not automatically mean that you cannot become an Australian citizen.
However, your travel history should be carefully assessed against the applicable residence requirement.
The relevant questions may include:
How long have you lived lawfully in Australia?
When did your permanent residence commence?
How much time have you spent outside Australia?
Were your absences concentrated in the 12 months before applying?
Does a special residence requirement apply?
Are there circumstances that may be relevant to a Ministerial discretion?
Why professional advice can be important
The citizenship residence requirement can look simple when considered as a calculation of days in and out of Australia. However, some applicants have circumstances that require more than a straightforward calculation.
The distinction between the general residence requirement, special residence requirement and Ministerial discretion can be particularly important where an applicant has significant overseas travel or an unusual immigration history.
Obtaining advice before lodging can help identify potential issues, determine which provisions may be relevant and ensure that appropriate supporting evidence is prepared.
How Onside Immigration Lawyers Can Assist
At Onside Immigration Lawyers, we assist clients with Australian citizenship applications, including matters involving complex residence histories and unusual circumstances.
Our experienced immigration lawyers can assist with:
citizenship eligibility assessments;
residence requirement assessments;
detailed travel and residence history reviews;
special residence requirement matters;
Ministerial discretion matters;
identifying and preparing supporting evidence; and
preparing submissions addressing complex citizenship circumstances.
We understand that citizenship applications are not always as simple as completing the application form and calculating the days spent in Australia. Where your circumstances fall outside the ordinary requirements, obtaining the right advice before lodging can be particularly important.
Need Advice About Your Citizenship Eligibility?
If you are concerned that you may not meet the ordinary citizenship residence requirement, have spent significant periods overseas, or believe that the special residence provisions or a Ministerial discretion may be relevant to your circumstances, Onside Immigration Lawyers can assess your circumstances and advise you on the appropriate approach before you lodge your application.