Min for Immig and Ethnic Affairs v Wu and Ors

The Minister for Immigration and Ethnic Affairs appealed to the High Court of Australia against a decision of the Federal Court of Australia concerning the eligibility of certain individuals for citizenship. The primary dispute revolved around whether the applicants, Mr. Wu and others, met the residency requirements stipulated by the *Migration Act 1958* (Cth) for the grant of citizenship by conferral. The Minister contended that the Federal Court had erred in its interpretation of the relevant provisions of the Act.

The High Court was required to determine the correct interpretation of the phrase "lawfully present" as it appeared in the *Migration Act 1958* (Cth) in relation to the residency requirements for citizenship by conferral. Specifically, the court had to consider whether periods of unlawful presence, or presence pursuant to certain temporary visas that did not confer a right to remain indefinitely, could be counted towards the requisite period of lawful residency.

The Court, in a joint judgment, held that the phrase "lawfully present" in the context of the *Migration Act 1958* (Cth) referred to a period of presence in Australia that was authorised by law. Their Honours reasoned that the legislative intent behind the residency requirement was to ensure a period of settled lawful presence in Australia before citizenship could be granted. Consequently, periods of unlawful presence, or presence under visas that did not permit indefinite stay, could not be counted towards the qualifying period. The appeal was allowed.