Australian Citizenship (Permanent Resident) Amendment Determination (LIN 23/024) 2023

EXPLANATORY STATEMENT

Issued by authority of the Minister for Immigration, Citizenship and Multicultural Affairs

Australian Citizenship Act 2007

Australian Citizenship (Permanent Resident) Amendment Determination (LIN 23/024) 2023

1                The instrument, Departmental reference LIN 23/024, is made under subsection 5(2) of the Australian Citizenship Act 2007 (the Act). 

2                The instrument amends Australian Citizenship (Permanent Resident) Determination (LIN 22/103) 2022 (LIN 22/103) in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the Acts Interpretation Act). That subsection provides that a power to make a legislative instrument includes a power to amend or repeal that instrument in the same manner, and subject to the same conditions, as the power to make the instrument. 

3                The instrument commences on 1 July 2023, and is a legislative instrument for the Legislation Act 2003 (the Legislation Act). 

Purpose

4                The purpose of the instrument is to determine New Zealand citizens who hold or have held a special category visa (SCV) and have satisfied specific requirements to be permanent residents for the purposes of the Act. The instrument removes the requirement for an SCV holder to also be a ‘protected SCV holder’ within the meaning of the Social Security Act 1991.

5                Paragraph 5(1)(c) of the Act provides that a person is a permanent resident at a particular time if the person is covered by a determination in force under subsection 5(2) at the time.

6                Subsection 5(2) of the Act provides that the Minister may, by legislative instrument, determine that:

• persons who hold an SCV or a special purpose visa; or
• persons who have held an SCV; or
• persons who are present in Norfolk Island or the Territory of Cocos (Keeling) Islands;

and who satisfy specified requirements are, or are during a specified period, persons to whom subsection 5(2) applies.

7                Most applicants for citizenship by conferral (with certain exceptions) must satisfy the general residence requirement set out in section 22 of the Act, which includes a requirement (at paragraph 22(1)(c)) for the person to have been present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.

8                As an SCV is a temporary visa, a New Zealand citizen who holds an SCV will only be able to satisfy this requirement if they are determined to be a permanent resident by an instrument made under subsection 5(2) of the Act, enabling the person to meet the general 12 month residence requirement under paragraph 22(1)(c) of the Act.  The purpose of this measure is to provide a pathway to Australian citizenship for New Zealand citizens who hold an SCV.

Consultation

9                The Australian Government consulted with the New Zealand Government at the ministerial and official level and with a peak community group representing New Zealand citizens in Australia on the issue of Australian citizenship pathway for New Zealand citizens, but not specifically in relation to the proposed solution.

10            The Office of Impact Analysis was consulted and considered that the instrument dealt with matters of a minor nature and therefore an Impact Analysis is not required.  The OBPR reference number is OBPR22-03310.

Details of the instrument

11            Section 1 sets out the name of the instrument.

12            Section 2 provides for commencement of the instrument on 1 July 2023.

13            Section 3 provides that Schedule 1 amends LIN 22/103.  

14            Item 1 of Schedule 1 repeals the definition of protected SCV holder, reflecting that the permanent resident status of an SCV holder will no longer be tied to whether or not the SCV holder is a ‘protected SCV holder’ within the meaning of the Social Security Act 1991.

15            Item 2 of Schedule 1 substitutes section 4 of LIN 22/103.

• Amended subsection 4(1) provides that subsection 5(2) of the Act applies to a New Zealand citizen who currently holds an SCV, or has held an SCV on or after 1 July 2023 and holds a permanent visa which was granted to the person on or after 1 July 2023. The intention of paragraph 4(1)(c) is to ensure that SCV holders who are granted permanent visas after 1 July 2023 are not disadvantaged in relation to the backdating of their permanent residence.
• Subsection 4(2) provides that a person who satisfies subsection 4(1) is taken to have become a permanent resident on 1 July 2022 if their SCV was granted before 1 July 2022. This will backdate permanent resident status by 1 year for those SCV holders who were granted an SCV before 1 July 2022.
• Subsection 4(3) provides that a person who satisfies subsection 4(1) is taken to have become a permanent resident on the day the person was first granted an SCV, if the grant was between 1 July 2022 and 30 June 2023. This will backdate permanent resident status by up to 1 year for those SCV holders who were first granted an SCV between these dates.
• As subsections 4(2) and 4(3) will retrospectively determine that certain SCV holders are permanent residents, they will also have the effect that certain children born in Australia during the relevant period to a parent or parents who hold SCVs will be taken to have become Australian citizens at birth in accordance with paragraph 12(1)(a) of the Australian Citizenship Act 2007.
• Subsection 4(4) provides that a person is a permanent resident if the person is granted an SCV on or after 1 July 2023. This means that a person who is granted an SCV for the first time on or after 1 July 2023 will immediately be determined to be a permanent resident for the purposes of the Act.
• Subsection 4(5) provides that section 4 does not apply to a person who is in Australia as a diplomatic or consular representative of New Zealand or is the spouse or dependent child of a diplomatic or consular representative of New Zealand.
• The purpose of this amendment is to extend permanent resident status to all New Zealand citizens who hold an SCV, and to backdate permanent resident status for existing SCV holders.

16            Item 2 of Schedule 1 also substitutes section 5 of LIN 22/103.

• Subsection 5(1) provides that subsection 5(2) of the Act applies to a New Zealand citizen who is currently outside of Australia and immediately before leaving Australia was the holder of an SCV or a special purpose visa granted to the person on the basis of the person’s status as an airline crew member or an airline positioning crew member. However, section 5 does not apply to a New Zealand citizen who is outside of Australia because they were removed or deported from Australia under the Migration Act 1958 (Migration Act).
• Subsections 5(2) and 5(3) provide that a person who satisfies subsection 5(1) is taken to have become a permanent resident on 1 July 2022 if the person was granted an SCV before 1 July 2022, or on the day of their SCV grant if the person was first granted an SCV between 1 July 2022 and 30 June 2023. This will backdate permanent resident status for New Zealand citizens to whom subsections 4(2) or 4(3) would otherwise apply, but who are outside Australia at the time the instrument commences. It will also ensure that New Zealand citizens to whom subsections 4(2) or 4(3) apply will retain permanent resident status if they travel outside of Australia after 1 July 2023.
• Subsection 5(4) provides that a person is a permanent resident if subsection 5(1) applies to them on or after 1 July 2023. This effectively means that New Zealand citizens to whom subsection 4(4) applies will retain their permanent resident status if they travel outside of Australia.
• Subsection 5(5) provides that section 5 does not apply to a person who, when the person was last in Australia, was in Australia as a diplomatic or consular representative of New Zealand or was the spouse or dependent child of a diplomatic or consular representative of New Zealand.
• Subsection 5(6) provides that a reference in section 5 to a person who has been removed or deported from Australia under the Migration Act does not include those persons covered by subregulation 5.15A(3) of the Migration Regulations 1994 (Migration Regulations). Paragraph 32(2)(c) of the Migration Act provides that a criterion for grant of an SCV is that the Minister is satisfied the applicant is a person of a class of persons declared by the regulations to be persons for whom a visa of another class would be inappropriate. Subregulation 5.15A(1) of the Migration Regulations provides that the class of persons includes a person who holds and has presented to an officer a New Zealand passport that is in force; is not a health concern non-citizen (within the meaning of the Migration Act); and is covered by subregulations 5.15A(2) or (3). Relevantly, subregulation 5.15A(3) covers a person if the Minister has cancelled a visa held by the person under subsection 501(3A) of the Migration Act; the person has made representations to the Minister in accordance with subsection 501CA(3) of the Migration Act; the Minister has revoked the decision to cancel the visa under subsection 501CA(4) of the Migration Act; and no new grounds have since arisen for the person to fall within the definition of behaviour concern non-citizen (within the meaning of the Migration Act) other than the ground of the person’s removal or deportation from Australia because of the Minister’s decision to cancel the person’s visa. The intention of subsection 5(6) is to ensure that those persons who have been removed from Australia as a result of a mandatory cancellation decision which was subsequently revoked should not be considered to have been removed or deported from Australia for the purpose of paragraph 5(1)(b) of the instrument.
• The purpose of this amendment to section 5 is to extend permanent resident status to all New Zealand citizens outside Australia who held an SCV immediately before last leaving Australia, as well as certain special purpose visa holders granted to airline crew members and airline positioning crew members, provided that the person was not removed or deported from Australia. It will backdate permanent resident status for former SCV holders who were granted their first SCV prior to 1 July 2023, although most affected persons will still be required to satisfy the general residence requirement under section 22 of the Act if they wish to apply for citizenship by conferral.
• An SCV is a visa that allows the visa holder to remain in but not re-enter Australia, which means that it ceases when the holder leaves Australia in accordance with subsection 82(8) of the Migration Act. The amendments to section 5 will ensure that a New Zealand citizen who holds an SCV and who travels outside Australia will not be disadvantaged in relation to their permanent resident status by reason only of the cessation of the SCV the person last held, except in circumstances in which the person has been removed or deported from Australia.

Parliamentary scrutiny etc. 

17            The instrument is exempt from disallowance under section 42 of the Legislation Act.  This is because a determination made under subsection 5(2) of the Act is prescribed by item 4 of the table in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015.

18            The instrument was made by the Minister for Immigration, Citizenship and Multicultural Affairs, in accordance with the subsection 5(2) of the Act.