Australian Citizenship (Permanent Resident) Determination (LIN 22/103) 2022

LIN 22/103

Compilation no. 1

Compilation date 1 July 2023

This compilation was prepared by the Department of Home Affairs on 1 July 2023 taking into account amendments up to Australian Citizenship (Permanent Resident) Amendment Determination (LIN 23/024) 2023.

1          Name

3          Definitions

                 In this instrument:

airline crew member has the meaning given by regulation 1.03 of the Migration Regulations 1994.

airline positioning crew member has the meaning given by regulation 1.03 of the Migration Regulations 1994.

dependent child has the meaning given by regulation 1.03 of the Migration Regulations 1994.

diplomatic or consular representative has the meaning given by subsection 5(1) of the Migration Act 1958.

return endorsement means a return endorsement issued under section 11A of the Migration Act 1958 before the day when the Statute Law (Miscellaneous Provisions) Act (No. 1) 1987 received the Royal Assent, other than a return endorsement that has expired or been cancelled, including a document or notation mentioned in subsection 9(3) of the Migration Amendment Act 1979.

spouse has the meaning given by regulation 1.03 of the Migration Regulations 1994.

Subclass 189 visa means the Subclass 189 (Skilled—Independent) visa prescribed by the Migration Regulations 1994.

4 Persons who hold a special category visa

 (1) For subsection 5(2) of the Act, this section applies to a person who:

(a) is a New Zealand citizen; and

(b) holds a special category visa; or

(c) both:

 (i) held a special category visa on or after 1 July 2023; and

 (ii) holds a permanent visa which was granted to the person on or after 1 July 2023.

 (2) The person is taken to have become a permanent resident on 1 July 2022 if the person was granted a special category visa before 1 July 2022.

 (3) The person is taken to have become a permanent resident on the day between 1 July 2022 and 30 June 2023 when the person was granted a special category visa for the first time.

 (4) The person is a permanent resident if the person is granted a special category visa on or after 1 July 2023.

 (5) However, this section does not apply to a person who:

(a) is in Australia as a diplomatic or consular representative of New Zealand; or

(b) is the spouse or dependent child of a diplomatic or consular representative of New Zealand.

5 Persons who have held a special category visa

 (1) For subsection 5(2) of the Act, this section applies to a person who:

(a) is a New Zealand citizen; and

(b) is outside of Australia but not because the person was removed or deported from Australia under the Migration Act 1958; and

(c) immediately before last leaving Australia, was the holder of:

 (i) a special category visa; or

 (ii) a special purpose visa taken to have been granted on the basis of the person’s status as an airline crew member or an airline positioning crew member.

 (2) The person is taken to have become a permanent resident on 1 July 2022 if the person was granted a special category visa before 1 July 2022.

  (3) The person is taken to have become a permanent resident on the day the person was granted a special category visa for the first time if the person was granted a special category visa between 1 July 2022 and 30 June 2023.

  (4) The person is a permanent resident if subsection (1) applies to the person on or after 1 July 2023.

 (5) However, this section does not apply to a person who, when the person was last in Australia, was in Australia as:

(a) a diplomatic or consular representative of New Zealand; or

(b) the spouse or dependent child of a diplomatic or consular representative of New Zealand.

 (6) A reference in this section to a person who has been removed or deported from Australia under the Migration Act 1958 does not include a person covered by subregulation 5.15A(3) of the Migration Regulations 1994.

6          Persons who have held special category visa—Subclass 189 visa holders

        (1)     For subsection 5(2) of the Act, a person is taken to have become a permanent resident on 1 January 2022 if the person:

(a)   is a New Zealand citizen; and

(b)   has held a special category visa; and

(c)   either:

             (i)  is the holder of a Subclass 189 visa in the New Zealand stream which was granted to the person after 31 December 2021 and before 1 July 2023 (the primary visa holder); or

            (ii)  is the holder of a Subclass 189 visa who satisfied the secondary criteria and is a member of the family unit of the primary visa holder.

        (2)     However, subsection (1) does not apply to a person who:

(a)   is in Australia as a diplomatic or consular representative of New Zealand; or

(b)   is the spouse or dependent child of a diplomatic or consular representative of New Zealand.

7          Persons in Norfolk Island or Territory of Cocos (Keeling) Islands

        (1)     For subsection 5(2) of the Act, a person is a permanent resident if the person:

(a)   is present in Norfolk Island or the Territory of Cocos (Keeling) Islands; and

(b)   is not an Australian citizen; and

(c)   subsection (2) or (3) applies.

        (2)     For a period when the person was present in Norfolk Island or the Territory of Cocos (Keeling) Islands before 1 October 2017, the person’s presence:

(a)   was not in contravention of a law of Norfolk Island or the Territory of Cocos (Keeling) Islands; and

(b)   either:

             (i)  was not, during the period when the person was present, subject to any limitation of time imposed by law; or

            (ii)  was subject to a limitation of time imposed by law, if the person would have been a permanent resident if the person:

(A)  had been present in Australia (other than in Norfolk Island or the Territory of Cocos (Keeling) Islands) in that period; or

(B)  had been present on another of the islands of Norfolk Island or the Territory of Cocos (Keeling) Islands in that period.

        (3)     For a period when the person was not present in Australia before 1 October 2017, the person was the holder of, or was taken to have been the holder of:

(a)   a visa of a class mentioned in Schedule 1; or

(b)   a return endorsement; or

(c)   a document or endorsement in force under a law of Norfolk Island or the Territory of Cocos (Keeling) Islands entitling the holder to rights equivalent to those associated with a visa of a class mentioned in Schedule 1 or a return endorsement. 

Schedule 1        Classes of visas

(paragraph 7(3)(a))

Notes

This compilation comprises Australian Citizenship (Permanent Resident) Amendment Determination (LIN 23/024) 2023 amended as indicated in the following tables.

Table of instruments

Table of amendments