By Kim Adey
Successive Australian Governments have encouraged the pathway to citizenship as part of their strategy to address the country's long term skills shortage. The ideal pathway to citizenship sees a person arriving in Australia on a temporary visa (often a student visa or temporary work permit), progressing to permanent residency and then onto citizenship. Where your immigration program for your overseas staff includes the possibility that a staff member may seek to become an Australian citizen, it is important that you are aware of some of the complications which arise when a temporary or permanent resident is required to frequently travel overseas.
Among other requirements, an Australian permanent resident will need to meet the residency requirement set out in section 22 of the Citizenship Act 2007 (Cth) (Citizenship Act) in order to apply for Australian citizenship. Since July 2010, a person is required to have been lawfully present in Australia for four years and in Australia as a permanent resident for at least 12 months prior to applying for citizenship. During the four year period, a person can be absent from Australia for up to 12 months in total. During the 12 months immediately prior to lodging a citizenship application, a person can be absent from Australia for no more than three months.
This residence requirement causes practical difficulties for today's workforce, which operates in an increasingly mobile global environment. Senior executives of Australian companies are often required to travel extensively throughout Asia Pacific and other areas as part of their regional roles. Senior executives and skilled workers often take up secondments to other countries, particularly within the mining and resources industry. The extended periods of time away from Australia impact a person's ability to pursue citizenship.
If a person is unable to meet the general residence requirement, their eligibility will be assessed against the special residence requirements set out in section 22B of the Citizenship Act. The special residence requirements are restrictive and do not offer a genuine alternative for many people.
Section 22B of the Citizenship Act provides that persons engaged in particular kinds of work requiring regular travel outside Australia are eligible for a special residence requirement. To meet this special residence requirement, during the four year period immediately before they submit their application, a person must have:
- been engaged in the prescribed work for at least two years;
- been ordinarily residing in Australia, and have been a permanent resident for the last 12 months;
- been present in Australia for at least 480 days in total, including at least 120 days during the 12 months immediately before applying; and
- not been present in Australia as an unlawful non-citizen.
The Minister has prescribed the particular kinds of work that the person must be engaged in to meet the special residence requirement. This work is limited to a member of the crew of a ship or aircraft and work on a sea installation or a resources installation. If a person is engaged in other kinds of work, they do not meet the special residence requirement.
This means that permanent residents in the IT, finance, media, publishing, recruitment, professional services and a range of industries other than those working on an aircraft, ship or certain offshore installations will not meet the special residence requirements. Individuals who have roles that require frequent offshore travel or overseas secondments will need to consider curtailing their travel or postponing secondments if they wish to pursue citizenship soon after becoming permanent residents.
Migration policy provides that the special residence requirement is intended for a very limited group of people who live in Australia but must leave Australia on a regular basis in order to undertake their employment. However, if a person is being relocated to another country or outside Australian waters to work on resources or sea installations, the special residence will not apply. Even if these people remain employees of an Australian company, pay taxes in Australia and maintain a home and close connections with Australia, if they are not living in Australia, they do not meet the special residence requirements.
Depending on individual circumstances, it may be possible to request the Minister to exercise his or her discretion under section 22(9) of the Citizenship Act. Under this section, where a person has an Australian citizen spouse, the Minister can treat time spent overseas by that person as periods of permanent residence in Australia, provided the person has a close and continuing connection with Australia.
If a person's spouse does not travel with them, and therefore is able to meet the general residence requirement, section 22(9) may be relevant. Once the spouse is a citizen, provided the permanent resident can show a close and continuing connection with Australia, they may be able to pursue an application for citizenship.
These applications are not straightforward. Firstly, the permanent resident will be required to show a close and continuing connection with Australia. Factors which may contribute to a close and continuing association with Australia include:
- whether the person has any children who are Australian citizens;
- the length of the person's relationship with their Australian citizen spouse or de facto partner;
- whether the person has any extended family in Australia;
- the frequency and duration of any return visits to Australia;
- the duration of all periods of residence in Australia;
- whether the person intends to reside in Australia;
- if the person has employment in Australia;
- if the person owns property in Australia;
- evidence of income tax payment in Australia; and
- current bank accounts in Australia.
Under policy, weight will be given to an application by a person who has been lawfully and physically present in Australia for at least 365 days in the four years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident).
Secondly, under policy, the discretion would usually only be exercised if the person was overseas with their Australian citizen spouse. In some instances, a person will frequently travel for work purposes without their spouse, particularly if the spouse is employed in their own right or has family obligations. If the spouse does not accompany the person on their overseas travel, the discretion will not apply. However, this is expressed in policy only, and is not contained within section 22(9) of the Act. As such, an argument could be made that the policy is inconsistent with the express provisions of the legislation and therefore should not be applied. This means that an application could become protracted, and certainly expensive, as it would require lengthy legal submissions to be made.
Finally, if a person is unable to meet the general or special residence requirements for citizenship, they will need to apply for a resident return visa to enable them to travel into and out of Australia. To be eligible to apply for a resident return visa (which is typically quite a straightforward process and can be applied for onshore or offshore) a person needs to show that they have been resident in Australia for at least two years out of the last five. If they do not meet this requirement, they need to show they have a substantial connection to Australia similar to the close and continuing connection requirement outlined earlier in this article.
The residence requirement is becoming an issue for a number of our clients and we are looking at our related organisation, the Centre for International Employment and Migration (CENTIEM), to lobby the Government on this issue.
If you have any queries about citizenship or resident return visas, do not hesitate to contact your usual Fragomen representative.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.