Australian Citizenship by Conferral – Exceptions to the General Residence Requirement

Summary: To apply for Australian citizenship by conferral you have to satisfy residential periods in Australia as a permanent resident. There is a possible waiver to this situation where your defacto partner or spouse is an Australian citizen at the time of your citizenship application.

Australian citizenship may be acquired in various ways. Such citizenship may be acquired automatically where, for example, a person is born in Australia and one or both of his parents are Australian citizens or permanent residents when the person is born.

Australian citizenship may also be acquired by application. Section 19G of the Australian Citizenship Act 2007 (Cth) (the Act) describes 7 different situations whereby a person can obtain Australian citizenship by conferral.  The criteria for general eligibility for the conferral includes the general residence requirement set out in s22 of the Act. The Act confers upon the Minister a discretion to treat a period of absence from Australia as a period in which the person was present for the purposes of satisfying the general residence requirement. A recent decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v Han [2015] FCAFC 79 indicated that where the person applying for citizenship by conferral has a spouse or defacto partner who is an Australian citizen then any period overseas may be counted as time in Australia if:

a)      The person was a spouse or defacto partner of that Australian citizen during that period;
b)      The person was a permanent resident during that period; and
c)       The Minister is satisfied that the person had a close and continuing association with Australia during that period.

The Han case confirms a decision of the Administrative Appeals Tribunal (AAT) that it is sufficient that the applicant’s defacto partner or spouse has to be an Australian citizen at the time of the application, not for the entirely of the residential period.


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