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Australian Citizenship Instructions

AUSTRALIAN CITIZENSHIP INSTRUCTIONS (ACIs)


Introduction to the Australian Citizenship Instructions (ACIs)
Australian Citizenship Instructions (ACIs)
The role of the ACIs is to support the Australian Citizenship Act 2007. The instructions provide
guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and
the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy
cannot constrain the exercise of delegated powers under the Act.

Latest changes
The ACIs, which are part of the centralised departmental instructions system (CDIS), were reissued
on 1 July 2014 to add material on:

identity declarations in support of applicants who meet the defence service requirement

the alternative residence requirements in sections 22A and 22B.

Owner
Citizenship Policy Section
Citizenship Branch
Migration and Citizenship Policy Division
National Office.

Australian Citizenship Instructions (ACIs)


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Contents summary
Chapter 1 - Preliminary and definitions....................................................................................... 18
1

Overview to Chapter 1 ........................................................................................................ 18


1.1

Introduction ................................................................................................................ 18

1.1.1

Legislation: the Act and the Regulations ............................................................... 18

1.1.2

Short title (s1) ...................................................................................................... 18

1.1.3

Commencement (s2) ............................................................................................ 18

1.1.4

Simplified outline (s2A) ........................................................................................ 18

1.2

Definitions .................................................................................................................. 19

1.3

Permanent resident under the old Act ......................................................................... 24

1.4

New Zealand citizens ................................................................................................... 24

Chapter 2 - Automatic acquisition of citizenship.......................................................................... 26


2

Overview to Chapter 2 ........................................................................................................ 26


2.1

Introduction ................................................................................................................ 26

2.2

Automatic acquisition of Australian citizenship (Part 2, Division 1) ............................... 26

2.2.1

Date of birth ........................................................................................................ 26

2.2.2

Citizenship by birth (s12) ...................................................................................... 27

2.2.3

Permanent residents and exempt non-citizens...................................................... 27

2.2.4

Children born in Norfolk Island or the Territory of Cocos (Keeling) Islands ............. 27

2.2.5

Ordinarily resident in Australia over 10 years since birth....................................... 27

2.3

Children born to foreign diplomats .............................................................................. 28

2.3.1

Children born to foreign diplomats are generally not ordinarily resident ............. 28

2.3.2

Diplomat parents prior to 26 January 1949 ........................................................... 28

2.3.3

Diplomat parents from 26 January 1949 to 24 November 1952 ............................. 28

2.3.4

Diplomat parents from 25 November 1952 to present .......................................... 29

2.4

Citizenship by adoption (s13) ....................................................................................... 29

2.5

Citizenship for abandoned children (s14) ..................................................................... 29

2.6

Citizenship by incorporation of territory (s15) .............................................................. 29

2.7

Historical provisions - Birth in Australia and transitional provisions .............................. 30

2.7.1

Introduction ........................................................................................................ 30

2.7.2

20 August 1986 to the present.............................................................................. 30

2.7.3

22 November 1984 to 19 August 1986 inclusive .................................................... 30

2.7.4

6 May 1966 to 21 November 1984 inclusive .......................................................... 30

2.7.5

26 January 1949 to 5 May 1966 inclusive .............................................................. 31

2.7.6

Before 26 January 1949 ........................................................................................ 31

2.7.7

The transitional arrangements on 26 January 1949 ............................................... 31

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Chapter 3 - Citizenship by descent .............................................................................................. 33


3

Overview to Chapter 3 ........................................................................................................ 33


3.1

Introduction ................................................................................................................ 33

3.2

Persons born outside Australia on or after 26 January 1949.......................................... 34

3.2.1

Summary ............................................................................................................. 34

3.2.2

Assessing citizenship of Australian citizen parents ................................................ 34

3.2.3

Character - applicants aged 18 and over ............................................................... 34

3.3

Persons born outside Australia before 26 January 1949 ................................................ 35

3.3.1

Australian citizen parent ...................................................................................... 35

3.3.2

Character ............................................................................................................. 35

3.4

Application requirements ............................................................................................ 35

3.4.1

Approved form to be used.................................................................................... 35

3.4.2

Responsible parent to sign application by child under 16 ...................................... 36

3.4.3

Supporting material ............................................................................................. 36

3.4.4

Fees to accompany applications (reg 12A) ............................................................ 37

3.5

Decision making .......................................................................................................... 37

3.5.1

Applicants born before 26 January 1949 ............................................................... 37

3.5.2

Applicants born on or after 26 January 1949 ......................................................... 37

3.5.3

An application must be approved or refused (s17) ................................................ 38

3.5.4

Registration (s18) ................................................................................................. 39

3.5.5

Day citizenship begins (s19) .................................................................................. 39

3.5.6

When a person does not become a citizen despite Ministers approval (s19A) ....... 39

3.5.7

Notification of decisions (s47) .............................................................................. 39

3.5.8

Review of decisions (s52) ..................................................................................... 40

3.5.9

Revocation by Minister (s34) ................................................................................ 40

3.6

Citizenship by descent under the old Act ...................................................................... 40

3.6.1
parent

People born outside Australia on or after 26 January 1949 to an Australian citizen


40

3.6.2
People born outside Australia or New Guinea before 26 January 1949 to a father
who became an Australian citizen on 26 January 1949 ......................................................... 41
3.6.3
People born outside Australia or New Guinea before 26 January 1949 to a mother
who became an Australian citizen on 26 January 1949 ......................................................... 42
3.7

Parent-child relationship fraud .................................................................................... 42

Chapter 4 - Adopted children...................................................................................................... 44


4

Part 1 - Adopted children .................................................................................................... 44


4.1

Overview of adoption provisions & citizenship ............................................................. 44

4.2

Automatic acquisition of Australian citizenship by adoption ......................................... 45

4.2.1

Citizenship by adoption in Australia (s13) ............................................................. 45

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4.2.2

Guardianship of adopted child (until citizenship or other significant event) ........... 46

4.3

Acquisition of Australian citizenship by application under full Hague adoption ............. 47

4.4

Adoptions other than Full Hague adoptions ................................................................. 48

4.5

Eligibility for citizenship - full Hague adoption .............................................................. 48

4.5.1
4.6

Application and eligibility for citizenship (s19C) .................................................... 48

Application requirements (s46) - Full Hague adoption .................................................. 49

4.6.1

Overview of application requirements.................................................................. 49

4.6.2

Change of childs name by the adopting parent(s) ................................................. 50

4.6.3

Information and documents to accompany applications (reg 12) ........................... 50

4.6.4

Fees to accompany applications (reg 12A) ............................................................ 50

4.7

Decision - Full Hague adoption..................................................................................... 51

4.7.1

Ministers decision (s19D) .................................................................................... 51

4.7.2

Registration (s19E) ............................................................................................... 52

4.7.3

Registration under s19E of the Act (reg 6) ............................................................. 52

4.7.4

Day citizenship begins (s19F) ................................................................................ 52

4.7.5

Notification of decision (s47) ................................................................................ 52

4.7.6

Review of decisions (s52) ..................................................................................... 52

4.7.7

Revocation by Minister (s34) ................................................................................ 52

4.8

Acquisition of Australian citizenship by application for conferral .................................. 53

4.8.1

Overview - Adoptees............................................................................................ 53

Chapter 5 - Citizenship by conferral ............................................................................................ 54


5

Overview to Chapter 5 ........................................................................................................ 54


5.1

Introduction ................................................................................................................ 54

5.2

Eligibility for citizenship by conferral............................................................................ 55

5.2.1

Requirements for becoming a citizen (s20) ........................................................... 55

5.2.2

Application and eligibility (s21) ............................................................................ 55

5.3

Permanent resident (s21(2)(b)) .................................................................................... 55

5.3.1

New Zealand citizens ........................................................................................... 55

5.3.2

If a TY-444 visa is granted to a permanent resident in error ................................... 55

5.3.3

Permanent residence and British nationality ........................................................ 56

5.4

Cessation or cancellation of a permanent visa prior to decision .................................... 56

5.4.1

Applications lodged on or after 7 October 2008 .................................................... 56

5.4.2

Applications lodged before 7 October 2008 .......................................................... 56

5.4.3

When does grant of a temporary visa cease a permanent visa............................... 57

5.5

Definition of Australia and external territories ............................................................. 57

5.5.1

Introduction ........................................................................................................ 57

5.5.2

Norfolk Island ...................................................................................................... 57

5.5.3

Cocos (Keeling) Islands and Christmas Island......................................................... 58

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5.5.4
Australian Antarctic Territory, Ashmore & Cartier Islands, the Coral Sea Islands and
Heard & McDonald Islands.................................................................................................. 59
5.5.5
5.6

Papua New Guinea former Australian territory .................................................. 59

Residence requirement (s21(2)(c)) ............................................................................... 60

5.6.1

Introduction ........................................................................................................ 60

5.6.2

Sections 21(2)(d), (e) and (f) ................................................................................. 60

5.7
Likely to reside, or continue to reside, in Australia or to maintain a close and continuing
association with Australia (s21(2)(g)) ...................................................................................... 60
5.7.1

Likely to reside, or continue to reside in Australia ................................................. 61

5.7.2

Maintain a close and continuing association with Australia ................................... 61

5.7.3

Minister may cancel approval............................................................................... 61

5.8

Good character ........................................................................................................... 62

5.9

Permanent or enduring physical or mental incapacity (s21(3)) ...................................... 62

5.9.1
5.10

GPs ...................................................................................................................... 63

Person aged 60 or over (s21(4)(i)) ................................................................................ 63

5.10.1

Interviews for people over 60............................................................................... 64

5.11

Person with hearing, speech or sight impairment (s21(4)(a)(ii)) .................................... 65

5.12

Person aged under 18 years (s21(5)) ............................................................................ 66

5.12.1

When was application received ............................................................................ 66

5.12.2

Best interests of the child ..................................................................................... 67

5.12.3

Prohibitions on approval ...................................................................................... 67

5.12.4

Information for ICSE ............................................................................................. 67

5.12.5

Applicants under the age of 16 ............................................................................. 68

5.12.6

Applicants aged 16 or 17 ...................................................................................... 69

5.12.7

IGOC minors (previously wards of the Minister) .................................................... 70

5.12.8
wards)

Non-IGOC minors (previously unaccompanied humanitarian minor (UHM) non71

5.13

Person born to former Australian citizen (s21(6)) ......................................................... 73

5.14

Other requirements..................................................................................................... 73

5.14.1

Introduction ........................................................................................................ 73

5.14.2

Statelessness (s21(8)) ........................................................................................... 73

5.15

Residence requirement (s22, s22A & s22B) .................................................................. 73

5.15.1

General residence requirement (s22) .................................................................... 73

5.15.2

Unlawful non-citizen ............................................................................................ 74

5.15.3

Overseas absences (s22(1A) & (1B)) ...................................................................... 74

5.15.4 Calculation of the 4-year lawful residence period when a person has been absent
from Australia on the day 4 years immediately before applying ........................................... 75
5.15.5

New Zealand citizens ........................................................................................... 76

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5.15.6 People working on ships or aircraft - presence in Australia is not determined by the
Migration Act ..................................................................................................................... 77
5.15.7

People who were permanent residents immediately prior to 1 July 2007 .............. 77

5.15.8
(5A))

Confinement in prison or psychiatric institution and Ministerial discretion (s22(1C) &


77

5.15.9

Partial exemption - person born in Australia or former Australian citizen (s22(2)) .. 78

5.16

Ministerial discretion - administrative error (s22(4A) & (5)) .......................................... 78

5.17

Ministerial discretion - significant hardship or disadvantage (s22(6)) ............................ 80

5.17.1

Background ......................................................................................................... 80

5.17.2

What is significant hardship or disadvantage ........................................................ 80

5.18 Ministerial discretion - spouse, de facto partner or surviving spouse or de facto partner
of an Australian citizen (s22(9) & (10)) .................................................................................... 82
5.19

Ministerial discretion - person in an interdependent relationship (s22(11)) ................... 83

5.19.1

Background ......................................................................................................... 83

5.19.2 Evidence of active participation in Australian community based activities or


organisations...................................................................................................................... 84
5.20

Applications made but not decided before 1 July 2007 ................................................. 84

5.21 Special residence requirement - Persons engaging in activities that are of benefit to
Australia (s22A) ..................................................................................................................... 84
5.21.1

Requirements ...................................................................................................... 84

5.21.2

Ministerial discretion alternative residence requirements (s22A(1A))................ 85

5.21.3

Confinement in prison or psychiatric institution (s22A(2) & (3))............................. 85

5.21.4

Ministerial discretion - Administrative error (s22A(4) & (5)) .................................. 86

5.22 Special residence requirement - Persons engaged in particular kinds of work requiring
regular travel outside Australia (s22B) .................................................................................... 87
5.22.1

Introduction ........................................................................................................ 87

5.22.2

Ministerial discretion alternative residence requirements (s22B(1A)) ................ 88

5.22.3

Confinement in prison or psychiatric institution (s22B(2) & (3)) ............................. 88

5.22.4

Ministerial discretion - Administrative error (s22B(4) & (5)) .................................. 88

5.23

Business Talent (subclass 132) visa holders .................................................................. 90

5.23.1

Introduction ........................................................................................................ 90

5.23.2

Citizenship Applications from subclass 132 Holders............................................... 90

5.23.3

Courses of action available to Citizenship officers ................................................. 91

5.24

Relevant defence service (s23) ..................................................................................... 91

5.24.1

Introduction ........................................................................................................ 91

5.24.2

Defence service requirement................................................................................ 92

5.24.3

Relevant defence service...................................................................................... 92

5.24.4

Service that is not relevant defence service .......................................................... 92

5.24.5

Member of the family unit of person who has completed relevant defence service 92

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5.24.6

Assessing member of the family unit .................................................................... 93

5.24.7

People who did not migrate as part of the defence persons family unit ................ 93

5.24.8

Evidence .............................................................................................................. 93

5.24.9

Identity declaration ............................................................................................. 94

5.24.10

Fees ................................................................................................................. 94

5.24.11

Recording in ICSE.............................................................................................. 94

5.25

Application requirements (s46) .................................................................................... 94

5.25.1

Introduction ........................................................................................................ 94

5.25.2

Information and documents to accompany applications (reg 12) ........................... 97

5.26

Fees to accompany applications (reg 12A) .................................................................... 97

5.26.1

Legislative framework .......................................................................................... 97

5.26.2

Reduced fee payable for certain application ......................................................... 98

5.26.3

Concessional fees for certain social welfare recipients .......................................... 98

5.26.4

Nil fees for certain applications ............................................................................ 99

5.26.5

Refund of fees (reg 13) ......................................................................................... 99

5.26.6

British and Maltese former child migrants .......................................................... 100

5.27

Decision making ........................................................................................................ 100

5.27.1

Ministers decision (s24) - summary.................................................................... 100

5.27.2

Identity (s24(3)) ................................................................................................. 101

5.27.3

National security (s24(4), s24(4A), s24(4B), s24(4C), and s24(4D)) ........................ 101

5.27.4

If a person is or has been subject to court proceedings for an offence (s24(6)) ..... 102

5.27.5

Cessation of citizenship (s24(7)) ......................................................................... 105

5.27.6

Deferral of decision not possible ........................................................................ 105

5.27.7

When there is a decision bar ........................................................................... 106

5.27.8

Minister may cancel approval (s25) .................................................................... 106

5.27.9

Prescribed reasons for failing to make pledge of commitment (reg 7) .................. 106

5.27.10

Pledge of commitment must be made (s26) .................................................... 107

5.27.11

How pledge of commitment is to be made (s27).............................................. 107

5.27.12

Day citizenship begins (s28) ............................................................................ 107

5.27.13

Notification of decisions (s47)......................................................................... 108

5.27.14

Review of decisions (s52)................................................................................ 108

5.28

British nationality and British subjects prior to 26 January 1949 ................................. 108

5.28.1

Introduction ...................................................................................................... 108

5.28.2

Birth and descent ............................................................................................... 108

5.28.3

Naturalization - including children and foreign born wives .................................. 109

5.28.4

Children ............................................................................................................. 109

5.28.5

Foreign born wives............................................................................................. 109

5.28.6

Marriage............................................................................................................ 110

5.28.7

Annexation of a territory.................................................................................... 110

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5.28.8
5.29

Loss of British nationality ................................................................................... 110

British subject status from 26 January 1949 ............................................................... 110

5.29.1

Introduction ...................................................................................................... 110

5.29.2

Marriage and womens status ............................................................................ 111

5.29.3

Burma ............................................................................................................... 111

5.29.4

Ireland ............................................................................................................... 112

5.29.5

South Africa and Pakistan................................................................................... 113

5.30

Conventions on names .............................................................................................. 114

5.31

Names in passports ................................................................................................... 115

Chapter 6 - Ceremonies ............................................................................................................ 116


6

Overview to Chapter 6 ...................................................................................................... 116


6.1

Australian Citizenship Ceremonies Code .................................................................... 116

6.2

Who conducts citizenship ceremonies........................................................................ 116

6.2.1

Local government councils ................................................................................. 116

6.2.2

Community organisations .................................................................................. 118

6.2.3

The department ................................................................................................. 119

6.2.4

Other ................................................................................................................. 120

6.2.5

Urgent ceremonies............................................................................................. 120

6.3

Legal requirements for conducting a citizenship ceremony ......................................... 121

6.3.1

Authorisation to receive the pledge of commitment ........................................... 121

6.4

Preamble .................................................................................................................. 122

6.5

Pledge of commitment .............................................................................................. 123

6.5.1

Pledge of commitment must be made - s26 of the Act ........................................ 123

6.5.2

How the pledge of commitment is to be made.................................................... 123

6.6

Requirements following a citizenship ceremony ......................................................... 124

6.6.1

Recording ceremony attendances in ICSE............................................................ 124

6.6.2

Disclosing details of new citizens ........................................................................ 125

6.7

Australian citizenship affirmation ceremonies ............................................................ 126

6.8

Attachment A - Letter of agreement .......................................................................... 127

6.9

Attachment B - Expression of interest to host an Australian citizenship ceremony ...... 127

6.10 Attachment C - Agreement between DIBP and the party organising a citizenship
ceremony ............................................................................................................................ 129
6.11

Attachment D - Interview / image consent form......................................................... 132

6.12

Attachment E - Overseas ceremony procedures ......................................................... 135

Chapter 7 - Resuming citizenship .............................................................................................. 137


7

Overview to Chapter 7 ...................................................................................................... 137


7.1

Overview .................................................................................................................. 137

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7.2

Eligibility ................................................................................................................... 137

7.2.1

About eligibility ................................................................................................. 137

7.2.2

Cessation under this Act ..................................................................................... 137

7.2.3

Cessation under old Act ..................................................................................... 138

7.2.4

Assessing significant hardship or detriment ........................................................ 138

7.3

Application requirements .......................................................................................... 139

7.3.1

Overview ........................................................................................................... 139

7.3.2

Information and documents to accompany applications (reg 12) ......................... 140

7.3.3

Fees to accompany application (reg 12A) ............................................................ 140

7.3.4

Refund of fees (reg. 13) ...................................................................................... 140

7.4

Decision making ........................................................................................................ 140

7.4.1

Ministers decision (s30)..................................................................................... 140

7.4.2

Registration (s31) ............................................................................................... 141

7.4.3

Day citizenship begins again etc (s32) ................................................................. 141

7.4.4

Same kind of citizenship ..................................................................................... 141

7.4.5

Notification of decision (s47) .............................................................................. 141

7.4.6

Review of decisions (s52) ................................................................................... 142

Chapter 8 - Cessation of Australian citizenship .......................................................................... 143


8

Overview to Chapter 8 ...................................................................................................... 143


8.1

Overview .................................................................................................................. 143

8.2

Eligibility ................................................................................................................... 143

8.3

Application requirements .......................................................................................... 144

8.3.1

Application requirements (s46) .......................................................................... 144

8.3.2

Information and documents to accompany applications (reg 12) ......................... 144

8.3.3

Fees to accompany applications (reg 12A) .......................................................... 144

8.4

Decision making ........................................................................................................ 144

8.4.1

Ministers decision (s33)..................................................................................... 144

8.4.2

Time citizenship ceases (s33(8)) .......................................................................... 145

8.4.3

Notification of decision (s47) .............................................................................. 145

8.4.4

Revocation by Minister (s34) .............................................................................. 145

8.4.5

Service in armed forces of enemy country (s35) .................................................. 146

8.4.6

Children of responsible parents who cease to be citizens (s36) ............................ 146

8.4.7

Review of decisions (s52(1)) ............................................................................... 146

8.5

Historical provisions - Cessation of Australian citizenship ........................................... 146

8.5.1

Note regarding cessation of Australian citizenship .............................................. 146

8.5.2

s17 - repealed on 4 April 2002 ............................................................................ 146

8.5.3

People who did not cease their citizenship under s17 ......................................... 147

8.5.4

s20 - repealed on 8 October 1958 ....................................................................... 148

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8.5.5

Burma - 4 January 1948 ...................................................................................... 148

8.5.6

Children whose responsible parent ceased to be an Australian citizen ................. 148

Chapter 9 - Evidence of Australian citizenship ........................................................................... 150


9

Overview to Chapter 9 ...................................................................................................... 150


9.1

Background ............................................................................................................... 150

9.2

Evidence of Australian citizenship .............................................................................. 150

9.2.1

Applying for evidence of Australian citizenship (s37) ........................................... 150

9.2.2

Establishing Australian Citizenship status ........................................................... 151

9.2.3

Must be satisfied of the identity ......................................................................... 151

9.2.4

Information contained on a notice of evidence of Australian citizenship.............. 152

9.2.5

Change of personal details and a finding of fact about identity............................ 152

9.2.6

Cases of concern ................................................................................................ 154

9.3

Documents required to support name change ............................................................ 155

9.4

Decision making ........................................................................................................ 155

9.5

Internal review of a decision to refuse to give a person evidence of Australian citizenship


156

9.6

Applications for evidence of Australian citizenship - Children ..................................... 156

9.6.1

Children born in Australia - 20 August 1986 onwards .......................................... 156

9.6.2

Recording births in Australia .............................................................................. 157

9.6.3

Applications for evidence for children in care ..................................................... 157

9.6.4

Children abandoned in Australia ........................................................................ 158

9.7

Confirmation of Australian citizenship status for deceased persons ............................ 158

9.8

Cancellation and Surrender of Notices ....................................................................... 159

9.8.1

Overview ........................................................................................................... 159

9.8.2

Cancellation ....................................................................................................... 159

9.8.3

Surrender .......................................................................................................... 160

9.8.4

How to notify a client of cancellation and request surrender of a notice .............. 160

9.8.5

Altering evidentiary notice (s39)......................................................................... 161

9.9

Application requirements .......................................................................................... 161

9.9.1

Application requirements (s46) .......................................................................... 161

9.9.2

Information and documents to accompany applications (reg 12) ......................... 161

9.9.3

Fees to accompany application (reg 12A) ............................................................ 162

9.9.4

Refund of fees (reg 13) ....................................................................................... 162

9.10

Types of evidence issued since federation .................................................................. 162

9.10.1

Naturalization Act 1903-1920 ............................................................................. 162

9.10.2

Nationality Act 1920-1946 .................................................................................. 163

9.10.3 Effect of naturalization of husband upon married women between 1/1/1921 and
25/1/1949 ........................................................................................................................ 163
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9.10.4

Nationality and Citizenship Act 1948 - Australian Citizenship Act 1948................. 164

9.10.5

Australian Citizenship Act 2007 .......................................................................... 167

Chapter 10 - Character ............................................................................................................. 169


10

Overview to Chapter 10 ................................................................................................ 169


10.1

Overview .................................................................................................................. 169

10.1.1

Background ....................................................................................................... 169

10.1.2

Summary ........................................................................................................... 169

10.2

When do you need to consider good character .......................................................... 170

10.2.1

Summary ........................................................................................................... 170

10.2.2

Refusal under s24(6) (offences) and the consideration of good character ............ 171

10.3

What is good character.............................................................................................. 171

10.3.1

Definition .......................................................................................................... 171

10.3.2

Community standards ........................................................................................ 172

10.3.3

Australian values statement ............................................................................... 173

10.3.4

An applicant who is of good character ................................................................ 173

10.4

Relationship between Citizenship and Migration legislation ....................................... 174

10.4.1
10.5

Character assessments under both Acts .............................................................. 174

Framework for making good character decisions ...................................................... 175

10.5.1

Background ....................................................................................................... 175

10.5.2

Factors to take into account ............................................................................... 176

10.5.3

Factors not to take into account ......................................................................... 181

10.5.4

Weighing up the decision ................................................................................... 181

10.5.5

Waiting for further information.......................................................................... 183

10.6

Procedural matters.................................................................................................... 183

10.6.1

Key sources of information................................................................................. 183

10.6.2

Criminal/police checks ....................................................................................... 184

10.6.3

Quashed, pardoned and spent convictions ......................................................... 188

10.6.4

War crimes, crimes against humanity and/or genocide ....................................... 188

10.6.5

References......................................................................................................... 190

10.6.6

Procedural fairness/natural justice ..................................................................... 190

10.6.7

Recording the decision ....................................................................................... 191

10.7

Consistent decision making ....................................................................................... 191

10.7.1

Background ....................................................................................................... 191

10.7.2

Referral to the Citizenship Helpdesk ................................................................... 192

10.7.3

Referral to NCCC ................................................................................................ 192

10.8

Issues after decision and before pledge ..................................................................... 193

Chapter 11 - Personal identifiers............................................................................................... 194


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Overview to Chapter 11 ................................................................................................ 194


11.1

Introduction .............................................................................................................. 194

11.2

Personal identifiers under the Act.............................................................................. 195

11.2.1

Personal identifiers (s10).................................................................................... 195

11.2.2

Fingerprints or handprints of a person ................................................................ 195

11.2.3

Measurement of a persons height and weight ................................................... 195

11.2.4

Photograph or other image of a persons face and shoulders .............................. 195

11.2.5

Iris scan ............................................................................................................. 195

11.2.6

Persons signature.............................................................................................. 195

11.2.7

Any other identifier prescribed by the regulations .............................................. 196

11.2.8

Disclosure .......................................................................................................... 196

11.3

Definitions (s3) .......................................................................................................... 196

11.4

Obtaining personal identifiers ................................................................................... 197

11.4.1

Request for personal identifiers (s40) ................................................................. 197

11.4.2

Provision of personal identifier (s41) .................................................................. 197

11.5

Obligations relating to identifying information........................................................... 198

11.5.1

Accessing identifying information (s42) .............................................................. 198

11.5.2

Offences and Penalties ....................................................................................... 198

11.5.3

Authorised access .............................................................................................. 198

11.5.4

Authorised by the Minister ................................................................................ 199

11.5.5

Serious and imminent threat to life or health ..................................................... 199

11.6

Disclosing identifying information (s43) ..................................................................... 199

11.6.1

Overview ........................................................................................................... 199

11.6.2

Permitted disclosure .......................................................................................... 200

11.7

Unauthorised modification or impairment of identifying information (s44)................. 201

11.8

Destroying identifying information (s45) .................................................................... 202

11.8.1

Background ....................................................................................................... 202

11.8.2

Retention and storage of identifying information ............................................... 202

11.8.3

Archives Act 1983 and the departments Records Disposal Authority (902) - (RDA)
203

11.9

The relevant Information Privacy Principles (IPPs) ...................................................... 203

11.10

Access & disclosure................................................................................................ 205

Chapter 12 - National security .................................................................................................. 207


12

Overview to Chapter 12 ................................................................................................ 207


12.1

Introduction .............................................................................................................. 207

12.2

Where an adverse security assessment or qualified security assessment has been issued
208

12.3

Where the applicant is stateless ................................................................................ 208

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Chapter 13 - Offences and prosecutions under the Act .............................................................. 210


13

Overview to Chapter 13 ................................................................................................ 210


13.1

Background ............................................................................................................... 210

13.2

Offences under the Act .............................................................................................. 210

13.2.1

Division 4 - Evidence of Australian Citizenship .................................................... 210

13.2.2

Altering evidentiary notice (s39)......................................................................... 211

13.3

Division 5 - Personal identifiers .................................................................................. 211

13.3.1

Accessing identifying information (s42) .............................................................. 211

13.3.2

Disclosing identifying information (s43) .............................................................. 211

13.3.3

Unauthorised modification or impairment of identifying information (s44) ......... 212

13.3.4

Destroying identifying information (s45) ............................................................ 213

13.4

Part 3 of the Act ........................................................................................................ 213

13.4.1

False statements or representations (s50) .......................................................... 213

13.4.2

Geographical jurisdiction for offences (s51) ........................................................ 214

13.5

Action on offences .................................................................................................... 214

13.6

Investigation of possible offences .............................................................................. 215

13.7

Time limits for prosecution ........................................................................................ 216

13.8

Historical provisions .................................................................................................. 216

Chapter 14 - New Zealand citizens in Australia .......................................................................... 217


14

Overview to Chapter 14 ................................................................................................ 217


14.1

Overview .................................................................................................................. 217

14.2

Status of New Zealand citizens in Australia ................................................................ 217

14.2.1

26 January 1973 to 31 August 1994..................................................................... 217

14.2.2

1 September 1994 to 26 February 2001 .............................................................. 218

14.2.3

27 February 2001 to present............................................................................... 218

14.2.4

Centrelink certificates ........................................................................................ 219

14.2.5

Overview of status of New Zealand citizens ........................................................ 219

14.3

Australian citizenship status of children born in Australia to New Zealand citizen parents
221

14.3.1

Background ....................................................................................................... 221

14.3.2

27 February 2001 to the present......................................................................... 221

14.3.3

1 September 1994 to 26 February 2001 .............................................................. 222

14.3.4

20 August 1986 to 31 August 1994 ...................................................................... 222

14.3.5

26 January 1949 to 19 August 1986..................................................................... 222

14.3.6

Automatic acquisition of citizenship on 10th birthday ......................................... 223

14.3.7

Overview of status of the children of New Zealand citizens born in Australia ....... 223

14.4

Character requirements for New Zealand citizens applying for citizenship by conferral 224

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Chapter 15 - People born in Papua New Guinea ........................................................................ 225


15

Overview to Chapter 15 ................................................................................................ 225


15.1

Background ............................................................................................................... 225

15.2

Prior to Independence ............................................................................................... 225

15.2.1

Papua prior to Independence ............................................................................. 225

15.2.2

New Guinea prior to Independence .................................................................... 225

15.3

From Independence Day, 16 September 1975 ............................................................ 226

15.4

Citizenship by descent ............................................................................................... 227

15.4.1

People born in Papua before 16 September 1975................................................ 227

15.4.2

People born in New Guinea before 16 September 1975....................................... 227

15.4.3

People born in PNG on or after 16 September 1975 ............................................ 227

15.5

Citizenship by conferral ............................................................................................. 227

15.6

Citizenship by resumption ......................................................................................... 228

15.7

Evidence of Australian citizenship (s37)...................................................................... 229

15.7.1

People born in Papua before 16 September 1975................................................ 229

15.7.2

People born in New Guinea before 16 September 1975....................................... 229

Chapter 16 - Citizenship test ..................................................................................................... 231


16

Overview to Chapter 16 ................................................................................................ 231


16.1

Overview .................................................................................................................. 231

16.2

The Ministers determination .................................................................................... 232

16.2.1

Overview of the Ministers Determination .......................................................... 232

16.2.2

Citizenship tests approved under section 23A ..................................................... 232

16.2.3

Eligibility to sit a test .......................................................................................... 233

16.2.4

Who may administer a test ................................................................................ 234

16.2.5

Administering an assisted test and providing assistance during a standard test ... 236

16.2.6

Test invigilators ................................................................................................. 236

16.2.7

Rules of conduct while sitting a test ................................................................... 236

16.3

Guidelines for finalising applications where a test has not been successfully completed
238

16.3.1

Overview ........................................................................................................... 238

16.3.2 Computer based tests (Standard Test or Assisted Test)- non-attendance at arranged
appointments ................................................................................................................... 238
16.3.3

Computer based test not passed on first attempt ............................................... 239

16.3.4

Citizenship Course-based Test overview ............................................................. 239

16.3.5
Test

Client declines or does not respond to invitation to participate in a Course-based


240

16.3.6

Client does not attend Course-based Test after accepting invitation .................... 240

16.3.7

Clients withdraws from Course-based Test ......................................................... 241

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16.3.8

Course based Test not passed ........................................................................... 241

Chapter 17 - Application requirements & decision making ........................................................ 242


17

Application requirements under s46 of the Act .............................................................. 242


17.1

Overview .................................................................................................................. 242

17.2

Requirements ........................................................................................................... 242

17.2.1

Legislative.......................................................................................................... 242

17.2.2

Information required by the form....................................................................... 243

17.2.3

Who may sign a citizenship application form ...................................................... 243

17.2.4

Policy guidelines on returning invalid applications .............................................. 244

17.2.5

Application date ................................................................................................ 245

17.2.6

Forms ................................................................................................................ 245

17.2.7

Additional information requirements to complete or support an application....... 247

17.2.8

Record keeping .................................................................................................. 247

17.3

Decision making ........................................................................................................ 247

17.3.1

Delegations ....................................................................................................... 248

17.3.2

General principles of decision making................................................................. 249

17.3.3

Assessing the evidence....................................................................................... 250

17.3.4

Decision record writing ...................................................................................... 251

17.3.5

Jurisdictional error ............................................................................................. 252

17.4

Notification and notification periods.......................................................................... 253

17.4.1

Background ....................................................................................................... 253

17.4.2

Notification requirements .................................................................................. 253

17.4.3

Policy guidelines ................................................................................................ 254

17.4.4

Notification of decisions..................................................................................... 255

17.4.5

When a person is taken to have received a notification of a decision................... 255

17.5

Procedural fairness.................................................................................................... 256

17.5.1

When should procedural fairness be given.......................................................... 256

17.5.2

Preparing cases for litigation .............................................................................. 258

17.6

Fees .......................................................................................................................... 259

17.6.1

When a fee is payable ........................................................................................ 259

17.6.2

Repayment of an application fee ........................................................................ 259

17.6.3

Refund of an application fee .............................................................................. 259

17.7

Nominated representatives ....................................................................................... 260

17.7.1
17.8

Who can provide advice on citizenship applications ............................................ 260

Recording incidents of fraud in citizenship applications .............................................. 261

Chapter 18 Best interests of the child..................................................................................... 262


18

Overview ...................................................................................................................... 262

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18.1

Introduction .............................................................................................................. 262

18.1.1

The status of international conventions in Australian law ................................... 262

18.1.2

The Convention on the Rights of the Child .......................................................... 262

18.2

When to assess the best interests of the child ............................................................ 262

18.3

What are the best interests of the child ..................................................................... 264

18.3.1

Weighing the best interests of the child against other matters ............................ 264

18.4

Recording the assessment ......................................................................................... 265

18.5

Further information................................................................................................... 265

Chapter 19 Determining if a parent-child relationship exists ................................................... 266


19

Overview to Chapter 19 ................................................................................................ 266


19.1

Introduction .............................................................................................................. 266

19.2

Meaning of parent................................................................................................... 266

19.2.1

Background ....................................................................................................... 266

19.2.2

Fraud ................................................................................................................. 266

19.3

Applicants claiming a biological relationship to their parent ....................................... 267

19.3.1

DNA testing ....................................................................................................... 267

19.4 Applicants who do not claim a biological link or who have insufficient evidence of a
claimed biological link .......................................................................................................... 268
19.4.1

Background ....................................................................................................... 268

19.4.2

Factors to be taken into account ........................................................................ 269

19.4.3

Relevance of foreign law .................................................................................... 269

19.5

Children born as a result of artificial conception procedures ....................................... 270

19.5.1

Artificial conception (ACP).................................................................................. 270

19.5.2

Legislative framework ........................................................................................ 270

19.5.3

Children born to married or de facto couples through ACP .................................. 270

19.5.4

Children born to single females and single commissioning male parents.............. 271

19.6 Children born in Australia as a result of a surrogacy arrangement under a prescribed law
of an Australian State or Territory ........................................................................................ 271
19.6.1

Surrogacy .......................................................................................................... 271

19.6.2

Legislative framework ........................................................................................ 271

19.6.3

If the child was born in Australia through a commercial surrogacy arrangement .. 272

19.7

Children born overseas as a result of a surrogacy arrangement .................................. 272

19.7.1

Surrogacy .......................................................................................................... 272

19.7.2

Caution .............................................................................................................. 272

19.7.3

Reporting .......................................................................................................... 273

19.7.4

Legislative framework ........................................................................................ 273

19.7.5

Section 8 of the Act does not apply..................................................................... 273

19.7.6

If the child was born through a commercial surrogacy arrangement .................... 273

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19.7.7

Verifying biological parentage ............................................................................ 273

Chapter 20 Responsible parent .............................................................................................. 275


20

Overview to Chapter 20 ................................................................................................ 275


20.1

Responsible parent.................................................................................................... 275

20.1.1

The person is a parent of the child ...................................................................... 275

20.1.2

Under a parenting order the child is to live with the person ................................ 275

20.1.3 Under a parenting order the person has parental responsibility for the childs longterm or day-to-day care, welfare and development ........................................................... 276
20.1.4 The person has guardianship or custody of the child, jointly or otherwise, under an
Australian law or a foreign law, whether because of adoption, operation of law, an order of a
court or otherwise ............................................................................................................ 276
20.2

Application requirements general ........................................................................... 277

20.2.1

Applicants aged 16 and 17.................................................................................. 277

20.2.2

Applicants aged under 16 ................................................................................... 277

20.3 Application requirements children born through an international surrogacy


arrangement ........................................................................................................................ 277
20.4

Disputes between responsible parents ...................................................................... 278

20.4.1

Application validity ............................................................................................ 278

20.4.2

Withdrawal of application .................................................................................. 278

20.5

Notification requirements ......................................................................................... 278

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Chapter 1 - Preliminary and definitions


1

1.1

OVERVIEW TO CHAPTER 1

Introduction

This chapter deals with Part 1 of the Australian Citizenship Act 2007 (the Act) which includes a
definition of terms used in the Act, a simplified outline on how to become an Australian citizen, the
circumstances in which a person ceases to be a citizen and other matters related to citizenship.
This chapter also contains information on the Australian Citizenship Instructions (ACIs) and the role
of the Citizenship Helpdesk and information on British subject status before and after 26 January
1949.

1.1.1 Legislation: the Act and the Regulations


The concept of Australian citizenship has existed since the commencement of the Nationality and
Citizenship Act 1948, now known as the Australian Citizenship Act 1948 (the old Act), on 26 January
1949. Before the old Act, the concept of Australian citizenship did not exist - Australian-born and
those naturalised in Australia had the status of British subjects.
The Act, which came into effect on 1 July 2007, sets out the conditions under which Australian
citizenship may be acquired or lost. The Australian Citizenship (Transitionals and Consequentials) Act
2007 (the Transitional Act) provide for transitional matters in relation to applications under the old
Act. The Australian Citizenship Regulations 2007 (the Regulations) prescribe matters permitted by
the Act for carrying out or giving effect to the Act. The Act and Regulations are distributed separately
from these instructions.
The Australian Citizenship Instructions (ACIs) support the Act.

1.1.2 Short title (s1)


Section 1 of the Act defines the short title: This Act may be cited as the Australian Citizenship Act
2007.

1.1.3 Commencement (s2)


The Act received Royal Assent on 15 March 2007 and came into effect on 1 July 2007.

1.1.4 Simplified outline (s2A)


Simplified outlines have been included within the Act (see s2A) to explain, in plain English, the
operation of various parts of the Act.

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1.2

Definitions

The following terms are defined in s3, s4, s5 and s6 of the Act:
adverse security assessment - has the meaning given by s35 of the Australian Security Intelligence
Organisation Act 1979 (the ASIO Act). Section 35 of the ASIO Act provides that:
Adverse security assessment means a security assessment in respect of a person that contains:
(a)

any opinion or advice, or any qualification of any opinion or advice, or any


information, that is or could be prejudicial to the interests of the person; and

(b)

a recommendation that prescribed administrative action be taken or not be taken in


respect of the person, being a recommendation the implementation of which would
be prejudicial to the interests of the person.

National security considerations apply to decisions on applications for citizenship under s17
(descent), s19D (citizenship for persons adopted in accordance with the Hague Convention on
Intercountry adoption), s24 (conferral) and s30 (resumption).
artificial conception procedure - is defined as including:
(a) artificial insemination and
(b) the implantation of an embryo in the body of a woman.
For policy and procedure with cases involving artificial conception procedures see Chapter 19
Determining if a parent-child relationship exists.
Australia - Australias external territories comprise of Norfolk Island, Cocos (Keeling) Islands,
Christmas Island, Australian Antarctic Territory, Ashmore & Cartier Islands, Coral Sea Islands and
Heard & McDonald Islands.
Norfolk Island

Norfolk Island is part of Australia for the purposes of the Act but
not for the purposes of the Migration Act. Norfolk Island was also
part of Australia for the purposes of the old Act.

Cocos (Keeling) Islands and


Christmas Island

The Cocos (Keeling) Islands have been part of Australia since 23


November 1955. Christmas Island (in the Indian Ocean) became
an Australian territory on 1 October 1958.

Australian Antarctic Territory

The Australian Antarctic Territory became an Australian territory


on 13 June 1933.

Ashmore & Cartier Islands

The Ashmore & Cartier Islands became an Australian territory on


3 May 1934.

Coral Sea Islands

The Coral Sea Islands became an Australian territory on 30


September 1969.

Heard & McDonald Islands

Heard & McDonald Islands became an Australian territory on 24

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April 1953.
There was provision for people ordinarily resident in Norfolk Island, Cocos (Keeling) Islands and
Christmas Island territories, immediately before they became Australian territories, to acquire
Australian citizenship by registration of a declaration. For further information on historical
provisions, see Chapter 5 section 5.5.3 Cocos (Keeling) Islands and Christmas Island.
Australian citizen (s4 of the Act) means a person who:

is an Australian citizen under Division 1 or 2 of Part 2 of the Act or

was an Australian citizen under the old Act immediately before 1 July 2007 and has not
ceased to be an Australian citizen under the new Act.

Australian law means a law of the Commonwealth, a State or a Territory.


child - includes adopted child, stepchild, ex-nuptial child and a child within the meaning of the Family
law Act 1975. This definition was expanded on 15 March 2009 to allow for the recognition of
children to same-sex couples. It is a term primarily associated with the term responsible parent.
Note: The Full Federal Court [H v Minister for Immigration and Citizenship (2010) FCAFC 119; (2010)
188 FCR 393 (15 September 2010)] ruled that parent, when used in the Act, takes its meaning from
ordinary contemporary English usage. Whether a person is a parent of another person is a question
of fact, having regard to the evidence. Parent is not limited to a biological parent. See Chapter 4 Adopted children.
commencement day means the day on which sections 2A to 54 (as originally enacted) commence.
de facto partner - this term refers to a definition inserted into the Acts Interpretation Act 1901 as a
result of the Same-sex Relationships (Equal Treatment in Commonwealth Laws - General Law
Reform) Act 2008. The de facto partner of a person may be their same-sex or opposite-sex de facto
partner. It is relevant to the application of residence discretions at s22(9). See Chapter 5, section
5.20 Ministerial discretion spouse, de facto partner or surviving spouse or de facto partner of an
Australian citizen (ss22(9) & (10)).
disclose in relation to identifying information that is a personal identifier provided under Division 5
of Part 2, includes providing unauthorised access to the personal identifier, see Chapter 11 Personal identifiers.
entrusted person means the Secretary or an employee of the Department, a locally engaged
employee or contractor, see Chapter 11 - Personal identifiers.
foreign law - a law of a foreign country, which is any country other than Australia.
identifying information means personal identifier information provided under the Act or
information derived from that personal identifier that could identify a person, see Chapter 11 Personal identifiers.
national security offence means an offence against certain specified provisions of legislation
concerning national security. See Chapter 12, section 12 Overview.
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New Guinea - prior to Papua New Guinea (PNG) Independence on 16 September 1975, there were
two separate territories - the External Territory of Papua and the Trust Territory of New Guinea. See
Chapter 15 - People born in Papua New Guinea.
old Act means the Australian Citizenship Act 1948 that was in force from 26 January 1949 up to
and including 30 June 2007.
ordinarily resident means a person has their home in that country. A person cannot be ordinarily
resident where they reside only on a temporary basis. The term ordinarily resident is used in four
provisions:

s12(1)(b) in relation to a child becoming an Australian citizen on their 10th birthday

s22A and s22B in relation to special residence requirements and

s33(3)(b) in relation to renunciation.

Relevant considerations when assessing whether a person is or was ordinarily resident in Australia
during a particular period include:

the length of physical residence in Australia

whether the applicant considered that their home was in Australia

the nature and extent of any periods of absence from Australia and

the nature and extent of ties with Australia such as presence of family, attendance at
school, club memberships.

Similar considerations are relevant to assessing whether a person is ordinarily resident in another
country.
Ordinarily resident in another country does not mean temporarily absent from Australia but that
Australia has ceased to be the permanent place of residence. See Chapter 2 - Automatic acquisition
of citizenship.
Papua - Prior to Papua New Guinea (PNG) Independence on 16 September 1975, there were two
separate territories - the External Territory of Papua and the Trust Territory of New Guinea. See
Chapter 15 - People born in Papua New Guinea.
permanent resident is defined in s5 of the Act. A person is a permanent resident if they meet one
of the three elements to the definition, being:

the person is present in Australia at that time and holds a permanent visa at that time
see the definition of permanent visa below

the person holds a permanent visa, is not present in Australia and last left Australia as the
holder of a permanent visa. This means that in relation to periods spent outside Australia,
a person is a permanent resident during those periods if they have permission to return
to Australia as a permanent resident, such as a Resident Return visa, an Authority to
Return or a Return Endorsement

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the person is covered by a determination made under s5(2). Determinations under s5(2)
have been made in relation to New Zealand citizens see Chapter 1, section 1.4 New
Zealand citizens and persons who are present in Norfolk Island or the Territory of Cocos
(Keeling) Islands on an unrestricted basis see Chapter 5, section5.5.2 Norfolk Island and
section 5.5.3 Cocos (Keeling) Islands and Christmas Island.

If it is necessary to work out whether the person was a permanent resident before commencement
day of the Act (1 July 2007), this should be done by reference to the old Act as in force at the
relevant time. See Chapter 1, section 1.3 Permanent resident under the old Act.
permanent visa a visa which permits the holder to remain indefinitely in Australia.
personal identifier means fingerprints, handprints, height and weight measurements, photo of
face and shoulders, iris scan, signature or any other identifier prescribed by the regulations.
prison includes any custodial institution. See s9 for information relating to confinement in prison
or psychiatric institution.
psychiatric institution includes the psychiatric section of a hospital. Also see s9 of the Act for
information relating to confinement in prison or psychiatric institution.
qualified security assessment has the meaning given by s35 of the Australian Security Intelligence
Organisation Act 1979
responsible parent is defined in s6 of the Act. See Chapter 20 Responsible parent.
The term responsible parent is used in the Act, and Regulations, in a number of provisions:

s25(4) - cancellation of childs approval

s28(3), (4) - day citizenship begins and

s36 - children of parents who cease being Australian citizens.

See Chapter 5 - Citizenship by conferral.


A parenting order is made by the court and can cover the allocation of parental responsibility, living
arrangements, contact and communication, maintenance, and any aspect of care, welfare or
development of the child. The best interests of a child come first when a court is making a parenting
order.
Section 6 of the Act was amended on 3 July 2008 (with retrospective effect from 1 July 2007),
changing terminology to remove references to residence order and specific issues order and
referring simply to parenting order. The changes are a consequence of amendments to the Family
Law Act 1975, which aim to focus the court and the parties on parenting as the central issue.
serious prison sentence - means a sentence of at least 12 months. Whether a prison sentence is a
serious prison sentence depends on the length of the sentence handed down by the courts, not the
amount of time the person spends in prison. For example, a sentence of 12 months in prison is a
serious prison sentence, despite the fact the person may be released on good behaviour after
spending less than 12 months in prison. A sentence of at least 12 months periodic detention is also
considered a serious prison sentence
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serious repeat offender - a serious repeat offender is a person who has previously been sentenced
to a serious prison sentence and then released, and has then been convicted for another offence
and sentenced to another serious prison sentence. A person who is convicted for two or more
offences simultaneously and sentenced to 12 months or more (where the sentences are served
concurrently) is not a serious repeat offender.
special category visa (SCV)- is a temporary visa enabling New Zealand citizens to be lawful noncitizens while they remain in Australia.
special purpose visa - are a class of substantive temporary visas provided for in the Migration Act
1958. They provide lawful status to non-citizens who need to travel to, enter and remain in Australia
but to whom Australias standard visa regime and immigration clearance processes are taken not to
apply. The categories of persons to whom SPVs may apply are airline crew, members of foreign
military forces that have an agreement with Australia, guests of Government, transit passengers
from certain countries and members of the Royal Family. See section 33 of the Migration Act 1958.
Stateless Persons Convention - refers to the Convention Relating to the Status of Stateless Persons
1954. Article 1(2)(iii) of the Convention applies to applications under Division 2, Subdivision A Citizenship by Descent and provides that the Convention does not apply:
(iii) To persons with respect to whom there are serious reasons for considering that:

they have committed a crime against peace, a war crime, or a crime against humanity, as
defined in the international instruments drawn up to make provisions in respect of such
crimes

they have committed a serious non-political crime outside the country of residence prior to
their admission to that country

they have been guilty of acts contrary to the purposes and principles of the United Nations.

stepchild - this definition is to extend the meaning of stepchild to children in de facto relationships,
including same-sex de facto relationships.
unlawful non-citizen - s3(1) of the Transitional Act provides the following expanded definition. The
term unlawful non-citizen refers to non-citizens in Australia who do not hold a visa. The term is
used in several sections of the Act in relation to descent, adoptive parents under the Hague
Convention on Intercountry Adoption, citizenship by conferral and responsible parents.
visa - Item 3(3) of the Transitional Act expands this definition to include valid entry permits within
the meaning of the Migration Act as in force immediately before 1 September 1994 and a valid visa
within the meaning of that Act as in force immediately before 1 September 1994.

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1.3

Permanent resident under the old Act

The term permanent resident is relevant to such matters as citizenship by birth and by grant. For the
purposes of the old Act, it is defined in s5A, with further provisions in regulation 5(1A) and
declarations under s5A(2). It is a very complex definition but, generally, a person will be a
permanent resident if their presence in Australia is not subject to any time limitation under the
Migration Act.
In relation to periods spent in Australia (excluding Norfolk Island and the Cocos (Keeling) Islands), a
person is a permanent resident if the person:

holds a permanent visa (from 1 September 1994) or held a permanent entry permit (prior to 1
September 1994)

became an absorbed person by being present in Australia on 2 April 1984, not having
left Australia since, and having become absorbed into the Australian community before
that date (see PAM3: Act Act-based visas - Absorbed person visas)

was a Norfolk Island permanent resident prior to 1 September 1994 (since then, such
persons are granted permanent visas on entry to mainland Australia).

A person in Australia would not be a permanent resident during periods, for example, that the
person held a temporary entry permit or a temporary visa or was a prohibited immigrant, prohibited
non-citizen or illegal entrant.
In relation to periods spent in a prescribed Territory (Norfolk Island and the Cocos (Keeling) Islands)
a person is a permanent resident while lawfully present in the territory if:

the persons presence in the territory was not subject to any limitation as to time or

had the person been elsewhere in Australia, he or she would have been regarded as a
permanent resident (for example, a permanent visa holder or New Zealand citizen who is
temporarily on Norfolk Island).

In relation to periods spent outside Australia, a person is a permanent resident if they hold
permission to return to Australia as a permanent resident, such as a resident return visa, an
Authority to Return or a Return Endorsement. For details, see s5A(1)(d) and regulation 5(1A). Under
s5(2) of the Act, there has also been provision for certain New Zealand citizens who are outside
Australia to be regarded as permanent residents, see Legislative instrument IMMI 07/037, Australian
Citizenship (Permanent Resident Status) s5(2)).

1.4

New Zealand citizens

There are particular complexities regarding the situation of New Zealand citizens (see Chapter 14 New Zealand citizens in Australia). However they are considered a permanent resident for purposes
of the Act if they:

entered Australia by evidencing their New Zealand citizenship by presentation of a valid New
Zealand passport (with some exceptions) and were in Australia on 26 February 2001 as the
holder of a special category visa (subclass 444) or

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were outside Australia on 26 February 2001 but were in Australia as the holder of a special
category (subclass 444) visa for a period totalling not less than one year in the two years
immediately before that date or

do not fall within the above two categories but have a Centrelink certificate, issued under the
Social Security Act 1991, that states that they were, for the purposes of that Act, residing in
Australia on a particular date.
Note: People eligible for a certificate under the Social Security Act 1991 (a Centrelink
certificate) were New Zealand citizens who:

were existing recipients of social security payments who were outside


Australia on 26 February 2001 but returned within 26 weeks of that date or

arrived to reside in Australia between 27 February 2001 and 25 May 2001


(inclusive) and had a Centrelink certificate certifying that they had, under the
Social Security Act, established residence in Australia. People in this category
must have lodged an application for a Centrelink certificate before 26
February 2004 or

are part of a very small group who established permanent residence in


Australia but were unable to be physically present in Australia in the 3 months
immediately following 26 February 2001 and who applied to Centrelink by 26
February 2002. For example, this group includes business people, church
workers and aid workers who would have experienced hardship if they had to
return by 26 May 2001.

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Chapter 2 - Automatic acquisition of citizenship


2

OVERVIEW TO CHAPTER 2

2.1

Introduction

Part 2 Division 1 of the Act covers the four circumstances where automatic citizenship may apply:

some people automatically became Australian citizens when the old Act came into effect on
26 January 1949. See section 2.7 Historical provisions - Birth in Australia and transitional
provisions

most Australian citizens by birth are not recorded in the departments systems. They may be
recorded if they have come to the attention of the department, for example, if they have
sought evidence of their Australian citizenship, or applied to register a child as a citizen by
descent, or if they have lost or renounced their Australian citizenship

the acquisition of Australian citizenship under this Division is by operation of law. Although
there is no decision to approve or refuse citizenship, a finding of fact is made that a person
satisfied the requirements of a particular section of Part 2 of Division 1 of the Act. A finding of
fact is necessary for people seeking evidence that they automatically acquired Australian
citizenship. For further information on applications for Evidence of Australian Citizenship, see
Chapter 9 - Evidence of Australian citizenship

people may come to the attention of the department through other means such as at the
border or through compliance activities. If there is any question about a persons citizenship
status, the matter should be referred to the Citizenship Manager in the relevant
state/territory office (STO). If the Citizenship Manager makes a finding of fact about the
citizenship status of a person, it should be recorded in the departments systems.

Note: A person can lose Australian citizenship as a result of their actions, or as a result of their
responsible parents actions. See Chapter 8 - Cessation of Australian citizenship.

2.2

Automatic acquisition of Australian citizenship (Part 2, Division 1)

2.2.1 Date of birth


Since the legal status of Australian citizenship came into force on 26 January 1949, there have been
various changes to the citizenship legislation relating to the acquisition of Australian citizenship by
birth.
Different rules apply according to the persons date of birth. See section 2.7 Historical provisions Birth in Australia and transitional provisions for birth in Australia, including prior to commencement
of the old Act.

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2.2.2 Citizenship by birth (s12)


Section 12(1)(a) is an operation of law provision. Although there is no decision to be made to
approve or refuse citizenship, a finding of fact can be made on whether a person has met the
requirements of s12(1)(a), see Chapter 9 - Evidence of Australian citizenship.

2.2.3 Permanent residents and exempt non-citizens


For further guidance on the meaning of permanent resident for the purposes of the Act, see section
1.2 Definitions.
If it is necessary to work out if a person was a permanent resident at a time before commencement
of the Act the definition of permanent resident in the old Act must be used. See Chapter 1, section
1.3 Permanent resident under the old Act.

2.2.4 Children born in Norfolk Island or the Territory of Cocos (Keeling)


Islands
Children born in Norfolk Island and the Territory of Cocos (Keeling) Islands are born in Australia for
the purposes of the Act.
Before 20 August 1986, a child born on Norfolk Island or the Territory of Cocos (Keeling) Islands
acquired Australian citizenship by birth unless one of the parents was a foreign diplomat.
On or after 20 August 1986, a child born on Norfolk Island or the Territory of Cocos (Keeling) Islands
acquired Australian citizenship by birth if at least one parent was either an Australian citizen or
permanent resident at the time of the childs birth. If a parent was a resident of Norfolk Island or the
Territory of Cocos (Keeling) Islands, you will need to consult the legislative instrument under s5(2) of
the Act to determine whether they are considered a permanent resident for the purposes of the Act,
or Chapter 1, section 1.3 Permanent resident under the old Act.

2.2.5 Ordinarily resident in Australia over 10 years since birth


Children born in Australia on or after 20 August 1986, who did not acquire Australian citizenship at
birth, automatically acquire it if they have been ordinarily resident in Australia for ten years from
birth (s12(1)(b)). In this case, the child will become an Australian citizen on their 10th birthday.
This provision operates regardless of the migration or citizenship status of the parent(s).
For an assessment as to whether a person became a citizen under this provision, they should lodge
an application using Form 119 (Application for evidence of Australian citizenship).
Relevant considerations in assessing ordinarily resident include:

the length of physical residence in Australia

whether the applicant considered that their home was in Australia for the first ten years of
their life

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the nature and extent of any periods of absence from Australia and

the nature and extent of ties with Australia such as presence of family, attendance at school,
club memberships.

The person does not need to be in Australia on their 10th birthday for this provision to apply.
Temporary absences from Australia do not necessarily mean that Australia has ceased to be the
permanent place of residence, however it is relevant to consider whether the person retained the
right to return to Australia during the absences.
If a child has been removed from Australia under the Migration Act (possibly with their family) prior
to their 10th birthday and did not have the right to return to Australia they cannot be considered to
have been ordinarily resident in Australia throughout the 10 years commencing from birth.

2.3

Children born to foreign diplomats

2.3.1 Children born to foreign diplomats are generally not ordinarily


resident
A child born in Australia on or after 25 November 1952 to a foreign diplomat posted here for a
limited period would not be taken to be ordinarily resident in Australia for the purposes of this
provision.
The law and policy for foreign diplomats has changed since 1949 and is outlined below. For further
advice on whether at the time of a persons birth their parent was considered to be a foreign
diplomat (as opposed to a locally engaged staff member), contact the Citizenship Helpdesk
(citizenship.helpdesk@immi.gov.au).

2.3.2 Diplomat parents prior to 26 January 1949


Prior to 26 January 1949 birth in Australia or within any country of the Commonwealth conferred
British subject status on the child, irrespective of the parents status.

2.3.3 Diplomat parents from 26 January 1949 to 24 November 1952


If the father was a diplomat from a Commonwealth country, his children born in Australia acquired
Australian citizenship at birth. If the father was a diplomat from a non-Commonwealth country, his
children born in Australia did not acquire Australian citizenship at birth.
Until the commencement of the Australian Diplomatic Immunities Act 1952 on 25 November 1952,
diplomats from Commonwealth countries did not represent a foreign sovereign, and therefore at
common law they did not have immunity from suit and legal process.

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2.3.4 Diplomat parents from 25 November 1952 to present


Children born in Australia to a diplomat from a Commonwealth country were no different to children
born to diplomats from non-Commonwealth countries and did not acquire Australian citizenship at
birth.

2.4

Citizenship by adoption (s13)

Australian citizenship is automatically acquired under s13 when a child is adopted in Australia or an
overseas adoption is finalised under Australian law, and the child is present in Australia as a
permanent resident and at least one adoptive parent is an Australian citizen.
Section 13 is an operation of law provision. Although there is no decision to be made to approve or
refuse citizenship, a finding of fact can be made on whether a person satisfies the requirements of
s13, see Chapter 9 - Evidence of Australian citizenship.
This provision does not apply to:

persons adopted in Australia before 22 November 1984 (those persons may apply for
conferral of Australian citizenship)

children adopted overseas - unless they are also legally adopted in Australia or that adoption
is finalised under Australian law

children adopted overseas under full Hague arrangements - although they are entitled to
simplified arrangements for citizenship under s19C

For further details on citizenship by adoption, see section 4 Part 1 - Adopted children.

2.5

Citizenship for abandoned children (s14)

Section 14 is an operation of law provision. Although there is no decision to be made to approve or


refuse citizenship, a finding of fact can be made on whether a person satisfies the requirements of
s14, see Chapter 9 - Evidence of Australian citizenship.
A child abandoned in Australia is deemed to have been born in Australia, unless the contrary is
proven.
All cases must be referred to the Citizenship Helpdesk for decision together with any documentary
evidence such as a report from the police force which located the child, and any report(s) from any
other authority involved in deciding that the child had been abandoned.

2.6

Citizenship by incorporation of territory (s15)

Section 15 is an operation of law provision.


If any territory becomes part of Australia, the Minister may determine, by instrument, the specified
classes of persons who become Australian citizens on a specified date. A person of the specified class
becomes an Australian citizen on the specified date.
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The instrument can take effect before the date it is registered under the Legislative Instruments Act
2003.
No territory has been acquired since commencement of the Act and no instrument has been made
under s15.

2.7

Historical provisions - Birth in Australia and transitional


provisions

2.7.1 Introduction
The below outlines the changes since 1949 to present and should be read with reference to section
2.3 Children born to foreign diplomats.

2.7.2 20 August 1986 to the present


People born in Australia are Australian citizens if at least one parent is an Australian citizen or a
permanent resident at the time of the persons birth in Australia.
If neither parent is an Australian citizen nor a permanent resident at the time of a persons birth in
Australia, and the person is ordinarily resident in Australia until their tenth birthday, the person
automatically acquires Australian citizenship on their tenth birthday. See section 2.2.5 Ordinarily
resident in Australia over 10 years since birth for further information.
A child is not an Australian citizen by birth if a parent is an enemy alien and the birth occurred in a
place in Australia at a time that place was under occupation by the enemy, unless a parent was an
Australian citizen or a permanent resident and was not an enemy alien.

2.7.3 22 November 1984 to 19 August 1986 inclusive


People born in Australia were Australian citizens at birth unless one parent was entitled to
diplomatic privileges and immunities or was a consular officer of a foreign country and neither
parent was an Australian citizen or a permanent resident.

2.7.4 6 May 1966 to 21 November 1984 inclusive


People born in Australia were Australian citizens at birth unless their father was a diplomat. See
section 2.3.4 Diplomat parents from 25 November 1952 to present for further information
People born in Papua between 26 February 1949 and 15 September 1975 were Australian citizens at
birth. However, most people ceased to be Australian citizens on 15 September 1975 with the
declaration of PNG Independence on 16 September 1975. See Chapter 15 - People born in Papua
New Guinea.
People born between 1 December 1973 and 21 November 1984 acquired Australian citizenship at
birth if, at the time of the birth, the persons mother was an Australian citizen and the person would
otherwise be stateless. See s23D(2) of the Act as in force at that time.
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2.7.5 26 January 1949 to 5 May 1966 inclusive


People born in Australia were Australian citizens at birth unless their father was not an Australian
citizen and was a foreign diplomat who had the immunity from suit and legal process accorded to
an envoy of a foreign country accredited to His Majesty. See section 2.3 Children born to foreign
diplomats.

2.7.6 Before 26 January 1949


Prior to 26 January 1949 Australian citizenship did not exist and people born in Australia were British
subjects. Australia shared a common nationality code with the United Kingdom and the other
Commonwealth countries at the time. This nationality code had been established in Australian law
by the Nationality Act 1920. Prior to 26 January 1949 birth in Australia or within any country of the
Commonwealth conferred British subject status on the child, irrespective of the parents status.

2.7.7 The transitional arrangements on 26 January 1949


When the old Act came into effect on 26 January 1949 some people automatically became
Australian citizens as a result of the provisions of s25 of that Act. The repeal of s25 on 1 May 1987
did not affect the citizenship status of such people.
People whose circumstances are as outlined below should be asked to complete a Form 119 if they
seek evidence of their Australian citizenship.
Section 25(1) of the old Act provided that a person became an Australian citizen, on 26 January
1949, if they were a British subject immediately prior to 26 January 1949 and met one of the
following:

was born in Australia

was born in New Guinea

had been naturalised as a British subject in Australia. This includes:

children whose names were included in a parents certificate and

women who made declarations that they desired to acquire British nationality
under the Nationality Act 1920-1946. Such people are recorded in ICSE or

had been ordinarily resident in Australia and/or New Guinea for the 5 year period between
26 January 1944 and 25 January 1949. This provision may include children born to parents
who had resided in Australia prior to 1944 but were absent temporarily from Australia at the
time of the childs birth. In such circumstances despite not having resided in Australia prior to
1944 the child may meet the ordinarily resident requirement because the child resided with
the parents. Further assistance is available through the Citizenship Helpdesk
(citizenship.helpdesk@immi.gov.au) in these circumstances.

Section 25(3) provided that British subjects born outside Australia and New Guinea before 26
January 1949, to a father who:
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was born in Australia or

was born in New Guinea or

had been naturalised as a British subject in Australia, (this includes children whose names
were included in a parents certificate)

became citizens on 26 January 1949 if they arrived in Australia on an unrestricted basis before this
date or if they arrived in Australia:

between 26 January 1949 - 6 May 1966 on an unrestricted basis (citizenship commenced on


the date of entry) or

between 6 May 1966 - 30 April 1987 on an unrestricted basis and was still a British subject on
arrival (citizenship commenced on the date of entry).

Section 25(4) provided for a British subject woman who did not otherwise acquire Australian
citizenship but had a husband who did (or would have if he had not died) to acquire Australian
citizenship on 26 January 1949, if she had entered Australia and been married prior to that date.
Note: A woman who had lost her British nationality as a result of acquiring another nationality by
marriage was deemed by s27 to still have been a British subject immediately before 26 January
1949.

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Chapter 3 - Citizenship by descent


3

3.1

OVERVIEW TO CHAPTER 3

Introduction

Part 2 Division 2 Subdivision A of the Act provides that a person may be registered as an Australian
citizen by descent if they were born overseas to at least one parent who was either an Australian
citizen at the time of birth or, if the birth occurred prior to 26 January 1949, became an Australian
citizen on 26 January 1949.
If the Australian citizen parent is a citizen by descent, a person cannot be registered as an Australian
citizen by descent unless the parent had been present in Australia lawfully for a total of two years at
some time prior to the application, or unless the person is not a national or citizen of another
country and has never been a national or citizen of another country.
If the person was born prior to 26 January 1949, a parent must have been either born in Australia or
naturalised in Australia prior to the childs birth.
An application must be refused if the decision maker is not satisfied of the persons identity, if the
person has been assessed by ASIO as a risk to national security, or if the person has ceased to be an
Australian citizen within the 12 months prior to application (cessation).
The Act requires that applicants aged 18 years and over be of good character unless the applicant is
a stateless person.
Section 3.6- Citizenship by descent under the old Act outlines the provisions for Australian
citizenship by descent between 26 January 1949 and 30 June 2007.Decision makers considering
applications for citizenship by descent need to take into account the risk of fraud in this caseload.
Section 3.7 - Parent-child relationship fraud has information on the circumstances in which
additional scrutiny is warranted.
All evidentiary documentation must be closely examined. Where necessary, DNA testing may be
used to verify the claimed parentage of the applicant. Chapter 19 Determining if a parent-child
relationship exists has information on DNA testing.
Note: It is no longer a requirement for descent cases, where it would appear that the Australian
citizen parent is a non biological parent, to be referred to Citizenship Policy Section, National Office,
for decision. However, such applications should still be reported to Citizenship Policy through the
Citizenship Helpdesk. See Chapter 19 Determining if a parent-child relationship exists for policy
and procedure on assessing whether an Australian citizen is a parent to another person when there
is no biological connection between them.

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3.2

Persons born outside Australia on or after 26 January 1949

3.2.1 Summary
Section 16(2) provides that persons born on or after 26 January 1949 may be registered as citizens
by descent provided they were born overseas and:

a parent was an Australian citizen at the time of the persons birth and

if aged 18 years or over, the decision maker is satisfied the person is of good character and

if the parent is an Australian citizen by descent or full Hague adoption at the time of the
persons birth:

the parent has been lawfully present in Australia for a total of at least two years or

the person is not a national or citizen of another country at the time of application
and has never been a national or citizen of another country.
If the applicants parent was originally an Australian citizen by descent, ceased to be an Australian
citizen and then resumed their Australian citizenship, the parent must have been lawfully present in
Australia for a total of at least two years prior to the application. This is because s32(2) of the Act
provides that a person resumes the same kind of citizenship they held before ceasing to be an
Australian citizen, meaning they would again become an Australian citizen by descent.

3.2.2 Assessing citizenship of Australian citizen parents


In all cases where a parent has acquired the citizenship of another country prior to 4 April 2002
decision makers must consider whether the parent ceased to be an Australian citizen prior to the
birth of their child.
See section 8.5 Historical provisions - Cessation of Australian citizenship for historical provisions
relating to cessation of Australian citizenship.
If a parent lost Australian citizenship under s17 of the old Act prior to the birth of the child, the child
may be eligible to apply for citizenship by conferral under s21(6).
Note: Assessments of loss of Australian citizenship should be referred to the Citizenship Helpdesk.
Referral should include copies of evidence of the parents other citizenship, birth certificate and
passport.

Death of the parent before birth


If the parent has died before the applicants birth, the parent is taken to have the status they did
before their death. This may require an assessment as to whether the parent may have lost their
Australian citizenship sometime before their death. Refer such cases to the Citizenship Helpdesk.

3.2.3 Character - applicants aged 18 and over


Section 16(2) requires that an applicant aged 18 or over be of good character if:
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the person is or ever has been a national or citizen of any country or

article 1(2)(iii) of the Stateless Persons Convention applies. In brief, article 1(2)(iii)
provides that the convention does not apply to persons who have committed certain
types of crimes or acts - see the definition of Stateless Persons Convention in section 1.2
Definitions.

The Citizenship Helpdesk should be notified of applications from people who are stateless or to
whom article 1(2)(iii) of the Stateless Persons Convention applies.

3.3

Persons born outside Australia before 26 January 1949

3.3.1 Australian citizen parent


Section 16(3) provides that a person born outside Australia or New Guinea before 26 January 1949 is
eligible to be registered as a citizen by descent if:

a parent became an Australian citizen on 26 January 1949 and

the parent was born in Australia or New Guinea or was naturalised in Australia before the
persons birth.

3.3.2 Character
Section 16(3) requires that an applicant born before 26 January 1949 be of good character if:

the person is or ever has been a national or citizen of any country or

article 1(2)(iii) of the Stateless Persons Convention applies. In brief, article 1(2)(iii)
provides that the convention does not apply to persons who have committed certain
types of crimes or acts - see the definition of Stateless Persons Convention in section 1.2
Definitions.

The Citizenship Helpdesk should be notified of applications from people who are stateless or to
whom article 1(2)(iii) of the Stateless Persons Convention applies.

3.4

Application requirements

3.4.1 Approved form to be used


Applications must be on the form approved by the Minister, contain the information required by the
form, be accompanied by any other information prescribed by the regulations and be accompanied
by a fee (if any) prescribed by the regulations. The approved form for applications for citizenship by
descent is the Form 118 Application for Australian citizenship by descent.

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An application is not invalid simply because the latest version of the form has not been submitted.
Depending on what the difference is between the form the client has submitted and the form listed
on the Forms Currency Index in the Earliest Design Date column, you may need to ask the client to
provide any missing information or complete particular questions on a new form and attach this to
the form the client has submitted.

3.4.2 Responsible parent to sign application by child under 16


If an applicant is under 16 years of age a responsible parent must sign the application form.
Responsible parent is defined in s6 of the Act, see section 1.2 Definitions.

3.4.3 Supporting material


The application must be made in the current legal name of the applicant. The following documents
should support the application:

the applicants full birth certificate

official evidence of any change of name by the applicant

evidence that at the time of the applicants birth the claimed parent was both an Australian
citizen and a parent of the applicant

the Australian citizen parents birth certificate or evidence of Australian citizenship if parent
was not born in Australia

official evidence of any change of name by the Australian citizen parent

if the applicant is aged 18 years or over penal clearance certificates from overseas countries if,
in the last 10 years or since turning 18:

the applicant has lived or travelled overseas and

time spent in any one country exceeded 90 days or

the applicant is requested to do so by the department.

Note: If an overseas applicant aged 18 years or over has spent any time in Australia and the
application is processed overseas, a penal clearance certificate for Australia is required. These
applicants are required to complete the National Police Check (NPC) Application Form, which is
available from the Australian Federal Police website www.afp.gov.au.
The Act does not require the parent to be of good character and therefore a parent is not required
to provide an offshore or onshore police/penal clearance.
Applications made on behalf of a child under 16 years of age need to be supported by:

a birth certificate

an endorsed passport size photograph of the child

the childs passport, if any

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identification documents for the responsible parent which include a signature,


photograph and current address (for example, passport bio page, driving licence and
credit card/utilities bill).

Under regulation 12, information and documents not in English must be accompanied by an official
translation. In Australia, translations should be done by National Accreditation Authority of
Translators and Interpreters (NAATI) accredited translators. For overseas lodged applications the
current guidelines for translations in that post apply.

3.4.4 Fees to accompany applications (reg 12A)


Under regulation 12A, an application for Australian citizenship by descent must be accompanied by
the fee mentioned in item 2 of Schedule 3.
If applications are made at the same time by 2 or more siblings, item 1 of Schedule 3 prescribes the
fee for the first sibling and a reduced fee for the second and subsequent siblings.

3.5

Decision making

3.5.1 Applicants born before 26 January 1949


Check whether the applicant was born outside Australia or New Guinea and whether a parent
became an Australian citizen on 26 January 1949. See section 3.6 Citizenship by descent under the
old Act.

3.5.2 Applicants born on or after 26 January 1949


Decision makers must be satisfied that a parent (for meaning of parent, see Chapter 19
Determining if a parent-child relationship exists) of the applicant at the time of the applicants birth
was an Australian citizen at the time of the applicants birth. The following scenarios do not meet
the requirement:

the applicants parent at the time of the applicants birth acquired Australian citizenship
after the birth of the applicant

after the applicants birth, the applicant acquired a parent (for example, by adoption)
who was an Australian citizen at the time of the applicants birth.

If the parent was an Australian citizen by descent or full Hague adoption at the time of the birth, the
parent must have been present in Australia for a total of two years before the application, unless the
applicant is not a citizen of another country and has never been such a national or citizen of another
country.
Original evidence can be in the form of the following:

Australian birth certificate (for parents born before 20 August 1986)

Evidence (Certificate) of Australian citizenship

unrestricted Australian passport issued after 1 July 2005.

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Decision makers must check the departments systems (ICSE, Mainframe (CT (CAS) TRIPS), reels and
microfiche) to determine whether there is a record of a change to the parents citizenship status. If
the Australian citizen parent acquired the citizenship of another country after acquiring Australian
citizenship and this occurred prior to 4 April 2002, an assessment must be made as to whether their
Australian citizenship was lost. Such losses will not always be recorded on departmental data bases.
If you believe a parent may have lost their Australian citizenship the details and supporting
documents should be referred to the Citizenship Helpdesk for assessment and recording prior to
further processing of the application.
The departments MAL system must also be checked against the name of the parents. All known
cases of attempted fraud are recorded in MAL. Where there is a MAL match for a parent, further
checking for possible fraud should be undertaken before a decision is made.
Original evidence of two years residence in Australia:

departmental records (if assistance with movements is required, contact


movement.records.DIMA@immi.gov.au)

passport(s) with movement stamps

school or employment records or documents issued by a Commonwealth, state or


territory Government agency.

If the applicant is overseas and the application is lodged in Australia by an authorised person, the
person should be informed that the application will be sent for processing to the overseas post
closest to the applicants country of residence for processing.

3.5.3 An application must be approved or refused (s17)


An application for citizenship by descent must be approved or refused. If an applicant meets the
eligibility requirements and there is no prohibition on approval, they must be approved. They must
also be given notice of the decision. See section 3.5.7 Notification of decisions (s47).
There are a number of circumstances where an application for citizenship by descent must not be
approved. These relate to:

identity

national security and

cessation of citizenship.

Identity (s17(3))
Section 17(3) requires that the Minister must not approve the applicant becoming an Australian
citizen unless the Minister is satisfied of the identity of the person.
In addition to being a legislative requirement under the Act, the Australian community expects that
decision makers will not approve a person for citizenship or give evidence of citizenship if they are
not satisfied of the persons identity.
National security ((s17(4), s17(4A) and s17(4B))
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All cases concerning national security must be referred to the Citizenship Integrity Unit, Citizenship
Helpdesk.
If ASIO has issued an adverse security assessment or qualified security assessment against the
applicant, an application for citizenship by descent must not be approved unless the applicant is
stateless (see below). Such an assessment will be made where the applicant is a direct or indirect
risk to the security of Australia.
If the applicant is stateless, an application must not be approved if the person has been convicted of
a national security offence.
Cessation of citizenship (s17(5))
If the person has at any time ceased to be an Australian citizen, the Minister must not approve the
person becoming an Australian citizen during the period of 12 months starting on the day on which
the person ceased, or last ceased, to be an Australian citizen.

3.5.4 Registration (s18)


Under s18 if the person is approved to become an Australian citizen by descent their details must be
registered in the departments data storage system.

3.5.5 Day citizenship begins (s19)


A person becomes a citizen by descent on the day the application is approved. However, s19A
provides that even if an application is approved, a person does not become a citizen unless their
parent was either an Australian citizen at the time of birth (on or after 26 January 1949) or became
an Australian citizen on 26 January 1949 (where the birth occurred before that date).
The law makes it clear that if a person never had a parent who was an Australian citizen they are
taken to never have been an Australian citizen by descent, even if they were approved and
registered.

3.5.6 When a person does not become a citizen despite Ministers approval
(s19A)
Section 19A provides that if a person did not have a parent who was an Australian citizen at the time
of their birth they are taken to never have been an Australian citizen by descent, even if they were
approved and registered. Pending development of further instructions, advice should be sought
from Citizenship Policy in cases involving persons who appear to have been incorrectly registered as
citizens by descent.

3.5.7 Notification of decisions (s47)


Under s47, a person must be given notice of the decision on their application. If the decision is a
refusal, the notice must include the reasons for the decision and advice that they have a right to
have this decision reviewed by the AAT.
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Section 47(2) provides that if the person is a child, the requirement in s47(1) is satisfied if the notice
of the decision is given to a parent of the child. As child is not defined in the Act and a person aged
16 or 17 may sign the application form, the notification of decision in such cases should be sent to
that person rather than to a parent of the person.

3.5.8 Review of decisions (s52)


Under s52(1) a decision to refuse an application for Australian citizenship by descent can be
reviewed by the AAT.

3.5.9 Revocation by Minister (s34)


See Chapter 8 - Cessation of Australian citizenship.

3.6

Citizenship by descent under the old Act

3.6.1 People born outside Australia on or after 26 January 1949 to an


Australian citizen parent
26 January 1949 to 21 November 1984
A person born overseas to an Australian citizen parent became an Australian citizen when the birth
was registered at an Australian consulate. The requirements during the time were:
Between 26 January 1949 and 30 April 1970, s11 of the old Act required that:

at the time of the birth, the persons father was an Australian citizen or, if a person was born
out of wedlock, the mother was an Australian citizen or British subject ordinarily resident in
Australia or New Guinea and

the birth was registered at an Australian consulate within one year after the birth, or such
further period as allowed by the Minister. As a matter of policy, registrations were allowed
after the one year period

except if:

they were born in a Commonwealth country (listed in the then s7) and became a citizen of
that country by birth and

the relevant parent was not ordinarily resident in Australia or New Guinea.

Until 15 September 1975 the Territory of Papua was part of Australia for the purposes of the old Act.
Between 30 April 1970 and 21 November 1984, s11 of the old Act required that:

if the child was born in wedlock, the childs father or mother was an Australian citizen at the
time of the birth

if the child was born out of wedlock, the childs mother was an Australian citizen or a British
subject ordinarily resident in Australia or New Guinea at the time of the birth and

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the birth was registered at an Australian consulate within five years after the birth, or such
further period as allowed by the Minister. As a matter of policy, registrations were allowed
after the five year period.

Until 15 September 1975 the Territory of Papua was part of Australia for the purposes of the old Act.
Between 22 November 1984 and 30 June 2007
Section 10B of the old Act required that a person born overseas to an Australian citizen parent be
registered before the age of 18 years. From July 2002, the age limit for registration was 25 years.
Between 1991 and 30 June 2007, s11 of the old Act provided for registration by descent for people
born overseas between 26 January 1949 and 15 January 1974.
People born out of wedlock
If a person was born out of wedlock, the registration referred only to the mother. If the birth was
later legitimated under the Marriages Act 1961, reg 12, the person could be re-registered.
The provision for the registration of people born to Australian mothers in wedlock was made
retrospective, and allowed registration of people born to Australian mothers between 26 January
1949 and 30 April 1970.

3.6.2 People born outside Australia or New Guinea before 26 January


1949 to a father who became an Australian citizen on 26 January
1949
Who became a citizen on 26 January 1949?
When the old Act came into effect on 26 January 1949, some people automatically became
Australian citizens (s25). The repeal of this provision on 1 May 1987 did not affect the citizenship
status of such people.
Section 25(1) provided that a person became an Australian citizen if they were a British subject
immediately prior to 26 January 1949 and had been:

born in Australia, provided that at the time of the persons birth their father was not in
Australia as a diplomatic representative of another country or

born in New Guinea prior to 26 January 1949 or

naturalised as a British subject in Australia. This includes:

children whose names were included in a parents certificate and

women who made declarations that they desired to acquire British nationality
under the Nationality Act 1920-1946. These people are recorded in ICSE or

ordinarily resident in Australia and/or New Guinea for the five year period between 26
January 1944 and 25 January 1949. This includes people whose home was in Australia, or
Australia was their place of permanent abode (notwithstanding temporary absence).

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Descent provisions
Section 25(3) provided that British subjects born outside Australia and New Guinea before 26
January 1949, to a father who acquired Australian citizenship under s25(1)(a), (b) or (c) became
Australian citizens if they arrived in Australia:

before 26 January 1949 on an unrestricted basis (citizenship commenced on 26 January 1949)

between 26 January 1949 and 6 May 1966 on an unrestricted basis (citizenship commenced
on the date of entry) or

between 6 May 1966 and 30 April 1987 on an unrestricted basis and were a British subject on
arrival (citizenship commenced on the date of entry).

3.6.3 People born outside Australia or New Guinea before 26 January


1949 to a mother who became an Australian citizen on 26 January
1949
People born overseas before 26 January 1949 to a mother who became an Australian citizen on 26
January 1949 were not eligible for citizenship by descent. However, between 18 June 1991 and 17
June 1996 inclusive, a person born outside Australia and New Guinea before 26 January 1949 to a
mother born in Australia or New Guinea, or naturalised in Australia, could apply for citizenship. The
requirements that:

the applicant was present in Australia for any time before 1 May 1987 and

the applicant was of good character.

3.7

Parent-child relationship fraud

An application requires additional scrutiny if one or more of the following circumstances apply:

the person stated to be the childs mother departed from Australia in what would have been a
very advanced state of pregnancy. Most airlines will not carry a passenger after the 28th week
of pregnancy

the person stated to be the childs mother is of mature age and the birth certificate shows the
child to be her first born

the person stated to be the childs mother claims to have had no pre-natal attention from a
doctor in Australia

a person stated to be a parent is not contactable

the person stated to be the childs mother claims she had no ante-natal care

an application is lodged by a responsible parent in Australia and the child is off-shore

the birth certificate was issued many years after the birth

the travel movements of the person stated to be the Australian father indicate he was in
Australia around the time the child would have been conceived.

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There have been fraudulent attempts to register adopted children. This is often difficult to detect
because in many countries a new birth certificate is issued without any reference to the natural
parents or the fact that the child has been adopted.
Adopted children are not eligible for citizenship by descent.
Where doubt exists about the Australian citizen parentage of a child, the bona fides should be
checked in one or more of the following ways:

review movements of both stated parents using their passports and the Movements Database

ask for detailed reasons why the Australian citizen mother was overseas at the time of the
birth

ask for medical evidence of pregnancy from the stated mothers doctor, preferably an
Australian doctor

obtain verification of the birth and parents details from the hospital where the birth is stated
to have occurred

a medical examination of the stated mother by a panel doctor

a DNA test

verifying the chain of custody of the child since birth

review any visa held by the child. The overseas post issuing the visa may be able to comment
on why a visa was granted instead of the child being registered as a citizen by descent.

Immediately report any fraudulent attempt to obtain citizenship by descent to the Citizenship
Helpdesk so that details can be included on MAL.

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Chapter 4 - Adopted children


4

4.1

PART 1 - ADOPTED CHILDREN

Overview of adoption provisions & citizenship

Adopted children may acquire Australian citizenship in a number of ways depending on the type of
adoption that has taken place:

automatic citizenship by adoption (s13)

citizenship by full Hague adoption (s19) or

citizenship by conferral (s21(5)).

The table below sets out the different adoption provisions and pathways to Australian citizenship.

State and Territory


(Bilateral) Adoption
Arrangements

Hague Convention Adoptions


Australian Adoption Authorities are usually
involved

Child arrives in
Australia on a subclass
102 Adoption visa, and
the adoption is
finalised in Australia
after a period of
supervision.

Full Hague Adoptions


Generally offshore

Simple Hague Adoptions


Onshore

Expatriate Adoptions
Generally Offshore

Child is adopted by
Australian citizen/s under
the Hague Conventions
full Hague adoption
arrangements for
Intercountry adoptions.
The adoption is finalised
overseas with the issue
of a valid adoption
compliance certificate.

Some Hague Convention


countries do not have full
Hague adoption
arrangements (that is, do
not issue adoption
compliance certificates).

Child adopted overseas


by Australians residing
overseas, with no
involvement by
Australian adoption
authorities. These
adoptions are not
recognised under
Australian law.

Australian citizenship is
automatically acquired
under s13 Citizenship
by adoption when the
adoption is finalised
under Australian law, if
the child is present in
Australia as a
permanent resident
and at least one
adoptive parent is an
Australian citizen.

The adoption is
recognised under
Australian law. Refer
Family Law (Hague
Convention on
Intercountry Adoption)
Regulations 1998
regulations 16 & 17.
Application may be made

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These adoptions are not


recognised under
Australian law unless and
until they have been
finalised in Australia.
The child requires a visa
to enter Australia, usually
a subclass 102 Adoption
visa.
Australian citizenship is
automatically acquired
under s13 Citizenship by
adoption when the

Other Adoptions

The child requires a


visa to enter Australia,
usually a subclass 102
Adoption visa.
Application may be
made for Australian
citizenship by conferral
(s21(5)) using form
1290.
The child must be a
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for Australian citizenship


under Subdivision AA Citizenship for persons
adopted in accordance
with the Hague
Convention on
Intercountry Adoption
using form 1272 Section
19C sets out the
application and eligibility
requirements.
A child adopted under a
full Hague adoption
arrangement will not be
required to obtain a
permanent visa to apply
under this provision.

4.2

adoption is finalised
under Australian law, if
the child is present in
Australia as a permanent
resident, and at least one
adoptive parent is an
Australian citizen.
If the adoption is not
finalised in Australia an
application may be made
for Australian citizenship
by conferral (s21(5))
using form 1290. The
child must be a
permanent resident at
the time of application
and decision to be
eligible for Australian
citizenship.

permanent resident at
the time of application
and at the time of
decision to be eligible
for Australian
citizenship.
Domestic Adoptions
Onshore
Child is adopted in
Australia by Australian
citizen/s with the
involvement of
Australian adoption
authorities and under
Australian law.
Australian citizenship is
automatically acquired
under s13 Citizenship
by adoption when the
adoption is finalised
under Australian law if
the child is present in
Australia as a
permanent resident
and at least one
adoptive parent is an
Australian citizen.

Automatic acquisition of Australian citizenship by adoption

4.2.1 Citizenship by adoption in Australia (s13)


Australian citizenship is automatically acquired under s13 when a child is adopted in Australia, or an
overseas adoption is finalised under Australian law, and the child is present in Australia as a
permanent resident and at least one adoptive parent is an Australian citizen. Section13 of the Act
only applies to people adopted on or after 22 November 1984 (people adopted in Australia prior to
22 November 1984 may apply for Australian citizenship by conferral).
Section 13 is an operation of law provision. Although there is no decision to be made to approve or
refuse citizenship, a finding of fact can be made on whether a person satisfies the requirements of
s13, see Chapter 9 - Evidence of Australian citizenship.
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The adoption may be a domestic adoption (that is, child born and adopted in Australia) or an
intercountry adoption (that is, child born outside Australia, but adoption finalised in Australia).
Section 13 would apply in the case of a domestic adoption where an Australian citizen adopts a
permanent resident child. For example, a child born to a temporary resident is made available for
adoption, acquires permanent residence, and is adopted by an Australian citizen under a law in force
in a state or territory.
An intercountry adoption will usually involve a child brought to Australia on an adoption visa. After a
period of time, usually 12 months after arrival in Australia, the adoptive parents apply to the
relevant state or territory court for an adoption order. The date on which an Australian adoption
order is made by the court is the date the child acquires Australian citizenship.
Intercountry adoption arrangements may include arrangements known as bilateral agreements or
simple Hague Convention adoption arrangements.
A simple Hague Convention adoption occurs when a Convention country, although a party to the
Hague convention, does not issue an adoption compliance certificate, certifying that the legal ties
between an adopted child and their birth parents have been severed. The Convention country
agrees that the child is allowed to be moved to Australia where the adoption can be finalised under
Australian law. If the adoption is not finalised in Australia the child must apply for citizenship by
conferral.
Section 13 does not apply to:

people adopted in Australia before 22 November 1984; (these people may apply for conferral
of Australian citizenship)

children adopted overseas (unless they are also legally adopted in Australia or that adoption is
finalised under Australian law).

4.2.2 Guardianship of adopted child (until citizenship or other significant


event)
Children who enter Australia holding an Adoption visa where the adoption is to be finalised in
Australia under a State and Territory (Bilateral) Adoption Arrangements (STAA), or a simple Hague
Adoption, are officially under the guardianship of the Minister for Immigration and Citizenship. This
guardianship is delegated to state and territory welfare authorities.
This arrangement is set down in the Immigration (Guardianship of Children) Act 1946 (the IGOC Act).
The IGOC Act provides a framework for state and territory governments to supervise the adoption
process in Australia and ensure that arrangements are in the best interests of the children.
The adoptive parent(s) and the adoption/welfare authorities in the state or territory in which the
family usually resides are advised when a decision is made on the childs permanent visa application
as to whether the child falls within these guardianship provisions.

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The guardianship arrangements cease to apply once the child obtains Australian citizenship; when
the child reaches the age of 18 years; if the child leaves Australia permanently; or when orders are
made that the IGOC Act ceases to apply (usually when an Australian adoption order is made for the
child). Issues with the guardianship status of the child should be referred to Guardianship Policy
Section, Community Support and Children Branch.

4.3

Acquisition of Australian citizenship by application under full


Hague adoption

Subdivision AA relates to Citizenship for persons adopted in accordance with the Hague Convention
on Intercountry Adoption.
Citizenship for people adopted in accordance with the Hague Convention on Protection of Children
and Cooperation in respect of Intercountry Adoption can be referred to as Citizenship by full Hague
adoption.
The Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption
commenced operation in Australia on 1 December 1998. Citizenship by full Hague adoption is
therefore only available for children adopted under the Hague Convention on or after 1 December
1998.
Hague Convention adoptions which are considered full Hague adoptions are ones in which all legal
ties between the adopted child and their birth parents have been severed. An adoption compliance
certificate issued in accordance with the Hague Convention by the adoption authorities of the other
Convention country, usually the childs birth country, is evidence of a full Hague adoption. Once the
certificate has been issued, the adoption is recognised in Australia under the Family Law (Hague
Convention on Intercountry Adoption) Regulations 1998 (regulations 16 and 17 refer). There is no
need for the adoptive parents to seek further recognition of the adoption under Australian law.
An Australian citizen who resides in, or who is also a citizen of, a Hague Convention country other
than Australia, may adopt a child from a third country that is also a party to the Hague Convention
on Intercountry Adoption. This is known as a Hague Convention Third Country adoption. If an
adoption compliance certificate has been issued and at least one of the Australian citizen adoptive
parents has met the residence requirement of this section, the adopted child can apply for
Australian citizenship by full Hague adoption. Otherwise, the adopted child must apply for
citizenship by conferral, see section 4.5 Eligibility for citizenship - full Hague adoption.
Note: An adoption compliance certificate must comply with Article 23 of the Hague
Convention. To ascertain whether the documentation provided is actually an adoption
compliance certificate, decision makers must refer the document to the Citizenship Policy
Section via the Citizenship Helpdesk.
The Australian Government Attorney-Generals Department has primary responsibility for
developing and maintaining intercountry adoption arrangements with other countries as the central
authority for adoption programs in Australia. This responsibility is shared with state and territory
authorities.
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The list of countries with which Australia has an intercountry adoption program is subject to change
and case officers should ensure they check the Attorney-General Departments website for a full and
up-to-date list of open programs (at:
http://www.ag.gov.au/Intercountryadoption/Countryprograms/Pages/Currentintercountryadoption
programs.aspx).

4.4

Adoptions other than Full Hague adoptions

Not all Hague Convention countries are involved in full Hague adoption arrangements. Each member
country must have ratified the Hague Convention on Protection of Children and Cooperation in
respect of Intercountry Adoption and produce an adoption compliance certificate in respect of the
adoption. An adoption cannot be considered a full Hague adoption without the issuance of a valid
adoption compliance certificate by the origin country.
A simple Hague adoption occurs when a Convention country, although a party to the Hague
Convention, does not issue an adoption compliance certificate, certifying that the legal ties
between an adopted child and their birth parents have been severed. The Convention country
agrees that the child is allowed to be moved to Australia where the adoption can be finalised under
Australian law. Children adopted under these arrangements may automatically become Australian
citizens following the completion of the adoption process in Australia. See Chapter 2 - Automatic
acquisition of citizenship. If the adoption is not finalised in Australia the child must apply for
citizenship by conferral see Chapter 5, section 5.2 Eligibility for citizenship by conferral.
Those adopted to whom an adoption compliance certificate was not issued (as defined under the
Intercountry Adoption Regulations) or children adopted by Australian citizens from a country that is
not a party to the Hague Convention on Intercountry Adoption may apply for citizenship by conferral
once they are a permanent resident. Following amendments to the Act on 9 November 2009, to be
eligible for Australian citizenship a person under the age of 18 applying for Australian citizenship by
conferral under s21(5) must be a permanent resident (that is, they must have activated their
permanent visa) at the time of application and at the time of decision.

4.5

Eligibility for citizenship - full Hague adoption

4.5.1 Application and eligibility for citizenship (s19C)


If the applicant is under 16 years of age a responsible parent must sign the application form.
Responsible parent is defined in s6 of the Act, see Chapter 1 - Preliminary and definitions.
Applicants aged 18 years or over are eligible only if their adoption was agreed to by the adoption
authorities of the two Convention countries before the person turned 18 years of age. The age limit
is specified in Article 3 of the Hague Convention.
Note: An adoption compliance certificate must comply with Article 23 of the Hague Convention. To
ascertain whether the documentation provided is actually an adoption compliance certificate,
decision makers must refer the document to the Citizenship Policy Section via the Citizenship
Helpdesk for checking.
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If the Australian citizen adopting parent acquired their Australian citizenship by descent or full
Hague adoption, they must have been lawfully present in Australia for at least two years at any time
before their adoptive child made their application.
This requirement also applies where a persons adopting parent acquired their citizenship by descent
or full Hague adoption, who ceased and then resumed their citizenship. The adoptive parent must
have been lawfully present in Australia (although not necessarily as a citizen) for a total of at least
two years at any time before the persons application is made. Section 32(2) provides that a person
resumes the same kind of citizenship as that held before ceasing to be an Australian citizen.
Decision makers must also ensure there are no prohibitions on approval see section 4.7.1
Ministers decision (s19D).
Note: A Hague extract is not formal evidence of Australian citizenship. If a person wishes to obtain
legal evidence of their Australian citizenship, they should apply for evidence on form 119 Application
for evidence of Australian citizenship.

4.6

Application requirements (s46) - Full Hague adoption

4.6.1 Overview of application requirements


Under s46 applications must be on the form approved by the Minister, contain the information
required by the form, be accompanied by any other information prescribed by the regulations and
be accompanied by a fee (if any) prescribed by the regulations.
The approved form for applications for citizenship by full Hague adoption is form 1272 Application
for Australian citizenship for children adopted under full Hague Convention arrangements.
If an applicant is under 16 years of age a responsible parent must sign the application form.
Responsible parent is defined in s6 of the Act, see section 1.2 Definitions.
The application must be made in the current legal name of the applicant. The following documents
should support the application:

the applicants full birth certificate

an adoption compliance certificate relating to the adoption of the applicant

official evidence of any change of name by the applicant

evidence that an adoptive parent was an Australian citizen at the time of the adoption

the Australian citizen parents full birth certificate

official evidence of any change of name by the Australian citizen parent.

Applications made on behalf of a child under 16 years of age also need to be supported by:

an endorsed passport size photograph of the child

the childs passport, if any

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identification documents for the responsible parent which include a signature, photograph
and current address (for example, passport bio page, driving licence and credit card/utilities
bill).

4.6.2 Change of childs name by the adopting parent(s)


It is very common for the adopting parents to change the childs name in some manner either at the
time of the adoption or shortly after.
As with all cases of identity and change of name, each case must be treated on its own merits and it
will be up to the individual decision maker as to the level of evidence required.
If the new name has not been recorded on the adoption certificate, or if the decision maker has any
doubts/concerns, then the decision maker will require some other form of official evidence to
support the change of name. Additional guidance can be provided by the Citizenship Helpdesk.
In general:

If the childs name has been changed and the new name was recorded on the adoption
certificate, the decision maker could usually be satisfied with the:

birth certificate (original, including original translations if required) and

adoption certificate (original, including original translations if required).

If the childs name has been changed and the new name was not recorded on the adoption
certificate, the decision maker could usually be satisfied with the:

birth certificate (original, including original translations if required) and

adoption certificate (original, including original translations if required) and

other form of official evidence (for example, change of name document from
RBDM).
The departments Naming Conventions guide may be of assistance (see:
http://dimanet.immi.gov.au/__data/assets/pdf_file/0007/226645/naming-conventions.pdf).

4.6.3 Information and documents to accompany applications (reg 12)


Under regulation 12, information and documents not in English must be accompanied by an official
translation. In Australia, translations should be done by National Accreditation Authority of
Translators and Interpreters (NAATI) accredited translators.

4.6.4 Fees to accompany applications (reg 12A)


Under reg 12A, an application under s19C of the Act for Australian citizenship must be accompanied
by the fee mentioned in item 4 of Schedule 3.
Where applications are made at the same time by 2 or more siblings, item 3 of Schedule 3 prescribes
the fee for the first sibling and a reduced fee for the second and subsequent siblings.
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4.7

Decision - Full Hague adoption

4.7.1 Ministers decision (s19D)


An application for citizenship for a person adopted in accordance with the Hague Convention on
Intercountry Adoption must be approved or refused. If an applicant meets the eligibility
requirements and there is no prohibition on approval, the application would generally be approved.
They must also be given notice of the decision. See section 3.5.7 Notification of decisions (s47).
There are a number of circumstances where an application for citizenship for persons adopted in
accordance with the Hague Convention on Intercountry Adoption must not be approved. These
relate to:

identity

national security and

cessation of citizenship.

Identity (s19D(4))
Section 19D(4) of the Act requires that the Minister must not approve the applicant becoming an
Australian citizen unless the Minister is satisfied of the identity of the person.
In addition to being a legislative requirement under the Act, the Australian community expects that
decision makers will not approve a person for citizenship or give evidence of citizenship if they are
not satisfied of the persons identity.
National security (s19D(5), s19D(6), s19D(7) and s19D(7A))
All cases concerning national security must be referred to the Citizenship Helpdesk.
If ASIO has issued an adverse security assessment or qualified security assessment against the
applicant, an application for citizenship for a person adopted in accordance with the Hague
Convention for Intercountry Adoption must not be approved unless the person is stateless (see
below). Such an assessment will be made where the applicant is a direct or indirect risk to the
security of Australia.
If the applicant is stateless and was born in Australia, an application for citizenship must not be
approved if they have been:

convicted of national security offence or

convicted of an offence (in Australia or overseas) and sentenced to a period of imprisonment


for at least 5 years. Note: There is a discretion for the Minister to approve an application if it
would be unfair to refuse it on the basis of the persons conviction (see s19D(7A)).

If the applicant is stateless and was born outside Australia to an Australian citizen parent, an
application for citizenship must not be approved if the applicant has been convicted of a national
security offence.
Cessation of citizenship (s19D(8))
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If the person has at any time ceased to be an Australian citizen, the Minister must not approve the
person becoming an Australian citizen during the period of 12 months starting on the day on which
the person ceased, or last ceased, to be an Australian citizen.

4.7.2 Registration (s19E)


If the person is approved to be an Australian citizen by full Hague adoption their details must be
registered in the departments data storage system in accordance with the regulations.

4.7.3 Registration under s19E of the Act (reg 6)


No further guidance on s19E or regulation 6 is necessary.

4.7.4 Day citizenship begins (s19F)


Under s19F a person becomes an Australian citizen by full Hague adoption on the day the application
is approved.

4.7.5 Notification of decision (s47)


Under s47 a person must be given notice of the decision on their application. If the decision is a
refusal, the notice must include the reasons for the decision and advice that they have a right to
have this decision reviewed by the AAT.
Section 47(2) provides that if the person is a child, the requirement in s47(1) is satisfied if the notice
of the decision is given to a parent of the child. As child is not defined in the Act and a person aged
16 or 17 may sign the application form, the notification of decision in such cases should be sent to
that person rather than to a parent of the person.

4.7.6 Review of decisions (s52)


Under s52(1) a decision to refuse an application to become an Australian citizen by full Hague
adoption can be reviewed by the AAT.

4.7.7 Revocation by Minister (s34)


See Chapter 8 - Cessation of Australian citizenship.

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4.8

Acquisition of Australian citizenship by application for conferral

4.8.1 Overview - Adoptees


The most common circumstances in which an adopted child applies for citizenship by conferral will
be where children have been adopted overseas by an Australian citizen parent (expatriate
adoptions) under arrangements that do not involve Australian adoption authorities. If the adoption
has been arranged outside of Hague Convention arrangements or no valid adoption compliance
certificate has been issued, the adopted child will need to apply for citizenship by conferral.
Following amendments to the Act on 9 November 2009, a person under the age of 18 applying for
Australian citizenship by conferral under s21(5) must be a permanent resident (that is, they must
have activated their permanent visa) at the time of application and at the time of decision to be
eligible for Australian citizenship.
Citizenship by conferral provisions are set out in Subdivision B - Citizenship by conferral. Section
21(5) provides for citizenship for people under the age of 18 years, as follows:

Person aged under 18


(5)

A person is eligible to become an Australian citizen if the Minister is satisfied that the
person:
(a)

is aged under 18 at the time the person made the application; and

(b)

is a permanent resident:
(i)

at the time the person made the application; and

(ii)

at the time of the Ministers decision on the application.

Applications for citizenship by conferral must be on either form 1290 or form 1300t.
For all other details on application requirements and relevant law, policy and procedure, see Chapter
5 - Citizenship by conferral.

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Chapter 5 - Citizenship by conferral


5

5.1

OVERVIEW TO CHAPTER 5

Introduction

The requirements for Australian citizenship by conferral (formerly called citizenship by grant) are set
out in Part 2, Division 2 (Subdivision B) of the Act. This chapter sets out the relevant legislative
requirements and policy guidelines.
People may be eligible to become an Australian citizen by conferral if they:

satisfy the general eligibility criteria or

have a permanent or enduring physical or mental incapacity that means they are not capable
of understanding the nature of their application, or of demonstrating a basic knowledge of
English or of demonstrating an adequate knowledge of Australian and of the responsibilities
and privileges of Australian citizenship or

are aged 60 or over or have permanent loss or substantial impairment of hearing, speech or
sight or

are aged under 16 and a permanent resident or

are aged 16 years and over and under 18 years of age, a permanent resident and meets policy
guidelines or

were born outside Australia to a former Australian citizen who ceased to be a citizen under
s17 of the old Act (lost Australian citizenship when acquired citizenship of another country) or

were born in Papua before 16 September 1975 to a parent born in Australia (see section 5.5.5
Papua New Guinea former Australian territory) as currently defined or

are a stateless person born in Australia who has always been stateless and has never had, and
currently does not have, a reasonable prospect of becoming the citizen or national of a foreign
country.

An application must be refused if the decision maker is not satisfied of the persons identity, or if the
person has been assessed by ASIO as a risk to national security. The Act requires that applicants aged
18 years and over be of good character.
Most applicants must be in Australia at the time of decision and must not have ceased to be an
Australian citizen within the 12 months prior to application (cessation). Other circumstances in
which an application must be refused are set out in the chapter as appropriate.

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5.2

Eligibility for citizenship by conferral

5.2.1 Requirements for becoming a citizen (s20)


If the person is approved under s24(1) of the Act and the person is required to make a pledge of
commitment, the person must make the pledge in order to become an Australian citizen.

5.2.2 Application and eligibility (s21)


A person may make an application to become an Australian citizen.

5.3

Permanent resident (s21(2)(b))

Applicants for citizenship by conferral who claim to meet s21(2), 21(3), 21(4) or 21(5) must be
permanent residents. Section 5 of the Act defines permanent resident - see Chapter 1, section 1.2
Definitions.

5.3.1 New Zealand citizens


New Zealand citizens are regarded as permanent residents of Australia for the purposes of an
application for conferral of Australian citizenship only if they:

hold a permanent resident visa or

were present in Australia on 26 February 2001 on a TY-444 (Special Category) visa or

spent a period or periods totalling 12 months in Australia on a TY-444 visa in the 2 years
before 26 February 2001, if they were outside Australia on that date or

have a Centrelink certificate issued prior to 26 February 2004 stating they were residing
in Australian on a particular date.

5.3.2 If a TY-444 visa is granted to a permanent resident in error


A person who holds a permanent visa cannot make a valid application for a TY-444 visa (see Item
1219 of Schedule 1 of the Migration Regulations). This means that the grant of a TY-444 visa to a
New Zealand citizen who holds a permanent visa is affected by jurisdictional error.
Generally, in order to set aside the grant of a visa affected by a jurisdictional error the Department
must have the consent of the visa holder. However, in the case of a TY-444 visa grant to a
permanent visa holder we can imply consent as the application is clearly invalid and to treat the
grant as a nullity, so as to 'reinstate' the permanent visa, is clearly beneficial to the individual
involved.
When the grant of the sTY-444 visa is set aside the ICSE Helpdesk should be advised of the case
details so that the clients immigration status is accurately recorded on the system. For further
information on New Zealand citizens, see Chapter 14 - New Zealand citizens in Australia.

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5.3.3 Permanent residence and British nationality


For information on British nationality see section 5.29 British subject status from 26 January 1949.

5.4

Cessation or cancellation of a permanent visa prior to decision

5.4.1 Applications lodged on or after 7 October 2008


Applicants for Australian citizenship by conferral under s21(2), 21(3) and 21(4), lodged on or after 7
October 2008, are required to be permanent residents at the time they apply and at the time of
decision. If the applicant ceases to be a permanent resident before the decision on their application
they must be refused citizenship.

5.4.2 Applications lodged before 7 October 2008


Applicants for Australian citizenship by conferral under s21(2), s21(3) and s21(4), lodged prior to 7
October 2008, were required to be permanent residents at the time they apply. Applicants were not,
however, required under the Act to be permanent residents at the time of decision on their
application. They were however required under policy to be permanent residents at the time of
decision.
If an applicants permanent visa ceases or is cancelled, decision makers should consider refusing the
application under s24(2). This discretion must not be applied inflexibly and in all cases the
Citizenship Helpdesk must be notified.
In considering whether to exercise this discretion, decision makers must consider the full
circumstances of the case to determine whether the application warrants approval despite no longer
being a permanent resident. Applicants must be given the opportunity to provide reasons why the
application should not be refused and these should be fully considered.
Circumstances that may be considered include, but are not limited to:

why the applicants permanent visa ceased

the extent of an applicants connection with Australia

the applicants situation in Australia (such as employment and community involvement)

the applicants reputation in the community (such as references, referee reports and
statutory declarations from non-family members) and

the reasons given by the applicant why their application should not be refused.

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5.4.3 When does grant of a temporary visa cease a permanent visa


While a valid application for a TY-444 visa cannot be made by a person who holds a permanent visa
(see section 5.3.2 If a TY-444 visa is granted to a permanent resident in error), other types of
temporary visa can be validly applied for by a permanent visa holder. In effect, the Migration Act
provides that a permanent visa held by a non-citizen ceases to be in effect if another substantive visa
(other than a special purpose visa) for the non-citizen comes into effect. It may be possible to vacate
the decision to grant the temporary visa (see PAM3: Gen Guide A - All visas - Visa application
procedures - Effect of visa grant on other visas), but officers must seek legal advice from National
Office on a case by case basis.

5.5

Definition of Australia and external territories

5.5.1 Introduction
Section 3 of the Act defines Australia as:
Australia, when used in a geographical sense, includes the external Territories
This means that for the purposes of the Act, Australia when used in a geographical sense, includes
the external territories, including Norfolk Island, Cocos (Keeling) Islands, Christmas Island, the
Australian Antarctic Territory, Ashmore & Cartier Islands, the Coral Sea Islands and Heard &
McDonald Islands.

5.5.2 Norfolk Island


Norfolk Island is part of Australia for the purposes of the Act, but not for the purposes of the
Migration Act. Norfolk Island was also part of Australia for the purposes of the old Act since 26
January 1949.
In relation to periods spent on Norfolk Island, the legislative instrument under s5(2) of the Act
determines that a person is a permanent resident while lawfully present in the territory if:

the person has been granted a Certificate of Residency by the Norfolk Island authorities or

had the person been elsewhere in Australia, the person would have been regarded as a
permanent resident, for example, a permanent visa holder or New Zealand citizen who is
temporarily in Norfolk Island.

Permanent residents of Norfolk Island are eligible for Australian citizenship by conferral under the
same criteria applicable to people on mainland Australia, including the residence requirements and
discretions.
For further details on the status of residents of Norfolk Island, see PAM3: Act - Outside the migration
zone - Immigration arrangements on Norfolk Island.

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5.5.3 Cocos (Keeling) Islands and Christmas Island


The Cocos (Keeling) Islands were transferred to Australia on 23 November 1955, and Christmas
Island (in the Indian Ocean) became an Australian territory on 1 October 1958. Since those dates
they have been part of Australia for the purposes of the old Act, and are part of Australia for the Act,
including for the purposes of Australian citizenship by birth. Permanent residents of the islands are
eligible for Australian citizenship by conferral under the same criteria applicable to people on
mainland Australia, including the residence requirements and discretions.
Historical provisions in relation to residents of Cocos (Keeling) Islands on 23 November 1955
In certain circumstances, a person who was ordinarily resident in the Cocos (Keeling) Islands
immediately before the transfer of the Islands to Australia (on 23 November 1955) could acquire
Australian citizenship by registration of a declaration.
Section 14 of the Cocos (Keeling) Islands Act 1955 provided that a person, who was a British subject
and ordinarily resident in the Islands immediately before 23 November 1955 could make a
declaration of desire to become an Australian citizen. See ordinarily resident.
The regulations under that Act prescribed that a person over 21 years of age could make a
declaration to become an Australian citizen before 23 May 1959. A person under 21 years of age
could lodge a declaration within two years after attaining the age of 21 years. These provisions
expired on 22 November 1978.
People registered under those provisions became Australian citizens on 23 November 1955, the date
the Islands became an Australian Territory. A certified copy of a declaration registered under this
provision may be accepted as evidence of Australian citizenship.
The Cocos (Keeling) Islands Amendment Act 1979 (section 14A) which came into effect on 21 March
1979 provided that people who were ordinarily resident on Cocos (Keeling) Islands immediately
before the transfer of the Islands to Australia (23 November 55), could make a declaration that they
wished to acquire Australian citizenship provided that they were ordinarily resident in Australia or an
external Territory at the time they made the declaration. If the declaration was in order, it was
registered. A declarant under s14A was deemed to become an Australian citizen on the date of
registration. This provision was repealed on 7 July 1997.
Residents of Christmas Island on 1 October 1958
In certain circumstances, a person who was ordinarily resident on Christmas Island immediately
before the transfer of the Island to Australia (on 1 October 1958) could acquire Australian citizenship
by registration of a declaration.
The Christmas Island Act (s15) provided that a person who was a British subject and ordinarily
resident on the Island immediately before 1 October 1958 could make a declaration of desire to
become an Australian citizen. See section 1.2 Definitions for advice on ordinarily resident.

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The regulations under that Act prescribed that a person over 21 years of age could make a
declaration to become an Australian citizen before 1 October 1960. A person under 21 years of age
could make a declaration within two years after attaining the age of 21 years. These provisions
expired on 30 September 1981.
People registered under s15 became Australian citizens on 1 October 1958, the date the Island
became an Australian territory. A certified copy of a declaration registered under this provision may
be accepted as evidence of Australian citizenship.
The Christmas Island Amendment Act 1980 (s15A) which came into effect on 23 December 1980
provided that people who were ordinarily resident on Christmas Island immediately before the
transfer of the Island to Australia on 1 October 1958, could make a declaration that they wished to
acquire Australian citizenship, provided they were ordinarily resident in Australia or an external
territory. If the declaration was in order, it was registered. A declarant under s15A was deemed to
have become an Australian citizen on the date of registration. This provision was repealed on 7
September 1997.

5.5.4 Australian Antarctic Territory, Ashmore & Cartier Islands, the


Coral Sea Islands and Heard & McDonald Islands
For the purposes of calculating time spent in Australia for persons who are present in the external
territories other than Norfolk Island, Cocos (Keeling) Island and Christmas Island, as movement
records are not available for these territories, applicants should be asked to provide evidence of the
period they were resident in that particular external territory. Evidence such as letters from their
employer or school and ship or aircraft departure and arrival records will serve for this purpose.
Decision makers assessing applications where the applicant seeks to have time spent in the
Australian Antarctic Territory, Ashmore & Cartier Islands, the Coral Sea Islands or Heard & McDonald
Island considered in meeting the residence requirements should consult the Citizenship Helpdesk.

5.5.5 Papua New Guinea former Australian territory


Before 16 September 1975, Australia, for citizenship purposes, included the External Territory of
Papua. Assessing applications from people born in Papua prior to Papua New Guinea Independence
can be difficult and should be referred to the Overseas Citizenship Unit (OCU) for processing.. See
Chapter 15 - People born in Papua New Guinea or contact the Citizenship Helpdesk if you require
further assistance.

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5.6

Residence requirement (s21(2)(c))

5.6.1 Introduction
Applicants for citizenship by conferral under general eligibility must meet the residence
requirement. For applications received on or after 21 September 2009, applicants may meet either
the general residence requirement (s22) or one of the special residence requirements (s22A or
s22B).
Most applicants will be required to meet the general residence requirement (s22). However,
applicants who need to travel regularly outside of Australia because of their professions may instead
meet one of the special residence requirements (s22A or s22B). See:

section 5.15.1 General residence requirement (s22)

section 5.21 Special residence requirement - Persons engaging in activities that are of
benefit to Australia (s22A)

section 5.22 Special residence requirement - Persons engaged in particular kinds of work
requiring regular travel outside Australia (s22B) and

section 5.24 Relevant defence service (s23).

5.6.2 Sections 21(2)(d), (e) and (f)


Under s21(2A) the requirements that the applicant understands the nature of the application,
possesses a basic knowledge of the English language and has an adequate knowledge of Australia
and of the responsibilities and privileges of Australian citizenship can only be satisfied by the
successful completion of a test. See Chapter 16 - Citizenship test, for further details.
The requirement for applicants for citizenship by conferral to possess a basic knowledge of the
English language is met if a person has sufficient knowledge of English to be able to exist
independently in the wider Australian community.
The requirement to have an adequate knowledge of Australia and of the responsibilities and
privileges of Australia citizenship is linked to the concepts and information people need to
understand in order to make the pledge of commitment.
The Australian citizenship test is designed to assess whether a person has an adequate knowledge of
Australia and the responsibilities and privileges of citizenship, and a basic knowledge of the English
language.

5.7

Likely to reside, or continue to reside, in Australia or to maintain a


close and continuing association with Australia (s21(2)(g))

The application (Forms 1300t and 1290) contain a declaration which refers to an intention to reside,
or continuing intention to reside, in Australia, or to maintain a close and continuing association with
Australia. This declaration would generally be sufficient evidence of the applicants intentions unless
there is information to the contrary.
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5.7.1 Likely to reside, or continue to reside in Australia


Intention to reside should be investigated further in situations where:

the applicant has spent significant periods outside of Australia since becoming a permanent
resident or

has requested a citizenship test or citizenship ceremony be conducted overseas.

Where a person indicates that they intend to leave Australia or remain overseas for an
indeterminate period, officers must consider whether they have a close and continuing relationship
with Australia. Officers should note that the applicant must meet either likely to reside, or continue
to reside, in Australia OR maintain a close and continuing association with Australia, not both, to
meet requirements of this provision.

5.7.2 Maintain a close and continuing association with Australia


Factors that may contribute to a close and continuing association with Australia include:

Australian citizen spouse or de facto partner

Australian citizen children

length of relationship with Australian citizen spouse or de facto partner

extended family in Australia

return visits to Australia

periods of residence in Australia

intention to reside in Australia

employment in Australia (for example, public or private sector)

ownership of property in Australia and

evidence of income tax payment in Australia

5.7.3

Minister may cancel approval

Section 25(2) of the Act applies where a person may no longer meet the eligibility requirements,
despite being approved. This applies when a person is:

not a permanent resident,

not likely to reside, or continue to reside, in Australia or maintain a close and continuing
association with Australia or

not of good character.

Officers may be prompted to assess whether a person no longer meets likely to reside, or continue
to reside, in Australia or maintain a close and continuing association with Australia in situations
where:

a person requests an urgent citizenship ceremony because they are intending to go overseas
for an extended period of time and do not have a return date or

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a person has not attended a citizenship ceremony in Australia and have requested an overseas
ceremony.

Section 25(3) requires that a person must have one of the prescribed reasons (in regulation 7 of the
Australian Citizenship Regulations) for failing to make the pledge of commitment within 12 months
of receiving approval, to avoid cancellation of approval.
Prescribed reasons are limited only to a person overseas for:

Medical treatment that was not available in Australia

Unexpected hospitalisation while overseas for a reason unrelated to that hospitalisation

Caring for a person who was critically ill or

Funeral and associated arrangements.

Applicants must provide a signed statement and written evidence to support their claims.

5.8

Good character

The Act requires that applicants aged 18 years and over be of good character. See Chapter 10 Character, for further information on the assessment of good character.
Decision makers must also ensure there are no prohibitions on approval see section 5.27.1
Ministers decision (s24) - summary.

5.9

Permanent or enduring physical or mental incapacity (s21(3))

For applications received before 9 November 2009 for consideration under s21(3), refer to the Act
and the ACIs in place immediately before 9 November 2009.
For applications received on or after 9 November 2009 for consideration under s21(3) applicants
must produce evidence, from a qualified medical practitioner, of a permanent or enduring physical
or mental incapacity that means the person is not capable of:

understanding the nature of their application

demonstrating a basic knowledge of the English language or

demonstrating an adequate knowledge of Australia and of the responsibilities and privileges


of Australian citizenship at that time.

To qualify, incapacity must be either permanent, or sufficiently long-term as to be enduring. An


enduring incapacity is one for which there cannot be a predicted recovery, or where if there is, it is
long-term and it would be unreasonable to expect the person to recover before becoming eligible
for Australian citizenship. Examples may include a person suffering from long-term depression, posttraumatic stress disorder, or where a person has suffered a stroke.
A temporary physical or mental condition does not meet the requirement.
Physical incapacity

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Applicants claiming permanent or enduring physical incapacity must provide evidence from a
specialist in the field they are claiming the incapacity, following referral from their General
Practitioner (GP). The specialist must also be a fellow of a specialist organisation as defined in
Schedule 4 of the Health Insurance Regulations 1975 (which may be found at
http://www.austlii.edu.au/ or http://www.comlaw.gov.au/).
Mental incapacity
Applicants claiming permanent or enduring mental incapacity may provide evidence from a:

psychiatrist who is a fellow of the Royal Australian and New Zealand College of Psychiatrists or

medical practitioner who is a fellow of the Australian Society of Psychological Medicine or

psychologist who is registered with the Psychology Board of Australia, has a practice
endorsement in an area relevant to the problem, and is registered with Medicare for these
purposes. Examples of psychologists who are likely to have a relevant area of practice
endorsement are clinical psychologists, forensic psychologists and clinical neuropsychologists.

Case officers can confirm the specialists qualifications by using the credentials which appear on the
medical certificate, or by contacting the specialist concerned. For example, a psychiatrist who is a
fellow of the Royal Australian and New Zealand College of Psychiatrists should have FRANZCP on the
evidence provided.
It is anticipated that people claiming a permanent or enduring physical or mental incapacity will
have been seeing a specialist on a regular basis.
See Chapter 10 - Character, for further information on the assessment of good character.
Other requirements which must be satisfied relating to identity, national security, presence in
Australia, offences and former citizens are set out in the section on Ministers decision.

5.9.1 GPs
General Practitioners (GPs), who also could be fellows of the Royal Australian College of General
Practitioners (FRACGP) or the Australian College of Rural and Remote Medicine (FACRRM), are not
defined as specialists under Schedule 4 of the Health Insurance Regulations 1975. Access issues for
rural and regional clients should be addressed on a case by case basis. In such instances the case
officer could accept evidence from a doctor who is a fellow of the Australian College of Rural and
Remote Medicine.

5.10

Person aged 60 or over (s21(4)(i))

Applicants must provide official evidence of their age such as a birth certificate or current foreign
passport.

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5.10.1 Interviews for people over 60


Applicants aged 60 and over are required to understand the nature of the application they are
making. Applicants would usually be given the opportunity at an interview to demonstrate that they
meet this legal requirement.
However a decision maker may consider not asking an applicant aged 60 or over to attend an
interview to demonstrate that they meet this requirement if they have signed and dated the
application form.
The following applicants should be invited to an interview:

those who are not able to provide sufficient documentation to verify their identity, for
example they are not able to provide a document containing their photograph. In these cases
applicants should be asked to attend an interview and advised that their photograph may be
taken at the time of interview. They should also be requested to re-sign their application form
in front of the officer so the officer can personally collect this personal identifier

those who are long term residents in Australia where there is no systems record, including no
movement record, in the previous 20 years and there is no recorded contact with the
department. Original documents should be sighted at interview. Where appropriate personal
identifiers should be requested including photograph and signature. An interview will assist in
verifying identity and the requirement to be present in Australia.

Before deciding that an applicant is not required to attend an interview the following factors should
be taken into consideration. Where one or more of the following factors apply to the applicant,
careful consideration should be given to whether an interview is required:

positive match on criminal records checks

where the information held by the department does not match the information provided by
the applicant, for example, no mention of a criminal history on application but a positive
criminal history check received

doubts about the integrity of identity documents provided

declarant who completed proof of identity declaration provided information different to that
contained in the form or was not able to demonstrate a good knowledge of the applicant
raising doubts about identity

a migration history that involves fraud

movement records not located to show evidence of presence in Australia

multiple aliases which are not documented and/or identity not verified.

If the decision is made that an interview is not required this should be recorded in an ICSE note
stating the reason why an interview was not conducted.
If a decision is made that an applicant is not required to attend an interview care must be taken to
ensure that applicants who are not able to take the Australian Citizenship Pledge in English are
identified and appropriate interpreter ceremonies arranged.
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Requirements which must be satisfied where a decision maker has decided not to interview include
identity, national security, and presence in Australia. If an applicant does not meet these
requirements, thee application must be refused.
See:

section 5.15 Residence requirement (s22, s22A & s22B) and

section 5.24 Relevant defence service (s23).

See Chapter 10 - Character for further information on the assessment of good character.
Officers must not approve the application if any of the following prohibitions apply: identity,
national security, presence in Australia, offences or cessation of citizenship. See section 5.27.1
Ministers decision (s24) - summary.

5.11

Person with hearing, speech or sight impairment (s21(4)(a)(ii))

Applicants aged 18 and over claiming to have permanent loss or substantial impairment to their
hearing, speech or sight are required to:

be a permanent resident at time of application and decision

understand the nature of the application at the time they make the application

meet the residence requirements

be likely to reside, or to continue to reside, in Australia or to maintain a close and


continuing association with Australia if the application were to be approved and

be of good character at the time of the Ministers decision on the application.

Unlike applicants under s21(2), applicants under s21(4) are not required to demonstrate a basic
knowledge of the English language or an adequate knowledge of Australia and of the responsibilities
and privileges of Australian citizenship.

Evidence of permanent loss or substantial impairment to hearing, speech


or sight
Applicants under s21(4)(a)(ii) must provide evidence of permanent loss or substantial impairment to
their hearing, speech or sight. Such evidence may include, but is not limited to:

evidence from a specialist medical or allied health practitioner registered in Australia

evidence that the client is registered with the Office of Hearing Services as having
complex rehabilitation needs

some concession cards.

Medical evidence
Documentation from a specialist ophthalmologist, regardless of when it was issued, in addition to a
recent report from an optometrist or orthoptist, is likely to be sufficient evidence of loss of or
substantial impairment to sight.
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Registration with the Office of Hearing Services


Under the Declared Hearing Services Determination 1997 as amended in 2011, a person is a complex
client if, and only if, he or she is an eligible person who has:

profound hearing loss or

hearing loss and severe communication impairment.

When a client is registered with the Office of Hearing Services (OHS) as being complex, they are not
issued with any particular card or other identifier.
Concession cards
An eligible applicant for DSP Blind will be issued a Centrelink pensioner concession card that displays
DSP Blind to differentiate from other DSP pensions.
There are state/territory based programs that use the same criteria of legal blindness in determining
substantial vision impairment, such as public transport travel passes, taxi subsidy schemes and
companion card programs. Whether these cards identify the nature of the card holders eligibility is
dependent on the particular program in question. For example, the Victorian Travel Pass issued by
Public Transport Victoria does identify the card holder as vision impaired, however the MultiPurpose Taxi Program taxi subsidy card issued by the Victorian Taxi Commission does not.
All holders of pensioner concession cards are eligible for the Hearing Services Program, however the
card does not record the degree of hearing impairment. Similarly there is no differentiation of
Veterans medical cards based solely on hearing loss. This means the pensioner and veteran cards
will not by themselves be sufficient evidence of substantial hearing loss.
With the establishment of Disability Care Australia (DCA) it is possible that other forms of evidence
of an individuals access to a package of supports based on their hearing, sight or speech impairment
will become available.

Applicants aged under 18


Applicants aged under 18, regardless of whether they claim to have permanent loss or substantial
impairment to their hearing, speech or sight, are not eligible under ss 21(4) due to their age and
should be assessed under ss21(5) see below.

5.12

Person aged under 18 years (s21(5))

5.12.1 When was application received


For applications received before 9 November 2009, refer to the Act and ACIs in effect immediately
before 9 November 2009.

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For applications received on or after 9 November 2009, a person under the age of 18 years applying
for Australian citizenship by conferral under s21(5), must be a permanent resident (that is, they must
have activated their permanent visa) at the time of application and at the time of decision to be
eligible for Australian citizenship.
Person aged under 18
(5)

A person is eligible to become an Australian citizen if the Minister is satisfied that the
person:
(a)

is aged under 18 at the time the person made the application; and

(b)

is a permanent resident:
(i)

at the time the person made the application; and

(ii)

at the time of the Ministers decision on the application.

The discretion in s24(2) to refuse to approve an applicant becoming an Australian citizen despite
being eligible under s21(5) would usually be exercised where the applicant does not meet the policy
guidelines. In making a decision whether to refuse or approve an application, the primary
considerations that need to be taken into account are the legislative requirements, the best interests
of the child and the policy guidelines set out below.

5.12.2 Best interests of the child


The best interests of the child are to be considered as one of the primary considerations when
assessing the application. This consideration only applies if the child is or would be less than 18 years
of age at the time of decision on the application and the child is living in Australia. See Chapter 18
Best interests of the child.

5.12.3 Prohibitions on approval


Decision makers must also ensure there are no prohibitions on approval see section 5.27.1
Ministers decision (s24) - summary.

5.12.4 Information for ICSE


In cases where the child has been adopted by an Australian citizen/s, ensure that the names of the
childs adoptive parents are entered on ICSE and linked to the child.

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5.12.5 Applicants under the age of 16


A child aged under 16 can make an individual application in their own right (by applying on a form
that contains no other application) or on the same form and at the same time as a responsible
parent. This is set out in s46(2A).
In the case of an applicant who does not meet the policy guidelines below, decision makers must
consider the full circumstances of the case, including the best interests of the child, to determine
whether the application nevertheless warrants approval because of the unusual nature of those
circumstances.
Guidance on whether it may be reasonable to consider a particular set of circumstances as unusual
can be obtained through the Citizenship Helpdesk.Under policy, if an applicant is under 16 years of
age a responsible parent must sign the application form.

Children under 16 applying individually in their own right


Children under 16 applying individually in their own right would usually not be approved under s24
unless they are permanent residents at the time of application and decision and also meet the
following policy guidelines:

are under 16 when applying and living with a responsible parent who is an Australian
citizen and who consents to the application or

are usually resident in Australia with a permanent resident responsible parent who
consents to the application, and that responsible parent would meet the residence
requirement but has decided not to apply for Australian citizenship because they would
lose the citizenship of another country or

are under 16 when applying, living with a responsible parent who is not an Australian
citizen and consents to the application, and the child would otherwise suffer significant
hardship or disadvantage - see section 5.17 Ministerial discretion - significant hardship or
disadvantage (s22(6)) or

are an unaccompanied humanitarian minor who falls under the Ministers guardianship
and a delegated guardian has consented to the application, see section 5.12.7 IGOC
minors (previously wards of the Minister) or

are an unaccompanied humanitarian minor who does not fall under the Ministers
guardianship and their responsible carer has consented to the application, see section
5.12.8 Non-IGOC minors (previously unaccompanied humanitarian minor (UHM) nonwards).

Other requirements which must be satisfied relating to identity, national security, offences and
former citizens are set out in section 5.27.1 Ministers decision (s24) - summary.

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Children under 16 applying on the same form and at the same time as a
responsible parent
Children under 16 applying on the same form and at the same time as a responsible parent would
usually not be approved under s24 unless they are permanent residents at the time of application
and decision and also meet the following policy guidelines:

the child was living in Australia with the relevant responsible parent and

the relevant responsible parent consented to the inclusion of the child in their
application.

Other requirements which must be satisfied relating to identity, national security, offences and
former citizens are set out in section 5.27.1 Ministers decision (s24) - summary.
Note: Decision makers must make a separate decision record for each applicant included on the
application if the application is to be refused.
Note: If a child under 16 applies on the same form and at the same time as a responsible parent, and
that parent is refused, the child must be assessed against the policy guidelines for children under the
age of 16 applying individually in their own right.

5.12.6 Applicants aged 16 or 17


Applicants aged 16 or 17 at time of application must make an application on a form that contains no
other application.
Applicants aged 16 or 17 would not usually be approved under s24 unless they are permanent
residents at the time of application and decision and also meet the following policy guidelines:

satisfies the residence requirement ( unless they would suffer significant hardship or
disadvantage if they had to meet this requirement). See section 5.17 Ministerial discretion significant hardship or disadvantage (s22(6)) for guidance

understands the nature of an application

possesses a basic knowledge of the English language

has an adequate knowledge of the responsibilities and privileges of Australian citizenship at


the time of decision

is likely to reside or continue to reside, or maintain a close and continuing association with
Australia.

Applicants aged 16 or 17 at time of application should be given the opportunity at interview to


demonstrate that they understand the nature of their application, have an adequate knowledge of
the responsibilities and privileges of citizenship; and that they possess a basic knowledge of the
English language. It is important that an applicants ability to understand and respond to questions is
not hampered by the use of complex words or sentences.
Applications aged 16 or 17s do not need the consent of a responsible parent.
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Other requirements which must be satisfied relating to identity, national security, offences and
former citizens are set out in section 5.27.1 Ministers decision (s24) - summary.
In the case of an applicant who does not meet the policy guidelines above, decision makers must
consider the full circumstances of the case, including the best interest of the child (see section 5.12.2
Best interests of the child) to determine whether the application nevertheless warrants approval
because of the unusual nature of those circumstances.
Guidance on whether it may be reasonable to consider a particular set of circumstances as unusual
can be obtained from the Citizenship Helpdesk.

5.12.7 IGOC minors (previously wards of the Minister)


The department refers to children who fall under the guardianship of the Minister as IGOC minors.
Under the Immigration (Guardianship of Children) Act 1946 (IGOC Act), the Minister is the legal
guardian of a non-citizen child who:

under 18 years old and

at the time of their arrival in Australia intended to become a permanent resident of


Australia and

did not enter Australia in the charge of, or for the purpose of living in Australia under the
care of a parent, a relative who has turned 21 years of age or an intending adoptive
parent of the child.

Who may apply on behalf of an IGOC Minor


Only the Ministers delegated guardian for the purposes of the IGOC Act has the authority to apply
for citizenship by conferral on behalf of an IGOC minor. The delegated guardian may be an officer in
the department or an officer from the relevant state/territory child welfare agency (SCWA).
Citizenship applications from IGOC Minors aged 15 and under should be signed by the Ministers
delegated guardian. Citizenship applications from IGOC minors aged 16 and 17 should be signed by
the applicant and a letter of consent from the Ministers delegated guardian should be provided with
the application.
IGOC minors cannot be included in their carers citizenship application because the carer does not
meet the definition of responsible parent.
If an application is received from an IGOC minor which has not been signed by the Minister or their
delegate, refer the application to the state/territory UHM coordinator. The application can be
processed only once consent has been given by the Minister or their delegate.

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Notify the state/territory UHM co-ordinator when an application is


received from a UHM IGOC Minor
Decision makers must inform the State/Territory UHM coordinator if a citizenship application is
lodged by a UHM IGOC minor. This is because the UHM IGOC minor will no longer be eligible to
receive services provided under the UHM program by virtue of no longer falling under the Ministers
guardianship under the IGOC Act. As a result, they will no longer be eligible for the payment of
maintenance allowance, if they become an Australian citizen. If after being informed of this the UHM
IGOC minor (or their carer) wishes to withdraw their application, they can do so by completing a
UHM citizenship withdrawal.

After UHM IGOC minor acquires Australian citizenship


The citizenship decision maker should inform the STO UHM coordinator of the outcome of a UHM
IGOC Minor citizenship application. If the application is approved, and the UHM IGOC Minor is
under 16 years of age at the time of application, they will become a citizen on the day the
application is approved.
If the application is approved, and the UHM IGOC Minor is 16 years or older at the time of
application to become an Australian citizen, they must take the pledge of commitment at a
citizenship ceremony. The STO UHM team needs to notify the relevant SCWA that a UHM IGOC
minor has acquired citizenship and that UHM services should no longer be provided to the child. In
some cases the SCWA will be aware and advise the STO of the acquisition of citizenship.

5.12.8 Non-IGOC minors (previously unaccompanied humanitarian minor


(UHM) non-wards)
If an unaccompanied minor (UAM) does not fall under the operation of the IGOC Act they are
referred to as non-IGOC minors because the IGOC Act does not specify who is the minors guardian
and does not provide for the appointment of another person as guardian. UAMs who do not fall
under the guardianship of the Minister are referred to as non-IGOC Minors.

Who may apply on behalf of a non-IGOC Minor


Applications in the their own right
Citizenship applications from non-IGOC minors aged 15 and under should be signed by their
responsible carer. Citizenship applications from non-IGOC minor aged 16 or 17 should be signed by
the applicant and a letter of consent from their responsible carer should be provided with the
application. The application should be supported by evidence that a Commonwealth, state/territory
government agency recognises that the carer has daily responsibility for the care and control of the
non-IGOC minor. Evidence may include, for example:

the signed Agreement to Undertake Care form

a Medicare card listing the carer and applicant

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a welfare benefits statement or

any other official Commonwealth, state/territory government documentation recognising


the relationship.

Applications on the same form as a responsible parent


Non-IGOC minors can be included in their carers citizenship application if the carer meets the
definition of responsible parent under the Act. This may be the case if the application is supported
by evidence of the type referred to in the preceding paragraph.
If an application is received from a UHM non-IGOC minor which has not been signed by the
responsible carer, or a letter of consent from the responsible carer has not been provided, refer the
application to the state/territory UHM coordinator. The application can be processed only once
consent has been given by the carer. The state/territory UHM coordinator must be informed of the
outcome of a citizenship application lodged by a UHM non-ward.

Notify the state/territory UHM co-ordinator if an application is received


from a UHM non-IGOC Minor
The citizenship decision maker should inform the STO UHM coordinator when a citizenship
application is lodged by a UHM non-IGOC minor. The UHM coordinator should either place a
decision bar, or utilise Client of Interest Notes, in ICSE to alert citizenship decision makers that a
client is in the UHM program, asking them to contact the relevant STO UHM coordinator before
making citizenship or other visa-related decisions relating to this client.
If the UHM non-IGOC minor resides in a state/territory where the SCWA provides services to UHM
non-IGOC minors, the UHM coordinator must ensure that the UHM non-IGOC minor and their carer
have been informed that on becoming an Australian citizen, the minor will no longer be eligible to
receive services provided under the UHM program, including the payment of maintenance
allowance. If the UHM non-IGOC minor wants to withdraw their application for citizenship after
being informed of this, they may do so by completing a UHM citizenship withdrawal.

After UHM non-IGOC minor acquires Australian citizenship


The citizenship decision maker should inform the STO UHM coordinator of the outcome of a
citizenship application. If the application is approved, and the UHM IGOC minor is under 16 at the
time of application, they will become a citizen on the day the application is approved.
If the application is approved, and the UHM is 16 years or older at the time of application to become
an Australian citizen, they must take the pledge of commitment at a citizenship ceremony.
If the UHM resides in a state/territory where the SCWA provides services to UHM non-IGOC minors,
the UHM coordinator must notify the relevant SCWA that the UHM non-IGOC minor has acquired
citizenship and that UHM services should no longer be provided to the minor. In some cases the
SCWA will be aware and advise the STO of citizenship acquisition.
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5.13

Person born to former Australian citizen (s21(6))

The definition of Australia for the purposes of s21(6) is the definition of Australia at the time of the
persons birth. For example, a person born in Papua prior to 16 September 1975 was not born
outside Australia because Papua was part of Australia for the purposes of the old Act until PNG
Independence on 16 September 1975.
Prior to 22 November 1984, an adult ceased to be an Australian citizen under s17 of the old Act if
they were outside Australia and acquired the citizenship of another country as a result of a voluntary
and formal act other than marriage. Between 22 November 1984 and 2 April 2002 an adult ceased to
be an Australian citizen under s17 of the old Act regardless of whether they were inside out outside
Australia and did an act or thing, the sole or dominant purpose of which was to acquire the
citizenship of another country. Section 17 was repealed on 4 April 2002.
If no loss of citizenship has been recorded for a parent in departmental systems refer the details of
the parent and their acquisition of a foreign citizenship to the Citizenship helpdesk for a loss
assessment. This is particularly important for possible losses on or after 22 November 1984.
If the parent of the applicant lost their Australian citizenship as a child (under 21 prior to 1
December 1973 or under 18 since that date) then the applicant will not be eligible for conferral
under this provision.
See section 8.5 Historical provisions - Cessation of Australian citizenship for further details.

5.14

Other requirements

5.14.1 Introduction
Other requirements which must be satisfied relating to identity and national security are set out in
section 5.27.1 Ministers decision (s24) - summary.
See also Chapter 10 - Character, for further information on the assessment of good character.

5.14.2 Statelessness (s21(8))


Applications which are considered to meet the requirements of this section must be referred to
Citizenship Policy Section through the Citizenship Helpdesk.

5.15

Residence requirement (s22, s22A & s22B)

5.15.1 General residence requirement (s22)


Section 22 sets out the general residence requirement. For applications received on or after 21
September 2009, some applicants who need to travel regularly outside of Australia because of their
professions, and cannot meet the general residence requirement, should be assessed against the
requirements of the special residence requirements - see:
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section 5.21 Special residence requirement - Persons engaging in activities that are of
benefit to Australia (s22A) or

section 5.22 Special residence requirement - Persons engaged in particular kinds of work
requiring regular travel outside Australia (s22B).

To meet the general residence requirement (s22) a person is required to have been lawfully present
in Australia for a period of four years immediately prior to making their application, including the
last 12 months as a permanent resident.
All periods of lawful residence in Australia, such as temporary visas, visitor visas, student visas, all
classes of bridging visas etc, are taken into account when calculating the four year lawful residence
period.

5.15.2 Unlawful non-citizen


A persons presence in Australia is determined to be lawful in accordance with the Migration Act. A
person is lawful if they hold a visa that is in effect.
An unlawful non-citizen is a person who is not an Australian citizen and is present in Australia
without a valid visa.
Under s22(1)(b), a person cannot meet the general residence requirement if they have been an
unlawful non-citizen at any time during the 4-year period immediately before applying for
citizenship. This means they will need to have spent 4 years in Australia since last ceasing to be an
unlawful non-citizen before meeting the general residence requirement, unless they became
unlawful because of administrative error see section 5.16 Ministerial discretion - administrative
error (s22(4A) & (5)).
Decision makers must be mindful of SREY-affected cases where the client was affected by defective
notification. In these cases, the person may show as a BVE holder but due to a past notification
error, they may in fact still hold a BVA. This means that despite the departments records showing
periods of unlawfulness prior to the granting of a BVE, such applicants may be taken not to have
been unlawful for that period. If a client of interest note exists in ICSE indicating the person is SREYaffected, contact the notification enquiries helpdesk at notification.enquiries@immi.gov.au.
Most, but not all, SREY-affected cases will have a client of interest note. Further information on
whether a person might be SREY-affected can be found in PAM3: Act Code of Procedure Notification requirements.

5.15.3 Overseas absences (s22(1A) & (1B))


Section 22(1A) allows for absences from Australia of up to 12 months within the 4 years immediately
before applying for citizenship. A period of time cannot be counted as an absence from Australia
unless the person has already been present in Australia. This means that a person does not meet the
residence requirement if they have 3 years continuous presence in Australia (with the last 12
months as a permanent resident) unless they were previously in Australia.
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Example
Ms Jones first entered Australia on 01/01/2009, and became a PR on 01/01/2011. She has
not left Australia since her first arrival. Ms Jones claims that she met the 4 year lawful
period on 01/01/2012 as she counts the year before she arrived in Australia as a period of
absence. However, as Ms Jones never entered Australia until her first entry on 01/01/2009
she cannot meet the 4-year lawful period until 01/01/2013.
Had Ms Jones entered Australia four years earlier in 2008, even if she held a temporary visa
at that time, the 12 month period may have been considered as an absence.
Section 22(1B) allows a person to be absent for up to 90 days within the 12 months permanent
residence immediately before applying providing they remain a permanent resident during this time.
Before 15 March 2009, applicants were allowed 3 (calendar) months absence during the 12 month
permanent residence period.

5.15.4 Calculation of the 4-year lawful residence period when a person has
been absent from Australia on the day 4 years immediately before
applying
If a persons first arrival in Australia is less than 4 years before they apply for citizenship, they cannot
meet the general residence requirement, even if they spend 3 years continuously in Australia.
The start date of the 4-year lawful residence period is usually the date 4 years immediately before
they lodge their application. However, if the person has not made their first entry into Australia,
they need to wait at least 4 years after their first entry to meet this requirement.
Where a person was outside Australia on the day 4 years immediately before applying, but had
previously been in Australia, they may still use the day 4-years immediately before applying as a
start date (for the purposes of being eligible to satisfy the 4 year lawful requirement), providing that
on that day they held a visa which was in effect on that day (a visa granted in Australia is in effect
from the day of grant, a visa granted offshore comes into effect when the person enters Australia on
that visa).
If these conditions are met, then the person may use the full 4 year period immediately before
applying towards meeting the general residence requirement.
For the purposes of the residence calculator, the lawful residence date will be the date that the in
effect visa that was held on the day 4 years immediately prior to the day of application came into
effect. Refer to the relevant procedural documents for further information on using the residence
calculator.

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Example
Mr Smith entered Australia on 01/01/2006 on a subclass 457 visa. He departs a week later,
and re-enters on 01/01/2008 on the same subclass 457 visa. He remains in Australia,
becomes a permanent resident on 01/01/2010 and applies for citizenship on 01/01/2011.
Mr Smiths 4-year lawful period starts on 01/01/2007 (4 years before applying) because
although he was outside Australia on this date, he had been previously in Australia and was
the holder subclass 457 visa.

5.15.5 New Zealand citizens


Specific policy guidelines apply to New Zealanders to ensure they are not disadvantaged by virtue of
the unique status they hold under the Migration Act. These apply only to the calculation of the 4year lawful residence period, and are not relevant to those New Zealand citizens who became
permanent residents before 1 July 2007 and who apply for citizenship by conferral before 1 July
2010.
Unlike most other visas, the Special Category visa (SCV) (subclass 444) ceases immediately a person
leaves Australia, and the person therefore does not hold a visa while outside Australia.
New Zealand citizens who were outside Australia 4 years immediately before applying for
citizenship, but had previously entered Australia on a SCV at any time within 8 years before lodging
their application, may count the 4 years before lodging their application towards the general
residence requirement.
Decision makers should remember that New Zealand citizens who hold a SCV are no longer
considered as permanent residents for Australian citizenship purposes, unless:

they were in Australia on 26 February 2001 as holders of a SCV or

were outside Australia on 26 February 2001 but were in Australia as the holder of a SCV for
one or more period totalling 12 months in the 2 years prior to 26 February 2001 or

did not fall within the above two categories but have a Centrelink certificate, issued under
the Social Security Act 1991, that states that the person was, for the purposes of social
security, residing in Australia on a particular date.
Example
Mr Holt is a New Zealand citizen who was in Australia continuously from 01/01/2000 31/12/2002 on a 444 visa. He departed Australia on 1/1/2003 and returned on 1/1/2008 on
a 444 visa. On 01/07/2011 he applied for citizenship by conferral.
Because Mr Holt was absent from Australia on the day 4 years immediately before
applying, but had previously been in Australia within 8 years immediately before applying,
his period of lawful residence starts on the day 4 years immediately before applying (that
is, on 01/07/2007).
He would therefore meet the 4-year lawful period, counting the period 01/07/2007 -

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30/12/2007 as a period of absence from Australia within this period.


When using the residence calculator in such situations, decision makers must enter the
date of first arrival (in this case 01/01/2000) as the lawful residence date, and then enter
any dates of departure and arrival as required.

5.15.6 People working on ships or aircraft - presence in Australia is not


determined by the Migration Act
A person is present in Australia if they are physically present in Australia, as defined in s3 of the Act.
Under s80 of the Migration Act 1958, certain non-citizens on ships or aircraft may be taken not to
have left the migration zone. However, such a person is taken not to be present in Australia for the
purposes of meeting the residence requirement during periods when their vessel is outside
Australia.
People working as members of a crew of a ship or an aircraft should be assessed against the special
residence requirement - persons engaged in particular kinds of work requiring regular travel outside
Australia (s22B).

5.15.7 People who were permanent residents immediately prior to 1 July


2007
Schedule 3 (Application and transitional provisions) of the Australian Citizenship (Transitionals and
Consequentials) Act 2007 provides that in the absence of any other relevant provisions, the
residence requirements of the old Act (one in two years and two in five years) apply to people who
became permanent residents before the commencement of the Act, provided they apply for
citizenship before 1 July 2010.

5.15.8 Confinement in prison or psychiatric institution and Ministerial


discretion (s22(1C) & (5A))
Under s22(1C), if a person has been confined in a prison or in a psychiatric institution in relation to a
criminal offence at any time, that person will need to spend four years in Australia since last being
released from that confinement before being residentially eligible for citizenship.
However, s22(5A) provides that s22(1C) does not apply in relation to a person if, taking into account
the circumstances that resulted in the persons confinement, the decision maker is satisfied that it
would be unreasonable not to take those periods into account towards the residence requirement.

Circumstances that may be taken into account are not prescribed in Citizenship legislation
therefore any information that an applicant puts forward must be considered. Under policy it
is envisaged that the circumstances where this discretion may be exercised include:
convictions quashed (set aside by the court)

a pardon, that is, a free and absolute pardon granted because the person was wrongly
convicted.

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This discretion is not available for applicants who became permanent residents before 1 July 2007
and apply for citizenship prior to 1 July 2010. Periods confined in a prison or a psychiatric institution
by order of a court made in connection with proceedings for an offence against an Australian law
cannot be counted towards the residence requirement of two in five and one in two years before
the application.

5.15.9 Partial exemption - person born in Australia or former Australian


citizen (s22(2))
Under s22(2), applicants who were born in Australia or are former Australian citizens need only have
been present in Australia as a permanent resident for 12 months immediately before the
application. Absences from Australia in that period of no more than 90 days are allowed (s22(1B)
refers).
Under s24(7) a former citizen cannot be approved for Australian citizenship by conferral unless more
than 12 months have passed from the date upon which the person ceased, or last ceased, to be an
Australian citizen. Some former Australian citizens may also be eligible to apply for resumption of
Australian citizenship. See Chapter 7 - Resuming citizenship.

5.16

Ministerial discretion - administrative error (s22(4A) & (5))

Under s22(4A) and (5) the Minister has a discretion to count for the purposes of s22(1)(b) and (c)
(respectively) periods spent in Australia during which the necessary legal status was absent,
provided certain requirements are met (although the specific sections do not apply to people who
were permanent residents immediately before 1 July 2007 - in these circumstances the equivalent
provisions under s5B of Schedule 3 of the Transitional Act apply instead).
Under s22(4A) the Minister may treat a period as one in which the person was not present in
Australia as an unlawful non-citizen if the Minister considers the person was present in Australia
during that period but, because of an administrative error, was an unlawful non-citizen during that
period.
Under s22(5) the Minister ... may treat a period as one in which the person was present in Australia
as a permanent resident if the Minister considers the person was present in Australia during that
period but, because of an administrative error, was not a permanent resident during that period.
The discretion can only be exercised on condition that the legal status is absent ... because of an
administrative error. The condition can be divided into 2 parts:

there must be an administrative error (in other words, an error of a particular kind) and

the error must be the reason why the person lacks the necessary legal status (in other words,
the error is the cause).

The concept of administrative error embraces a range of administrative actions. In broad terms it
will extend to administrative mistakes and circumstances in which incorrect information is provided.
While each case will need to be assessed on its own merits, specific examples include the following:
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the applicant may have been granted a permanent visa but the decision maker accidentally
recorded the grant of a temporary visa in ICSE

the applicant was advised by the department that they were a lawful non-citizen when in fact
they were unlawful

the applicant had been entitled to a permanent visa but made an application for a temporary
visa as a result of incorrect advice from an officer of the department.

A delay in processing an application does not constitute an administrative error in itself. Where an
adverse decision on an application is subject to merits or administrative review and the decision is
subsequently overturned, this is still considered within the normal parameters of an application
process and does not constitute an administrative error.
In order for this discretion to be applied, the onus is on the applicant to provide evidence that an
administrative error has indeed occurred. All reasonable efforts should be made by the decision
maker to verify the applicants claims. The department may on its own initiative take action where
the department can identify a clear case of administrative error and apply this discretion on the
applicants behalf.
Decision makers must be satisfied that an administrative error has in fact occurred. Most cases of
administrative error will require examination of client records relating to the relevant visa. Advice
can be sought from the Citizenship Helpdesk, National Office.
For example a delegated officer may consider applying the ministerial discretion provided under
s22(4A) to assist a person to meet the general residence requirement where the period of
unlawfulness was solely due to the ceasing of a BVA which was out of effect when they departed
Australia; or
Where a person makes a valid application for a bridging visa, including an application for a visa
which is also an application for a bridging visa such as a student visa or a skilled migration visa, and
the associated bridging visa was not granted prior to the person becoming unlawful, in certain
circumstances this may be considered an administrative error. For example a visa application was
lodged in Australia within the validity period of the formerly held visa but the lodgment was not
recorded (and a bridging visa not granted) until the former visa ceased, leading to a period of
unlawfulness.
In respect of skilled migration applications there are extensive schedule 1requirements which must
be met for an application to be valid. Assistance from the relevant visa processing area may be
required to assess whether the applicant made a valid application prior to becoming unlawful.

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5.17

Ministerial discretion - significant hardship or disadvantage


(s22(6))

5.17.1 Background
Under s22(6) periods of lawful residence, other than permanent residence, can be treated as periods
of permanent residence if the applicant can demonstrate that they would suffer significant hardship
or disadvantage if those periods were not treated a periods of permanent residence. This section
makes explicit reference to s22(1)(c) of the Act. Section 5B of the Transitional Act was amended with
retrospective effect from 1 July 2007, providing that the section also applies to applicants who are
permanent residents on commencement of the Act.
People who became permanent residents before commencement of the Act (1 July 2007) and who
applied for citizenship prior to 1 July 2010, are also subject to the policy that applied immediately
prior to commencement of the Act. That is, a person who is a permanent resident before
commencement of the Act is required to meet the old residence requirements of two in five years,
including one in two years. Consistent with the old policy, this discretion would normally be
exercised only if the applicant has 12 months continuous permanent residence in Australia prior to
the date of application. The discretion would normally only be used to make up the other one year
permanent residence required for the two in five year requirement. This discretion is only available
for periods spend lawfully in Australia.
Use of this discretion may be appropriate for persons who have become permanent residents of
Norfolk Island. Norfolk Island has its own migration legislation (the Norfolk Island Immigration Act
1980) which requires that a person must have been ordinarily resident in Norfolk Island for five years
in the past seven years to be eligible for permanent residence. As such, it is considered that such a
person would suffer significant disadvantage compared with other applicants for citizenship by
conferral if they were required to spend a further period of time as a permanent resident to satisfy
the residence requirement.
If an applicant satisfies all the requirements under s21 except the residence requirements, but has
spent the appropriate periods in Norfolk Island as a temporary resident prior to being granted
permanent residence of Norfolk Island, use of this provision would be appropriate. Such a person
would not be expected to show further evidence of hardship or disadvantage for this discretion to
be exercised.

5.17.2 What is significant hardship or disadvantage


The Macquarie Dictionary Fifth Edition makes the following definitions:
significant

important; of consequence

hardship

a condition that bears hard upon one; severe toil, trial, oppression, or need

disadvantage

absence or deprivation of advantage; any unfavourable circumstance or

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condition
People would normally be required to demonstrate some or all of the following circumstances:

inability to gain employment on the grounds that the employment is restricted to


Australian citizens, and that comparable or alternative employment is not reasonably
available

difficulty of international travel because the person cannot obtain a passport from their
country of nationality/citizenship, or are unable to use a passport issued by that country
for safety or similar reasons or cannot obtain an alternative travel document

academic (for example, research, academic scholarship) or other (sporting etc) potential
is being limited or restricted, because the opportunities to reach that potential is
available only to an Australian citizen, to the extent that it causes significant hardship.

Applicants would need to demonstrate that not having citizenship is the only or major cause for the
significant hardship or disadvantage. Decision makers will need to assess each application on its
merits with particular reference to all the circumstances of the case to assess whether the persons
lack of Australian citizenship is the only or major cause of the significant hardship or disadvantage.
Evidence is required that a persons lack of Australian citizenship is the cause of the:

significant hardship

or

disadvantage.

For example, a letter from a potential employer, scholarship, sporting body stating that the persons
citizenship status is the only reason they have not been selected, plus a statement in writing from
the applicant, with appropriate supporting documentation, evidencing the significant hardship or
disadvantage this has caused.
The onus is on the applicant to provide the evidence to support the application. Decision makers
should also be aware of situations where it appears that a person takes a course of action for the
sole purpose of availing themselves of the exercise of this discretion.
When making a decision regarding whether a persons circumstances constitute significant hardship
or disadvantage officers should be aware of the difference between personal needs and personal
wants.
Personal needs relate to situations which would give rise to significant hardship or disadvantage if a
person could not meet that need. For example, if a person could not find any employment, and was
unable to adequately financially support themselves or their family.
Personal wants are aspirations and generally do not constitute hardship (that is, the right to vote,
election to Parliament, eligibility for HECS-HELP, representing Australia internationally in academics
or sport).

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Australian citizenship is not a requirement to study in Australia at the primary or secondary levels.
Australian universities may admit students who are not Australian citizens however eligibility for
Commonwealth supported place may be limited to Australian citizens or permanent humanitarian
visa holders.
Further information on Commonwealth supported places is available from the Department of
Industry, Innovation, Science, Research and Tertiary Education. Education, Science and Training at:
http://www.innovation.gov.au/Pages/default.aspx

5.18

Ministerial discretion - spouse, de facto partner or surviving


spouse or de facto partner of an Australian citizen (s22(9) & (10))

From 15 March 2009, the same-sex de facto partner of an Australian citizen who is seeking a
residence discretion should be assessed against the criteria at s22(9) of the Act, and not s22(11), as
was the case previously.
Under s22(9), periods spent overseas by a permanent resident who is the spouse, de facto partner
or surviving spouse or de facto partner of an Australian citizen at the time of making an application,
can be counted as periods of permanent residence in Australia.
The discretion to treat periods spent overseas by an applicant as periods during which the applicant
was present in Australia as a permanent resident can only be applied to periods when:

the applicant was the spouse or de facto partner of a person who was an Australian
citizen and

the applicant was a permanent resident and

the applicant had a close and continuing association with Australia (see below).

If the applicant is the surviving spouse or de facto partner of an Australian citizen and is applying for
a discretion on that basis, they must not have entered into another spouse/de facto relationship
after the death of their spouse/de facto partner in order for the time to be counted.
In all cases, applicants must provide evidence that they maintained close and continuing association
with Australia while overseas. Factors that may demonstrate this close and continuing association
with Australia include but are not limited to:

evidence that the person migrated to and established a home in Australia prior to the
period overseas

Australian citizen children

long term relationship with Australian citizen spouse or de facto partner

extended family in Australia

regular return visits to Australia

regular periods of residence in Australia

intention to reside in Australia

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the person has been on leave from employment in Australia while accompanying their
spouse or partner overseas

ownership of property in Australia

evidence of income tax paid in Australia over the past four year and

evidence of active participation in Australian community based activities or organisations.

In assessing whether a person has a close and continuing association with Australia for the purposes
of s22(9)(d), it is policy that more weight should be given to the above factors if the person has been
lawfully and physically present in Australia for at least 365 days in the 4 years immediately before
making an application for Australian citizenship (including at least 90 days as a permanent resident).
Less weight should be given to these factors if they have not been present in Australia for at least
this period.

Interaction with s24(5) Person not present in Australia


If the applicant does not need the discretion to be applied in order to meet the residence
requirement but is overseas at the time of decision, this discretion may be applied to avoid a refusal
under s24(5) of the Act, provided the applicant meets the legislative and policy criteria as outlined
above.

5.19

Ministerial discretion - person in an interdependent relationship


(s22(11))

5.19.1 Background
From 15 March 2009, the discretion at s22(11) applies only to people who are in an interdependent
relationship other than a same-sex de facto relationship. The same-sex de facto partner of an
Australian citizen is now able to access the discretion at s22(9) of the Act.
Under s22(11) periods spent overseas by a permanent resident who was granted their permanent
visa because they were in an interdependent relationship with an Australian citizen and is still in that
interdependent relationship at the time of making the application, can be counted as periods of
permanent residence in Australia.
The discretion to treat periods spent overseas by the applicant as periods during which the person
was present in Australia as a permanent resident can only be applied to periods when:

the applicant was a permanent resident and

the applicant was still in the same interdependent relationship with the Australian citizen and

the applicant had a close and continuing association with Australia (see below).

In all cases, applicants must provide evidence that they maintained close and continuing association
with Australia while overseas. Factors that may demonstrate this close and continuing association
with Australia include but are not limited to:

Australian citizen children

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long term relationship with Australian citizen interdependent partner

extended family in Australia

regular return visits to Australia

regular periods of residence in Australia

intention to reside in Australia

employment in Australia where the person has been on leave to accompany their spouse
overseas

ownership of property in Australia

evidence of income tax paid in Australia over the past four years and

5.19.2 Evidence of active participation in Australian community based


activities or organisations
If the applicant is the interdependent partner of an Australian citizen and they are overseas at the
time of decision, this discretion may be applied to avoid a refusal under s24(5) of the Act, provided
the applicant meets the legislative and policy criteria as outlined above. It may be applied for the
purposes of s24(5) if the applicant is not present in Australia even though the discretion may not be
required for the purposes of meeting the residence requirement.
The amendments to the Act allowing the same-sex de facto partner of an Australia citizen to access
the discretion at s22(9) apply to all undecided applications from 15 March 2009.

5.20

Applications made but not decided before 1 July 2007

Should offices still have undecided cases on hand which were lodged before 1 July 2007, contact the
Citizenship Helpdesk for assistance regarding policy and procedure in place at the time of lodgment.

5.21

Special residence requirement - Persons engaging in activities that


are of benefit to Australia (s22A)

5.21.1 Requirements
A person meets the special residence requirement (persons engaging in activities that are of benefit
to Australia) if they are seeking to engage in an activities specified in the Ministers instrument under
s22C(1) and have the support of an organisation specified in the Ministers instrument under
s22C(2). Currently the actives are limited to:

employment which requires a high-level security clearance in a department, an executive


agency or a statutory agency of the Commonwealth or

participation in the Olympic games (including the winter, summer and Paralympic
competitions and qualifying events) or

participation in the Davis Cup or Fed Cup competitions, including qualifying events.

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Information to assist in judging whether an entity is a department, an executive agency or a


statutory agency of the Commonwealth is available at:
http://www.finance.gov.au/publications/flipchart/index.html
The organisations currently specified for the purposes of s22A(1)(b) include:

Any department, executive agency or statutory agency of the Commonwealth

The Australian Olympic Committee

Australian Paralympic Committee and

Tennis Australia.

If a person is seeking to engage in an activity that is not listed in s22C(1), or does not have the
support of an organisation specified for the purposes of 22A(1)(b) that is listed in the instrument,
they do not meet the special residence requirement.
A person only meets this special residence discretion if they are required to be an Australian citizen
in order to engage in the relevant activity (s22A(1)(a)(iii)), and there is insufficient time for them to
meet the general residence requirement before they can engage in the activity (s22A(1)(a)(iv)).
These requirements would normally be confirmed in their letter of support from the relevant
organisation.
To meet this special residence requirement, during the 2 year period immediately before they
submitted their application, a person must also have been:

ordinarily resident in Australia

a permanent resident of Australia

present in Australia for at least 180 days in total, with at least 90 days of this being during the
last 12 months immediately before applying

not present in Australia as an unlawful non-citizen.

Ordinarily resident is defined in s3 of the Act. See also Chapter 1 - Preliminary and definitions.

5.21.2 Ministerial discretion alternative residence requirements


(s22A(1A))
Under s22B(1A), the Minister may determine that paragraphs (1)(d) to (g) do not apply in relation to
the person.
The discretion to make such a determination has not been delegated by the Minister. Pending
further instructions, any request to exercise the discretion is to be referred to Citizenship Policy
Section through the Citizenship Helpdesk.

5.21.3 Confinement in prison or psychiatric institution (s22A(2) & (3))


Under s22A(2), if a person has been confined in a prison or in a psychiatric institution in relation to a
criminal offence at any time, that person will need to spend 2 years in Australia since last being
released from that confinement before being residentially eligible for citizenship.
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However, s22A(3) provides that s22A(2) does not apply in relation to a person if, taking into account
the circumstances that resulted in the persons confinement, the decision maker is satisfied that it
would be unreasonable not to take those periods into account towards the residence requirement.
Circumstances that may be taken into account are not prescribed in Citizenship legislation therefore
any information that an applicant puts forward must be considered. Under policy it is envisaged that
the where this discretion may be exercised include:

convictions quashed (set aside by the court)

a pardon, that is, a free and absolute pardon granted because the person was wrongly
convicted.

5.21.4 Ministerial discretion - Administrative error (s22A(4) & (5))


Under s22A(4) and (5) the Minister has a discretion to count for the purposes of s22A(1)(f) and (g)
periods spent in Australia during which the necessary legal status was absent, provided certain
requirements are met. Under s22A(4) the Minister ... may treat a period as one in which the person
was a permanent resident if the Minister considers that, because of an administrative error, the
applicant was not a permanent resident during that period.
Under s22A(5) the Minister may treat a period as one in which the applicant was not present in
Australian as an unlawful non-citizen if the Minister considers the applicant was present in Australia
during that period but, because of an administrative error, was an unlawful non-citizen during that
period. The discretion can only be exercised on condition that the legal status is absent ... because
of an administrative error. The condition can be divided into 2 parts:

there must be an administrative error (in other words, an error of a particular kind) and

the error must be the reason why the person lacks the necessary legal status (in other words,
the error is the cause).

The concept of administrative error embraces a range of administrative actions. In broad terms it
will extend to administrative mistakes and circumstances in which incorrect information is provided.
While each case will need to be assessed on its own merits, specific examples include the following:

the applicant may have been granted a permanent visa but the decision maker accidentally
recorded the grant of a temporary visa in ICSE

the applicant was advised by the department that they were a lawful non-citizen when in fact
they were unlawful

the applicant had been entitled to a permanent visa but made an application for a temporary
visa as a result of incorrect advice from an officer of the department.

A delay in processing an application does not constitute an administrative error in itself. Where an
adverse decision on an application is subject to merits or administrative review and the decision is
subsequently overturned, this is still considered within the normal parameters of an application
process and does not constitute an administrative error.

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In order for this discretion to be applied, the onus is on the applicant to provide evidence that an
administrative error has indeed occurred. All reasonable efforts should be made by the decision
maker to verify the applicants claims. The department may on its own initiative take action where
the department can identify a clear case of administrative error and apply this discretion on the
applicants behalf.
Decision makers must be satisfied that an administrative error has in fact occurred. Most cases of
administrative error will require examination of client records relating to the relevant visa. Advice
can be sought from the Citizenship Helpdesk, For example a delegated officer may consider applying
the ministerial discretion provided under s22A(5) to assist a person to meet the general residence
requirement where the period of unlawfulness was solely due to the ceasing of a BVA which was
out of effect when they departed Australia; or
Where a person makes a valid application for a bridging visa, including an application for a visa
which is also an application for a bridging visa such as a student visa or a skilled migration visa, and
the associated bridging visa was not granted prior to the person becoming unlawful. In respect of
skilled migration applications for example, there are extensive schedule I requirements which must
be met for an application to be valid. Assistance from the relevant visa processing area may be
required to assess whether the applicant made a valid application prior to becoming unlawful.
Note: The spouse and de facto partner ministerial discretion (s22(9)) cannot be used towards the
special residence requirements.

5.22

Special residence requirement - Persons engaged in particular


kinds of work requiring regular travel outside Australia (s22B)

5.22.1 Introduction
A person is eligible for the special residence requirement (persons engaged in particular kinds of
work requiring regular travel outside Australia) if they are engaged in work of a kind specified in the
Minsters Instrument under s22C(3). If a person is engaged in work which is not of a kind specified in
the Ministers Instrument under s22C(3), they do not meet this special residence requirement.
To meet this special residence requirement, during the 4 year period immediately before they
submitted their application, a person must also have been:

engaged for at least 2 years in that kind or work

ordinarily resident in Australia, with the last 12 months as a permanent resident of Australia

present in Australia for at least 480 days in total, with at least 120 days of this being during the
last 12 months immediately before applying

not have been present in Australia as an unlawful non-citizen.

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5.22.2 Ministerial discretion alternative residence requirements


(s22B(1A))
Under s22B(1A), the Minister may determine that paragraphs (1)(c) to (g) do not apply in relation to
the person.
The discretion to make such a determination has not been delegated by the Minister. Pending
further instructions, any request to exercise the discretion is to be referred to Citizenship Policy
Section through the Citizenship Helpdesk.

5.22.3 Confinement in prison or psychiatric institution (s22B(2) & (3))


Under s22B(2), if a person has been confined in a prison or in a psychiatric institution in relation to a
criminal offence at any time, that person will need to spend at least 480 days in Australia during the
period of 4 years in Australia since last being released from that confinement before being
residentially eligible for citizenship.
However, s22B(3) provides that s22B(2) does not apply in relation to a person if, taking into account
the circumstances that resulted in the persons confinement, the decision maker is satisfied that it
would be unreasonable not to take those periods into account towards the residence requirement.
Circumstances that may be taken into account are not listed in the Act therefore any information
that an applicant puts forward must be considered. Under policy it is envisaged that the
circumstances where this discretion may be exercised include:

convictions quashed (set aside by a court)

a pardon, that is, a free and absolute pardon granted because the person was wrongly
convicted.

5.22.4 Ministerial discretion - Administrative error (s22B(4) & (5))


Under s22B(4) and (5) the Minister has a discretion to count for the purposes of s22A(1)(f) and (g)
periods spent in Australia during which the necessary legal status was absent, provided certain
requirements are met.
Under s22B(4) the Minister ... may treat a period as one in which the person was a permanent
resident if the Minister considers that, because of an administrative error, the applicant was not a
permanent resident during that period.
Under s22B(5) the Minister may treat a period as one in which the applicant was not present in
Australian as an unlawful non-citizen if the Minister considers the person was present in Australia
during that period but, because of an administrative error, was an unlawful non-citizen during that
period.
The discretion can only be exercised on condition that the legal status is absent ... because of an
administrative error. The condition can be divided into 2 parts:

there must be an administrative error (in other words, an error of a particular kind) and

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the error must be the reason why the person lacks the necessary legal status (in other words,
the error is the cause).

The concept of administrative error embraces a range of administrative actions. In broad terms it
will extend to administrative mistakes and circumstances in which incorrect information is provided.
While each case will need to be assessed on its own merits, specific examples include the following:

the applicant may have been granted a permanent visa but the decision maker accidentally
recorded the grant of a temporary visa in ICSE

the applicant was advised by the department that they were a lawful non-citizen when in fact
they were unlawful

the applicant had been entitled to a permanent visa but made an application for a temporary
visa as a result of incorrect advice from an officer of the department.

A delay in processing an application does not constitute an administrative error in itself. Where an
adverse decision on an application is subject to merits or administrative review and the decision is
subsequently overturned, this is still considered within the normal parameters of an application
process and does not constitute an administrative error.
In order for this discretion to be applied, the onus is on the applicant to provide evidence that an
administrative error has indeed occurred. All reasonable efforts should be made by the decision
maker to verify the applicants claims. The department may on its own initiative take action where
the department can identify a clear case of administrative error and apply this discretion on the
applicants behalf.
Decision makers must be satisfied that an administrative error has in fact occurred. Most cases of
administrative error will require examination of client records relating to the relevant visa. Advice
can be sought from the Citizenship Helpdesk.
For example a delegated officer may consider applying the ministerial discretion provided under
s22B(5) to assist a person to meet the general residence requirement where:

the period of unlawfulness was solely due to the ceasing of a BVA which was out of
effect when they departed Australia or

a person makes a valid application for a bridging visa, including an application for a visa
which is also an application for a bridging visa such as a student visa or a skilled migration
visa, and the associated bridging visa was not granted prior to the person becoming
unlawful. In respect of skilled migration applications for example, there are extensive
schedule I requirements which must be met for an application to be valid. Assistance
from the relevant visa processing area may be required to assess whether the applicant
made a valid application prior to becoming unlawful.

Note - The spouse and de facto partner ministerial discretion (s22(9)) cannot be used towards the
special residence requirements.

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5.23

Business Talent (subclass 132) visa holders

5.23.1 Introduction
Although Business Talent visas (s/c 132) are permanent visas, they are granted subject to the
condition that the primary visa holder makes genuine attempts to engage in business in Australia
within three years of their first arrival. If the visa holder fails to do so, then their subclass 132 visa
and those of their family unit members, may be cancelled under the provisions of section 134 of the
Migration Act.
In order to ascertain whether or not the subclass 132 visa holder has successfully engaged in
business in Australia or has made genuine attempts to do so, they are asked to provide business
information to DIBP and complete a Business Skills Survey (form 1010). Generally this monitoring
process takes place during the period between 24 and 36 months after their first arrival in Australia
as a subclass 132 holder.
The monitoring of subclass 132 visa holders is done by the Business Skills Monitoring Unit (BSMU) in
Adelaide.
As a matter of procedure, the BSMU places a client of interest note in ICSE against all subclass 132
holders and members of their family unit who are currently subject to monitoring. Once the
monitoring process has been finalised and the visa holder is assessed to have met their business
obligations, the client of interest note will be removed.
In cases where the visa holder is assessed to have NOT made a genuine attempt to establish a
business in Australia, then cancellation action will have been commenced. This will be reflected in
ICSE in a cancellation permission request.

5.23.2 Citizenship Applications from subclass 132 Holders


Some situations may arise where a client holding a subclass 132 visa may become eligible to apply
for Australian Citizenship before the business skills monitoring has been completed. Such a situation
may arise where the citizenship applicant has spent time in Australia as the holder of a temporary
visa prior to the grant of the permanent subclass 132 visa. For example, a dependent of the primary
subclass 132 holder may have held a student visa in Australia before becoming a permanent
resident.
If a citizenship application is received from an applicant holding a subclass 132 visa, and the client of
interest note in ICSE indicates that monitoring is still underway, the citizenship officer should liaise
with the BSMU by email (at sa.biip.monitoring@immi.gov.au).
The BSMU will provide an indication regarding the status of the business monitoring and the
likelihood or otherwise that cancellation action may follow. This information may then be taken into
account by the citizenship officer when processing the citizenship application.

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From the point of view of the BSMU, knowledge that a subclass 132 holder has applied for
citizenship can be valuable when assessing a monitoring case. The BSMU therefore appreciates such
advice from citizenship officers in situations where caseloads overlap.
Other subclasses of permanent Business Skills visas such as 890,891,892,893 and 888 are not subject
to monitoring after grant. There is no need to liaise with the BSMU in these cases and assessment of
the citizenship application may continue as normal.

5.23.3 Courses of action available to Citizenship officers


Should advice be received from the BSMU that cancellation of a subclass 132 visa is likely or even
imminent, then the following factors should be taken into account, on a case by case basis.
Although s24(1) specifies that a citizenship application must be either approved or refused, it may be
appropriate in some circumstances to delay the taking of the Citizenship pledge under s26(3)(a) to
allow the BSMU to complete monitoring. Note that under s26(4) this delay must not exceed 12
months.
If the monitoring is completed and the outcome is that the applicants subclass 132 visa is cancelled,
the applicants approval for citizenship may be cancelled under s25(2)(b)(i).
Note: The effect of s134(8) of the Migration Act is that a decision to cancel a subclass 132 Business
Talent visa does not take effect until either 28 days after the decision is made or, if an appeal is
made to the Administrative Appeals Tribunal (AAT), 28 days after the AAT hands down a decision to
affirm the visa cancellation.
Consult the Citizenship Helpdesk for additional guidance.

5.24

Relevant defence service (s23)

5.24.1 Introduction
The Act was amended with effect from 1 January 2013 to allow certain family members of current
and future overseas lateral recruits to the Australian Defence Forces (ADF) to satisfy the relevant
defence service residence requirement and be eligible for conferral of Australian citizenship at the
same time as the enlisted ADF member. The amendments also enable family members of overseas
lateral recruits to the ADF to satisfy the relevant defence service residence requirement and be
eligible for conferral of Australian citizenship where the enlisted ADF member dies while undertaking
service in the permanent forces or the reserves. The amendments do not extend the defence service
residence requirement to family members of every person who has completed relevant defence
service.
The amendments to the Act apply to:

applications received on or after 1 January 2013 and

applications received but not finally determined as of that date.

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5.24.2 Defence service requirement


For the purposes of section 21, a person satisfies the defence service requirement if the person has
either:

completed relevant defence service (s23(1)) or

is a member of the family unit of a person who

has completed relevant defence service (s23(2)) or

died while undertaking service in the permanent forces or reserves (s23(3)).

5.24.3 Relevant defence service


Relevant defence service is defined in s23(4).
A person undertakes service in the permanent forces or the reserves only if the person is appointed
(as an officer), enlisted (in the other ranks) or transferred (as an officer or other rank) into any of the
permanent forces or the reserves.
Schedule 3 of the Transitional Act provides Defence service includes service in:

the permanent forces of the Commonwealth because of a notice under s26 of the National
Service Act 1951 as in force at any time before 26 November 1964 and

the Naval Reserve, the Army Reserve or Air Force Reserve or in any reserve force that is a
predecessor (whether immediate or otherwise) of the Naval Reserve, the Army Reserve or Air
Force Reserve.

Service in the permanent forces is calculated on calendar days. Service in the reserve forces includes
only those days on which the service person was required for, attended and was entitled to be paid
for duty.

5.24.4 Service that is not relevant defence service


Not all defence related service is relevant defence service. Some examples of forms of service or
employment that are not relevant defence service are:

service in the Australian Defence Force Cadets and predecessor organizations

engagement by the Australian Defence Force as a contractor or locally engaged employee,


either in Australia or overseas, including as an interpreter or guide

service by a member of the forces of another country seconded to, or on duty with, the
permanent forces or the reserve forces unless that person is a permanent resident of Australia
and meets the definition of service in s23(4).

5.24.5 Member of the family unit of person who has completed relevant
defence service
An applicant is able to meet the defence service requirement if:
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the applicant is a member of the family unit of a defence person and

the defence person has completed relevant defence service or died while undertaking service
in the permanent or reserve forces and

the defence person was granted, on or after 1 July 2007, one of the following visas as
prescribed by the regulations:

Employer Nomination (Permanent) (Class EN)

Labour Agreement (Migrant) (Class AU)

Labour Agreement (Residence) (Class BV)

Regional Employer Nomination (Permanent) (Class RN) and

the applicant was a member of the family unit of the defence person when the defence
person was granted the visa and

the applicant holds a visa of that kind because the applicant is a member of the family unit of
the defence person.

These requirements reflect the policy intent that the reduced residency period under the defence
service requirement be available only to those family members of an overseas lateral recruit who
migrate as a family unit with that recruit.

5.24.6 Assessing member of the family unit


Member of the family unit has the same meaning as in the Migration Act 1958. Delegates should
check that the applicant was included in the defence persons visa application, was granted the same
type of visa and holds that same type of visa.

5.24.7 People who did not migrate as part of the defence persons family
unit
Examples of family members who will not meet the requirements of section 23 are:

a spouse or de facto partner who migrated independently of the defence person, regardless of
when or where they commenced the spousal or de facto relationship

a relative (whether a minor or adult) who was not granted the same visa as the defence
person and subsequently obtained permanent residence independently of the defence
person.

5.24.8 Evidence
Applicants claiming that they have completed relevant defence service in accordance with s23 must
provide evidence which clearly outlines the service completed, or medical discharge papers if
applicable.

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5.24.9 Identity declaration


An applicant who meets the defence service requirement may provide an identity declaration made
by a person who has not known the applicant for 12 months or more. Overseas Lateral Recruits are
recruited by the ADF to skilled and/or senior positions and the ADF requires them to obtain
citizenship as soon as possible. This means the recruit may not have known any Australian citizen for
the 12 months required under policy. They will, however, have gone through the ADF recruitment
process and the visa process in the recent past and there is little risk associated with the declaration
being made by someone who has known them for less than 12 months, particularly where the
declarant is the recruits commanding officer, who likely occupies a position of trust and is familiar
with the recruits background.

5.24.10

Fees

Members of the family unit are required to pay the citizenship application fee.

5.24.11

Recording in ICSE

When recording decisions to approve citizenship applications of ADF family members in ICSE,
decision makers should add a note that states one of the following:

for families of overseas lateral recruits to the permanent forces, the note should read
permanent ADF MoFU

for families of overseas lateral recruits to the reserve forces, the note should read reserve
ADF MoFU.

This will enable these cases to be traced prior to the introduction of two small changes to checklist
items in residence requirements, which will be rolled out as part of CR08.

5.25

Application requirements (s46)

5.25.1 Introduction
In accordance with s46, applications must be:

on the form approved by the Minister

contain the information required by the form

accompanied by any other information prescribed by the regulations and

accompanied by a fee (if any) prescribed by the regulations see section 5.26 Fees to
accompany applications (reg 12A).

The approved form for applications for citizenship under s21(2) General eligibility is form 1300t
Application for Australian citizenship General eligibility.
The approved form for applicants applying for citizenship under s21(3), (4), (5), (6), and (7) is form
1290 Application for Australian citizenship Other situations.
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If an applicant is under 16 years of age a responsible parent must sign the application form.
Responsible parent is defined in s6, see section 1.2 Definitions.
The application must be made in the current legal name of the applicant.
If the applicant is applying on Form 1300t or form 1290, the following documents should support the
application:

an endorsed passport size photograph

a full birth certificate of the applicant or its equivalent

passport held, if any

other identification documents which include a signature, photograph and current address
(for example, driving licence and credit card/utilities bill)

official evidence of any name change.

Applicants who have spent more than 12 months outside Australia and more than 90 continuous
days in any one country since becoming a permanent resident, need to provide overseas penal
certificates from those countries (other than Australia) in which they spent more than 90 continuous
days. Overseas penal certificates are not required for periods spent overseas under the age of 18
years.
Applications made on behalf of, or including, a child under 16 years of age, need to be supported by:

an endorsed passport size photograph of the child

the childs passport

the childs full birth certificate, showing details of parents

identification documents for the responsible parent which include a signature, photograph
and current address (for example, passport bio page, driving licence and credit card/utilities
bill)

any orders related to the custody or parental responsibility of the child

if the child was adopted overseas, or in Australia but did not acquire Australian citizenship as a
result of that adoption, the original adoption order, recognition or verification of the overseas
adoption order or confirmation that the adoption has taken place under Australian law must
be provided and

official evidence of any name change.

British subjects who arrived in Australia before 1 January 1975 and do not have evidence of entry to
Australia, will also need to provide evidence of residence in Australia before that date. For example,
employment, taxation or school records.

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New Zealand citizens who do not hold a permanent visa will also need to provide a certificate issued
by Centrelink stating that they were residing in Australia on a particular date. If this certificate is not
available decision makers should check department systems to establish whether the applicant was
present in Australia on 26 February 2001 on a Special Category visa or if outside Australia on that
date, had spent a period or periods totalling 12 months in Australia on a Special Category visa in the
two years before that date. For further information on New Zealand citizens, see Chapter 14 - New
Zealand citizens in Australia.
Applicants born to a former Australian citizen who ceased to be an Australian citizen under s17 of the
old Act will also need to provide:

evidence that a parent was an Australian citizen before their birth. For example a full birth
certificate if the parent was born in Australia and

evidence that the Australian citizen parent lost their Australian citizenship under s17 of the
old Act before their birth. For example, a citizenship certificate of another country, or
statement from the authorities of the other country stating how and when the parent
acquired the citizenship of that country.

Applicants born in Papua to a parent who was born in Australia as we now know it will also need to
provide their parents full birth certificate.
Applicants seeking exercise of the residence requirement ministerial discretion under s22(5A)
confinement in prison or psychiatric institution will also need to provide a statement giving reasons
as to why it would be unreasonable not to take those periods into account.
Applicants seeking exercise of the residence requirement ministerial discretion under s22(6)
significant hardship or disadvantage will also need to provide a supporting statement concerning the
significant hardship or disadvantage that would be suffered by the applicant if the discretion was not
exercised and they could not become an Australian citizen. See section 5.17 Ministerial discretion significant hardship or disadvantage (s22(6)).
Applicants seeking exercise of the residence requirement ministerial discretion under s22(9) - spouse,
de facto partner or surviving spouse or de factor partner of an Australian citizen will also need to
provide:

evidence of their spouses, or de facto partners, Australian citizenship. For example, a full
Australian birth certificate or citizenship certificate

their marriage certificate or, if a de facto partner, evidence of their de facto relationship. The
definition of de facto partner provided in the Acts Interpretation Act 1901 (the AIA) lists
circumstances that can be taken into account when determining whether two people are in a
de facto relationship. These include:

the duration of the relationship

the nature and extent of their common residence

whether a sexual relationship exists

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the degree of financial dependence or interdependence, and any arrangements for


financial support, between them

the ownership, use and acquisition of their property

the degree of mutual commitment to a shared life

the care and support of children

the reputation and public aspects of the relationship.

evidence that they were overseas with their Australian citizen spouse or de facto partner, and
they maintained a close and continuing association with Australia during that period

evidence of their spouses, or de facto partners, death, if applicable.

Applicants seeking exercise of the residence requirement ministerial discretion under s22(11) interdependent relationship with an Australian citizen will also need to provide:

evidence of their interdependent partners Australian citizenship. For example, a full


Australian birth certificate or citizenship certificate

evidence that they were overseas with their Australian citizen interdependent partner and
that during that time they maintained a close and continuing association with Australia during
that period.

Applicants claiming that they have completed relevant defence service in accordance with s23 must
also provide evidence which clearly outlines the service completed, or medical discharge papers if
applicable.

5.25.2 Information and documents to accompany applications (reg 12)


Under reg 12, information or documents not in English must be accompanied by an official
translation. In Australia, translations should be done by National Accreditation Authority of
Translators and Interpreters (NAATI) accredited translators. For overseas lodged applications the
current guidelines for translations in that post apply.

5.26

Fees to accompany applications (reg 12A)

5.26.1 Legislative framework


Under reg 12A, an application on the form 1300t for Australian citizenship by conferral must be
accompanied by the fee mentioned in:

item 14A of Schedule 3 unless the applicant is eligible for a fee concession or exemption

item 14 of Schedule 3 if the applicant is the holder of certain Centrelink or Department of


Veterans Affairs pensioner concession cards see section 5.26.3 Concessional fees for certain
social welfare recipients.

Under reg 12A, an application on the form 1290 for Australian citizenship by conferral must be
accompanied by the fee mentioned in:
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item 15 of Schedule 3 unless the applicant is eligible for a fee concession or exemption

items 9, 10 11, 12 or 13 if the applicant is the holder of certain Centrelink or Department of


Veterans Affairs pensioner concession cards - see section 5.26.3 Concessional fees for certain
social welfare recipients.

5.26.2 Reduced fee payable for certain application


A fee of $130 (which is the test component of the of the application fee for general eligibility
applicants) must accompany applications on form 1300t where applicants have previously made an
application for Australian citizenship but were refused solely on the grounds of not meeting the
residence grounds and applies within 3 months of being able to satisfy the residence requirement.
This includes applicants who:

made an application before 1 October 2007 under the old Act or the new Act and was refused
solely on not meeting the residence grounds (either in the old Act or the new Act or the
Transitional Act) and

paid $130 for their previous application or paid $20 because they were the holder of certain
Centrelink or DVA pension holders and they are no longer the holder of that pension.

A fee of $20 (which is the test component of the concession application fee for general eligibility
applicants) must accompany applications on form 1300t where applicants have previously made an
application for Australian citizenship but were refused solely on the grounds of not meeting the
residence grounds and applies within 3 months of being able to satisfy the residence requirement.
This includes applicants who:

made an application before 1 October 2007 under the old Act or the new Act and were
refused solely on not meeting the residence requirements (either in the old Act or the new Act
or the Transitional Act) and

paid $20 for their previous application or paid $130 because they were not the holder of
certain Centrelink or DVA pension holders and they now are the holder a pension.

5.26.3 Concessional fees for certain social welfare recipients


Schedule 3 of the Regulations prescribes the concessional fee to accompany an application by
persons who hold:

Pensioner concession cards or Health Care cards issued by Centrelink

Pensioner concession cards issued by DVA

if those cards are endorsed with certain social welfare codes.


A blue DVA Pensioner Concession Card is generally sufficient evidence that the person qualifies for a
charge concession.
A Commonwealth Seniors Health card is not acceptable evidence, as not all holders are eligible for
the fee concession.
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When eligibility for the citizenship fee concession is based on receipt of parenting payment, it is
limited to the holders of Pensioner Concession Cards (PCC) who are likely to be suffering from longterm or permanent financial disadvantage and less likely to re-enter the workforce. This is achieved
by requiring that the client is either a:

PCC holder in receipt of Parenting Payment Partnered (PPP) [an eligibility criteria for the
card being that the person is aged over 60 and has been continuously receiving an
income support payment for 9 months, or those assessed as having a partial capacity to
work] or

PCC holder in receipt of Parenting Payment Single (PPS) [an eligibility criteria for the
citizenship fee concession being that the person is aged over 60 and has been
continuously receiving an income support payment for 9 months].

When Health Care Card holders in receipt of PP turn 60 they are issued with a PCC endorsed with
PPP or PPS.

5.26.4 Nil fees for certain applications


No application fee is payable if:

the previous application was refused solely on grounds of not meeting residence
requirements provided the person makes an application on form 1300t and had previously
made an application for Australian citizenship on or after 1 October 2007 but was refused
solely on the grounds of not meeting the residence requirements and applies within 3 months
of being able to satisfy the residence requirement

the applicant is under 16 years of age and is included in the application of a responsible
parent

the applicant completed three or more months of service in the permanent forces of the
Commonwealth or, prior to 26 November 1964, three or more months of national service
under the National Service Act 1951

the applicant is a British or Maltese former child migrant who entered Australia between 22
September 1947 and 31 December 1967 inclusive, and was a ward of the Minister under the
Immigration (Guardianship of Children) Act 1946.

Regulation 12A prescribes the fee to accompany an application.


See section 5.26.3 Concessional fees for certain social welfare recipients for further information on
fees payable by certain Centrelink or DVA pension holders.

5.26.5 Refund of fees (reg 13)


Regulations 13(4) and (5) provide that the component of the fee that relates to the sitting of a test
may be refunded if a person made an application under the general eligibility provisions (Form
1300t) and paid the relevant fee but did not sit a test.

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The citizenship application fees increased on 1 July 2009. If an applicant paid a fee in connection
with an application for citizenship (see s46) before 1 July 2009 and is subsequently entitled to a
refund, they must be refunded the amount specified by the regulations in force at the time the fee
was paid.

5.26.6 British and Maltese former child migrants


Applications received from British and Maltese former child migrants who entered Australia
between 22 September 1947 and 31 December 1967 inclusive, and were wards of the Minister
under the Immigration (Guardianship of Children) Act 1946, should have their application processed
as a priority.
Under reg 12A, applications for citizenship by British and Maltese former child migrants must be
accompanied by the fee mentioned in item 6 of Schedule 3 (currently Nil).
They will, therefore, need to produce evidence of their former child migrant status with their
application for Australian citizenship. The Child Migrants Trust has offices in Melbourne and Perth.
The Perth office handles enquiries from Western Australia and the Melbourne Office handles
enquiries from elsewhere in Australia. The website is at: http://www.childmigrantstrust.com/ and
their contact details are as follows:
Child Migrants Trust
169 Riversdale Road
HAWTHORN VIC 3122
Free phone: 1800 04 05 09
Telephone: (03) 9815 2022
or
The Child Migrants Trust
8 Sunbury Road
VICTORIA PARK WA 6100
Free phone: 1800 04 05 09
Telephone: (08) 9472 7582

5.27

Decision making

5.27.1 Ministers decision (s24) - summary


An application for citizenship by conferral must be approved or refused.
If an applicant meets the eligibility requirements and there is no prohibition on approval, the person
would generally be approved to become an Australian citizen. They must also be given notice of the
decision. See section 3.5.7 Notification of decisions (s47).

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The Ministers discretion under s24(2) may be exercised in cases where the applicant does meet the
legislative requirements but does not meet the policy guidelines (and the decision maker is satisfied
that the circumstances of the case do not warrant going outside of policy). For example this
discretion:

may be used to refuse approval under s21(2), 21(3) or 21(4), lodged prior to 7 October 2008,
where the applicants permanent visa ceased or was cancelled prior to decision (see section
5.4 Cessation or cancellation of a permanent visa prior to decision) or

would be used to refuse approval under s21(5) where the applicant is aged under 18 years but
does not meet the policy guidelines.

Consult the Citizenship Helpdesk if you are considering exercising the s24(2) discretion in relation to
any application.
There are a number of circumstances where an application for citizenship by conferral must not be
approved. These relate to:

identity

national security

when the applicant is not in Australia at the time an application is to be approved

where a person is or has been subject to court proceedings for an offence and

cessation of citizenship.

5.27.2 Identity (s24(3))


Section 24(3) requires that the Minister must not approve the person becoming an Australian
citizen unless the Minister is satisfied of the identity of the person. In addition to being a legislative
requirement under the Act, the Australian community expects that decision makers will not approve
a person for citizenship if they are not satisfied of the persons identity.

5.27.3 National security (s24(4), s24(4A), s24(4B), s24(4C), and s24(4D))


All cases concerning national security must be referred to the Citizenship Helpdesk.
If ASIO has issued an adverse security assessment or qualified security assessment against the
applicant, an application for citizenship by conferral must not be approved unless the applicant is
stateless (see below). Such an assessment will be made where the applicant is a direct or indirect
risk to the security of Australia.
If the applicant is stateless and was born in Australia, an application for citizenship must not be
approved if the applicant:

has been convicted of national security offence or

has been convicted of an offence (in Australia or overseas) and sentenced to a period of
imprisonment for at least 5 years. Note: There is a discretion for the Minister to approve an
application if it would be unfair to refuse it on the basis of the persons conviction (see
s24(4C)).

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If the applicant is stateless and was born outside Australia to an Australian citizen parent, an
application for citizenship must not be approved if the applicant has been convicted of a national
security offence.

If the applicant is not in Australia at the time an application is approved


(s24(5))
An application for citizenship by conferral made under:

s21(2) (general eligibility)

s21(3) (permanent or enduring physical or mental incapacity) or

s21(4) (person aged 60 or over or has hearing, speech or sight impairment)

must not be approved if the applicant is not in Australia at the time the decision is to be made. This
does not apply in cases where the residence discretion in s22(9) or s22(11) has been applied to the
general residence requirement, or where a person meets one of the special residence requirements.

5.27.4 If a person is or has been subject to court proceedings for an offence


(s24(6))
Section 24(6) of the Act sets out circumstances where an application for Australian citizenship by
conferral must not be approved if a person has committed an offence against an Australian law or
where there are proceedings in relation to the person pending for an offence against an Australian
law.
Section 24(6) does not apply to applicants who are stateless and covered by s21(8). Section 24(6)
applies to all other applicants, including applicants who are under 18.
If required, onshore police clearances for applicants, including applicants who are under 18, may be
requested if they are relevant to an assessment under s24(6). If it is not possible to obtain a police
clearance, the necessary information must be requested from the applicant.
The following terms are relevant to s24(6) and are defined by s3 of the Act:

prison

psychiatric institution

serious prison sentence

serious repeat offender.

The period that a person is confined to a prison or psychiatric institution is explained in s9 of the Act.
Further guidance on the interpretation of these terms can be found in section 1.2 Definitions.

Section 24(6)(a)
Section 24(6)(a) covers the period from when a person is charged with an offence until either the
prosecution drops the charges or the matter is finalised by the courts.
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This includes where:

an applicant has been charged and convicted of an offence, but sentencing has been deferred

an appeal is underway or

a party to the case has the option of appealing the decision.

This does not include where:

the applicant is being investigated by police in relation to the possible commission of an


offence but has not yet been charged with an offence or

the applicant has been found guilty by a court, but released on conditions relating to the
applicants behaviour (such as a good behaviour bond - these cases fall under s24(6)(f) or
s24(6)(g)).

Section 24(6)(b)
Cases of children in institutions must be checked carefully to ascertain whether they fall within
s24(6)(b). Section 24(6)(b) will only apply if the applicant has been confined to a prison because a
court has imposed a sentence of imprisonment after the applicant has been convicted of an offence.

Section 24(6)(c)
If required, see section 1.2 Definitions for further guidance in relation to the terms:

confined to a prison and

serious prison sentence.

If an applicant has been confined to a prison because of a serious prison sentence, an application for
citizenship by conferral must not be approved for 2 years after the person has been released from
prison.

Section 24(6)(d)
If required, see section 1.2 Definitions for further guidance in relation to the terms:

confined to a prison

serious prison sentence and

serious repeat offender.

If an applicant has been:

confined to a prison because of a serious prison sentence

released and

confined to a prison again for another serious prison sentence,

an application for citizenship by conferral must not be approved for 10 years after the person has
been released from prison.

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Section 24(6)(e)
Before the completion of a term of imprisonment, a person can be released from prison on parole
or licence to serve the remainder of their sentence outside of prison. If the person breaches a
condition of their parole or their licence, action can be taken against the person under an Australian
law to require them to serve the whole or a part of the balance of the term of imprisonment.
Under s24(6)(e), an application for Australian citizenship by conferral must not be approved at any
time during which a person is on parole or licence.

Sections 24(6)(f) and 24(6)(g)


The following definitions are relevant to these sections:
security

A security in this context is something that is given or deposited to ensure


that a promise or obligation is fulfilled. A security could, for example, be
given by paying a specified sum of money or by providing an undertaking (see
recognizance) to satisfy the orders of the court.

sureties

Sureties are people who make themselves answerable for anothers actions.
In the criminal law context, a surety is a person who enters into a (usually
written) undertaking that he or she will forfeit a specified sum of money (or
other security) if another person fails to comply with an undertaking that
that other person has entered into.

recognizance

In criminal law, a recognizance is an acknowledgment. A recognizance to


be of good behaviour is an undertaking given by an offender to a sentencing
court to be of good behaviour.

Section 24(6)(f) applies where:

a person has been convicted of an offence against an Australian law and sentenced to
imprisonment, but the person has been released by a court from serving all or part of
that sentence

the persons release is subject to conditions that relate to their behaviour and

the person has provided a security to comply with these conditions. This will usually be
done by paying money or by recognizance.

Section 24(6)(g) applies where:

there are proceedings for an offence against an Australian law in relation to the person
but a court has not imposed a sentence of imprisonment on the person

the person has been released by the court subject to conditions that relate to their
behaviour and

the person has provided a security to comply with these conditions. This can be done by
paying money or by recognizance.

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A person released by a court on a good behaviour bond will have been released subject to
conditions that relate to their behaviour, but it is important to ensure that the conditions relating to
the giving of a security are also met before s24(6)(f) and (g) apply.
If all the conditions are met, an application for Australian citizenship by conferral must not be
approved at a time when action under an Australian law can be taken against the person because
they have breached a condition of the security.
For example, if a person has been released by a NSW court on a two year good behaviour bond
which includes a security given by the person, an application for Australian citizenship by conferral
must not be approved during that two year period.
The courts are able to make a number of alternative orders, such as community based orders and
community service orders. These orders may fall under 24(6)(f) and 24(6)(g) in certain
circumstances. However, 24(6)(g) only applies where a person, if convicted of the offence, may be
sentenced to a term of imprisonment. Where a person is charged with an offence for which the
maximum sentence does not include a period of imprisonment, there is no prohibition on approval.
Refer these cases to the Citizenship Helpdesk.

Section 24(6)(h)
Section 24(6)(h) applies where the applicant is confined in a psychiatric institution (which includes
the psychiatric section of a hospital) as a result of a court order after committing an offence against
an Australian law.
This section applies in cases where:

a person has been confined by a court to a psychiatric institution while proceedings for
an offence against an Australian law in relation to the person are pending and

a person has been confined by a court to a psychiatric institution following the


finalisation of procedures for an offence against an Australian law in relation to the
person.

5.27.5 Cessation of citizenship (s24(7))


Section 24(7) does not apply to applicants who are stateless and covered by s21(8).

5.27.6 Deferral of decision not possible


Under s14 and s14A of the old Act, it was possible to defer a decision on an application under certain
circumstances. The current Act does not allow for the deferral of decisions. However, it is possible
instead to delay the making of the pledge of commitment under s26(3) of the Act.

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5.27.7 When there is a decision bar


There may be some cases that have a decision bar recorded against the applicant because of
previous or ongoing action by another area of the department. In such situations, decision makers
must seek approval from the relevant area for the decision bar to be lifted. Once a decision bar
is lifted the case can be finalised.
If the decision bar is not lifted, decision makers should follow up with the relevant area on a
monthly basis until the case can be finalised. Additional assistance or guidance with such cases
should be sought from the Citizenship Helpdesk.

5.27.8 Minister may cancel approval (s25)


Under s25, approval of citizenship given under s24 of the Act may be cancelled in prescribed
circumstances.
In the case of people who have been given approval on the basis of meeting the general eligibility
requirements (s21(2)), or the requirements relating to people aged 60 or over or with hearing,
speech or sight impairment (21(4)), the approval may be cancelled if the person is no longer:

a permanent resident

likely to reside, or continue to reside, in Australia or to maintain close and continuing


association with Australia or

of good character.

In the case of people who are required to make a pledge of commitment, approval may be cancelled
if the person has not made the pledge within 12 months of receiving notice of approval. The
approval may not be cancelled if the reason for failing to make the pledge is one of the prescribed
reasons given in regulation 7. Children under the age of 16 are not required to make the pledge of
commitment. However, approval of citizenship given to a child may be cancelled if their application
was made at the same time as a responsible parent and if the approval given to the responsible
parent has been cancelled.
Before an approval of an application for Australian citizenship is cancelled because of failure to make
the pledge, a notice of intention to cancel must be sent. This would usually be sent 9 months after
notification of approval and would provide the client with a final opportunity to make a pledge.
You should only proceed with the cancellation of approval if no satisfactory response is received and
the person has been given adequate opportunity to respond.

5.27.9 Prescribed reasons for failing to make pledge of commitment (reg 7)


Regulation 7(5) means that if a person has failed to make a pledge for a reason covered by reg 7(3)
or (4), and the person has not provided a signed statement and supporting evidence in accordance
with reg 7(5), there is no prescribed reason which would prevent consideration being given to
cancellation of their approval.
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5.27.10

Pledge of commitment must be made (s26)

See Chapter 6 - Ceremonies.

5.27.11

How pledge of commitment is to be made (s27)

Chapter 6 - Ceremonies includes details of people authorised by the Minister.

5.27.12

Day citizenship begins (s28)

Children under the age of 16 years at the time of application are not required to make a pledge of
commitment. However, if they make an application at the same time, and on the same form, as a
responsible parent who is approved for Australian citizenship they do not become an Australian
citizen unless and until the responsible parent becomes a citizen. If the child under the age of 16
makes an application at the same time, and on the same form, as a responsible parent, and the child
is approved for Australian citizenship but the responsible parent is refused, then the childs
citizenship begins on the date the application is approved.
The following is a table of the day on which citizenship begins for applications approved under s21(1)
of the Act:
General eligibility (s21(2))

On making the pledge

Permanent or enduring physical or mental


incapacity (s21(3))

Date application is approved

Person aged over 60 or has a hearing speech or


sight impairment (s21(4))

On making the pledge

Person born to former Australian citizen (s21(6))

Date application is approved

Person born in Papua before 16 September 1975 to


an Australian born parent (s21(7))

Date application is approved

Stateless person (s21(8))

Date application is approved

Child under 16 years who applied at the same time


as responsible parent when both child and parent
were approved (s21(5))

Date the responsible parent becomes a


citizen

Child under 16 years who applied at the same time


as responsible parent when child is approved but
responsible parent is refused (s21(5))

Date application is approved

Child under 16 years at application who applied in


their own right (s21(5))

Date application is approved

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Child 16 years and over at application (s21(5))

5.27.13

On making the pledge

Notification of decisions (s47)

Under s47 a person must be given notice of the decision on their application. If the decision is a
refusal, or a cancellation of approval, the notice must include the reasons for the decision and advice
that they have a right to have this decision reviewed by the AAT.
Section 47(2) provides that if the person is a child, the requirement in s47(1) is satisfied if the notice
of the decision is given to a parent of the child. As child is not defined in the Act and a person aged
16 or 17 may sign the application form, the notification of decision in such cases should be sent to
that person rather than to a parent of the person.

5.27.14

Review of decisions (s52)

Under s52, generally a decision to refuse an application for Australian citizenship by conferral can be
only if the applicant is a permanent resident. The two exceptions are where the applicant was under
the age of 18 when they applied for citizenship, and where a decision refers to the persons eligibility
for citizenship by conferral as a stateless person.
A decision to cancel an approval can be reviewed by the AAT.

5.28

British nationality and British subjects prior to 26 January 1949

5.28.1 Introduction
Before the old Act came into force on 26 January 1949 the status of Australian citizenship did not
exist. People born in Australia automatically acquired the status of British subject. This could also be
acquired by descent, naturalization, marriage or annexation of Territory, and there were also
provisions for loss of British nationality.

5.28.2 Birth and descent


People generally acquired British subject status at birth if they were born within Great Britains
dominions unless

their father was, at the time of the birth, the diplomatic representative of a foreign power or

they were born of an alien enemy father in occupied British territory.

A person born on board a foreign ship was not deemed a British subject by reason only that the ship
was in British territorial waters at the time of birth, unless they were born:

legitimately outside Great Britains dominions and their father was a British subject by reason
of birth on British soil

outside Great Britains dominions before 1 January 1915 and their paternal grandfather was a
British subject by reason of birth on British soil

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outside Great Britains dominions and their father, prior to the birth, had been granted a
Certificate of Naturalization of the type set out section 5.28.3 Naturalization - including
children and foreign born wives

outside Great Britains dominions after 1 January 1915, of a father who was a British subject
by descent only, and the birth was registered at a British consulate.

5.28.3 Naturalization - including children and foreign born wives


People were deemed to have acquired British subject status by naturalization if they held or were
included in a Certificate of Naturalization granted by the:

Government of an Australian State before 1 January 1904

Government of the Commonwealth between 1 January 1904 and 31 March 1937, (after 1
January 1921 details of the persons wife were shown on the certificate if she was included in
the application)

Home Secretary of the United Kingdom after 1 January 1915 or

Governments of the following Dominions, after the dates shown

Canada - after 1/1/1915

Newfoundland

- after 5/6/1915

South Africa

- after 21/5/1926

New Zealand

- after 1/7/1929.

5.28.4 Children
Children of people granted Certificates of Naturalization under various Commonwealth and State
Acts in force before 1 January 1921 became naturalised in certain circumstances without having
their names included in a parents certificate. Claims to citizenship on these grounds are to be
referred to the Citizenship Helpdesk with particulars of the parents naturalization, the childs birth
and residence in Australia.

5.28.5 Foreign born wives


In relation to foreign-born wives of people naturalized in Australia subsequent to the marriage:

if the husband was naturalized in Australia between 1 January 1921 and 31 March 1937, the
wife automatically acquired British subject status without any action on her part

if the husband was naturalized between 1 April 1937 and 25 January 1949, the wife did not
acquire British subject status unless she made a Declaration of Acquisition of British subject
status under s18(5) of the Nationality Act 1920-1946

if the husband was naturalized before 1 January 1921 the wife may or may not have acquired
British subject status. Enquiries about such cases are to be referred to the Citizenship
Helpdesk.

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5.28.6 Marriage
Prior to 26 January 1949 an alien woman who married a British subject acquired British subject
status by virtue of the marriage. Dissolution of the marriage, or the death of the husband, did not
affect the womans nationality.

5.28.7 Annexation of a territory


British subject status could be acquired by inhabitants of a territory annexed by the British
Government. Enquiries by people claiming to have acquired British subject status by this means, but
who cannot show that they have previously been deemed British, are to be referred to the
Citizenship Helpdesk.

5.28.8 Loss of British nationality


British subject status could be lost in any one of the following ways:

by naturalization in a foreign state, if the person concerned was sane, of full age, and was not
a married woman

by declaration of alienage which could be made only in specified cases and were very few in
number

in the case of persons who had obtained British subject status by naturalization, by revocation
on the order of the Minister responsible for nationality matters at the time or

in the case of a British woman, by marriage to an alien in certain circumstances. Section 27 of


the Australian Citizenship Act provided for the restoration of British subject status to women
who lost that status solely by reason of their marriage.

5.29

British subject status from 26 January 1949

5.29.1 Introduction
Between 26 January 1949 and 01 May 1987, citizens of Australia were also British subjects for the
purposes of Australian law. This was in keeping with the principles agreed to in 1947 for the
adoption of a scheme of legislation combining citizenship of independent member countries of the
Commonwealth with the maintenance of the common status of British subject throughout the
Commonwealth.
For the purposes of Australian law, a person was a British subject if she or he was an Australian
citizen or a citizen, or a citizen of one of the countries listed in s7 of the old Act or in regulations
made under that provision.
Today, the most important implication of British subject status relates to whether a person
obtained citizenship automatically on 26 January 1949 under the transitional arrangements. The
countries included in s7 on that date were:

United Kingdom and Colonies

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Canada

New Zealand

The Union of South Africa

Newfoundland

India

Pakistan

Southern Rhodesia and

Ceylon (currently Sri Lanka),

who did acquire citizenship automatically.


A person, who was a British subject immediately before 26 January 1949 and who did not on that
date acquire Australian citizenship or hold the citizenship of another Commonwealth country or
Ireland, became a British subject without citizenship.

5.29.2 Marriage and womens status


A woman who was an Australian citizen and who married a citizen of another country after the
commencement of the Act, (26 January 1949) did not lose her Australian citizenship by reason only
of marriage, whatever her husbands nationality and wherever the marriage took place. This was the
case even if a result of the marriage was the automatic conferral of her husbands citizenship.
The transitional provisions of the old Act provided that a woman who lost British nationality by
marriage before the commencement of the Act was deemed to have been a British subject
immediately before the Act commenced. She therefore would have become an Australian citizen if
she was born in Australia or in New Guinea, or before marriage was naturalized in Australia, or was
ordinarily resident in Australia and/or New Guinea for the five years immediately before the Act
commenced. (See the repealed s25(1) and s27 of the Act.)
A woman marrying an Australian citizen after the commencement of the old Act did not thereby
acquire Australian citizenship.
Women who acquired British subject status by marriage before the Act commenced were not
deprived of that status (s26A of the old Act).

5.29.3 Burma
Burma ceased to be a member of the British Commonwealth on 4 January 1948. Although UK
legislation came into force at that time, which ceased the British subject status of people connected
with Burma, in Australia the common law applied.

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For the purposes of Australian law, only those Burmese who were inhabitants of Burma on 4 January
1948, and who remained there after that date, ceased to be British subjects automatically by reason
of Burmas departure from the British Commonwealth. Therefore, for example, a person born in
Burma but resident in Australia on 04 January 1948 may have been continued to be regarded as a
British subject and acquired Australian citizenship automatically on 26 January 1949 under the
transitional provisions.
In the UK, the Burma Independence Act provided that certain people connected with Burma should
cease to be British subjects, namely:

any person born in Burma whose father or paternal grandfather was born in Burma - but any
such person who was born in British Territory or in a British Protected Territory, or whose
father or paternal grandfather was born in such Territory, was excepted and remained British
and

women who had become British subjects by reason only of marriage to such a person.

People who were domiciled in the United Kingdom or His Majestys dependencies were given the
opportunity to elect to remain British within two years after 4 January 1948. The divergence
between United Kingdom and Australian law was abolished by the Nationality and Citizenship
(Burmese) Act 1950, which came into force on 29 July 1950 with the following effects:

People who ceased to be British subjects under the UK Act, but had remained British under
Australian law, became aliens under Australian law (from 29 July 1950) unless they:

had exercised the right of election to remain British subjects under either the United
Kingdom or Australian Act or

were citizens of one of the other countries of the British Commonwealth.

British subject status was lost by any person who acquired that status during the period 4
January 1948 to 29 July 1950 by reason only of descent from, or marriage to, a person who
ceased to be a British subject by reason of the Act.

Any person who was an Australian citizen immediately before 29 July 1950, and who on that
date ceased to be a British subject by reason of the Act, had the right to make a declaration
electing to remain an Australian citizen and a British subject, within two years after 29 July
1950. Such declarations were of no effect until registered, but upon such registration the
declarants were deemed never to have ceased to be Australian citizens

People who made declarations of election and had them registered were furnished with a
certified copy of their declaration, which may be accepted as evidence of their status.

No person ceased to be a British subject under the Act if the persons father or paternal
grandfather was born outside Burma in British Territory, or in British Protected Territory.

5.29.4 Ireland
Ireland here refers to the country commonly known as Eire, and does not include Northern
Ireland, which is still a part of the United Kingdom (UK).
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Under Irish law, Irish citizens ceased to be British subjects on 1 January 1949. Under UK and
Australian law, however, Ireland was treated in the same way as His Majestys dominions. The
Government of Ireland objected in principle to the continuance of Australias position, its view being
that Irish citizens should not be deemed British subjects unless they had a proven attachment to the
status by virtue of residence in or other association with a country of the British Commonwealth.
The Nationality and Citizenship Act 1948 (and the UK British Nationality Act) sought to meet these
objections:

people born in Ireland, or descended from people born in that country were no longer
deemed by that fact alone to be British subjects

Irish citizens who also possessed the citizenship of a country of the British Commonwealth (for
example, a person born in Ireland of a father born in the United Kingdom) would be regarded
as British subjects by reason of that citizenship

other Irish citizens who were British subjects immediately before 26 January 1949 could give
notice claiming to remain a British subject on the basis that they:

were or had been in service under an Australian Government

were the holder of an Australian passport or

had associations by way of descent, residence or otherwise with Australia,


Papua or New Guinea before 16 September 1975 or subsequently had had
such associations with Australia.

Upon giving such notice the claimant had the status of British subject. The person might also be an
Australian citizen under s25 of the Nationality and Citizenship Act 1948 transitional provisions, if
they were ordinarily resident in Australia for the 5 years before 26 January 1949 (s25(1)(d)).
An Irish citizen born after 26 January 1949 was not eligible to lodge such a claim and could only
become an Australian citizen by the normal processes applicable to the grant of Australian
citizenship.
Irish citizens who were not Australian citizens or British subjects were not aliens - they remained in
an intermediate position and until 1 May 1987 they retained the same rights and duties as British
subjects under Commonwealth laws (and territory laws passed prior to 26 January 1949).

5.29.5 South Africa and Pakistan


South Africa and Pakistan remained in the list of Commonwealth countries until 1 December 1973.
Therefore, until that date, in Australia, citizens of Pakistan and South Africa had the status of British
subjects even though the countries had ceased to be members of the British Commonwealth before
then.
Amendments to the Australian Citizenship Act in 1973 had the following effects:

Pakistan and South Africa were deleted from the countries in the then s7, with effect from 1
December 1973

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there was a transitional period of 2 years from 1 December 1973 during which citizens of
South Africa and Pakistan, who were ordinarily resident in Australia prior to 1 December 1973,
retained both the status of British subjects and their entitlement to apply for the grant of
Australian citizenship on completion of 12 months residence. This arrangement extended to
the children of such persons who were under 16 years of age

citizens of Pakistan and South Africa who were ordinarily resident in Australia as at 30
November 1973 became aliens as from 1 December 1975 (unless they acquired Australian
citizenship or the citizenship of a country included in s7) and

citizens of Pakistan and South Africa arriving in Australia on or after 1 December 1973 were
aliens.

5.30

Conventions on names

In some countries, names are presented on birth certificates in a manner different from the usual
Australian practice. The department has produced a guide on naming conventions (see:
http://dimanet.immi.gov.au/__data/assets/pdf_file/0007/226645/naming-conventions.pdf). Briefly,
in some Asian countries, including Vietnam, Malaysia, Singapore and China, birth certificates and
passports are traditionally written in the following way:

Family name

Middle name

First name

eg HA

Hang

Dinh Ngoc

In some cases, the family name may be first and there may be a combined first and middle name or
no middle name at all.
In other countries, such as Spain, France and Portugal, people carry the family names of both
parents and both names appear on the birth certificate. If a person decides to apply for citizenship in
one family name (that is, in the Australian custom), even though there is a difference between the
name on the birth certificate and the name requested on the application, an official name change
certificate is not required as the birth certificate (together with other identity documents required to
be provided) would be sufficient evidence to prove the clients identity.
A person with the accepted order of given names followed by family name on their birth certificate
may apply in only one of the given names. The dropping of a given name will not usually necessitate
an official name change certificate as the birth certificate (together with other identity documents
required to be provided) should be sufficient evidence to prove the clients identity.

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In many Islamic countries birth certificates show the persons given name without providing a
surname. It is accepted under Islamic culture that the child will take the fathers family name. In
these cases, family name often refers to all names of the father rather than a fathers last name,
that is, their surname. For example, a child born to Adel Gamal SAAD, could be named Sherif Adel
Gamal SAAD. In such cases, the fathers birth certificate can be requested as evidence that the
practice of using the fathers full name in the childs name has been previously adopted.
The accepted Australian policy of given names followed by surname/family name is to be applied in
a way that results in an Australian-style name order on the evidence of Australian citizenship. Strict
adherence to the order of names shown in passports or birth certificates of the above applicants will
not necessarily achieve this objective. The names are to be re-ordered in the following way:

First name

Middle name

Family name

Dinh Ngoc

Hang

HA

It is important to inform applicants whose documents are not written in the Australian style order of
given name followed by surname/family name, of the way in which their name will appear on their
evidence of citizenship and, if they are an applicant for citizenship by conferral, that their name will
be presented in this way at the citizenship ceremony. The reasons for this approach should be
explained and the accuracy of the proposed change checked with the applicant.
The full name as it appears on the birth certificate is to be recorded in the departments database
system as name type Alias. Notes should be added with reasons for the name used on the
application and evidence of citizenship if different to the name on the birth certificate.

5.31

Names in passports

For women from either Korea or Lebanon, it is the practice to issue the passport in the maiden name
with the notation that they are the wife of spouses surname. For Korea this will be in brackets as
w/o after the maiden name and for Lebanese passports it will after the notation et al.
Indian passports are also issued in the womans maiden name with the details of the spouse
endorsed in the back of the passport.
Any future passports issued in Australia by the relevant consulates may be issued in the womans
married name. In all cases the original overseas marriage certificate, with the official translation,
would have to be sighted. See the Departments naming convention guide
(http://dimanet.immi.gov.au/__data/assets/pdf_file/0007/226645/naming-conventions.pdf).

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Chapter 6 - Ceremonies
6

6.1

OVERVIEW TO CHAPTER 6

Australian Citizenship Ceremonies Code

The Australian Citizenship Ceremonies Code (the Code) provides guidance for organisations
conducting citizenship ceremonies. It sets out the legal and other requirements as well as the roles
and responsibilities of those people conducting ceremonies. Anyone involved in the conduct or
administration of citizenship ceremonies should become fully familiar with the contents of the latest
version of the Code. The Code is publicly available from the departments citizenship website (see
www.citizenship.gov.au).
There are three legal requirements for conducting a citizenship ceremony:

Authorisation to receive the pledge of commitment

Preamble

The presiding officer must read Schedule 1 of the Regulations (Preamble for
citizenship ceremony) to the candidates.

Pledge of commitment

6.2

Section 27 of the Act requires that the person before whom the pledge is
made (the presiding officer) must be authorised by the Australian Government
minister responsible for citizenship matters.

Section 26 of the Act requires most people 16 years of age and over to make
the pledge of commitment as a citizen of the Commonwealth of Australia.

Who conducts citizenship ceremonies

6.2.1 Local government councils


Overview of ceremonies
Citizenship ceremonies are traditionally public ceremonial occasions which provide an important
opportunity to formally welcome new citizens as full members of the Australian community.
Citizenship ceremonies are apolitical, bipartisan and secular.
The vast majority of Australian citizenship ceremonies are conducted by local government councils.
Community organisations and parliamentarians can also on occasion host citizenship ceremonies.
The department should also conduct ceremonies regularly to ensure service standards are met.
Special ceremonies should also be held to mark special occasions as part of a program to promote
Australian citizenship, particularly on and around Australian Citizenship Day.
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Council liaison program


Each office should have an ongoing council liaison program.
The arrangement by which local government conducts Australian citizenship ceremonies on behalf
of the department is based on good will and mutual agreement. This arrangement has been in place
since the 1950s.
It is essential that the department maintains regular communication and engagement with local
government councils to maintain and build on this important relationship. A regular program of
engagement ensures that our laws, policies, practices and service standards are understood, as well
as providing councils with the knowledge, training and tools that they require to conduct ceremonies
on behalf of the department.
The liaison program should include as a minimum:

monthly council phone contacts

departmental attendance at council ceremonies (at least once a year for each council with
conferral numbers over 300, and twice a year for councils with conferral numbers over 1000

yearly in person meetings between the citizenship manager and the Mayor/senior council
management for all councils with conferral numbers of 300

yearly council information session on the Australian Citizenship Ceremonies Code and other
requirements for citizenship ceremonies.

A record detailing stakeholder engagement and issues covered should be kept for every council as it
may be used in reporting to parliament.

Departments role
Generally, offices of the department will:

liaise with councils to ensure councils are aware of, and abide by, the requirements set out in
the Australian Citizenship Ceremonies Code

provide monthly reports to councils on the number of people waiting for a ceremony in their
local government area. Councils who confer citizenship on less than 50 people annually should
be provided with these reports on an as needed basis.

ensure that ceremonies are held regularly to meet service standards for timely conferral of
prospective citizens

ensure that pledge verification lists (PVL) are received from councils within one week of a
ceremony

ensure acquisition details are entered promptly into ICSE upon receipt of the PVL

distribute citizenship certificates to the councils prior to the ceremony and ensure any unused
certificates are returned following the ceremony

ensure citizenship certificates are treated as accountable documents and stored correctly, and

act as a helpdesk for council staff.

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Attendance by departmental staff to assist with the conduct of local government ceremonies, in
addition to the council liaison program, is at the discretion of the state/territory Director.
Where arrangements have been made for departmental officers to assist at a ceremony, their
assistance may include:

assisting with registration and verification of the identity of candidates on arrival

ensuring the legal and other requirements of the Code are adhered to

assisting with enquiries and other issues as they arise.

The department may also provide assistance such as sending invitation letters to candidates and
guests and helping to arrange publicity. In limited circumstances the department may also be
required to provide a presiding officer at council organised ceremonies.

Frequency of ceremonies
Citizenship ceremonies should be held regularly to meet local demand to ensure that clients wait on
average no longer than three months after being notified that their application has been approved.
As part of their program of citizenship ceremonies, local government authorities, as well as
community organisations, should be encouraged to hold citizenship and affirmation ceremonies to
mark special celebrations such as Australia Day (26 January), and Australian Citizenship Day (17
September).

6.2.2 Community organisations


Citizenship ceremonies can also be hosted by not for profit community organisations such as Rotary,
Lions and APEX Clubs especially on or near significant national days such as Australia Day, Australian
Citizenship Day, special anniversaries etc.
Community organisations should indicate their interest to conduct a citizenship ceremony to the
department at least 3 months in advance of the ceremony date. Departmental staff may also send
out requests for expressions of interest to community groups at least 3 months prior to significant
days such as Australia Day. A template is available at section 6.9 Attachment B - Expression of
interest to host an Australian citizenship ceremony.
Community organisations that would like to host a ceremony should provide the proposed date,
venue and the maximum number of people that the venue could accommodate. If the department
approves the ceremony, the organiser must be sent a copy of the Australian Citizenship Ceremonies
Code and be asked to give written assurance that they will comply with the Code. The Code is
publicly available on the citizenship website www.citizenship.gov.au.
NOTE: A sample agreement (MOU) which may be used by STOs when liaising with a community
organisation wishing to organise a citizenship ceremony is at section 6.10 Attachment C - Agreement
between DIBP and the party organising a citizenship ceremony.

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In most cases, community organisations will need assistance in arranging a ceremony. The
department should assist in obtaining a presiding officer for the ceremony such as a state or federal
parliamentarian, local Mayor or departmental officer. The Minister should be invited and given the
option of presiding (as per the Australian Citizenship Ceremonies Code).
The department should ensure that the community organisation complies with all aspects of the
Code. In most cases, this will necessitate attendance by a departmental representative particularly
where the community organisation has not previously conducted a ceremony. The community
organisation should also be encouraged to consult with their local government council to ensure
that the ceremony does not conflict with any planned council ceremony. Elected representatives of
the three levels of government must be invited to the ceremony as per the Australian Citizenship
Ceremonies Code.

6.2.3 The department


Routine departmental ceremonies
At time of high demand, it is expected the department will routinely hold citizenship ceremonies to
ensure clients do not wait more than 3 months on average for a ceremony. This includes where
councils are unable or unwilling to schedule sufficient ceremonies to accommodate the number of
approved citizenship applications in their area. During times of anticipated peak demand, such as
around HECS - Higher Education Loans Program (HELP) critical dates, a proactive approach to
departmental ceremonies should be implemented to ensure that the demand for urgent ceremonies
is minimised.
Departmental ceremonies need to maintain the dignity and formality of public ceremonies as well as
abiding by the Australian Citizenship Ceremonies Code. Invitations to (and speeches by), members of
parliament or community groups are not necessary on these occasions. However, if a member of
parliament is invited, invitations must be extended to all those required to be invited to public
ceremonies. The attendance of family and friends is normally kept to a minimum.

Special event departmental ceremonies


The department usually holds ceremonies to coincide with significant days and as part of a program
to promote the value of Australian citizenship and encourage eligible non-citizens to become
Australian citizens. These ceremonies are a good opportunity for the promotion of Australian
citizenship and may attract media interest. Only candidates who are comfortable with media
interest and give their written consent should be invited to these ceremonies. Prior to the
department taking photographs or conducting media interviews, candidates should be asked to sign
Attachment D - Interview / image consent form. Special event departmental ceremonies must
include an Australian citizenship affirmation ceremony as part of the proceedings as well as a
Welcome to Country or Indigenous acknowledgement. Refer to Reconciliation Action Plan 2.8.
For additional guidance consult the Citizenship Promotion and Events guidelines available on the
intranet.
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Citizenship ceremonies at overseas posts


If an applicant is approved onshore they are expected, as far as possible, to attend a citizenship
ceremony onshore. If an applicant has to travel overseas prior to conferral, however, it may be
possible to attend a ceremony at an agreed post. This ceremony should be arranged by Melbourne
office and, accordingly, all paperwork should be forwarded to Melbourne as soon as possible.
It is important that overseas posts do not agree to conduct a citizenship ceremony until they have
established with the Overseas Ceremonies Unit (OCU) that the appropriate requirements have been
met for example, the client continues to demonstrate an ongoing intention to reside in Australia. A
summary of the process for overseas posts ceremony requests is at section 6.12 Attachment E Overseas ceremony procedures.

6.2.4 Other
Private ceremonies
In very limited circumstances, private ceremonies may be conducted in a prospective citizens home
aged-care facility or health-care facility. Examples include if the candidate is aged or bedridden. All
requests must be assessed on a case by case basis considering compelling or compassionate
circumstances.

Members of Parliament
Members of Parliament (MPs) and Senators may also make requests from time to time, to conduct
private citizenship ceremonies, generally in their offices. All Federal MPs and Senators have standing
authorisation to preside at Australian citizenship ceremonies and therefore do not need to seek
authorisation from the Minister on each occasion they preside. They will however need to liaise with
their closest departmental office to make arrangements for the ceremony.
State parliamentarians do not have standing authorisation to receive the pledge of commitment at
citizenship ceremonies, therefore a request for authorisation should be made in writing to the
Minister on each occasion a state parliamentarian wishes to preside. Requests should be made well
in advance of any proposed ceremony date and should include a signed letter of agreement
indicating they will abide by the Australian Citizenship Ceremonies Code. See section 6.8 Attachment
A - Letter of agreement.
To avoid the appearance of conflict of interest, parliamentarians should not confer citizenship on
family members, close friends or members of staff at private ceremonies.

6.2.5 Urgent ceremonies


Regular departmental ceremonies should reduce the number of requests for urgent ceremonies.
However, there are some circumstances in which the department may agree to conduct an urgent
citizenship ceremony. Some points to consider when assessing requests for an urgent ceremony are:
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policy is to encourage candidates to attend public ceremonies

an applicant requesting an urgent ceremony is generally asked to make the request in writing
providing reasons for the request

there should be genuinely urgent and compelling circumstances.

If a person believes their circumstances warrant an urgent ceremony, they may make a formal
request. The request must be made in writing and include supporting documentary evidence.
Each request for an urgent ceremony should be assessed according to the individual circumstances
of the case.
Criteria to consider are:

whether the persons needs could be accommodated through attendance at a routine council
ceremony

genuinely compassionate or compelling circumstances

significant disadvantage to the person should they not be able to attend an urgent ceremony

the length of time the person has waited for a citizenship ceremony

circumstances beyond the persons control that have arisen since the their application was
approved

it would be unreasonable or unfair to the person not to grant an urgent ceremony.

STOs should hold departmental ceremonies during peak times in the Academic year to cater for
students who wish to apply for HECS - Higher Education Loan Program. Preference for these
ceremonies should be given to persons who have been waiting more than three months for a
ceremony and are not scheduled to attend their routine council citizenship ceremony prior to the
HECS cut off date.

6.3

Legal requirements for conducting a citizenship ceremony

6.3.1 Authorisation to receive the pledge of commitment


Authorisation
Under s27 of the Act, the pledge of commitment must be made before the Minister, or a person or
class of persons, authorised by the Minister.
Authorisation is arranged through the Citizenship Branch, National Office. Persons authorised by the
Minister as persons before whom a pledge of commitment must be made are usually referred to as
presiding officers. Authorisation is given to Australian citizens only and is specific to a position or
person.

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Details of positions authorised by the Minister under s27(5) for the purposes of s27(3)(c) are given in
the legislative instrument. This instrument specifies positions in STOs, overseas and local
government councils which have authorisation to preside at citizenship ceremonies. To obtain the
current legislative instrument or to submit a request for a person who wishes to be authorised by
the Minister, contact the Citizenship Helpdesk.
Presiding officers have no power to appoint a proxy. However, if a person is holding, occupying or
performing the duties of a position which is authorised, the person will have the authority to
perform the duties of the presiding officer.
To avoid the appearance of conflict of interest, presiding officers should not confer Australian
citizenship on family members, close friends or acquaintances at special purpose ceremonies.

Standing authorisations
Since 2011, all Federal Members of the House of Representatives and Senators have standing
authority to preside at Australian citizenship ceremonies.

Ceremony specific authorisations


On occasion, authorisation may be given by the Minister for a person to preside at a specified
ceremony. For example, a state/territory parliamentarian may be asked to act as presiding officer on
a particular occasion. Requests for ceremony specific authorisations are usually, but not always,
associated with Australia Day and Australian Citizenship Day ceremonies. Requests should be sent to
Citizenship Branch, National Office (enquiries can be sent to the Citizenship Helpdesk), providing as
much information as possible including the reasons for the request, the date and place of the
ceremony, and the approximate number of people to be conferred at the ceremony.
All requests from state/territory parliamentarians seeking authority to preside at citizenship
ceremonies should be made in writing to the Minister. State/territory parliamentarians should
include with their request a signed letter of agreement, indicating they will abide by the
requirements for the conduct of citizenship ceremonies set out in the Australian Citizenship
Ceremonies Code. See section 6.8 Attachment A - Letter of agreement.

6.4

Preamble

Under regulation 8 of the Regulations the presiding officer must read aloud the following words as
specified in Schedule 1 of the regulations Preamble for citizenship ceremony to the person making
the pledge:
Australian citizenship represents full and formal membership of the community of the
Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights
and obligations, uniting all Australians, while respecting their diversity.
Persons on whom Australian citizenship is conferred enjoy these rights and undertake to accept these
obligations:
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by pledging loyalty to Australia and its people and

by sharing their democratic beliefs and

by respecting their rights and liberties and

by upholding and obeying the laws of Australia.

6.5

Pledge of commitment

6.5.1 Pledge of commitment must be made - s26 of the Act


A person must make the pledge of commitment to become an Australian citizen unless covered by
one of the circumstances mentioned in s26(1) of the Act.
Children included on the application of a responsible parent may attend the citizenship ceremony
with their parent/s even though they are not legally required to take part in the ceremony or make
the pledge. If children wish to make the pledge, they may be able to make prior arrangements with
the organisation hosting the ceremony. Children included in a responsible parents citizenship
application acquire citizenship when the parent makes a pledge of commitment and becomes a
citizen. A childs citizenship certificate is generally presented to their parent, together with the
parents certificate, unless the child accompanies the parent in which case the childs evidence can
be presented to the child.

6.5.2 How the pledge of commitment is to be made


In accordance with Schedule 1 of the Act, the pledge of commitment may be made in either of the
two forms below. Citizenship candidates may choose which version of the pledge they prefer. No
other form of the pledge is legally acceptable.

Form of pledge no. 1

From this time forward, under God,

I pledge my loyalty to Australia and its people,

whose democratic beliefs I share,

whose rights and liberties I respect, and

whose laws I will uphold and obey.

Form of pledge no. 2

From this time forward,

I pledge my loyalty to Australia and its people,

whose democratic beliefs I share,

whose rights and liberties I respect, and

whose laws I will uphold and obey.

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Where reasonably practicable the pledge of commitment must be made in public. As a matter of
practice, and to facilitate the making of a pledge, the presiding officer administers (that is, reads
and the candidates repeat) the pledge. The presiding officer should ensure that each conferee
makes a pledge. If a conferee fails to make a pledge during a public citizenship ceremony they should
be advised that they are not a citizen and be given the opportunity to make the pledge. Conferees
who fail to make the pledge do not become Australian citizens and must not be presented with their
citizenship certificate.
Pledge cards, with the words of pledge No 1 and pledge No 2 can be ordered from the citizenship
website www.citizenship.gov.au. It is the responsibility of STOs to distribute the pledge cards to local
government councils or to ensure that they are familiar with the process for ordering pledge cards
from the citizenship website.
Candidates who can speak English are required to make the pledge in English. Translations of the
pledge are available in several languages for conferees who are not required to possess a basic
knowledge of the English language and cannot speak English. Copies are available on request from
the Citizenship Helpdesk.
All people who make the citizenship pledge should receive, as a memento, a pledge card displaying
the words of the form of the pledge they choose to make. The cards are clearly marked on the back.
The Australian Citizenship Ceremonies Code provides more information on the pledge and the
requirements for conducting citizenship ceremonies.

6.6

Requirements following a citizenship ceremony

6.6.1 Recording ceremony attendances in ICSE


The Australian Citizenship Pledge Verification List (pledge list) is the basis on which the departments
systems database ICSE is updated to record the acquisition of citizenship of the conferees. Unless
and until this occurs, acquisition of Australian citizenship may not be recognised, including by the
department or other agencies such as DFAT. Delays in pledge lists being received by the department,
or in the department entering information from returned pledge lists into the database, can cause
significant inconvenience to the new citizens and inaccurate departmental records. Councils should
therefore return pledge lists within one week of a ceremony being conducted. Councils that have
not returned pledge lists immediately following a ceremony must be contacted and reminded of the
need to return the pledge lists promptly.
STOs should have work practices in place to ensure they are aware of all council ceremonies
scheduled in any given time frame and the date by which pledge lists must be returned. Pledge lists
should be marked off as they are returned, enabling STOs to quickly identify and follow up any
outstanding pledge lists. The Pledge lists should be retained for 100 years.

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As candidates citizenship acquisition information from returned pledge lists is updated in ICSE,
those pledge lists should be marked off as having been entered in the departments database. This
will enable STOs to identify returned pledge lists that still have not been entered into the database.
It is imperative that departmental officers record attendance at a ceremony in ICSE as soon as the
pledge list is received.
Where the pledge list indicates a person attended a ceremony, however, they failed to make the
pledge of commitment, that person has not yet fulfilled the requirements to become an Australian
citizen and therefore an acquired event must not be recorded in ICSE. A note should be made in ICSE
and the person should be invited to attend a private departmental ceremony where they will have
another opportunity to make the pledge of commitment.
Where pledge lists show that a person did not attend a ceremony, STOs should ensure that the
citizenship certificates are returned to the department (by registered mail) by the organisers within
5 working days, voided on ICSE and destroyed. A new citizenship certificate can be requested when
the person has been scheduled into the next suitable ceremony.
An ICSE non attendance at a ceremony letter should be sent to the person in the first instance of
non-attendance. If a person does not make contact with the department regarding their nonattendance, or fails to attend subsequent scheduled ceremonies, it may be appropriate to send the
person the relevant ICSE cancellation of approval caution letters. Persons required to make the
pledge, who fail to do so within 12 months of receiving notification of approval, may be subject to
cancellation of approval. Further information on cancellation of approval can be found in Chapter 5 Citizenship by conferral.

6.6.2 Disclosing details of new citizens


The citizenship application forms state that personal information may be disclosed to, among others:

local state/local government authorities for the purposes of administering citizenship


ceremonies

the Australian Electoral Commission for the purposes of administering the Commonwealth
Electoral Act 1918 and

Federal, State/Territory Members of Parliament for the purposes of formally welcoming new
citizens into the Australian community.

It is desirable that territory and Federal Members of Parliament have the opportunity to welcome
new citizens as formal members of the Australian community, both at the citizenship ceremony and
otherwise.
Local Members of Parliament are the elected representatives of the new citizens. A welcome from a
local Member of Parliament facilitates future contact between the new citizens and their
representatives.

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Accordingly, local councils are expected to forward, on request, the names and addresses of new
citizens to their local Federal, state/territory Members of Parliament. This information should be
accompanied by advice that the material is to be used only for the purposes of welcoming new
citizens as formal members of the Australian community and should not be forwarded to other
persons or organisations.
Provided that the information is disclosed solely for the purposes of welcoming new citizens into the
community, and this is made clear to the recipient local Members of Parliament (for example,
through accompanying advice as indicated above), the practice is not inconsistent with privacy
legislation in the jurisdiction of local government councils. This matter is explained in the Australian
Citizenship Ceremonies Code.
An important privacy principle is that the purpose of collection of personal information should
govern its use. The names and addresses of new citizens are provided to local government councils
for the purpose of arranging citizenship ceremonies. Generally, disclosure is permitted if it is either
for the primary purpose of collection, or for a related secondary purpose that the individual might
reasonably expect would lead to disclosure.
Disclosing the name and address of new citizens to local Members of Parliament for the purpose of
those Members welcoming the new citizens as constituents would be a related secondary purpose.
New citizens are informed through the application form for conferral of Australian citizenship that
their information may be disclosed to Members of Parliament for this purpose.
It is important that only names and addresses are forwarded to Members of Parliament. Copies of
Pledge lists containing identity and personal information should not be sent to MPs.

6.7

Australian citizenship affirmation ceremonies

The Australian citizenship affirmation provides an opportunity for those who are already Australians
to publicly declare their pride and commitment to Australia and its people.
Affirmation ceremonies have no legal effect, and participation is voluntary. The affirmation is based
on the pledge of commitment made by new citizens at citizenship ceremonies.
An affirmation ceremony can be a positive activity that increases awareness of Australian citizenship,
promotes community involvement and participation, and helps people feel they belong to the
broader Australian community.
While everyone is welcome to participate, the affirmation must be led by an Australian citizen.
Local councils should be encouraged to incorporate affirmation ceremonies into their citizenship
ceremonies. Affirmation ceremonies must also be included in all departmental citizenship
ceremonies.
The Australian Citizenship Ceremonies Code sets out the framework for conducting affirmation
ceremonies including advice on how best to incorporate affirmation ceremonies into citizenship
ceremonies. Affirmation packs containing an information brochure, poster and affirmation card can
be ordered by STOs and local councils through the citizenship website (www.citizenship.gov.au).
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6.8

Attachment A - Letter of agreement

Australian Citizenship Ceremonies Code


I, ,
Member for
acknowledge that I have received the Australian Citizenship Ceremonies Code, and confirm that I will
abide by the requirements for the conduct of citizenship ceremonies set out in the Australian
Citizenship Ceremonies Code.

(Please sign and date)


Please forward the signed Letter of Agreement to:
The Hon Chris Bowen MP
Minister for Immigration and Citizenship
Parliament House
CANBERRA ACT 2601

6.9

Attachment B - Expression of interest to host an Australian


citizenship ceremony

Citizenship ceremonies are public ceremonial occasions which provide an important opportunity to
formally welcome new citizens as full members of the Australian community. Community
organisations may conduct citizenship ceremonies following approval from the Department of
Immigration and Border Protection. A letter of support from the head of the community
organisation should accompany this form.
Name of the
organisation
proposing to
host the
ceremony
Contact person
within the host
organisation
Contact postal
address
Email address

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Home phone

Work
phone

Fax

Mobile

Proposed date
and time of the
ceremony:

Please specify significance of the date and check that this date
does not fall within a parliamentary sitting period

Proposed
venue:
Preferred
number of
citizenship
candidates:
Name and title
of the person
who will be
presiding:

Please specify whether this number includes children

Please note the presiding officer must be a delegated officer


under the Australian Citizenship Act 2007. If you do not have
someone in mind, please indicate this and you will be contacted
to discuss options

Have you hosted


a ceremony
before?

Please provide details

Declaration to be signed by the head of the host organisation


I {insert name and position} confirm that ceremonies conducted by {host
organisation}. will be held in accordance with the requirements for the conduct of citizenship
ceremonies set out in the Australian Citizenship Ceremonies Code which I have received and read.

(Please sign and date)


Please return this form and your letter of support to:
[DIBP STO to insert return details]

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6.10

Attachment C - Agreement between DIBP and the party


organising a citizenship ceremony

Agreement between the Department of Immigration and Border Protection (DIBP) and the party
organising a citizenship ceremony
CITIZENSHIP CEREMONY ORGANISER
____________________________(Name of Community-Group/Organisation)
Citizenship ceremonies serve to fulfil legal requirements prescribed by the Australian Citizenship Act
2007 and the Regulations, particularly the requirement for candidates to make the pledge of
commitment. To reflect the significance of the occasion citizenship ceremonies should be formal and
meaningful occasions, conducted with dignity and designed to impress upon candidates the
responsibilities and privileges of Australian citizenship. Organisers of citizenship ceremonies should
ensure that every aspect of the ceremony is handled with respect and that candidates are aware of
what is to transpire so no confusion arises.

Scheduling a citizenship ceremony


Community organisations that wish to conduct a citizenship ceremony should approach the local
DIBP office to discuss the possibility of hosting such a ceremony 6 months before the planned date
of the ceremony.
If you require DIBP personnel to assist you with your ceremony, it is preferable for your event to be
conducted during working hours. If this is not possible, weekday evening events are preferable to
weekends.

Citizenship ceremony organisers responsibility


To ensure that the citizenship ceremony is conducted in accordance with the attached Australian
Citizenship Ceremonies Code (the Code). The Code is also available from the Citizenship website at
www.citizenship.gov.au. The Code is a guide for local Government councils and community
organisations on the procedures for conducting ceremonies. It highlights the legal requirements,
outlines the role of those conducting ceremonies and provides a range of practical advice to assist
those planning for and conducting ceremonies.
Note: The Minister for Immigration and Citizenship should be invited to all citizenship ceremonies.
Invitations should also be sent to:

the local Federal Member/s of Parliament

a Senator from a different political party to that of the local Federal Member

the local Member/s of state/territory parliament and

representation from local government.

Organisers should also:


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ensure that the ceremony is conducted in a meaningful, dignified, orderly and memorable way
with proceedings designed to impress upon candidates the significance of the occasion.

source, as far as possible, candidates who wish to be conferred citizenship at the proposed
ceremony.

ensure all candidates are informed about appropriate protocols for the citizenship ceremony
(for example, dress code, punctuality etc).

Party organising the citizenship ceremony will provide:

volunteers who are responsible for registering conferees, including verification of identity, and
providing them with name-tags that correspond with the seating and the order in which
certificates are presented

ushers who are responsible for ensuring there is minimal noise during the speeches and
ceremony and to ensure that conferees stand at the appropriate times during the ceremony

a brief to the MC as to what is required of them in their role for example, to introduce guests,
to explain the ceremony process/program to the participants/guests etc

a copy of the ceremony program to DIBP, conferees and guests

appropriate venue (with power points and a microphone)

seating for the conferees (and their children)

seating for DIBP staff

seating + table for Electoral Commission staff

seating for the guests and their children

registration staff (1 per 15 people)

registration tables (1 per 2 registration staff)

colour labels with names and numbers of the conferees (2 sets)

staff to put the above labels on the chairs

usher for the Minister

community Rep to meet and greet the VIPs

MC

gifts for the conferees (optional)

refreshments for after the ceremony (optional)

sound system.

DIBP Responsibilities

To assess your capacity for conducting a citizenship ceremony and to provide advice on how
to conduct the citizenship ceremony.

To process the applications (as far as possible) for the requested number of candidates in time
for the ceremony.

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Departmental officers may also assist your staff in ushering conferees and/or distributing
certificates.

To provide citizenship certificates for all candidates.

DIBP will provide:

Australian Flag

Portrait of the Queen

Coat of Arms

Dated citizenship certificates

Pledge verification list

Electoral enrolment forms

CD with the National Anthem (+ lyrics)

Pre-ceremony activities
Planned date of citizenship ceremony _______________________________
Planned date of citizenship information session ______________________
Planned date of briefing for MC __________________________________
Date your program is to be finalised and sent to DIBP___________________
Planned date of training for the volunteers/community workers _______________(should be within
2 weeks from the ceremony)
No later than 4 weeks prior to the ceremony:
The Ministers office and the DIBP office should be advised of the invitation of the Minister to the
ceremony.
No later than 2 weeks prior to the ceremony:
A program of the ceremony should be delivered to the DIBP contact person. The program should
include the approximate time allocated to each speaker, the confirmed guests list and the name of
the presiding officer. Speeches should be less than 5 min long. All speeches should be in English. The
program should be given to all people present at the ceremony.
Date final program is to be forwarded to DIBP _____________

The ceremony
MINISTER:

ATTENDING NOT ATTENDING

VENUE:___________________ CONTINGENCY Venue______________


Total number of conferees:______________________________________
Total number of conferees making pledge 1 ______________________
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Total number of conferees making pledge 2 ____________________


Time of opening of venue _________________________________________
Time of arrival of conferees (start of the registrations) ___________________
Time of arrival of Minister__________________________________________
Parking for the Minister ___________________________________________
Start time of the official ceremony ________________________________
Time of departure of the Minister____________________________________

Signatures
I have read and agreed to conduct the citizenship ceremony in accordance with the Australian
Citizenship Ceremony Code.
I am aware that the citizenship ceremony may be cancelled or re-scheduled if there is a material
breach of any of the main requirements of the agreement.
Citizenship Ceremony Organiser ___________________________________
Name of representative:___________________________________________
Signature of representative:________________________________________
Contact telephone number:________________________________________
Email:________________________________________________________
Witnessed by:
Name of DIBP representative:_____________________________________
Signature of representative:_______________________________________
Contact number:________________________________________________
Email:________________________________________________________
Date:_________________________________________________________

6.11

Attachment D - Interview / image consent form

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Australian Government
Department of Immigration and Border Protection
Interview / Image consent form
The Department of Immigration and Border Protection (DIBP) would like to photograph, video
and/or interview you, so that it can use your picture or comments in its promotional material and
publications. The purpose of these promotional materials is to provide information to the public and
promote DIBPs services and programs. These promotional materials and publications will be
available to the public, for example, in DIBPs annual report, brochures, media releases, newspaper
articles, training products, website material and television broadcasts. (For the purposes of the
Privacy Act 1988, these are defined as generally available publications).
The Commonwealth of Australia will hold the copyright of the promotional materials and
publications used for these purposes. It is possible that DIBP will release these promotional materials
and publications under an open content licence arrangement (such as a Creative Commons licence)
that allows the content in these promotional materials and publications to be copied, distributed
and commercialised by third parties without the further consent of, or notification to, DIBP. This
includes use by other Australian Government agencies and other organisations and businesses.
Information on open content licensing is provided on the following page.
In this consent form, DIBP requests your consent to taking your photograph, interviewing you,
publishing this material under an open content licence and/or disclosing it to third parties for
publication by them. Please note:

you provide your consent by signing the consent form, and importantly

there will be no consequences for you if you do not consent.

However, we will not collect, use or disclose your personal information, unless you agree.

I AGREE to being photographed (including still and motion photography, formats); to being
interviewed and recorded, without compensation or other rewards, and for DIBP to edit, publish and
otherwise make use of the photograph, video recording or audio recording in current and future
promotional material. I further agree to have my story/images published in both print and electronic
media. I understand that DIBP may publish this material under an open content licence arrangement
(such as a Creative Commons licence) that allows that material to be copied, distributed and
commercialised by third parties without my further consent. I understand that DIBP may receive
requests from other agencies and organisations to use my image or comments made during an
interview in publicly available training materials about immigration issues or other purposes and I
agree to DIBP disclosing this information.
I have read and understood the above information.
Signature:(or parent/guardian if under 18) Date:././.
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Name:
Address:...State/Territory:.Postcode.
Telephone: (w). (h) . (m) .
E-mail:..
DEPARTMENT/PHOTOGRAPHER USE ONLY
Reference No:..
_______________________________________________________________________________
Location address details

________________________________________________________________________________
Notes on talent (include description of dress and appearance)

About open content and Creative Commons licences


The Australian Government is encouraging greater open access to its information. Increasing access
to the governments information and data will afford industry and the wider community greater
opportunities to facilitate value-added transformation of the material that is, the creation of new
products and services with social and economic value to the community.
One way of enabling greater open access to information is by making that information available
under an open content licence arrangement. An open content licence is one that generally imposes
only a minimum number of restrictions on the use and reuse of such information. A number of
different open content licence arrangements exist, of which the Creative Commons initiative is one
of the most highly regarded.
It is the Department of Immigration and Border Protections policy to make public sector
information available under a Creative Commons Attribution licence, although on occasions a
different open content licence may be used.
When the department releases public sector information under a Creative Commons Attribution
licence, all users of that material are given permission to:

copy, distribute, display and perform the material

use some or all the material in a new work (a derivative work)

make commercial use of the material.

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The department will still retain copyright in any material released under a Creative Commons
licence, and any material used in a way permitted by the licence terms must be attributed to the
department.
These permissions are granted free of charge and users are not required to notify the department
when they use the material in a way permitted by the licence terms.
This means that your image or interview comments could be used by other Australian Government
agencies, private individuals, organisations or businesses, so long as the department is attributed as
being the copyright owner.

6.12

Attachment E - Overseas ceremony procedures

The Overseas Citizenship Unit (OCU) processes applications for conferral of Australian citizenship
that are lodged offshore. However, in exceptional circumstances we can also help facilitate an
overseas conferral ceremony request for an applicant who was approved in Australia. Generally, the
applicant must first attempt to attend an onshore ceremony.
The OCUs role, in relation to a request for an overseas conferral ceremony, is to act as an
intermediary between the onshore office and the overseas post. There is no guarantee that the
overseas post will host the ceremony as some overseas posts do not have the capacity or funding to
perform conferral ceremonies.
When the OCU receives such requests, from either a client or an onshore DIBP office, we only
facilitate the actual printing of the dated evidence and forward it to the relevant post. The OCU DO
NOT decide whether the person still satisfies the likely to reside, or to continue to reside, in
Australia or maintain a close and continuing association with Australia requirement or whether they
can attend an offshore ceremony. These decisions need to be made by the approving officer or the
approving office.
For your reference, the following information outlines the process for offshore ceremony requests:
1.

The person should first attempt to attend a ceremony onshore. ICSE should indicate that the
person has attempted to attend either a council ceremony or an urgent departmental
ceremony.

2.

Before the OCU can proceed with the persons request for a citizenship ceremony overseas,
the approving officer/office must re-assess if the person is still likely to reside, or to continue
to reside, in Australia or maintain a close and continuing association with Australia. If you
are satisfied that the person still meets this requirement, clearly record this in ICSE as a
client note and in the citizenship assessment checklist. Also indicate that you have no
objection for the person to attend an offshore ceremony. Indicate what evidence was
provided by the client to satisfy this requirement. If you are not satisfied that this
requirement is met, you may consider cancelling the approval under s25(2)(b)(ii).

3.

The approving officer/office changes the Ceremony Preference to Dandenong Regional Office

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(Conferral Office)/Case Transfers - Dandenong (Conferral Body). Do not Transfer or Refer the
case/application in ICSE to the OCU or Melbourne Office.
4.

The approving officer/office voids in ICSE and destroys accordingly any already requested
evidence.

5.

The approving officer/office up-dates and records in ICSE the persons overseas contact
details (address and telephone numbers).

6.

The approving officer/office must then email the OCU (ocu@immi.gov.au), advising that the
above steps have been completed and at which overseas post the person wishes to attend
the ceremony. When writing to OCU, always provide the persons ICSE ID details.

7.

The OCU will then contact the relevant post and ask them if they are prepared to conduct the
ceremony for the person in question. If the post is in a position to hold this ceremony, we
proceed with requesting dated evidence once the ceremony date has been scheduled by the
post.

8.

Once the dated evidence is printed, the OCU will send it to the overseas post via diplomatic
bag.

Note: All persons who lodged their applications in Australia and were approved for conferral of
citizenship in Australia are required to attend their ceremony onshore. You should approve requests
for an offshore citizenship ceremony ONLY in exceptional circumstances when satisfactory
arguments and evidence are provided by the person
Once the OCU has been advised that the approving officer/office is satisfied that the person meets
the likely to reside, or to continue to reside, in Australia or maintain a close and continuing
association with Australia requirement and that there is no objection for the person to attend a
ceremony overseas, we will then proceed with requesting the dated evidence once the ceremony
date has been scheduled by the overseas post.

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Chapter 7 - Resuming citizenship


7

7.1

OVERVIEW TO CHAPTER 7

Overview

Part 2, Division 2, Subdivision C of the Act covers the circumstances in which a person may resume
their Australian citizenship after having ceased to be a citizen under the Act or the old Act.
Resumption applications must be forwarded to the Overseas Citizenship Unit (OCU) for processing.

7.2

Eligibility

7.2.1 About eligibility


Under s29 former citizens may resume their citizenship if they ceased to be a citizen:

because they acquired another citizenship

because they renounced their citizenship to acquire or retain another citizenship or to avoid
significant hardship or detriment

because a parent ceased to be a citizen or

by residence outside Australia before 8 October 1958.

Applicants aged 18 or over must be of good character.


Decision makers must also ensure there are no prohibitions on approval see section 7.4.1
Ministers decision (s30).
If the applicant is under 16 years of age a responsible parent must sign the application form.
Responsible parent is defined in s6 of the Act (see Chapter 1 - Preliminary and definitions).

7.2.2 Cessation under this Act


Section 33 provides for a person to renounce their Australian citizenship. See Chapter 8 - Cessation
of Australian citizenship.
Section 36 provides for the revocation of a childs citizenship following the cessation of citizenship of
the childs parent under s33 (renunciation), s34 (revocation by Minister), or s35 (service in armed
forces of enemy country). See Chapter 8 - Cessation of Australian citizenship.
Some people who renounce their Australian citizenship do so for reasons other than to retain or
acquire another citizenship, or to avoid significant hardship or detriment. People who renounce their
citizenship for other reasons are not eligible to resume their citizenship.

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7.2.3 Cessation under old Act


See section 8.5 Historical provisions - Cessation of Australian citizenship.
Some people who renounced their Australian citizenship under the old Act did so for reasons other
than to retain or acquire another citizenship, or to avoid significant hardship or detriment. People
who renounced their citizenship for other reasons are not eligible to resume their citizenship.

7.2.4 Assessing significant hardship or detriment


In making this assessment, the words have their usual dictionary meaning:
significant

important; of consequence

hardship

a condition that bears hard upon one; severe toil, trial, oppression, or need

detriment

loss, damage, or injury

economic

relating to the production, distribution, and use of income and wealth

Example of hardship or detriment for this provision may include:

a requirement to pay higher taxes (for example where higher taxes may prevent a person
being able to afford fundamental assets such as a family home)

denial of the usual marital rights in relation to tax and inheritance laws on the death of a
spouse or otherwise

ineligibility to obtain a drivers licence which may affect a persons employment prospects

denial of, or significant restrictions on access to social security benefits

ineligibility to undertake formal courses of study and/or obtain certain education


qualifications

inability to access loans from financial institutions

ineligibility to purchase or retain property

loss of cultural or family heritage

inability to allow their children to participate fully in the social, political and cultural life of
their other country of residence

difficulties in obtaining visas particularly when required to travel to several countries,


frequently, in the course of employment

inability for families to be treated as a unit when family members hold different passports

requirement to apply regularly for residency and work permits.

The above list is by no means exhaustive. Where reasons are given that are not included in the
above list, consideration should be given to whether the hardship or detriment is at a similar level to
any of the examples. Decision makers must take full consideration as to the merits of each individual
case.
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When assessing the application to resume Australian citizenship (when citizenship was renounced),
decision makers must:

check the clients renunciation application and supporting records and

ask the client the reason(s) why they renounced their Australian citizenship. If the client
believes that they renounced their Australian citizenship to avoid significant hardship or
detriment they can be asked to provide documentation to support their claims.

7.3

Application requirements

7.3.1 Overview
Section 46 prescribes that applications must:

be on the form approved by the Minister

contain the information required by the form

be accompanied by any other information prescribed by the regulations and

be accompanied by a fee (if any) prescribed by the regulations.

The approved form for applications for resumption of Australian citizenship is Form 132 Becoming
an Australian citizen again - Application to resume Australian citizenship. The approved form
provides for children under the age of 16 years to be included in a responsible parents application.
If an applicant is under 16 years of age a responsible parent must sign the application form.
Responsible parent is defined in s6 of the Act, see Chapter 1 - Preliminary and definitions.
The following documents should support the application:

full birth certificate, if born in Australia

passport held, if any

official evidence of name change (if applicable)

evidence of acquisition of a foreign citizenship

overseas penal certificates if required see section 10.6.2Criminal/police checks

if applicant did not renounce their Australian citizenship, evidence of acquisition of foreign
citizenship (naturalisation certificate or a statement from the authorities of the other country
stating how and when the applicant acquired the citizenship of that country).

If the applicant thinks they lost their citizenship as a child as a result of the actions of a parent,
evidence that they held another citizenship when the responsible parent lost their citizenship and
evidence that the responsible parent ceased to be an Australian citizen.
The applicant should also be advised to provide any existing Australian Citizenship certificates,
issued when they initially became an Australian citizen, to the department to be destroyed and
voided on the departments data storage systems (ICSE).

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7.3.2 Information and documents to accompany applications (reg 12)


Under reg 12, information and documents not in English must be accompanied by an official
translation. In Australia, translations should be done by National Accreditation Authority of
Translators and Interpreters (NAATI) accredited translators. For overseas lodged applications the
current guidelines for translations in that post apply.

7.3.3 Fees to accompany application (reg 12A)


Under reg 12A, an application to resume Australian citizenship must be accompanied by the fee
mentioned in item 17 of Schedule 3.
Item 16 of Schedule 3 prescribes the fee payable by a child, under the age of 16, who makes an
application at the same time and on the same form as a responsible parent (currently Nil).

7.3.4 Refund of fees (reg. 13)


If an applicant paid a fee in connection with an application for citizenship (see s46) and is
subsequently entitled to a refund, they must be refunded the amount specified by the regulations in
force at the time the fee was paid.

7.4

Decision making

7.4.1 Ministers decision (s30)


An application for resumption of citizenship must be approved or refused. If an applicant meets the
eligibility requirements and there is no prohibition on approval, the application would generally be
approved. They must also be given notice of the decision. See section 5.27.13 Notification of
decision (s47).
There are a number of circumstances where an application to become an Australian citizen again
must not be approved. These circumstances relate to:

identity and

national security.

Identity (s30(3))
Section 30(3) requires that the Minister must not approve the person becoming an Australian citizen
unless the Minister is satisfied of the identity of the person.
In addition to being a legislative requirement under the Act, the Australian community expects that
decision makers will not approve a person for resumption of citizenship if they are not satisfied of
the persons identity.
National security (s30(4), s30(5), s30(6) and s30(7))

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All cases concerning national security must be referred to the Citizenship Integrity Unit, Citizenship
Helpdesk.
If ASIO has issued an adverse security assessment or qualified security assessment against the
applicant, an application to resume citizenship must not be approved unless the applicant is
stateless (see below). Such an assessment will be made where the applicant is a direct or indirect
risk to the security of Australia.
If the applicant is stateless and was born in Australia, an application for citizenship must not be
approved if the applicant:

has been convicted of national security offence or

has been convicted of an offence (in Australia or overseas) and sentenced to a period of
imprisonment for at least 5 years. Note: There is a discretion for the Minister to approve an
application if it would be unfair to refuse it on the basis of the persons conviction (see s30(7)).

If the applicant is stateless and was born outside Australia to an Australian citizen parent, an
application for citizenship must not be approved if the applicant has been convicted of a national
security offence.

7.4.2 Registration (s31)


Under s31, if a person is approved to become an Australian citizen again, their details must be
registered in the departments data storage system in accordance with the reg 9.

7.4.3 Day citizenship begins again etc (s32)


Under s32 a person becomes an Australian citizen again on the day the application is approved.

7.4.4 Same kind of citizenship


The kind of citizenship resumed is the same as the kind held before it was renounced. For example, if
the person was an Australian citizen by descent, the person again becomes a citizen by descent. If
the person was an Australian citizen by grant under the old Act, the person becomes a citizen by
conferral.
However, a former citizen could acquire a different kind of citizenship if they successfully applied for
that other kind and met the relevant requirements, for example, a former citizen by descent
applying for citizenship by conferral.

7.4.5 Notification of decision (s47)


Under s47 a person must be given notice of the decision on their application. If the decision is a
refusal, the notice must include the reasons for the decision and advice that they have a right to
have this decision reviewed by the AAT.

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Section 47(2) provides that if the person is a child, the requirement in s47(1) is satisfied if the notice
of the decision is given to a parent of the child. As child is not defined in the Act and a person aged
16 or 17 may sign the application form, the notification of decision in such cases should be sent to
that person rather than to a parent of the person.

7.4.6 Review of decisions (s52)


Under s52(1) a decision to refuse an application to resume Australian citizenship can be reviewed by
the AAT.

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Chapter 8 - Cessation of Australian citizenship


8

8.1

OVERVIEW TO CHAPTER 8

Overview

Part 2, Division 3 of the Act outlines the circumstances in which a person can cease to be an
Australian citizen.
A person may cease to be an Australian citizen by renouncing their citizenship; as a result of the
Minister revoking their citizenship; or by serving in the forces of a country at war with Australia.
Cessation of a childs citizenship, if a responsible parent ceases Australian citizenship, is
discretionary. This is consistent with Australias international obligations in regard to the Universal
Declaration of Human Rights and the Convention on Rights of the Child in relation to arbitrary
deprivation.
A person who is in Australia when they cease to be an Australian citizen will automatically (by
operation of law under s35 of the Migration Act) hold an ex-citizen visa. The ex-citizen visa is a
permanent visa giving permission to remain in Australia but does not include permission to return to
Australia for which a Resident Return Visa (RRV) is required.
A person who is outside Australia when they cease to be an Australian citizen does not hold a visa.
They would need to successfully apply for a visa if they intend to travel to Australia.
The circumstances in which a person can resume their Australian citizenship are set out in Chapter 7
- Resuming citizenship.
Under the transitional arrangements for the new Act, only people who were citizens by descent
under the old Act became citizens by descent under the new Act. If a person never met the criteria
in the old Act because they did not have a parent who was an Australian citizen at the time of their
birth, the person was never an Australian citizen and would not have become a citizen under the
new Act. There is, therefore, no need to consider cessation of citizenship because the person was
never a citizen and departmental records can be amended to reflect the legal reality.

8.2

Eligibility

Section 33 of the Act makes provision for the renunciation of Australian citizenship. No further
guidance on s33 is necessary.

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8.3

Application requirements

8.3.1 Application requirements (s46)


The approved form for applications for renunciation of Australian citizenship is Form 128
Application for renunciation of Australian citizenship. The form allows for details to be provided of
any children of the applicant who the applicant would like to cease to be citizens if the applicant
ceases to be a citizen. Separate application is not required because cessation of a childs citizenship
when a responsible parent ceases to be a citizen is by revocation and is discretionary. See below for
details of the provisions for revocation of the citizenship of children of parents who cease to be
citizens.
The following documents should support the application:

full birth certificate

passport held, if any

official evidence of any name change

evidence that the applicant is a national or citizen of a foreign country at the time of
application or

evidence that the applicant was born or is ordinarily resident in a foreign country and will be
entitled under the law of that country to acquire the nationality or citizenship of that country
after they cease to be an Australian citizen.

8.3.2 Information and documents to accompany applications (reg 12)


Under reg 12, information and documents not in English must be accompanied by an official
translation. In Australia, translations should be done by National Accreditation Authority of
Translators and Interpreters (NAATI) accredited translators.

8.3.3 Fees to accompany applications (reg 12A)


Under reg 12A, an application to the Minister to renounce the persons Australian citizenship must
be accompanied by the fee mentioned in item 18 of Schedule 3.

8.4

Decision making

8.4.1 Ministers decision (s33)


Under s33 an application must be approved or refused.
If an applicant meets the requirements in s33(3), and there is no prohibition on approval under
s33(4), (6) and (7), the application must be approved unless s33(5) applies.

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Policy is that evidence the applicant is a citizen of another country should include a statement from
a relevant government representative that the person is a citizen of that country or, if the person
was born or is ordinarily resident in a foreign country, that the person will acquire the citizenship of
that country on renunciation of Australian citizenship.
The term immediately after should not be interpreted literally. It is sufficient that the person
would acquire another nationality or citizenship within a reasonable period after ceasing to be an
Australian citizen. A reasonable period would be that which is reasonable in all the circumstances
of the case allowing for processes required by the country of acquisition such as processing of an
application or attendance at a ceremony.

8.4.2 Time citizenship ceases (s33(8))


Under s33(8) if the Minister approves a person renouncing their Australian citizenship, the person
ceases to be an Australian citizen at the time of the approval.

8.4.3 Notification of decision (s47)


Under s47 a person must be given notice of the decision on their application. If the decision is a
refusal, the notice must include the reasons for the decision and advice that they have a right to
have this decision reviewed by the AAT.
Section 47(2) provides that if the person is a child, the requirement in s47(1) is satisfied if the notice
of the decision is given to a parent of the child. As child is not defined in the Act and a person aged
16 or 17 may sign the application form, the notification of decision in such cases should be sent to
that person rather than to a parent of the person.

8.4.4 Revocation by Minister (s34)


The power to revoke a persons citizenship under s34 has not been delegated. Decisions can only be
made by the Minister.
All cases of revocation must be referred to Citizenship Policy Section via the Citizenship Helpdesk.
The citizenship of people who applied for citizenship under the old Act between 10 April 1997 and
30 June 2007 can be revoked for migration related fraud only within the meaning of s21(1A) and (1B)
of the old Act.
These sections are:
(1A)

a person is taken to have obtained a certificate of Australian citizenship as a result of


migration related fraud if and only if:
(a)

at any time (including a time after the grant of the certificate) the person was
convicted of an offence against section 234, 236, 243 or 244 of the Migration Act
1948, or section 134.1, 134.2, 135.1, 135.2, 135.4 or 136.1 of the Criminal Code,
that was committed at any time before the grant of the certificate (including a time
before the making of the application); and

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(b)

(1B)

the act or omission that constituted the offence was connected with the persons
entry into Australia or the grant to the person of a visa or of a permission to enter
and remain in Australia.

Section (1A) does not apply to a person in respect of an offence if the Minister is satisfied
that the act of omission that constituted that offence was not in any way (whether directly or
indirectly) material to the person becoming a permanent resident.

The third-party fraud provisions apply only to people who applied on or after 1 July 2007, the
commencement of this Act.

8.4.5 Service in armed forces of enemy country (s35)


No further guidance on s35 is necessary.

8.4.6 Children of responsible parents who cease to be citizens (s36)


Under s36 a childs Australian citizenship may be revoked if the child has a responsible parent who
ceases to be an Australian citizen by renunciation, revocation or service in the armed forces of an
enemy country. A childs citizenship cannot be revoked while the child has another responsible
parent who is an Australian citizen; or if revocation would result in the child becoming stateless.
Citizenship ceases at the time the decision is made revoking the childs citizenship. The Citizenship
Helpdesk must be contacted in all cases where consideration is being given to exercising the
Ministers discretion to revoke a child of their Australian citizenship.

8.4.7 Review of decisions (s52(1))


Section 52(1) provides that a decision under s36 to revoke a persons Australian citizenship may be
made to the AAT.

8.5

Historical provisions - Cessation of Australian citizenship

8.5.1 Note regarding cessation of Australian citizenship


A person may have ceased to be an Australian citizen under the old Act.

8.5.2 s17 - repealed on 4 April 2002


The provisions applied to people 21 years of age and over until 30 November 1973 and to people
aged 18 years and over on and from 1 December 1973. Before 1 December 1973, a person was of
full age if they were 21 or over. After this date, a person was of full age if they were 18 or over.
Before 22 November 1984, an adult ceased to be an Australian citizen if they were outside Australia
and acquired the citizenship of another country by some voluntary and formal act other than
marriage.
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If a person acquired the citizenship of another country on or after 22 November 1984, an


assessment needs to be made on whether the sole or dominant purpose of the persons actions
was to acquire the other citizenship. The key question is: At the time they did the act or thing which
resulted in the acquisition of the foreign citizenship, was their sole or dominant purpose to acquire
that citizenship?
Purpose is not to be equated with motive. The motive for acquiring the foreign citizenship (for
example, to work, vote, claim unemployment benefits etc) is irrelevant (Gugerli Federal Court case).
Changes of intention subsequent to performing the relevant act or thing are irrelevant.
Those who voluntarily applied for, and subsequently acquired, the citizenship of another country will
usually find it difficult to establish that the sole or dominant purpose of the act of applying was
other than to acquire that citizenship. The fact that the reason behind the application was so that
they would be eligible to obtain employment, hold a licence etc does not mean that the sole or
dominant purpose was other than the acquisition of that citizenship.
From 22 November 1984, s17 contained an element of intention to acquire a foreign citizenship and
established a link between the cause and effect of the act in question.
The element of intention (purpose) also means that s17 did not apply to a person who mistakenly
thought they were applying for recognition of an existing citizenship (Gugerli Federal Court case).

8.5.3 People who did not cease their citizenship under s17
Examples of circumstances in which an Australian citizen acquired another citizenship and did not
lose their Australian citizenship:

After 22 November 1984, the incidental acquisition of another citizenship or nationality as the
result of doing an act or thing for another purpose (for example, to obtain resident status).

Automatic re-acquisition of Italian citizenship by Italian born Australians after one year of
continuous uninterrupted residence in Italy with resident status.

Acquisition of Rhodesian citizenship during the period of the Unilateral Declaration of


Independence (11 November 1965 - 18 April 1980).

Acquisition of Singaporean citizenship during the period of internal self-government (1


November 1957 - 2 June 1959) provided that citizenship of the United Kingdom and Colonies
was not acquired at the same time.

Acquisition of another nationality or citizenship automatically solely as a result of marriage.


This does not include where the person was required to apply for that citizenship.

Exercise of an entitlement to a travel document, identity card, or other evidence of a


citizenship of a country other than Australia, by a person who is a dual national of both
Australia and that country.

If it is clear that a person has ceased Australian citizenship under s17, the person should be advised
that they may be eligible to apply to become an Australian citizen again.

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If there are doubts as to whether a person has ceased their Australian citizenship under s17, the
matter should be referred to the Citizenship Helpdesk for advice.

8.5.4 s20 - repealed on 8 October 1958


Australian citizens by registration or naturalisation automatically ceased to be Australian citizens if
they were outside of Australia and New Guinea for a continuous period of 7 years between 26
January 1949 and 8 October 1958, unless:

they had given notice of intention to retain citizenship during the second and each subsequent
year of their absence or at such other times, within the seven years, as specially approved by
the Minister and/or

they were abroad in the service of an Australian government, an international organisation (of
which Australia was a member) or an Australian employer or

they were a minor residing with their responsible parent or guardian who was an Australian
citizen.

If a person holds a Certificate of Naturalisation or Certificate of Registration, the length and if


necessary the purpose of absences from Australia between 1949 to 1958 need to be considered. If
an absence was for less than a full period of 7 years before 8 October 1958, the person would not
have ceased Australian citizenship under s20. If an absence of 7 years or more occurred during this
period, the Citizenship Helpdesk should be asked to check compliance with the s20 requirement for
an annual notice of intention to retain Australian citizenship.

8.5.5 Burma - 4 January 1948


Burmese citizens domiciled in the Commonwealth on 4 January 1948 who did not make a
declaration electing to remain a British subject, or Australian citizen, may have lost their British
subject status.

8.5.6 Children whose responsible parent ceased to be an Australian citizen


A child may have ceased to be an Australian citizen under s23 of the old Act if a responsible parent
ceased their Australian citizenship under s17 between 26 November 1949 and 3 April 2002 (the date
of repeal of s17) or under s18 (renunciation), s19 (service in armed forces of an enemy country) or
s21 (deprivation) and:

the child did not have another responsible parent who was an Australian citizen (this
requirement only applied in cases where s17 operated on or after 22 November 1984) and

prior to 22 November 1984, there was only one responsible parent who, in most cases, was
the father and

the child was aged under 18 when the parent ceased to be an Australian citizen (or aged
under 21 before 1 December 1973) and

immediately after the parent ceased to be an Australian citizen, the child became a national or
citizen of another country.

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The childs other citizenship does not need to be the same as that of the relevant responsible parent.

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Chapter 9 - Evidence of Australian citizenship


9

9.1

OVERVIEW TO CHAPTER 9

Background

Part 2, Division 4 of the Act covers evidence of Australian citizenship.


A notice issued under the Act is prima facie evidence that the person whose name and date of birth
appears on the notice acquired Australian citizenship on the specified date, and was an Australian
citizen on the date the notice was issued.
Any person can apply for evidence of their Australian citizenship.
The giving of a notice of evidence of Australian citizenship does not make a person an Australian
citizen if they were not already a citizen under the Act.
Applications for citizenship by conferral and for resumption of citizenship are also applications for
evidence of Australian citizenship.
The Act refers to an application for evidence of Australian citizenship, and that the Minister may
give a person notice that they are an Australian citizen at a particular time. The notice must be in a
form prescribed by the regulations and contain any matters prescribed by the regulations.
Since 1 July 2007, all evidence given under the Act will be in the same form. This means that every
notice (or citizenship certificate) issued since that time will contain exactly the same information.
There is no longer such a thing as declaratory certificate. For information, see:

regulation 10 (Form of notice) and

section 9.10 Types of evidence issued since federation.

9.2

Evidence of Australian citizenship

9.2.1 Applying for evidence of Australian citizenship (s37)


Any person can apply for evidence of their Australian citizenship.
A finding of fact can be made on whether a person is in fact an Australian citizen and can be given a
notice stating that the person is an Australian citizen under s37(2) at a particular time.

Many Australian citizens acquire citizenship automatically see Chapter 2 - Automatic


acquisition of citizenship. In these circumstances there may be no records held by the
department and a finding must be made about the persons identity and about their Australian
citizenship status.

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Others become citizens by conferral or resumption and if so the details of acquisition will be
recorded in the departments database systems. Some people who were citizens subsequently
ceased to be citizens and, if so, the details of the cessation of citizenship may or may not be
recorded in the departments database system - see Chapter 8 - Cessation of Australian
citizenship.

9.2.2 Establishing Australian Citizenship status


Careful attention needs to be given to establishing the Australian citizenship status of the applicant.
Consideration needs to be given to:

whether a person may have ceased to be a citizen under automatic provisions contained
in the 1948 Act, see Chapter 8 - Cessation of Australian citizenship. Refer to the
Citizenship Helpdesk for assessment.

whether a person ceased to be an Australian citizen under the PNG Constitution at time
of PNG Independence, see Chapter 15 - People born in Papua New Guinea.

All applications for people born in PNG prior to 16 September 1975 must be
referred to the OCU for processing.

whether a person became a citizen under the transitional provisions of 26 January 1949,
see section 3.6 Citizenship by descent under the old Act.

Particular care should be given to those children born to Australian born men
serving in the British Commonwealth Occupational Forces in Japan and other
children born outside Australia prior to 26 January 1949.

Women who married Australian men prior to 26 January 1949.

whether relevant records may be missing from departmental systems and reference to
historical and archive records is required.

whether the person acquired citizenship under an automatic provision.

9.2.3 Must be satisfied of the identity


Section 37(4) requires that evidence of Australian citizenship must not be given unless the decision
maker is satisfied of the identity of the person. Decision makers must ensure that their decisions are
in accordance with this legislative requirement.
In addition to being a legislative requirement under the Act, the Australian community expects that
decision makers will not approve a person for citizenship or give evidence of citizenship if they are
not satisfied of the persons identity.
Identity is critical to a finding as to whether a person is in fact an Australian citizen.

Evidence of Australian citizenship must only be issued in a persons current legal identity.

Legal identity means their identity that is supported by officially issued


documents.

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9.2.4 Information contained on a notice of evidence of Australian


citizenship.
The Regulations were amended on 1 July 2011 to support whole of government initiatives related to
the management of identity in Australia and maintain the credibility and integrity of notices of
evidence of Australian citizenship.
From 26 November 2012, a citizens current legal name and date of birth will appear on the front of
the notice and the names and dates of birth in which they obtained previous notices will be listed on
the back. All instances where they obtained previous notices are to be recorded. This includes where
a person may not have changed their name or date or birth but has previously obtained one or
several notices.
The purpose is to have an official record of all previously issued notices, whether with the same, or
different names and/or date of birth, since citizenship was first acquired.
An exception applies where a departmental error resulted in evidence being printed in the incorrect
name or birthdate but the notice was voided before it was given to the client.
Officers have the discretion not to include previous names and/or dates of birth if they are satisfied
inclusion of a particular name will endanger the client or another person connected to them.
Appropriate documentation should be sighted to support such claims and notes entered on ICSE.
There may be other situations that arise where an officer believes it is reasonable to omit previous
details. Contact the Citizenship Helpdesk for additional guidance.

9.2.5 Change of personal details and a finding of fact about identity


In most instances, changes to personal/biographic details are minimal and genuine, for instance, the
addition or subtraction of a letter to a name or a change of name after marriage.
However, a change to personal/biographical data is a serious matter if the change leads to a
different identity.
When a person applied for citizenship, the personal/ biographical and personal identifiers they
provided were accepted as evidence of their identity, unless there was evidence to the contrary. The
necessary security and criminal checks will have taken place under the identity the person provided
to the department at that time.

Decision makers who consider that a person who is applying for evidence of citizenship has
amended/is amending their personal information to a point where there is a change of identity
are to refer the case to the Citizenship Helpdesk after collecting all the relevant files and
information.

Strong consideration should be given to interviewing any client if there is doubt about the
persons identity.

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Consideration should also be given to calling the third party declarants in cases of doubt. While
decision makers must not disclose any information about the client they may question
declarants about the level of their knowledge of the client. Whether their knowledge is based on
a personal or a professional relationship. Declarants should be tested to gauge just how much
they know about the client, where they live, other names they are known by etc.

If a decision maker considers that the person has reverted to a former identity that the person
had prior to applying for citizenship and they believe that fraud may be involved, the case is to
be referred to the Citizenship Helpdesk for further guidance. Before referring such cases to the
Citizenship helpdesk all relevant migration and citizenship files should be requested and
researched.

Under previous policy, clients were able to nominate the name they wished to have their Australian
citizenship application processed under. Most commonly, migrants chose to nominate a common
usage name that they were known by in the community. This was often an anglicised version of their
name.

In most cases the client will not have a formal change of name document but their original
identity will be noted on the original citizenship application.

This policy is no longer in place, however, where this has occurred in the past and the client is
seeking new evidence of citizenship they may still have that evidence in the name they first
acquired citizenship in. In these circumstances the original citizenship application file should be
called to establish the link and to confirm the circumstances prior to the new evidence being
issued.

Decision makers are to take into account the change of a persons details if they have had their
records (for instance name and/or date of birth), amended by a state/territory registrar of births
deaths and marriages or under the Freedom of Information Act 2010 (the FOI Act).
Important note:

There are differences in the threshold of evidentiary requirements between the FOI Act
and the Citizenship Act. An Australian citizen may have their request to amend their
name or details approved by an FOI officer, then refused by a citizenship officer if they
are unable to meet the identity requirements of the Citizenship Act.

Decision makers are to avoid feeling compelled to lower their threshold of evidentiary
requirements where a clients request to amend their details has already been approved
under FOI. See section 9.3 Documents required to support name change.

While amendments made to a persons identifying information under the FOI Act should be taken
into consideration when making a finding, the FOI amendment is not binding on an officer who is
required to make a decision under the Citizenship Act.

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As a delegated officer under the Citizenship Act you may not agree with the amendment
made under the FOI Act however you should not under any circumstances amend the ICSE
record to override the amendment made by the FOI officer who was also making a decision
as a delegated officer. All such cases should be referred to the Citizenship Helpdesk with all
relevant information.
Reaching a finding of fact about identity may, on occasions, take some time. If there is doubt about
the persons identity, it could mean recalling files, checking personal identifiers; ensuring that the
person and identity applying for evidence are consistent with the person who applied for and was
approved for citizenship. A decision maker should call for the persons immigration files and previous
citizenship files, if any.
In reaching a finding of fact about the persons identity, decision makers are expected to consider
issues such as:

the reason that the person provided the original personal information relating to their identity
when they applied for citizenship

the reason for changing their personal information

whether the person has had any other amendments such as dates of birth/names and the
reasons for those changes

the documentation that was provided to support the change of personal information.

This list is in no way exhaustive and decision makers are to be guided by the circumstances of each
case. It is preferable that decision makers obtain information from the applicant at interview.
Decision makers should consider seeking assistance. The following are a few resources that are
readily available:

Document Verification Service (DVS) this is for Australian issued document and can be
done by uploading the documents into ISR

Document examiners in STOs and National Office

Stream 2 referrals through ICSE to overseas posts for further checking of documents

Identity Resolution Centre in National Office this includes biometric photo comparisons

National Identity Verification and Advice (NIVA) section in STOs

9.2.6 Cases of concern


Particular care and sensitivity must be given to applications from:

Indigenous Australians who may have little or no documentation.

British and Maltese child migrants who may have limited documentation - these clients may
seek assistance through the Child Migrant Trust.

People born in Australia whose births have not been registered.

In all cases further assistance may be sought through the Citizenship helpdesk.

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9.3

Documents required to support name change

REASON FOR NAME CHANGE

DOCUMENTATION WHICH IS REQUIRED TO BE PROVIDED

Marriage

Marriage certificate issued by an Australian RBDM.


Note: Marriage certificates issued by marriage celebrants or
religious leaders are not acceptable.
Clients who have married overseas and wish to have evidence of
citizenship in their married name may be required to obtain an
official change of name certificate from an Australian RBDM. For
advice on whether a foreign marriage certificate is acceptable
contact the Citizenship Helpdesk.

Divorce

Australian divorce certificate issued by the Family Court.


Note: Overseas divorce certificates are not acceptable evidence of a
change of name. Clients who were divorced overseas, and wish to
have evidence of citizenship in another name must obtain an official
change of name certificate from an Australian RBDM.

Anglicisation of a name
Change of spelling of a name
Change of name for any other
personal reasons

Change of name certificate from an Australian RBDM or, if client


registers change of name with the RBDM in the state/territory in
which they were born, a new full birth certificate which shows both
the birth name and new name.

Death of spouse

Death certificate issued by an Australian RBDM and, if necessary,


full birth certificate or marriage certificate issued by an Australian
RBDM.

Gender reassignment

Medical certificate stating that the person has undergone or is


undergoing a gender reassignment or change of details certificate
issued by an RBDM - see Chapter 6 of the Citizenship Processing
Manual.

Adoption

Adoptions certificates issued through an Australian court or in


accordance with the Hague Convention on Intercountry Adoption.

9.4

Decision making

If an application for evidence of Australian citizenship is going to be refused it is expected that the
client will be provided with procedural fairness before the decision is made.
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Procedural fairness may be by way of an interview or by writing to the client. Guidelines


on how to give procedural fairness are set out in section 17.5 Procedural fairness.

A full decision record must be provided in each case if an application for evidence of
Australian citizenship is refused setting out the full reasons for the refusal.

9.5

Internal review of a decision to refuse to give a person evidence of


Australian citizenship

If the decision maker is not satisfied of the identity and/or citizenship status of an applicant,
evidence must not be issued under s37 of the Act therefore the application must be refused
Section 52 of the Act does not provide for a review of a finding of fact to be made through the AAT,
however the applicant may request an administrative review of the finding by writing to the
Secretary.
There is no fee for a request for an administrative review.
Applicants who wish to request an administrative review of a decision made on an application for
evidence of Australian citizenship can do by writing to:
The Secretary
cc. Citizenship Policy Section
Department of Immigration and Border Protection
PO Box 25
Belconnen ACT 2616
An internal review of the finding of fact will be undertaken by Citizenship Policy Section, National
Office.
The request must set out why they believe the finding of fact was incorrect and be accompanied by
any new information they wish to have taken into consideration during the review process.

9.6

Applications for evidence of Australian citizenship - Children

9.6.1 Children born in Australia - 20 August 1986 onwards


Applications for evidence of Australian citizenship for children born in Australia to Australian citizen
or permanent resident parent where it would appear that the relevant parent may be a non
biological parent should be considered in light of the H/McMullen Federal Court decision. These
cases should be processed in line with the policy guidance provided in section 19.4 Applicants who
do not claim a biological link or who have insufficient evidence of a claimed biological link.
In cases where a person is born in Australia to a biological parent who is an Australian citizen or
permanent resident, and subsequently applies for a notice of evidence of Australian citizenship, and
the decision maker is satisfied that the person is the childs biological parent, and also an Australian
citizen/permanent resident, current procedures remain in place.
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Refer to section 14.2.5 Overview of status of New Zealand citizens for children born in Australia to
New Zealand citizen parents.

9.6.2 Recording births in Australia


When recording Australian citizens by birth in Australia and those that acquired citizenship on their
tenth birthday, the parents details, where possible, should be included in the childs record, and the
childs and parents records should be linked.

9.6.3 Applications for evidence for children in care


When processing applications for evidence of Australian citizenship for children in care, that is,
children not living with a responsible parent, it may be difficult to obtain information about the child
without information from a responsible parent. An application for evidence of Australian citizenship
for children in care is not necessarily invalid if it has been submitted without all of the supporting
documents that are usually required. Consideration must be given to the particular circumstances of
the case.
Departmental records should be used to obtain information where appropriate. A child protection
officer may be considered a responsible parent for the purposes of signing the application form.
Information from a child protection agency (for example NSW Family and Community Services
FACS) in the form of a letter detailing the circumstances of the child may also be required.
When assessing an application for evidence of Australian citizenship for children in care, and giving
special consideration to the particular circumstances of the case, note certain criteria must be met:

the fee must be paid - there is no ability to waive the fee for children in care cases

you must be satisfied of a childs identity before a notice of evidence of citizenship can be
issued. this is a legislative requirement

the form needs to be as complete as possible

a photograph of the child will be required

an application made by a carer cannot be accepted unless that application is


accompanied by a letter from the relevant child protection agency noting the name of the
carer and that the agency agrees to the application being made

you can only make a decision (finding of fact) based on evidence

the issuing of a passport does not make the child an Australian citizen, nor does the
issuing of an evidence of Australian citizenship, if the child never was a citizen.

Guidelines on special considerations that may be given include:

a child protection officer may sign both the application form for evidence of citizenship
and the identity declaration even though they may not have known the child for 12
months

as much information about the child and his/her parents is required in order to make a
determination (finding of fact) regarding the childs citizenship.

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If in doubt, refer the case to the Citizenship Helpdesk.

9.6.4 Children abandoned in Australia


Legislation exists to cover the circumstances of children abandoned in Australia, see Section 14 of
the Citizenship Act for abandoned children, and section 2.5 Citizenship for abandoned children (s14).
The citizenship of abandoned children is automatic however it requires a finding of fact as not all
children considered abandoned into the care of a child protection agency will necessarily be found
to be Australian citizens.
The above guidelines for processing applications for evidence of Australian citizenship of children in
care apply for children found to be citizens under s14 of the Citizenship Act, however additional
documentation regarding the childs abandonment including a police statement is also required
because there will be limited identity documentation available in these cases. All cases of
abandoned children must be referred to the Citizenship Helpdesk.

9.7

Confirmation of Australian citizenship status for deceased persons

Children or grandchildren of deceased persons may make a request to the department for
confirmation of the Australian citizenship status of their deceased parent or grandparent for official
purposes. Deceased persons are not covered under the Privacy Act 1988 (Cth), therefore the
department may, in some circumstances, provide information on their Australian citizenship status.
People seeking evidence of a deceased persons Australian citizenship status should not be referred
to Freedom of Information. They should complete and lodge Form 1391 Request for confirmation of
Australian citizenship status of a deceased person.
The department will provide information in the following circumstances:

A child or grandchild requests citizenship status of their parent/grandparent for official


purposes, for example, to enable them to apply for a foreign passport, or

If evidence of citizenship is required for the settlement of a deceased estate.

The department will not provide information on the Australian citizenship status of deceased
persons for unofficial purposes, such as genealogy.
The department will not provide information on Australian citizenship status of deceased persons
for the purposes of an Australian citizenship for example, an application for citizenship by descent
where evidence of a parents citizenship is required.
Completed forms must be accompanied by all supporting documentation, which must include a
certified copy of the death certificate of the deceased person and birth certificates showing evidence
of the applicants relationship to the deceased parent or grandparent, or evidence that the applicant
is related to the deceased estate (for example, the solicitor).
All applications are processed in National Office. Completed application forms and certified copies of
all supporting documents should be posted to:
Citizenship Operations and Business Improvement Section
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Department of Immigration and Border Protection


PO Box 25
Belconnen
ACT 2616
Upon completion of an assessment of the deceased persons Australian citizenship status, the
department may provide letter setting out the deceased persons Australian citizenship status.

9.8

Cancellation and Surrender of Notices

9.8.1 Overview
Section 37(6) of the Act provides that the Minister (or their delegate) may, by writing, cancel a
notice given to a person under this Act. Section 38(2) provides that if the Minister cancels a notice
under s37(6) the Minister (or their delegate) may request that person to surrender that notice in
writing.

9.8.2 Cancellation
A notice which is evidence of citizenship is an accountable document, and would usually be
cancelled in the following circumstances:

a new notice is to be issued to the person

the person did not make a pledge, and as a result did not become a citizen, on the planned
date

details on the notice are inaccurate

the person has ceased to be an Australian citizen

a notice was issued in error

the notice has been defaced/altered.

Important note: If the person applying for a new notice was included on a parents evidence of
citizenship (a citizenship certificate), and the parents evidence is still in use by the parent or other
children included on the certificate, the evidence should not be cancelled but a note placed on the
department data storage system noting that it is no longer valid evidence of citizenship for the
person who has been issued with a new notice.
Cancellation of a notice must be recorded in the departments data storage system and, wherever
possible, the notice which has been cancelled must be destroyed in accordance with Chief Executive
Instruction 17 Accountable Documents and Securities.
A written cancellation of a notice is not required in the following circumstances:

a replacement notice is to be issued to the person because their previous one is lost or stolen

the person did not make a pledge, and as a result did not become a citizen, on the planned
date

details on the notice are inaccurate

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In these cases the evidence may be recorded as void in ICSE.


In the following circumstances written notice cancelling the notice should be given:

the person has ceased to be an Australian citizen, other than by renunciation, and a loss
assessment has been completed by Citizenship Policy Section.

a notice was issued in error

the notice has been defaced/altered.

In these cases the notice or certificate should be cancelled in writing setting out the reasons.
Prior to cancelling a notice in these circumstances procedural fairness processes should be followed
and the client provided with an opportunity to provide reasons as to why the notice should not be
cancelled.

9.8.3 Surrender
A person may be required to surrender their notice in the following circumstances:

revocation of citizenship

notice has been cancelled.

A notification to surrender a notice may be given in writing under section 38 of the Act.

9.8.4 How to notify a client of cancellation and request surrender of a


notice
Officers cancelling a notice and requesting surrender of the notice would normally take the following
steps:

Helpdesk refer any enquiries to the Citizenship Helpdesk in the first instance to confirm that
cancellation and surrender is the correct action to take.

Natural Justice the rules of natural justice apply before any decision to cancel a notice. See
Chapter 17, section 17.5 Procedural fairness.

Written cancellation when cancellation and surrender is the correct action to take, a
notification must be made in writing and include information regarding the legislative basis
for the cancellation and surrender, (s37(6) and s38(2) respectively).

The request to surrender must specify:

the day on or before which the person must surrender the notice. The time
frame cannot be less than 28 days

how the person must surrender the notice, for example, in person at a
departmental office and

must contain a statement advising the client that failure to surrender the
notice is an offence under the Act.

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9.8.5 Altering evidentiary notice (s39)


Under s39 it is an offence to alter a notice which is evidence of Australian citizenship, including by
amendment or endorsement. A notice which is incorrect may be cancelled and replaced.
State/territory officers should ensure that all local government authorities within their area are
aware that alterations must not be made. If a local government authority is asked to amend an
evidence of citizenship, they must advise the person to contact the department. Alterations
detected must be referred to an officer of at least Executive Level 1 for further action.

9.9

Application requirements

9.9.1 Application requirements (s46)


Applications must:

be on the form approved by the Minister

contain the information required by the form

be accompanied by any other information prescribed by the regulations and

be accompanied by a fee (if any) prescribed by the regulations.

The approved forms for applications for evidence of Australian citizenship are:

Form 119 Application for evidence of Australian citizenship

Form 1290 Application for Australian citizenship by conferral - Other situations

Form 1300t Application for Australian citizenship by conferral - General eligibility and

Form 132 Becoming an Australian citizen again - Application to resume Australian citizenship.

If an applicant is under 16 years of age a responsible parent must sign the application form.
Responsible parent is defined in s6.
The application must be made in the current legal name of the applicant. The following documents
should support the application:

an endorsed passport size photograph

full birth certificate of the applicant or its equivalent

passport held, if any

other identification documents which include a signature, photograph and current address
(for example, driving licence and credit card/utilities bill)

official evidence of any name change.

9.9.2 Information and documents to accompany applications (reg 12)


Under reg 12, information and documents not in English must be accompanied by an official
translation. In Australia, translations should be done by National Accreditation Authority of
Translators and Interpreters (NAATI) accredited translators.
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9.9.3 Fees to accompany application (reg 12A)


Under reg 12A, an application for evidence of Australian citizenship must be accompanied by the fee
mentioned in item 20 of Schedule 3 unless that application is made at the same time and on the
same form as an application:

to become an Australian citizen (form 1300t/1290) or

to resume Australian citizenship (form 132).

9.9.4 Refund of fees (reg 13)


If a client is entitled to a refund, they must be refunded only the amount paid at the time of
application and the amount specified by the regulations in force at the time the fee was paid.

9.10

Types of evidence issued since federation

9.10.1 Naturalization Act 1903-1920


(A)

Naturalization Act 1903 - 1/1/1904 to 19/9/1917

Series
Numerical only
1/1/1904 - 19/9/1917

(B)

Names of children not included.


Child (under 21) became naturalized by reason of
fathers naturalization if he resided here at any time
during infancy and during currency of Act. It made no
difference whether born before or after fathers
naturalization.

Naturalization Act 1903-1917 - 20/9/1917 to 31/12/1920

Series
(1)
2A Series
3C Series

Numerical carried over from


Act of 1903
20/9/1917 - 31/12/1920

Names of children not included on certificate. Child


automatically became naturalised provided he was an
infant (under 21 years) at time of fathers
naturalization and has resided in Australia as an
infant (and of course prior to the repeal of the Act).

* Note: Claims of citizenship on these grounds are to be referred to the Citizenship Helpdesk, with
particulars of parents citizenship and of childs birth and residence in Australia.

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9.10.2 Nationality Act 1920-1946


Series

Dates of issue

To whom issued

AA

1/1/1921 - 31/3/1937

Single persons and divorcees, widows and widowers without


children affected by Naturalization.

BB

1/1/1921 - 31/3/1937

Married person without children affected by naturalization.

CC

1/1/1921 - 31/3/1937

Married applicants with children to be included.

1/1/1921 - 31/3/1937

Persons locally naturalized under previous legislation. (Could


include children).

1/1/1921 - 31/3/1937

Persons with respect to whose nationality as a British subject a


doubt existed.

1/1/1921 - 31/3/1937

Minor children

1/1/1921 - 31/3/1937

Natural-born British subject whose husband was an enemy alien.

A(1)

1/4/1937 - 25/1/1949

Any person without children affected by naturalization.

A(NG)

13/8/1946 - 25/1/1949

Residents of New Guinea.

A(2)

1/4/1937 - 25/1/1949

Applicants with children to be included.

1/4/1937 - 25/1/1949

Same as type D above.

1/4/1937 - 25/1/1949

Same as type E above.

1/4/1937 - 25/1/1949

Same as type F above.

1/4/1937 - 25/1/1949

Same as type G above.

It should be noted that during currency of Nationality Act 1920-1946 only children whose names
were actually included on parents certificate became naturalized. Inclusion took place (a) at time of
issue or (b) by subsequent endorsement.

9.10.3 Effect of naturalization of husband upon married women between


1/1/1921 and 25/1/1949
Married women were under disability under the Act and this meant that they could do nothing in
their own right to either acquire or lose British nationality unless their husbands did so.

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Between 1/1/1921 and 31/3/1937 the wife of a person who became naturalized, that is, BB and CC
certificates - automatically became a British subject by virtue of s18 of the Nationality Act which said
the wife of a British subject shall be a British subject. They were not persons naturalized although
reading the endorsement on the reverse side of the certificate it would appear they were
naturalized. This became important later on when s20 of the Nationality and Citizenship Act 1948
was in force.
Section 18 of the Nationality Act was amended in 1937. Section 18(5) made provision for the wives
of persons granted naturalization to acquire British nationality by making a Declaration of
Acquisition of British nationality within twelve months of husbands naturalization or within such
extended period as the Minister allowed. The Declaration became effective as from the date upon
which it was made before an authorised person and although declarations were generally registered
in the department, the act of registration did not affect validity in any way. This was the position
between 1/4/1937 and 25/1/1949 when the Act was repealed.
*Note: No attempt should be made to determine a persons national status from the information
provided in this list alone, if there is any question at all of doubt.
Queries are to be directed to the Citizenship Helpdesk.

9.10.4 Nationality and Citizenship Act 1948 - Australian Citizenship Act


1948
Series

Dates of issue

To whom issued

(A)

Certificates of Naturalization for Issue to Aliens

E(1)

26/1/1949 - 25/1/1955

Issued to applicants without children

E(2)

26/1/1949 - 25/1/1955

Issued to applicants with children under 21 years to be included

D&F

26/1/1949 - 25/1/1955

Issued to cases of doubt

EA

26/1/1949 - 4/2/1970

Certificates issued to minors (under 16 years)

(B)

Registration Certificates for Issue to British Subjects and Irish Citizens

C(1)

26/1/1949 - 25/1/1965

For issue to applicants without children to be included.

C(2)

26/1/1949 - 25/1/1965

For issue to applicants with children under 21 years to be included.

(C)

Certificates of Naturalization

EM(1)

26/1/1955 - 4/2/1970

For issue to male applicants without children

EF(1)

26/1/1955 - 4/2/1970

For issue to female applicants without children.

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Series

Dates of issue

To whom issued

EM(2)

26/1/1955 - 4/2/1970

For issue to male applicants with children included.

EF(2)

26/1/1955 - 4/2/1970

For issue to female applicants with children included.

Certificate in case of doubt continued to be issued.


(D)

Certificates of Registration

CM(1)

26/1/1965 - 4/2/1970

For issue to males without children.

CF(1)

26/1/1965 - 4/2/1970

For issue to females without children.

CM(2)

26/1/1965 - 4/2/1970

For issue to males with children included.

CF(2)

26/1/1965 - 4/2/1970

For Issue to females with children included.

Note: Up to 10/5/1955 Children under the age of 21 years were included on certificates of
naturalization and registration.
Act No. 1 of 1955 which came into force on 11/5/1955 provided that as from that date only children
under the age of 16 years could be included on certificates.
(E)

Certificates of Citizenship Issued Between 5/2/1970 and 30/11/1973

AM(1)

5/2/1970 - 30/11/1973

Issued to male aliens.

AF(1)

5/2/1970 - 30/11/1973

Issued to female aliens.

AM(2)

5/2/1970 - 30/11/1973

Issued to male aliens with children included.

AF(2)

5/2/1970 - 30/11/1973

Issued to female aliens with children included.

AE

5/2/1970 - 30/11/1973

Issued to minors (u. 16 years) or anyone excluded from taking an


oath or making an affirmation of allegiance.

BM(1)

5/2/1970 - 30/11/1973

Issued to male British subjects.

BF(1)

5/7/1970 - 30/11/1973

Issued to female British subjects.

BM(2)

5/2/1970 - 30/11/1973

Issued to male British subjects with children included.

BF(2)

5/2/1970 - 30/11/1973

Issued to female British subjects with children included.

(F)

The Australian Citizenship Act 1948-73

The Australian Citizenship Act 1973 changed the title of the Principal Act to the Australian Citizenship
Act 1948.
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Series

Dates of issue

To whom issued

As from 1/12/1973 British and aliens were placed on the same footing, met the same requirements for
citizenship and were issued with the same type of certificate.
(G)

Certificates of Citizenship Issued 1/2/1973 to 30/9/1976

AC(G)

1/12/1973 - 30/9/1976

Issued to all applicants over 16 years of age regardless of whether


British or alien or whether children to be included. Provision made
on reverse side to include children. If children were included, a
facsimile signature of the Minister was added by rubber stamp.

AC(S)

1/12/1973 - 30/9/1976

Issued in cases of doubt under s32 of the Act.

AC(M)

1/12/1973 - 30/9/1976

Issued to minors.

(H)

Certificates of Citizenship issued 1/10/1976 to 27/11/1980

CA(1)

1/10/1976 - 27/11/1980 Issued to people when no children included.

CA(2)

1/10/1976 - 27/11/1980 Issued to people when children under 16 included.

CA(M)

1/10/1976 - 27/11/1980 Issued to minors.

(I)

Certificates of Citizenship Issued 28/11/80 to 30/9/84

CG(1)

28/11/1980 - 30/9/1984 Issued to people when no children included.

CG(2)

28/11/1980 30/9/1984

CG(M)

28/11/1980 - 30/9/1984 Issued to minors.

(J)

Certificates of Citizenship Issued 1/10/1984 to 8/12/1986

CAS

1/10/1984 - 23/10/1986 All grantees. Certificates issued between these dates were printed
on thin paper and all details were on the front of the document.

CAS

24/10/1986 - 8/12/1986 All grantees. Certificates issued were printed on thicker paper and
details of children were printed on the back of the document.

(K)

Certificates of Citizenship Issued 26/11/1986 to 31/1/1989

ACS

26/11/1986 - 3/11/1989 All grantees (Note that there is some overlap with the CAS series).

(L)

Certificates of Citizenship Issued 6/11/89 to Present

ACC

6/11/1989 - present

Issued to people when children under 16 included.

All grantees.

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Series

Dates of issue

To whom issued

(M)

Declaratory Certificates of Australian Citizenship

(i)

Issued since 26 January 1949 in evidence of citizenship status comprising of the series:
B, B(1), B(2), AC(D), AC(DM), CD and CD(M).

(ii)

Series CAS issued 1/10/1984 - 8/12/1986.


Series ACS issued 26/11/1986 - 3/11/1989 (Note overlap with CAS series).
Series ACC issued 6/11/1989 - present.

(iii)

Miniature declaratories were issued from 1970 - 31/10/1984 concurrently with large
certificates if requested.

(N)

Evidentiary Certificates of Australian Citizenship

(i)

Issued since January 1960 in evidence of acquisition of Australian citizenship in perusal for
official and legal purposes. These were issued both in a large and a miniature format
containing serial numbers only. The miniature series between 1965 and 1970 also contained
the following prefixes: FM, F(1), F(2), F(3) and F(4).

(ii)

BN was a special series of certificates issued between 1/5/1970 and 31/5/1974 to British
subjects who acquired Australian citizenship by notification under s11C.

(O)

Extracts from Register of Citizenship by Descent

Issued since 26/1/1949 as evidence of acquisition of citizenship by descent on registration. Prior to 22


November 1984 these documents were entitled Extract from Register of Births Abroad.

9.10.5 Australian Citizenship Act 2007


Citizenship Certificates/Evidences
On 1 July 2007, when the Act came into effect, the existing prefix (ACC) on the Conferral and
Declaratory Certificates (now called Evidences) were retained. The numbering sequence continued
from the certificates issued under the old Act to the new Act.
The text of the evidences was amended to reflect that set out at Schedule 2 of the Regulations.

Extracts of Registration by Descent


The existing ROC prefix and the title Extract from Register of Australian Citizenship were changed
on 1 July 2007 to CBD and Citizenship by Descent.
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The inclusion of the ICSE client ID in addition to the Register and Entry number caters for the
majority of posts who record and approve clients in ICSE as well as those DFAT posts who still use
paper registers.
Copies of historical evidences are being gathered to form a Library of these valuable documents. Any
requests for information on these can be addressed to the Citizenship Helpdesk. Any historical
documents that are handed in to offices can be sent to Citizenship Operations and Business
Improvement Section, National Office, with a covering note stating that the document is being
referred for inclusion in the document library.

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Chapter 10 - Character
10

10.1

OVERVIEW TO CHAPTER 10

Overview

10.1.1 Background
The Act requires that applicants aged 18 and over who seek to become Australian citizens must be of
good character. Good character is not defined in the Act. The purpose of this chapter is to provide
guidance on the administration of the good character provisions under the Act and to define, for
administrative purposes, the meaning of good character.
This chapter also provides a framework for assessing an applicant under the good character
provisions. It is not departmental policy for decision makers to be bound by a check-list. Decision
makers need to look at the merits of each case and to turn their minds to the issues of character
until they are satisfied, on a reasoned basis, that an applicant is, or is not, of good character.

10.1.2 Summary
Good character refers to the enduring moral qualities of a person, and is an indication of whether
an applicant is likely to uphold and obey the laws of Australia and the other commitments made
through the pledge should they be approved for citizenship (see section 10.3 What is good
character).
Character considerations under the Migration and Citizenship Acts are not the same and it is
possible that an applicant could have passed the migration character test but still not be of good
character under the Citizenship Act (see section 10.4 Relationship between Citizenship and
Migration legislation).
Citizenship character decision making framework:
a.

check all relevant sources of information (see section 10.6.1 Key sources of information),

b.

characterise the nature of any offence (serious/minor; victims; pattern of behaviour/one off;
length of sentence; sentencing remarks etc) (see Behaviour why the applicant might not be
of good character),

c.

consider any relevant associations (see Behaviour why the applicant might not be of good
character),

d.

consider general conduct (see Behaviour why the applicant might not be of good
character),

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e.

consider mitigating circumstances (length of time since offence, age at time of offence,
behaviour since completing prison sentence or obligations to court, remorse, referee
reports, etc) (see Mitigating Factors could the applicant be of good character anyway),

f.

send the applicant a Natural Justice letter and consider the applicant's response (see section
10.6.6 Procedural fairness/natural justice),

g.

weigh up relevant factors, applying community standards, to decide whether or not the
applicant is of good character. Look holistically at applicants behaviour over an enduring
period of time (see section 10.5.4 Weighing up the decision),

h.

in all cases, the decision maker should be able to articulate the reason that they consider an
applicant is of "good character". Create a full decision record if someone is found not to be
of good character or a detailed file note if adverse information was considered but the
applicant was found to be of good character (see section 10.6.7 Recording the decision).

Contact the Citizenship Helpdesk in relation to concerns about particular cases concerning character,
especially if there are concerns about war crimes, crimes against humanity and/or genocide, an
Interpol Red Notice, a Red MAL alert or if the applicant has been unable to obtain an overseas penal
clearance and a waiver is not appropriate (see section 10.7.2 Referral to the Citizenship Helpdesk).
Consider whether to refer matter to the National Character Consideration Centre (NCCC), following
referral guidelines (see section 10.7.3 Referral to NCCC).
Character considerations can still be relevant after an approval decision if it comes to the
Departments attention that a person is under criminal investigation but has not been convicted, or
is being investigated for the cancellation of a visa. The making of the Pledge can be delayed (s26 (3))
and the approval can be cancelled (s25) (see section 10.8 Issues after decision and before pledge).

10.2

When do you need to consider good character

10.2.1 Summary
The following table provides a summary of the relevant character provisions by type of application.
Application type

Descent

Adoption under
Hague Convention
on Intercountry
Adoption

Conferral

Resumption

Good character
requirement

s16(2), s16(3)

s19C(2)

s21(2), s21(3),
s21(4), s21(6),
s21(7)

s29(2), s29(3)

Decision making
provision

s17(1A)

s19D(2)

s24(1A)

s30(1A)

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10.2.2 Refusal under s24(6) (offences) and the consideration of good


character
Section 24(6) sets out circumstances related to the commission of offences in which the Minister
must not approve an applicant for citizenship by conferral. If an applicants circumstances are
specified in s24(6), the applicant must not be approved.
If s24(6) applies, it is departmental policy that the decision maker must also assess the applicant
against the relevant eligibility criteria set out in the Act, including residence and character
requirements. This further assessment is required because, if the applicant seeks review at the AAT,
the circumstances that led to the prohibition on approval under s24(6) may no longer exist at the
time of review.
As the AAT may set aside for primary decision and remit the matter to the department to reconsider,
it is considered an inefficient use of resources for the department to go through the decision making
process twice on the same matter, and for the AAT to deal with another review if the applicant is
refused on another ground and seeks review for the second decision.
However, if the s24(6)(a) (pending proceedings) prohibition applies, the decision maker must refuse
to approve the application on that basis. An assessment of "good character" cannot be made
because the outcome of the proceedings would be a relevant consideration in such an assessment.
An exception to this would be if the applicant already has a criminal record which might cause the
delegate to refuse the applicant both under character and under the prohibition.
For further information, see section 5.27.1 Ministers decision (s24) - summary.

10.3

What is good character

10.3.1 Definition
Unlike s501 of the Migration Act, the term good character is not defined in the Act. Therefore, the
Federal Court (FC) and the AAT have used the ordinary meaning of the words, and made reference
to dictionary definitions. Most cases have adopted the following definition from the Full FC
judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR
422; at 431-432):
Unless the terms of the Act and regulations require some other meaning be applied, the
words good character should be taken to be used in their ordinary sense, namely, a
reference to the enduring moral qualities of a person, and not the good standing, fame or
repute of that person in the community. The former is an objective assessment apt to be
proved as a fact while the latter is a review of subjective public opinion A person who has
been convicted of a serious crime and thereafter held in contempt in the community,
nonetheless may show that he or she has reformed and is of good character Conversely, a
person of good repute may be shown by objective assessment to be a person of bad
character.
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In this context, "moral" does not have any religious connotations. The phrase enduring moral
qualities encompasses the following concepts:

characteristics which have been demonstrated over a very long period of time

distinguishing right from wrong

behaving in an ethical manner, conforming to the rules and values of Australian society.

The good character requirement looks at the essence of the applicant. Their behaviour is a
manifestation of their essential characteristics.
This broad definition means that a decision maker can be satisfied that an applicant is of good
character if the applicant has demonstrated good enduring/lasting moral qualities that are evident
before their visa application and throughout their migration and citizenship processes.
In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President
Breen discussed the role of the character requirement in a citizenship application (at [8]):
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who
uphold the values of the Australian community and who are willing to make a positive
contribution to the country they want to call home The refusal to grant citizenship is not a
second form of punishment, which is the domain of the Criminal Courts. It is simply the right
of the Australian community to decide whom they wish to have included as fellow citizens,
which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently
holds, nor does it prevent him applying for citizenship again in a few years time when he
can demonstrate a longer period of positive contribution to the Australian community.

10.3.2 Community standards


In Zheng v Minister for Immigration and Citizenship ((2011) AATA 304), Forgie DP found the
Preamble to the Act could provide assistance in identifying what Australian society considers to be
right and proper behaviour for the purposes of assessing good character ((2011) AATA 304 at [119]).
The Preamble to the Act sets out the meaning of Australian citizenship:
Australian citizenship represents full and formal membership of the community of the
Commonwealth of Australia, and Australian citizenship is a common bond, involving
reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights
and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
After considering the text of the Preamble, Forgie DP stated ((2011) AATA 304 at [120]):
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In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a
respect for the rights and liberties of all Australians and obedience to and observance of the
law are values that are regarded as significant. An assessment of a persons character will
need to have regard to them. They are not values that can be assessed in the abstract.
Instead, they are measured in part by what a person says, in part by what a person does and
in part by what a person is heard to say and seen to do.
The role of the citizenship decision maker is to assess, to the best of their ability, whether the
applicant is of good character at the point of decision. Such an applicant is likely to uphold the
Pledge, should they be approved for citizenship.

10.3.3 Australian values statement


Another identification of community standards can be found in the Australian values statement. The
Statement requires applicants to confirm that they will respect the Australian way of life and obey
the laws of Australia before being granted a visa.
The values statement for holders of provisional or permanent visas also acknowledges that, if an
applicant goes on to become an Australian citizen, they will enjoy reciprocal rights and
responsibilities and that these responsibilities include obeying Australian laws.
While the values statement will not apply to all citizenship applicants (applicants for citizenship by
descent, adoption, resumption and those who acquired permanent residence before 17 October
2007 will not have signed the statement), it is a clear statement of community expectations that
apply to all, including those who have migrated to Australia.

10.3.4 An applicant who is of good character


Drawing from the definition outlined above, an applicant of good character would have the
following characteristics. This list is not exhaustive and should be considered in conjunction with
section 10.5 Framework for making good character decisions.
An applicant of good character would:

respect and abide by the law in Australia and other countries

be honest and financially responsible (for example, pay their taxes, and not be in
dishonest receipt of public funds)

be truthful and not practise deception or fraud in their dealings with the Australian
Government, or other governments and organisations, for example:

providing false personal information (such as fraudulent work experience or


qualification documents) or other material deception during visa and
citizenship applications

involvement in bogus marriage

concealment of convictions that could lead to the cancellation or refusal of a


visa or citizenship

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involvement in Centrelink or Australian Tax Office fraud

giving false names and/or addresses to police

not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others
through their conduct (for example recklessness exhibited by negligent or drink driving,
excessive speeding or driving without licence or insurance)

not be associated with others who are involved in anti-social or criminal behaviour, or
others who do not uphold and obey the laws of Australia

not have evaded immigration control or assisted others to do so, or been involved in the
illegal movement of people

not have committed, been involved with or associated with war crimes, crimes against
humanity and/or genocide

not be the subject of any extradition order or other international arrest warrant

not be involved in or providing assistance to, or reasonably suspected of being involved in


or providing assistance to, terrorist organisations or acts of terrorism overseas or in
Australia and

not be the subject of any verifiable information causing character doubts.

10.4

Relationship between Citizenship and Migration legislation

10.4.1 Character assessments under both Acts


If a person applies for temporary or permanent residence in Australia, an assessment is made as to
whether the applicant passes the character test as outlined in s501 of the Migration Act. This test is
strictly defined and if a visa applicants circumstances are not prescribed in the Migration Act, the
applicant passes the character test. The matters taken into account in a s501 assessment are not the
same as those considered under the Citizenship Act and the good character requirement for
citizenship is broader than the Migration Act character test.
The character requirement under the Migration Act continues to have importance, even after a visa
has been granted, because s501 also allows a visa to be cancelled if a person does not continue to
pass the character test. Section 109 of the Migration Act allows a visa to be cancelled if the holder
gave incorrect information when they applied for their visa. Other cancellation powers include s116,
s128, s134, s137Q and s500A. Further information about cancellation provisions under the Migration
Act can be found in PAM 3 - Visa Cancellation Instructions.
However, if a visa applicant does not pass the character test, the Migration Act allows for discretion
to not refuse or cancel the visa. Note: While a decision under the Migration Act to not refuse or
cancel a visa on character grounds is a factor to be weighed in a decision about the same client
under the Citizenship Act, a Migration Act decision does not bind citizenship decision makers. It is
quite possible that someone could be granted a visa (or not have their visa cancelled) and still not be
of good character under the Citizenship Act.
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If a citizenship applicants visa has been considered for refusal or cancellation on character grounds,
citizenship decision makers are to request the applicant's visa and character consideration files and
consider whether the information contained in the files is relevant to the assessment under the
good character requirement. Citizenship decision makers should note the consideration under the
Migration Act and it is open to them to find that the applicant is not of good character in the
citizenship context, despite not having had the visa refused or cancelled under the Migration Act.
Decision makers are to refer cases where the visa has been subject to refusal or cancellation to their
supervisor. Supervisors/managers requiring further guidance can refer the case to Citizenship
Helpdesk.
It is also relevant to look at whether there is migration history for applicants for resumption of
citizenship. Such people may have previously had citizenship conferred upon them and then
renounced it for some reason before now wishing to resume. Applicants for citizenship by descent
might also have a migration history if they have had temporary visas to come to Australia in the past.

Migration/citizenship case studies


Applicant A committed fraud on her application to migrate to Australia, falsifying her IELTS exam
results and her professional qualifications. Her visa was considered for cancellation under s109 of
the Migration Act, but was not cancelled because her visa could have been granted even if she did
not have the IELTS results or the particular qualifications she claimed. However, she was not of good
character for the purposes of the Citizenship Act because she committed fraud and deceived the
Australian government.
Applicant B also committed fraud on his application for a permanent visa. The fraud was picked up
and his visa was refused. He subsequently applied for a different visa and did not rely on the
previously submitted fraudulent information. This visa was granted. When he applied for citizenship,
the decision maker was able to look back at his behaviour with his first visa application and to
decide, after weighing other factors, that he was not of good character as he had deliberately
attempted to deceive the Australian government, despite being granted a subsequent visa.

10.5

Framework for making good character decisions

10.5.1 Background
This section sets out a range of considerations for decision makers to take into account when
assessing good character. This list is not exhaustive. The factors may have different weights,
depending on the circumstances of the case. This framework is consistent with the values and
standards outlined in the Preamble to the Act and the pledge.

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The citizenship character assessment is informed by the applicants character prior to applying for a
visa and during their time in Australia. It is an assessment of all the available information to date,
including any information provided in the visa application process and while the applicant has been a
visa holder in Australia. Decision makers can also seek additional information such as requesting
further overseas penal clearances or asking to see original documentation which may or may not
have been part of the visa process. For further information, see section 10.6.2 Criminal/police
checks.

10.5.2 Factors to take into account


Behaviour why the applicant might not be of good character
Offences

Has the applicant committed any offences and if so, did they admit that in their
citizenship application? Passenger card declarations could also be checked for an
acknowledgement of criminal convictions.
Note: Decision makers are to accept a Courts findings concerning an offence to be
correct and to put weight on it. It is not the role of the decision maker to retry the
offence, even if the applicant claims that they were wrongly convicted. If the conviction
or sentence has been appealed and the appeal decided, the decision maker should take
the outcome of the appeal into account.

If the applicant has a criminal history, further police checks and, if relevant, an overseas
penal check may be necessary. See section 10.6.2 Criminal/police checks.

If the applicant has committed an offence, was it serious or minor. Serious offences
include, but are not limited to:

crimes of violence (such as murder, manslaughter, assault, sexual assault,


domestic violence, armed robbery, negligent or reckless driving occasioning
injury or death)

war crimes, crimes against humanity and/or genocide

crimes against children

drug trafficking (including importation and supply)

people smuggling

fraud (including identity fraud)

harassment or stalking

terrorist activity

extortion

illegal pornography, including child pornography

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breaches of immigration law, including those that resulted in removal or


deportation from Australia or another country

other offences incurring prison sentences of 12 months or more.

Minor offences include:

shoplifting

traffic offences which have been included in a criminal record

offences which do not lead to a conviction or a sentence.

Were there victims of the offence? In particular, were the victims vulnerable people like
children, the elderly or the disabled, or others who trusted the applicant?

For more complex cases, consider any Victim Impact Statements that are
available. In some cases, it may be relevant to look at literature, such as
through an internet search, about the long-term impact of certain offences,
e.g. sexual assault.

Was the offence pre-meditated?

Consider the length of the sentence, if one has been imposed. Any sentence is relevant to
a consideration of good character but weight should be given to a serious prison
sentence, which is defined in the Act as being a period of at least 12 months.

Are there any ongoing obligations in relation to the sentence received, such as a good
behaviour bond following conviction? Note: Section 24(6) prohibits citizenship being
approved in such circumstances (see section 5.27.1 Ministers decision (s24) - summary).

Look at decisions made by courts about the applicant, particularly sentencing remarks, as
they give an insight into the character of the applicant. Sentencing information can be
obtained by application to the relevant court. Parole reports may also give useful
information (sometimes parole reports are on the s501 visa cancellation file).

How many offences have been committed? Was it a one-off or is there a pattern of
criminal behaviour?

a pattern of behaviour, even of repeated minor offences, shows a disregard


for the law and indicates that the applicant may not uphold and obey the
law if citizenship is conferred on them.

Was the offence committed overseas? If so, is there an equivalent Australian offence?
Decision makers need to be aware that some offences do not have equivalents in
Australia. For example, a person charged with political offences in one country may not
be considered to have committed a crime in Australia.

Has the applicant previously been an Australian citizen and had that citizenship revoked?
If so, look at the circumstances of the revocation. The person may not be of good
character even if they are eligible to reapply for citizenship.

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Associations

Has the applicant associated with persons or organisations alleged to have committed,
war crimes, crimes against humanity and/or genocide?

see section 10.6.4 War crimes, crimes against humanity and/or genocide in
relation to cases where such crimes are suspected.

Is the applicant associated with criminals or criminal organisations, or other groups that
do not uphold and obey the laws of Australia or abide by the Australian values and
standards? The nature of the association, the degree and frequency of association the
person had or has with the individual, group or organisation, and the duration of the
association should be taken into account.

Is the applicant a family member of a person who has committed an offence? If the
decision maker is aware of criminal conduct of a family member, such as a spouse,
subject to privacy considerations, this may be disclosed to the citizenship applicant and
the decision maker can ask the applicant to comment on the conduct. If there is evidence
linking the applicant's conduct to the criminal conduct of their family member, this
information will be relevant to the assessment of the applicant's good character.

applications of family members should be processed together and should not


be decided until full details of any criminal conduct is known and any
association of family members can be assessed. This is particularly important if
there is an Interpol Red Notice in relation to a family member.

if a family member has committed identity fraud, the other family members
should be considered in light of this information. It could reflect upon their
character if the they have been involved in the identity fraud as well. An
example is where siblings have posed as a married couple, both have been
involved in the fraud therefore both citizenship applicants should be
considered by the same officer at the same time.

General conduct

Is the applicant a risk to national security?

Note: Section 24(4) prohibits citizenship being approved if there is an adverse


or qualified security assessment in force in relation to the applicant.

How has the applicant interacted with the Australian Government or State/Territory
governments? Have they been honest or have they committed fraud, including identity
fraud, even if there has not been a criminal conviction? Look at a range of interactions
and other information that may be contained in departmental records, such as the visa or
citizenship applications, any information on file concerning the Australian Tax Office,
Centrelink and Medicare etc.

Has the applicant engaged in conduct that potentially places children in danger such as
unwelcome and/or inappropriate approaches, including by electronic media?

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Has the applicant been dishonourably or prematurely discharged from the armed forces
of another country in circumstances, or due to conduct, that in Australia would be
regarded as serious and which impact on the applicants character?

Has the applicant engaged in conduct that would reasonably cause another individual to
be severely apprehensive, fearful, alarmed or distressed regarding the applicants
behaviour towards that individual or their property or that of any other individual?

Has the applicant engaged in political extremism, vilified a segment of the community,
incited discord, or endangered society through involvement in illegally disruptive and/or
violent activities?

How has the applicant behaved in their interactions with government officials? If the
decision maker has evidence that the client is not of good character, they may also note
specific examples of threatening or offensive behaviour they have been observed in order
to add weight to the assessment.

Mitigating Factors could the applicant be of good character anyway


Once the behaviour of the applicant has been assessed, the decision maker should turn their minds
to whether there are any mitigating factors to be taken into account.

What is the length of time between the date of offence (if known) and application for
Australian citizenship, or between conviction and application? Note: There can be a delay
between the time of the offence and conviction (if any) for a variety of reasons, such as
delays in being charged and/or protracted court cases. Each case is to be assessed on its
own merits and issues such as the seriousness of the offence, the nature of the offence,
whether another person was harmed and the rehabilitation process needs to be
assessed. In the case of a serious offence, a significant amount of time may have to have
passed before the decision maker is satisfied that the person is now of good character.

Has the applicant accepted responsibility and shown remorse for their conduct?

How has the applicant behaved since being released from prison or upon completion of
any obligations to a court such as a good behaviour bond?

it is important to see how the client behaves when they are free from the
obligations of such a sentence or bond. A reasonable amount of time will need
to have passed in order for the person to have established a pattern of good
behaviour and thus justify a conclusion that the person is now of good
character and is upholding Australian laws.

Has the applicant rehabilitated themselves? Have they made a conscious effort to obey
and uphold Australian laws? For example, have they undertaken drug and/or alcohol
counselling, an anger management course, a program or counselling for sex offenders or
any other program which addresses risk factors relating to their offending? Have they
moved away from bad influences, for example by disassociating themselves from a peer
group?

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What was the applicants age at the time the offence was committed? If the applicant
committed the offence at a young age, the commission of the offence may be given less
weight depending on the nature of the crime and any subsequent offences. It may be
possible that the person has matured and gained greater respect for upholding the law
than as a youth, and as such, any criminal offences from that period of their life are less
indicative of their current character.

Were there any extenuating circumstances relating to the offence? For example, an
offence committed under duress or under periods of psychological disturbance (including
involuntary effects of medication or temporary psychological conditions but not including
under the influence of recreational drugs), may be given less weight. Any claims of
mental illness should be supported by a Psychiatrists report. Decision makers should
discuss such cases with their supervisors and consult the Citizenship Helpdesk if
necessary.

Is there evidence of length of employment, stable family life and/or community


involvement? These may be indicators of good character. Applicants may wish to provide
references from independent people, like employers, attesting to the applicants
character and whether they support the application for citizenship. It is open to decision
makers to contact individuals who have provided a referee report for the applicant.

See section 10.6.5 References.

What does the applicant say

If the decision maker intends to take into account adverse information, they need to give
the applicant procedural fairness and to put these issues to them.

Once the applicant has had a chance to respond to these concerns, their response is to be
weighed against the other information already held by the department.

See section 10.6.6 Procedural fairness/natural justice.

Natural justice case studies


Applicant C was convicted, at 18 years of age, of a one-off offence of dealing in stolen property and
sentenced to a six-month term of imprisonment, suspended for 12 months. In his response to the
natural justice letter, he stated that he had come alone to Australia at the age of 15, living with a
relative until he turned 18. At that point, he moved to the city and was unable to find work. He was
not able to pay for medical bills and responded to an advertisement in ethnic media offering work at
$800 a week. As a result of this work, he was convicted of his criminal offence. He stated that he had
been young, without guidance, needed work and was not able to recognise who could be trusted. He
described his shame, regret and sorrow for his actions and stated that he would not let anything
similar happen again. The decision maker was satisfied with this response and noted that it was
confirmed by independent character references.

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Applicant D was convicted of domestic violence and was the subject of an apprehended violence
order. When he applied for citizenship, he admitted the offence but in his response to the natural
justice letter, he argued that it had been the victims fault. The decision maker was not satisfied that
the applicant had accepted responsibility for the crime nor demonstrated any remorse.

10.5.3 Factors not to take into account


Travel plans

Sometimes applicants will argue that they need to become Australian citizens urgently
because they need to travel. Generally, this is not a relevant factor and a decision must
be made on the merits of the application itself.

It is the responsibility of the applicant to maintain the currency of any travel documents
issued by their other country of citizenship, where possible. If there are particular reasons
why this could not be done, the applicant could contact the Department of Foreign
Affairs and Trade concerning emergency documents which may be available, depending
on the circumstances of the case.

Review by the AAT


The possible outcome of an application to the AAT for review of a decision to refuse an application
for citizenship is not a relevant consideration in deciding whether or not an applicant meets the
requirements of the Act.

10.5.4 Weighing up the decision


Essentially, the question for decision makers is whether any mitigating circumstances and/or
explanation provided by the applicant outweigh the behaviour in question. The assessment about
whether an applicant is of good character requires the consideration of an aggregate of qualities.
In weighing up the various factors, the decision maker must not apply their own personal standards,
but must apply community standards. Having regard to the words of the Preamble, and the pledge
to be made if citizenship is approved, decision makers are asking themselves:

would a person of good character have behaved the way the applicant did

what is there to demonstrate that the applicant has upheld and obeyed the law

has the applicant behaved in accordance with Australia's community standards

does the applicant share Australias democratic beliefs and respect its rights and liberties.

In Prasad and Minister for Immigration and Ethnic Affairs ([1994] AATA 326 at [7]), the AAT said:
"a decision about whether a person is of good character requires the consideration of an
aggregate of qualities. It is true to say, however, that, despite the many good qualities
possessed by a person, those qualities can be outweighed by a single adverse incident if it is
of sufficient weight and seriousness."
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A decision maker needs to look holistically at an applicants behaviour over a lasting or enduring
period of time. The amount of time considered to be lasting or enduring depends on the merits of
each case, but in most cases will go back prior to any visa application.
If a person has committed a serious offence (such as taking the life of another person, sexual assault,
war crimes, crimes against humanity, genocide or crimes against children) the lasting/enduring
period would be much longer, potentially over a period of many years. It may be extremely difficult
for a decision maker to be satisfied that a person is of good character, even after the passage of
many years.
See section 10.6.7 Recording the decision.

Decision making case studies


Applicant E was involved in criminal activity as a 17-year-old. He had alcohol dependency issues and
his peer group were also involved in criminal activity. He was sentenced to 12 months imprisonment,
suspended on entering a 12 month good behaviour bond, which he completed without committing
further offences. After finishing his good behaviour bond, he joined Alcoholics Anonymous and
made a conscious effort to sever ties with his old peer group and to re-establish himself in society.
Five years later, he applied for citizenship and in his application, he expressed remorse for his
activity, detailed his efforts at rehabilitation and provided character references from community
workers explaining how he is now a model to other young people about how lives can be turned
around. The decision maker contacted one of the referees who considered that the applicant now
upheld the laws of Australia, noting that he gives talks to youth from his own ethnic group about
how to stay out of trouble and avoid issues flowing from alcohol dependency. The decision maker
considered that his efforts to rehabilitate himself, and his position in the community, indicated that
he was now of good character and able to uphold and obey the law, despite his troubled youth.
Applicant F was recently found guilty of a single minor offence, without proceeding to conviction. He
is on a 12 month good behaviour bond and has applied for citizenship. The particular bond that he is
on is not a prohibition on approval under section 24(6) of the Act. However, the decision maker
decided that she needs to be able to assess his behaviour when he is not under the obligations of a
good behaviour bond. Therefore, she is unable to be satisfied that he is of good character at this
time.
Applicant G was convicted for 24 counts of theft and two counts of malicious wounding, committed
over a 10 year period. He was sentenced to 2 years imprisonment. Five years after release, he
applied for citizenship and had not committed any further offences in that time. The decision maker
took into account the seriousness of his offences, the long period of time over which they were
committed and the fact that malicious wounding was involved. He considered the fact that the
applicant had been given a serious prison sentence and looked at the sentencing reports and
references. The referee reports did not acknowledge the applicant's offences. After weighing up the
factors, he decided that sufficient time had not passed to establish that the applicant was now of
good character.
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Applicant H committed a range of child sexual assault offences over a period of time around 30 years
ago. He was sentenced to 12 years imprisonment and, while in prison, completed sex offender
programs. He was released from prison 10 years ago and has not been convicted of any offences
since then. After weighing up the evidence, including the sentencing report, publicly available
information about the long term effects of sexual abuse on children, and character references, the
decision maker considered that the applicant was not of good character. The seriousness of his
offences indicated that he did not uphold and obey the laws of Australia and they outweighed the
fact that he had not been convicted of any offences since release.

10.5.5 Waiting for further information


If a decision maker is not satisfied that an applicant is of good character at the time the application is
to be decided, the application must be refused. There is no current legislative provision to defer an
application made under the Act.
However, there may be circumstances where a decision maker is waiting for relevant information
and can postpone making a decision. For example, the decision maker has insufficient evidence to
decide if an applicant meets the criteria set out in s21(2) relating to character and further
investigations are required to obtain this evidence. Examples might be waiting for:

an overseas penal clearance

the outcome of a visa refusal or cancellation consideration by another area of the


Department or

an assessment by another agency.

The period of the delay must be reasonable. The period of reasonableness will be guided by the
merits of each case. To ensure that the delay does not become unreasonable, decision makers or
their supervisors are to check with the agency/area of the department which is to provide the
relevant information (for example, the cancellation area or Citizenship Helpdesk), every 10 weeks
and seek a status report. A record of this contact is to be recorded on ICSE. Decision makers
requiring further guidance can contact the Citizenship Helpdesk.

10.6

Procedural matters

10.6.1 Key sources of information


Decision makers are required to actively check existing information that the department holds. They
are expected to:

read and be familiar with the applicants comments in the completed citizenship
application, particularly the applicants responses to character declarations.

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Note: Applicants are encouraged to be honest in declaring any offences and are made aware
that providing the information will not necessarily result in the refusal of their citizenship
application. Section 50 of the Act makes it an offence to give false or misleading information
or representations for a purpose of, or in relation to, the Act. See section 10.6.6 Procedural
fairness/natural justice.

be familiar with the applicants migration history, for example, offences, penal
certificates, other relevant information held in departmental systems such as MAL; TRIM;
ICSE (especially client of interest notes and permission requests); ICSE Offspring and
CCMDS Portal (Compliance, Case Management, Detention and Settlement) etc

respond appropriately to risk alerts

respond appropriately to referrals from other areas e.g. National Allegations Assessment
Team (NAAT)

consider penal clearance certificates/criminal records from Australia and overseas - see
section 10.6.2 Criminal/police checks

compare facial images. If the facial image is not available electronically, decision makers
are to request the permanent resident file to facilitate this comparison

consider the applicants response to any natural justice letter;

Depending on the circumstances of the case, decision makers should also consider:

interview notes

the applicants visa files (especially ICSE, ICSE Offspring and TRIM) and other files such as
those relating to visa cancellation, departmental submissions concerning the applicant

court/sentencing reports

parole review reports

character references and/or statutory declarations

the applicants declaration and statement.

This list is not exhaustive.

10.6.2 Criminal/police checks


Interpol Red Notice
It is departmental policy that any cases with an Interpol Red Notice must be referred to the
Citizenship Helpdesk early in the processing stage. The Citizenship Helpdesk will consult other areas
on behalf of the decision maker.

Onshore police checks


National Police Checking Service (NPCS) checks are to be carried out on all applicants 16 years and
older. For those applicants aged 16 or 17 at the time of application, the results of the checks are
used to assess the applicant against the s24(6) offences provisions.
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For adult applicants, the information is also used for the character assessment. If the departmental
check with the NPCS reveals a record, decision makers are to comply with standard procedural
fairness processes and send a natural justice letter to the applicant. This also ensures that the
applicant is the "owner" of the NPCS record. If the applicant states that they did not commit an
offence, decision makers are to follow the dispute resolution processes outlined in the NPCS manual
and refer the matter to the Citizenship CRIMTRAC helpdesk.
Applications under s16 (descent), s21(6) (born to a former citizen) and s21(7) (born in Papua) differ
from other conferral applications in that most adult applicants have lived in a country other than
Australia prior to lodging their application and some applicants may never have travelled to Australia
or undergone migration screening. However, if the applicant has entered Australia, an onshore NCPS
check is also required. Decision makers are to check the Movement Record database in relation to
any travel to Australia undertaken by the applicant.

Overseas penal clearance


Conferral applicants should be asked for an overseas penal clearance:

where the applicant has lived or travelled outside Australia since turning 18 and

held a permanent Australian visa at that time and

the total time spent outside Australia added up to 12 months or more and

the time spent in any one country was more than 90 days

or

as requested by the department (see below).

Applicants for descent, resumption or full Hague adoption aged 18 and over are to provide an
overseas police clearance if, in the last 10 years:

the applicant has lived or travelled outside Australia since turning 18 and

the total time outside Australia added up to 12 months or more and

the time spent in any one country was more than 90 days

or

as requested by the department (see below).

The applicant will need to provide original overseas penal clearance certificates for each country
where they spent more than 90 days.
Original overseas penal clearance certificates should be sighted by a departmental officer and
certified copies retained with the application.

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Decision maker can request an overseas penal clearance


If the decision maker considers it relevant to the assessment of an applicants claims of good
character, they can request an overseas penal clearance certificate irrespective of the amount of
time a person has spent overseas, or the period of time spent within a country.
Decision makers are strongly encouraged to request overseas penal clearances for a period of longer
than 10 years if an applicant for descent is older than 28, and therefore has an adult period of life
not covered by the 10 year time period set out on the application forms. Decision makers should
consider:

the age of the applicant

what period of the applicant's life is not covered by the 10 year clearance (e.g. the 50year-old applicant would only have time between 40-50 covered by the 10 year period,
however could have committed offences when aged between 18-39) and

whether they have spent any time in Australia or whether this is the first time the
applicant has had any contact with the Department.

Decision makers can seek further assistance from the Citizenship Helpdesk in regard to this matter.

Family migration
Under the family migration program, it is possible for people to be granted a visa even if they have
committed offences offshore. Therefore, where a citizenship applicant held a provisional visa
(partner visa), decision makers are to check departmental records, including ICSE and ICSE Offspring,
to see if a penal clearance certificate was requested at time of assessment of the permanent
resident visa.
If there is any indication of offshore offences, or if offences have been committed onshore,
regardless of the time since the applicant became a permanent resident, the decision maker should
ask the applicant to provide another overseas penal clearance. If ICSE and ICSE Offspring are clear,
and the onshore police check is clear, a further overseas penal clearance is not necessary.

How to request overseas penal clearances


The departments instruction about obtaining police clearances for migration, PAM3: Sch4/4001
Penal checking procedures, is also used as a guide for citizenship purposes and citizenship decision
makers should be familiar with this instruction as a general guide. Some of the procedures do
however differ and decision makers are asked to contact the Citizenship Helpdesk for further
guidance. This instruction is FOI exempt, has a national security classification of "For Official Use
Only and is available on ImmiNet to departmental staff with the appropriate security clearance.
For more information on how to obtain penal clearance, see the Character and Penal Clearance
Requirements (formerly known as Form 47P): http://www.immi.gov.au/allforms/characterrequirements/index.htm.
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NZ applicants for conferral


New Zealand citizen applicants who do not hold a permanent visa (that is, those who hold a subclass
444 visa) are required to obtain overseas penal clearance certificates from New Zealand and any
other country they have resided in a continuous period of 90 days or more because generally they
have not provided those certificates prior to becoming resident in Australia.
This applies to New Zealand citizen applicants aged 18 or over regardless of how long the person has
resided in Australia. New Zealand citizens who arrived in Australia before the age of 18 and have not
left Australia since are not required to provide the overseas penal clearance certificate.
New Zealand citizens are required to complete a Form F1, which is available from
http://www.justice.govt.nz/services/criminal-records. They must check the box on the Form F1,
requesting a Full Record of Convictions and ensure that the names disclosed on the NZ form match
the names on their NCPS form and their citizenship application.
The Full Record of Convictions should be attached to the citizenship application and read by the
decision maker.
There may be instances where a New Zealand citizen was born in another country and acquired New
Zealand citizenship by conferral. Decision makers may wish to request overseas penal clearances
from the country of birth in such cases.

Applicant unable to provide overseas penal clearance


Applicants may not be able to obtain police clearances for several reasons, for instance, certain
countries may not allow individuals to obtain penal clearance certificates. The procedures for
dealing with these cases are set out in PAM3: Sch4/4001 Penal checking procedures. Complex cases
can also be discussed with the decision makers supervisor or with the Citizenship Helpdesk.

Elderly applicants
Some elderly applicants are not able to provide viable fingerprints which form the basis of an
overseas penal clearance. If they are able to provide evidence that they attempted to provide
fingerprints but an overseas police agency has decided that the fingerprints were not viable, it is
possible to accept a police check done only on the basis of the applicant's name.
In cases where decision makers consider that discretion is appropriate for applicants aged 70 years
or older who have not travelled for a significant period of time, decision makers are to discuss with
their manager. They can also seek further assistance from the Citizenship Helpdesk.

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10.6.3 Quashed, pardoned and spent convictions


Quashed or pardoned convictions
Under the Crimes Act 1914 applicants are not required to disclose quashed convictions (that is, a
conviction that has been set aside by a court) or pardoned convictions (that is, where the person has
been given a free and absolute pardon because a they were wrongly convicted). Where a decision
maker does become aware of such convictions, they may not be taken into account.

Spent convictions
A spent conviction is a conviction for which a person:

has been granted a pardon for a reason other than that the person was wrongly
convicted of the offence or

was not sentenced to more than 30 months imprisonment, it is 10 years (5 years for
juvenile offenders) since the date of conviction and the person has not re-offended
during the 10 years (5 years for juvenile offenders) waiting period.

Applicants are required to disclose all spent convictions in their citizenship applications because such
applicants are excluded from the operation of the spent conviction regime. This also applies to
crimes committed in other countries that may be spent under foreign legislation.

10.6.4 War crimes, crimes against humanity and/or genocide


Individuals involved in war crimes, crimes against humanity and/or genocide may seek to enter, or
currently reside in, the Australian community. However, it is government policy that Australia should
not be a safe haven for war criminals.
Involvement or suspected involvement in the commission of war crimes, crimes against humanity
and/or genocide is an important consideration in the assessment of a persons character for the
purposes of the Act. A person may have been involved in war crimes even when there is no criminal
conviction, for example because the applicant has undertaken military or similar service or held a
position of authority in a country that has experienced conflict or serious human rights abuses.
Some characteristics which may stand out from the application form, or interview, include:

the applicant's admission of involvement in war crimes, crimes against humanity and/or
genocide

military/paramilitary history

weapons training

certain occupations (such as prison guards, members of private militia, guerrilla groups or
liberation organisations) or

membership of an organisation that has been linked to war crimes, crimes against
humanity and/or genocide.

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Involvement in war crimes, crimes against humanity and/or genocide


(without conviction)
It is not necessary that the applicant has a conviction relating to war crimes, crimes against humanity
and/or genocide. A person could have directly participated in the commission of such crimes, or had
an association with persons or organisations alleged to have committed such crimes, while
undertaking military or similar service or holding a position of authority in a country that has
experienced conflict and serious human rights abuses. A person may have provided financial support
to an organisation alleged to have committed such crimes.

Notifying National Office


If a decision maker suspects that a citizenship applicant may have been involved in war crimes,
crimes against humanity and/or genocide, the case must be referred to the War Crimes Unit (WCU),
National Office for further assessment. The case should also be referred to the Citizenship Helpdesk.
For guidance on how to refer to the WCU, see the War Crimes Help Desk section of ImmiNet.
The WCU will undertake an assessment and provide either an adverse or non-adverse assessment,
or will indicate no assessment can be provided.

Adverse assessments
WCU will provide a copy of the assessment to Citizenship Policy and the decision maker. The WCU
will not recommend whether to approve or refuse to approve the citizenship application, but instead
will set out the reasoning and evidence found to reasonably suspect that the applicant has links to
war crimes.
As with all cases where the decision maker intends to take into account adverse information,
procedural fairness must be provided to applicants subject to an adverse war crimes assessment.
The WCU will advise if any information contained in an adverse assessment must not be released to
the applicant.

Non-adverse assessments
If the WCU has provided an assessment about an applicant with no adverse information, processing
of the application for Australian citizenship can proceed as usual.

No assessment can be provided


The WCU may advise that an assessment cannot be undertaken because the applicant does not
provide the requested information, for example if the applicant does not provide their military
service record. In these circumstances, decision makers should seek further evidence from the
applicant.

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If the applicant does not provide the information requested, decision makers should advise the
applicant that the character assessment will be made on the available information, and in the
absence of the requested information, it may not be possible for the decision maker to be satisfied
the applicant is of good character.
For further information regarding war crimes assessments for citizenship applicants, see PAM3: Act Character War Crimes - Screening of visa & citizenship applicants.

10.6.5 References
Referee reports can shed light upon an applicant's character and should acknowledge, where
applicable, any offence or other incident and explain why the applicant is nonetheless considered to
be of "good character". However, decision makers should note the inherent bias in any reference
which is submitted by an applicant in support of their citizenship application.
More weight should be given to references made as statutory declarations than those which are not.
References should come from members of the community who have observed the applicant at work
or in other contexts, and who are willing to provide contact details. Referees should also explain how
long they have known the applicant for, and the context of their relationship. Decision makers are
encouraged to contact referees and ask them questions to test their knowledge of the applicant,
their relationship etc. if the referee provides adverse information in these discussions, this
information should be put to the applicant for comment.
It is preferable that references are not submitted from family members. However, if they are, less
weight should be given to them because of the societal expectation that family members would tend
to support one another and play down unacceptable conduct. Decision makers should take
particular care with references from victims of domestic violence. There is a risk that such
statements have been coerced either directly or indirectly.

10.6.6 Procedural fairness/natural justice


If there is adverse information regarding an applicant such that a decision maker is likely to refuse
the application, the information should be put to the applicant, at interview or in writing. Detailed
file notes should be made of any conversations with the applicant. The applicant should be invited to
respond to, or comment on, the information within the time periods set out in section 17.4.3 Policy
guidelines. The refusal decision record must detail the information relied on, the applicants
response and the basis for the decision.
If checks do not reveal a criminal record and, after consideration of all the relevant information, the
decision maker is satisfied that the applicant is of good character, any adverse information that is
not relevant to the citizenship decision need not be put to the applicant. The decision maker may
decide they are satisfied that the person is of good character and should record the reasons for the
decision to approve.

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10.6.7 Recording the decision


When preparing a decision on good character, it is best practice for decision makers to incorporate
the following steps:

identify any offence or other reason why the person may not be of good character

summarise the nature of the offence/incident, its seriousness, victims etc

identify any mitigating factors and summarise them

analyse any references and identify the weight you give to each of them

summarise any relevant adverse information put to the client for comment, as well as
their response

identify where you place weight on each of the factors in making your decision and
provide reasons

record the decision:

A full decision record must be made for every decision where someone is found not to be of good
character. This will be used if the applicant seeks review of the decision in the AAT.
A detailed file note must also be made in all cases where adverse information is present but a person
was found to be of good character in any event. The reasons for this decision should be set out. This
will allow the decision to be understood if there is a need to go back to the file at a later date.
All ICSE notes must be complete and all outstanding issues resolved, for example, NAAT referral,
differences in name/date of birth. It should be possible to understand the decision 10 years later if
there is cause to query why the application was approved or refused.

10.7

Consistent decision making

10.7.1 Background
Although the overall number of character refusals is a small percentage of the total citizenship
application caseload, sound and consistent administration of the good character requirement is
necessary to:

increase the likelihood that those approved for citizenship really are of good character

reduce the risk that persons of significant character concern are granted citizenship and

protect and enhance the fairness and integrity of the citizenship program.

To complement the quantitative measures of citizenship processing and delivery standards, quality
control mechanisms such as EQuiP have been put in place to review the processing of citizenship
applications and decision making on a regular basis. These will improve the consistency of decision
making.

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10.7.2 Referral to the Citizenship Helpdesk


The Citizenship Helpdesk are available for consultation if decision makers have concerns about
particular cases concerning character and identity.
The matter should be referred to the Citizenship Helpdesk if:

there are concerns about war crimes, crimes against humanity and/or genocide, after
consultation with the War Crimes Unit

there is an Interpol Red Notice

there is a Red MAL alert for an Interpol Red Notice or an adverse or qualified security
assessment

the applicant has applied for but been unable to obtain an overseas penal clearance and
a waiver is not appropriate (see Overseas penal clearance)

a refusal on character grounds is not appropriate but, due to circumstances of the case,
consideration may be given to refusing the application under the discretionary power in
s24(2) of the Act. This would be when it is not in the public interest for the person to
become an Australian citizen, taking into account community expectations.

Supervisors or managers may also wish to seek advice from the Citizenship Helpdesk if:

there is or has been consideration of visa cancellation action under the Migration Act

there is evidence of migration or identity fraud

there are Red MAL alerts for reasons other than those listed above

clarification of NPCS record and/or complex criminal histories would be helpful.

10.7.3 Referral to NCCC


During the citizenship assessment process, decision makers may become aware that there are
grounds for consideration of cancellation of an applicant's visa on character grounds. The decision
maker should refer the matter to the NCCC Visa Holder Character Consideration Unit (VHCCU) for
consideration of whether their visa should be cancelled, prior to making a decision on citizenship
because the applicant would no longer be eligible for citizenship if their visa has been cancelled.
Citizenship decision makers should not refer every case where an applicant is to be, or has been,
refused citizenship on character grounds. Guidelines for referral have been developed by the Visa
Applicant Character Cancellation Unit and are set out in detail at [insert hyperlink to the VACCU Who
To Refer guidelines]. The guidelines are equally applicable to citizenship applicants who should be
referred to the VHCCU. If you are in doubt, please contact the NCCC and discuss the matter with
them.
Generally, an applicant should be referred to the NCCC if they:

have been previously considered for cancellation under s501 of the Migration Act and
have committed a subsequent offence

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have been refused citizenship on the basis of war crimes, crimes against humanity and/or
genocide

have been refused citizenship due to an adverse security assessment

have a substantial criminal record (including a prison sentence of 12 months or more or


two or more sentences totalling two years or more)

have immigration detention related criminal convictions

have an association with others involved in criminal conduct and the applicant was
sympathetic with, supportive of or involved in such conduct

present a significant risk to the Australian community

are otherwise not of good character, having regard to their past and present criminal or
general conduct.

Decision makers are to make a note in ICSE about whether they referred to the NCCC (or not) and
the reason.

10.8

Issues after decision and before pledge

If, after an application for conferral of Australian citizenship has been approved, it comes to the
departments attention that the person is under criminal investigation but has not been convicted,
or is being investigated for cancellation of a visa, the making of the pledge of commitment by the
person may be delayed under s26(3) of the Act.
The approval of an application may be cancelled if a person is found to be not of good character
(s25(2)(b)(ii)). Such a decision would be made if information is available that was not considered at
time of approval or if new information comes to light. For details on the cancellation procedure,
including natural justice obligations, see section 5.27.8 Minister may cancel approval (s25).

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Chapter 11 - Personal identifiers


11

11.1

OVERVIEW TO CHAPTER 11

Introduction

The purpose of this chapter is to provide guidance to departmental officers on the requirement for,
and collection, use, storage and destruction of, personal identifiers for the purposes of the Act.
Personal identifiers can only be collected and used to identify, or authenticate the identity of, a
person making an application for citizenship or sitting a test or making an application for evidence of
citizenship, or to assist in combating document and identity fraud in citizenship matters.
Under the general eligibility provisions the Minister must be satisfied of the persons identity. If the
Minister or delegate is not satisfied of a persons identity they cannot sit a test. This is set out in the
Ministers determination made under s23A of the Act.
Sections 17(3), 19D(4), 24(3), 30(3), 33(4) and 37(4) of the Act require that, before an application is
approved, the Minister must be satisfied of the persons identity. If a persons identity cannot be
verified the application cannot be approved.
Division 5 of Part 2 of the Act provides the legislative framework for collecting personal identifiers
from people seeking to sit a test, or applying for Australian citizenship or evidence of Australian
citizenship.
It is important to recognise that personal information is not the same as personal identifiers.
Personal information is non-specific data such as sex, date and country of birth, occupation and
marital status. The use, storage and disclosure of personal information collected for citizenship
purposes are all protected under the Privacy Act. In contrast, personal identifiers are any of the
following:

fingerprints or handprints of a person (including those taken using paper and ink or digital live
scanning technologies)

a measurement of a persons height and weight

a photograph or other image of a persons face and shoulders

an iris scan

a persons signature,

and any other identifier prescribed by the regulations, other than an identifier the obtaining of
which would involve the carrying out of an intimate forensic procedure as defined in s23WA of the
Crimes Act 1914. For the purposes of the Act, identifying information is any personal identifier
which is collected from the applicant for the purposes of the Act, and any additional information
which can be used for identification purposes and is obtained either directly or indirectly from a
personal identifier collected from a person.
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11.2

Personal identifiers under the Act

11.2.1 Personal identifiers (s10)


As defined in s10 of the Act, a personal identifier is any of the following in actual or digital form.

11.2.2 Fingerprints or handprints of a person


Generally fingerprints are not requested from citizenship applicants.
Decision makers, however, are to contact Citizenship Policy Section, via the Citizenship Helpdesk to
discuss the proposed collection of any fingerprints (under the Act), prior to their collection.

11.2.3 Measurement of a persons height and weight


These measurements are not currently required to be provided. The measurement of a persons
height or weight can be taken in any form that provides a meaningful indication of the persons
actual individual measurements in order to be best able to appropriately identify the person.

11.2.4 Photograph or other image of a persons face and shoulders


This personal identifier is required to be provided if a person seeks to make an application for
citizenship or evidence of citizenship.
When making an application for citizenship, or evidence of citizenship, the photograph must be
endorsed on the back by a person who meets the policy guidelines for the purposes of making a
proof of identity declaration. Form 1195 has details on the proof of identity declaration. Policy is
that the photograph or other image is to be similar to a passport photo, that is, to be clear and show
a persons features enough to allow a person to be recognised by the image.
Photograph includes a digital image taken by an officer of the department.

11.2.5 Iris scan


Iris scans are not currently required to be provided. They would need to be taken by an appropriate
biometrics operator and on recognised biometrics software which will enable a positive
identification of that person.

11.2.6 Persons signature


This personal identifier is currently required to be supplied with an application.

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11.2.7 Any other identifier prescribed by the regulations


Currently, no additional identifiers are prescribed. The Act limits the types of personal identifiers
that can be prescribed. Intimate forensic procedures or images of the internal parts of the body
cannot be prescribed. For example, requests for blood tests or the capture of ultrasound images.
The definition of intimate forensic procedures can be found in s23WA of the Crimes Act 1914.
Identifiers can be prescribed only if necessary for assisting in the identification, or authenticating the
identity, of an applicant under the Act or combating document or identity fraud in citizenship
matters.

11.2.8 Disclosure
There is no authority to disclose facial images collected under the Act prior to 17 September 2009.
It is departmental policy that the disclosure of all personal identifiers, including facial images and
signatures, should be referred to Citizenship Policy Section, via the Citizenship Helpdesk, prior to
disclosure.

11.3

Definitions (s3)

disclose, in relation to identifying information that is a personal identifier provided under Division 5
of Part 2, includes provide unauthorised access to the personal identifier.
Note: Section 42 deals with authorised access to identifying information.
entrusted person means:

the Secretary of the department or

an APS employee in the department or

a person engaged under section 74 of the Public Service Act 1999 by the Secretary of the
department (which refers to locally engaged employees) or

a person engaged by the Commonwealth, the Minister, the Secretary of the department, or
by an APS employee in the department, to do work for the purposes of this Act or the
regulations or of the Migration Act or the regulations made under that Act.

Note that this definition covers all employees of the Department of Immigration and Border
Protection, whether they be ongoing, non-going or contracted staff, and people engaged to do work
for the purposes of the Act or Regulations or the Migration Act or Regulations.
identifying information means the following:

(a)

any personal identifier provided under Division 5 of Part 2

(b)

any meaningful identifier derived from any such personal identifier

(c)
any record of a result of analysing any such personal identifier or any meaningful
identifier derived from any such personal identifier

(d)

any other information derived from:

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any such personal identifier or

any meaningful identifier derived from any such personal identifier or

any record of a kind referred to in paragraph (c),

that could be used to discover a particular persons identity or to get information about a
particular person.

Note that this definition covers any personal identifier provided by an applicant for the purposes of
the Act, and any additional information which can be used for identification purposes and is
obtained either directly or indirectly from those personal identifiers.
If a personal identifier or any useful identifying information is analysed for any further information,
the result of the analysis is also identifying information.
Any other information which is obtained through the further examination of a personal identifier or
any of its derivatives, which can be used to confirm a persons identity or other information about
that particular person, is identifying information.

11.4

Obtaining personal identifiers

11.4.1 Request for personal identifiers (s40)


Under s40 a request may be made for one or more personal identifiers so that the Minister or
delegate can be satisfied as to the identity of a person in relation to an application for citizenship or
sitting of a test or an application for evidence of Australian citizenship.
When registering for a test, people will be required to either have a digital facial image taken by a
departmental officer or provide an appropriate photograph at the time of sitting the test.
All citizenship applicants (including those applying for evidence) 16 years and over, are required to
provide an endorsed photograph and sign the application form.
A specific request for one or more personal identifiers under s40 can only be made by a person
delegated by the Minister under s40. A delegated person will usually be an APS4 or above.

11.4.2 Provision of personal identifier (s41)


Regulation 11 (Personal identifiers, for s40(2) of the Act) provides that a request must inform the
applicant of the following matters:

why a personal identifier must be provided

how a personal identifier may be collected

how a personal identifier may be used

the circumstances in which a personal identifier may be disclosed to a third party

that a personal identifier may be produced in evidence in a court or tribunal in relation to the
applicant who provided the personal identifier

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that the Privacy Act 1988 applies to a personal identifier, and that the applicant has a right to
make a complaint to the Privacy Commissioner about the handling of personal information

that the Freedom of Information Act 1982 gives a person access to certain information and
documents in the possession of the Government of the Commonwealth and of its agencies,
and that the applicant has a right under that Act to seek access to that information or those
documents under that Act, and to seek amendment of records containing personal
information that is incomplete, incorrect, out of date or misleading.

These matters have been included in all citizenship application forms. Any other requests need to
ensure that the matters are covered on each occasion a request is made.
Applicants sitting a test will be informed of these matters at the point of the registering for the test.

11.5

Obligations relating to identifying information

11.5.1 Accessing identifying information (s42)


Section 42 provides:

that unauthorised access to identifying information is an offence and sets out the penalties for
an offence

the circumstances in which personal identifiers can be lawfully accessed and

that the Minister may authorise specified people or classes of people to access identifying
information.

11.5.2 Offences and Penalties


It is an offence for a person to access identifying information unless they are authorised to access
the information for the purpose for which they have accessed it. The penalty is imprisonment for 2
years or 120 penalty units or both.

11.5.3 Authorised access


The offence provisions do not apply if:

the access is for a purpose set out in s42(4) and the person is authorised by the Minister to
access the identifying information for that purpose

there is reason to believe that access is necessary to prevent or lessen a serious and imminent
threat to life or health of a person

the access is for a disclosure that is a permitted disclosure under s43 or

s43(1A) applies.

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11.5.4 Authorised by the Minister


People can be authorised by the Minister to access identifying information for the purposes set out
in s42(4). These purposes are intended to cover the circumstances in which people would need to
access identifying information in the course of carrying out their duties as decision makers under the
Act. Staff must establish that they have the required authorisation before accessing identifying
information.
The s42(3) instrument can be found on IMMInet under:
http://dimanet.immi.gov.au/DIMA_services/citizenship/australian_citz_instruments
Otherwise a copy of the instrument can be obtained from the Citizenship Helpdesk (email:
citizenship.helpdesk@immi.gov.au).

11.5.5 Serious and imminent threat to life or health


Any disclosure of identifying information to prevent or lessen a serious threat to the life or health of
a person may significantly disadvantage the person to whom the information relates. Consideration
should therefore be given to whether there are any effective alternatives to accessing the identifying
information.
The threatened harm must involve serious bodily injury, serious illness or death. The threat must be
imminent or about to happen. The threat need not apply to a specific person. It may be a threat of
serious harm to be randomly inflicted.
What is a serious threat depends on the particular circumstances of each case. An explicit threat of
murder or serious assault would usually be regarded as a serious threat, as would a threat of
infection with a life-threatening condition. Threats of contracting (or being denied effective
treatment for) a serious medical condition are regarded as threats to life or health. Abuse directed
to staff in general does not usually count as a serious threat. Threats to finances or reputation are
not threats to life or health.

11.6

Disclosing identifying information (s43)

11.6.1 Overview
Section 43 provides that conduct causing disclosure of identifying information is an offence unless
the disclosure is a permitted disclosure under s43(2), and sets out the penalties for the offence.
Section 43 also provides the following two exceptions to the offence provision:

further disclosure by a person who is not an entrusted person but who obtained the
information as a result of a permitted disclosure and

where the person believes on reasonable grounds that the disclosure is necessary to prevent
or lessen a serious and imminent threat to life or health of a person.

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11.6.2 Permitted disclosure


Some of the permitted disclosures set out at s43(2) above are self-explanatory. Further comment on
others is set out below.
(c) is for the purpose of administering or managing the storage of identifying information
This includes provision of identifying information to people employed by organisations providing file
management and storage services to the department.
(d) is for the purpose of making the identifying information in question available to the person to
whom it relates
This includes, for example, complying with a request by an applicant or former applicant for
information under the Freedom of Information Act 1982.
(e) take place under an arrangement entered into with an agency of the Commonwealth, or with a
State or Territory or an agency of a State or Territory .
Currently there are no arrangements in place.
(ea) is reasonably necessary for the enforcement of the criminal law of the Commonwealth, a State
or a Territory .
Policy is that there is a link between the proposed disclosure and the enforcement of the criminal
law and that the link is strong enough to say that the use or disclosure is reasonably necessary to
enforce the criminal law.
As a general rule, reasonably necessary implies that a disclosure need not be essential or critical to
enforcing the criminal law. However, it must be more than just helpful, or of some assistance or
expedient. In general, factors relevant to assessing this include:

whether there are other practical and less intrusive measures available

whether the potential harm to the public interest in question is sufficiently strong to
outweigh the privacy interests of the persons in respect of whom the identifying
information relates and

who is to receive the identifying information, and whether and how the identifying
information is likely to be protected once it is disclosed.
Broadly speaking, criminal law encompasses those laws under which criminal proceedings can be
initiated. These proceedings are usually initiated and prosecuted by the police or Crown prosecutors.
They are usually heard in criminal courts, and may result in the accused being convicted and
punished by fine or imprisonment.
Enforcing criminal law means the process of investigating crime and prosecuting criminals and the
gathering of intelligence about crime to support the investigating and prosecuting functions of law
enforcement agencies.
Identifying information reasonably necessary to the enforcement of the criminal law should be
disclosed only to:
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an organisation that has statutory responsibilities for investigating or prosecuting


criminal offences or

a person (or organisation) who require the identifying information to assist in the
investigation or prosecution.
(f) is for a purpose of a proceeding, before a court or tribunal, relating to the person to whom the
identifying information in question relates
The provision does not limit disclosure for the purpose of proceedings relating to the Act but to
proceedings involving the person to whom the identifying information relates.
(g) is for the purpose of an investigation by the Privacy Commissioner or the Ombudsman relating to
action taken by the department
An assessment should be made as to whether all identifying information held is or would be relevant
to the investigation.
(h) takes place with the written consent of the person to whom the identifying information in
question relates.
Written consent on an application form is only sufficient for disclosure for the purposes listed on the
form.

11.7

Unauthorised modification or impairment of identifying


information (s44)

Section 44 provides that a person who is not authorised or entitled to modify identifying
information, or impair the reliability of identifying information, or impair the security of the storage
or the operation of a storage system of identifying information commits an offence if they:

intentionally modify, or substantially contribute to the modification of identifying information


or

intentionally impair, or substantially contribute to the impairment of, the reliability of


identifying information, or the security of the storage of identifying information, or the
operation of a storage system of identifying information; and

know that their actions are unauthorised.

Modification or impairment is not unauthorised simply because the person has an ulterior motive
for causing the modification or impairment.
Section 44 also provides the following exceptions to the offence provisions:

modification or impairment of identifying information by a person who is not an entrusted


person and received the identifying information as a result of a permitted disclosure (see
above) and

where the modification or impairment is done pursuant to a warrant issued under an


Australian law.

Modification means changing or altering. For example:


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digitally altering a facial image so that it no longer looks like the person or

changing a persons signature so that it no longer has the characteristics of the persons
signature.

The following actions are not considered to constitute modification:

scanning a hard copy of a photograph to create a digital facial image

cropping a photograph to enable it to be scanned or

photocopying a document containing a persons identifying information and blacking it out on


the photocopy before disclosing the document to a third party (in accordance with the
provisions of the Act and or the Privacy Act 1988, whichever is appropriate).

Impairment means damaging or weakening or making worse. For example:

intentionally de-linking a facial image from a client record and connecting it to another
persons identity information or

intentionally allowing another person to access a system storing identifying information that
the other person is not authorised to access.

11.8

Destroying identifying information (s45)

11.8.1 Background
Section 45 provides that failure by the person responsible for identifying information to destroy the
information as soon as possible after it is no longer required to be kept under the Archives Act 1983
is an offence, unless the information is a measurement or a persons height and weight, or a
photograph or other image of a persons face and shoulders, or a persons signature, or information
derived from or relating to those personal identifiers.
The person responsible for identifying information is the person who has:

day-to-day control of the database, if the information is stored on a database or

day-to-day responsibility for the system under which the identifying information is stored.

A personal identifier is destroyed if it is physically destroyed, or any means of identifying it with the
person to whom it relates is destroyed. For example, it is shredded, burned, deleted or erased so
that it no longer exists, or it becomes illegible.

11.8.2 Retention and storage of identifying information


The Act does not make provision for the indefinite retention of personal identifiers. The retention
and disposal of identifying information is as required by the Archives Act 1938 and as provided for by
the relevant associated departmental Records Disposal Authority.

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11.8.3 Archives Act 1983 and the departments Records Disposal Authority
(902) - (RDA)
The department currently has a moratorium on all departmental records, which means that no
record is allowed to be destroyed until such time as the moratorium is lifted. The RDA is currently
being redrafted to extend the retention period of many citizenship record types and to expand on
the types of citizenship records that may need their own retention period.
If the moratorium was lifted, under the guidelines of the RDA the following applications may be
destroyed (including any relating identifying information which is attached to that application) after
the following periods of time after the last action is completed:
all approved applications

80 years after the last action is completed

Deferred, rejected and withdrawn


applications

10 years after the last action is completed.

Requests for citizenship details (i.e. evidence


of citizenship)

2 years after the last action is completed

checking a persons identity or their character 1 year after the last action is completed.
NOTE:
If the identity or character check is attached
to an approved application

80 years after the last action is completed.


10 years after the last action is completed.

OR
Attached to a deferred, rejected and
withdrawn application
Note: this RDA as it relates to citizenship records is currently under review by Citizenship Law and
Policy Section.

11.9

The relevant Information Privacy Principles (IPPs)

The purpose of the Privacy Act is to protect an individuals privacy by requiring person information
to be collected and managed in accordance with Information Privacy Principles (IPPs) - for more
details see the Privacy Act 1988.
The most important IPPs in relation to the departments collection and use of a clients personal
information are:
Information Privacy Principle

Requirements

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Information Privacy Principle

Requirements

IPP 1

Officers may collect personal information only if:

Manner and purpose of


collection of personal
information

they have a lawful purpose for collecting it that is


directly related to their functions or activities and

the collection is necessary for, or directly related


to, that purpose.

IPP 2

If personal information is collected from an individual, the


individual must be made aware of:

Solicitation of personal
information from individual
concerned

IPP 6
Access to records containing
personal information
IPP 10
Limits on the use of personal
information

the purpose for which the information is being


collected

the fact that the collection is authorised or


required by law and

any bodies or agencies to whom the information


may be disclosed.

Individuals are entitled to have their original documents


returned to them by the department without having to
make an FOI request.
The use of personal information for purposes other than
for which it was collected is prohibited unless:

the individual concerned has consented to the


other use or

there are reasonable grounds for believing that the


other use is necessary to prevent or lessen a
serious and imminent threat to the life or health of
a person or

the other use is required or authorised under law


(that is, Australian law) or

the other use is reasonably necessary for the


enforcement of criminal or revenue law or

the purpose for which the information is used is


directly related to the purpose for which the
information was obtained.

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Information Privacy Principle

Requirements

IPP 11

Disclosure of personal information to third parties is


prohibited unless:

Limits on disclosure of personal


information

11.10

the individual concerned is reasonably likely to be


aware of, or has consented to, the disclosure or

there are reasonable grounds for believing that the


disclosure is necessary to prevent or lessen a
serious and imminent threat to the life or health of
a person or

the disclosure is required or authorised under law


(that is, Australian law) or

the disclosure is reasonably necessary for the


enforcement of criminal or revenue law.

Access & disclosure

Citizenship application scenarios


Action

Allowed?

Reason

Accessing identifying
information held by the
department for the purpose
of processing a citizenship
application.

Yes

You can access a citizenship applicants identifying


information if:

you are employed by or contracted to the


department and your duties relate to
verifying a persons identity in relation to a
citizenship application (see s42 accessing
identifying information) or

you are accessing the information to


facilitate a permitted disclosure (see s43(2)).

However, you are to access that information only if


you have an operational need to do so.
Disclosing identifying
information to another
departmental officer.

Yes

If the other officer is in the above category and you


have an operational need to disclose the identifying
information to them, that is, you need them to
verify the identifying information before you can
proceed with or finalise the citizenship application.

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Action

Allowed?

Reason

Disclosing identifying
information to the
AFP/state/territory police to
help with the assessment of a
persons good character.

Yes

You can disclose it under s43(2)(b) as this would


allow you to provide identifying information to
CrimTrac and the Police for the purposes of
character checking in relation to visa related
processing as well as citizenship processing

Disclosing identifying
information to a
state/territory or
Commonwealth agency to
verify a persons citizenship
status.

Yes

You can disclose it under s43(2)(da) which allows


for identifying information to be disclosed to the
police in order to verify a person is an Australian
citizen; or takes place under an arrangement
entered into for the exchange of identifying
information.

Disclosing personal
information that doesnt
include identifying
information to state/territory
or Commonwealth law
enforcement agencies for the
purpose of the criminal
proceeding mentioned
above.

Yes

Covered by IPP 11.

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Chapter 12 - National security


12

OVERVIEW TO CHAPTER 12

12.1

Introduction

All cases concerning national security must be referred to the Citizenship Integrity Unit, Citizenship
Helpdesk.
The national security provisions prohibit the approval of a citizenship application where the
Australian Security Intelligence Organisation (ASIO) has issued an adverse security assessment or
qualified security assessment against the applicant. Such an assessment will be made where the
applicant is a direct or indirect risk to the security of Australia.
Note: In accordance with the Convention on the Reduction of Statelessness, these provisions apply
differently to stateless people (see below).
The national security provisions apply to applicants for Australian citizenship by descent (s17) by
adoption in accordance with the Hague Convention on Intercountry Adoption (s19), by conferral
(s24) and by resumption (s30).
Refer to the Ministers Decision section of the relevant chapter:

Chapter 3 - Citizenship by descent

Chapter 4 - Adopted children section 4.7.1 Ministers decision (s19D)

Chapter 5 - Citizenship by conferral section 5.27.1 Ministers decision (s24) - summary

Chapter 7 - Resuming citizenship section 7.4.1 Ministers decision (s30).

The following terms are relevant to the national security provisions and are defined by s3 of the Act:

adverse security assessment - has the meaning given by s35 of the Australian Security Intelligence
Organisation Act 1979 (the ASIO Act). Section 35 of the ASIO Act provides that:
Adverse security assessment means a security assessment in respect of a person that
contains:
a)

any opinion or advice, or any qualification of any opinion or advice, or any


information, that is or could be prejudicial to the interests of the person; and

b)

a recommendation that prescribed administrative action be taken or not be taken in


respect of the person, being a recommendation the implementation of which would
be prejudicial to the interests of the person.

qualified security assessment - has the meaning given by s35 of the ASIO Act. Section 35 provides
that:
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Qualified security assessment means a security assessment in respect of a person that:


a)

contains any opinion or advice, or any qualification of any opinion or advice, or any
information, that is or could be prejudicial to the interests of the person and

b)

does not contain a recommendation of the kind referred to in paragraph (b) of the
definition of adverse security assessment,

whether or not the matters contained in the assessment would, by themselves, justify
prescribed administrative action being taken or not being taken in respect of the person to
the prejudice of the interests of the person.

national security offence means:

12.2

a)

an offence against Part II or VII of the Crimes Act 1914 or

b)

an offence against Division 72 of the Criminal Code or

c)

an offence against Part 5.1, 5.2 or 5.3 of the Criminal Code ; or

d)

an offence against the Australian Security Intelligence Organisation Act 1979 or

e)

an offence against the Intelligence Services Act 2001 or

f)

an offence covered by a determination in force under s6A of the ACA.

Where an adverse security assessment or qualified security


assessment has been issued

ASIO may provide to DIBP a qualified or adverse security assessment in relation to a person who has
made an application for Australian citizenship.
Within 14 days of receiving the assessment from ASIO, DIBP must:

notify the applicant under s38(1) of the Australian Securities and Intelligence Organisation Act
1979 (ASIO Act) that the assessment has been made against the applicant

attach a copy of the assessment to the notification and

inform the applicant of their right to have the assessment reviewed by the Security Appeals
Tribunal (this information must be given in accordance with Form 1 in Schedule 1 to the ASIO
Regulations).

Decision makers should also refer to the Security Checking Handbook.


Officers are reminded that they are to be mindful of MAL alerts. Where it is unclear, officers are to
refer to the Citizenship Integrity Unit, Citizenship Helpdesk.

12.3

Where the applicant is stateless

If the applicant is stateless and was born in Australia, an application for citizenship must not be
approved if the applicant:
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has been convicted of national security offence or

has been convicted of an offence (in Australia or overseas) and sentenced to a period of
imprisonment for at least 5 years. Note: There is discretion for the Minister to approve an
application if it would be unfair to refuse it on the basis of the persons conviction.

If the applicant is stateless and was born outside Australia to an Australian citizen parent, an
application for citizenship must not be approved if the applicant has been convicted of a national
security offence.

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Chapter 13 - Offences and prosecutions under the


Act
13

13.1

OVERVIEW TO CHAPTER 13

Background

The Act offence provisions are found in Part 2, Division 4 (Evidence of Australian Citizenship), and
Division 5 (Personal Identifiers), and Part 3 (Other matters).
Division 4 of Part 2 of the Act provides that it is an offence to fail to surrender evidence of Australian
citizenship when requested to do so following the cancellation of that evidence, and to alter
evidence of Australian citizenship given under s37 of the Act.
Division 5 of Part 2 of the Act refers to the requirement for, and collection, use, storage and
destruction of, personal identifiers for applications for citizenship and evidence of citizenship under
the Act. The offences relate to unauthorised access, disclosure, modification or impairment, and
destroying of identifying information and they only apply where the identifying information in
question is a personal identifier provided under Division 5 of Part 2 of the Act.
Part 3 provides for offences in respect of false statements or representations made in relation to an
application for citizenship. Part 3 also outlines the geographical jurisdiction for the offences under
the Act. False statements or representations may result in a cancellation of an approval or in cases
where citizenship is already conferred, revocation of that citizenship. Revocation can only be
considered when the person is convicted of an offence under that section.

13.2

Offences under the Act

13.2.1 Division 4 - Evidence of Australian Citizenship


If the Minister has revoked a persons Australian citizenship under s34 (Revocation of citizenship), or
cancelled evidence under s37(6) (Evidence of Australian citizenship), the Minister can ask the person
to surrender their evidence of citizenship.
A request for surrender of evidence of Australian citizenship must be made in writing and specify the
day on or before which the person must surrender the evidence. The day must be at least 28 days
after the day on which the request is made. The request must also specify how the person is to
surrender the evidence and explain that a failure to comply with the request constitutes an offence.
A person commits an offence if they fail to comply with a request to surrender their evidence of
Australian citizenship. The penalty is 10 penalty units.

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13.2.2 Altering evidentiary notice (s39)


Under s39 a person commits an offence if they alter or cause or permit to be altered a notice
(evidence) of Australian citizenship given under s37 of the Act. The penalty is 12 months
imprisonment.
Alterations which would give rise to prosecution under s39 include changes to personal particulars
or other information with the intent to use the evidence in a fraudulent manner, for example, where
a non-citizens details are substituted on the evidence for the purpose of obtaining benefits only
available to an Australian citizen (such as an Australian passport).
Alterations such as framing or laminating of the evidence would not of itself give rise to prosecution
under s39.

13.3

Division 5 - Personal identifiers

13.3.1 Accessing identifying information (s42)


Under s42 a person commits an offence if they access identifying information and are not authorised
to access it for the purpose of which they have accessed it. The penalty is imprisonment for 2 years
or 120 penalty units or both.
A person does not commit an offence if there is reason to believe that accessing the identifying
information is necessary to prevent or lessen a serious and imminent threat to life or health of the
person or any person. The person would need to be able to prove that they reasonably believed the
threat to life and health was the purpose of the access.
A person does not commit an offence if the access of the personal identifier is through a disclosure
that is a permitted disclosure. See Chapter 11 - Personal identifiers, specifically s42(2)(a).
Offence provisions do not apply to people who access information via a secondary disclosure to
which s43(1)(a) applies. See Chapter 11 - Personal identifiers, specifically s42(2)(b).
A note is included at the end of s42(2) which specifies that the defendant bears an evidential burden
in relation to any offence under the section.

13.3.2 Disclosing identifying information (s43)


Under s43 a person commits an offence if that persons conduct causes disclosure of identifying
information and the disclosure is not a permitted disclosure. The penalty is imprisonment for 2 years
or 120 penalty units or both.
A person does not commit an offence if there is reason to believe that disclosing the identifying
information is necessary to prevent or lessen a serious and imminent threat to life or health of the
person or any person. The person would need to be able to prove that they reasonably believed the
treat to life and health was the purpose of the disclosure. See Chapter 11 - Personal identifiers,
specifically s43(1B)).
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Where there has been a disclosure to a person who is not an entrusted person and the disclosure is a
permitted disclosure, the offence provision does not apply to any further disclosure of the identifying
information to a person who is not an entrusted person. This is called a secondary disclosure. See
Chapter 11 - Personal identifiers, specifically s43(1A).
A note is included at the end of the section to say that while secondary disclosures are not covered
by this Act, Information Privacy Principle (IPP) 11 of the Privacy Act 1988 may apply.
A note is also included to specify that the defendant bears an evidential burden in relation to any
offence under the section.

13.3.3 Unauthorised modification or impairment of identifying information


(s44)
Modification or impairment by a person is unauthorised if the person is not entitled to cause it.
It is an offence if a person causes, or intends to cause, any unauthorised modification to identifying
information, and the person knows the modification is unauthorised. The penalty is imprisonment
for 2 years or 120 penalty units or both.
It is an offence if a person causes, or intends to cause, any unauthorised impairment of the reliability
of identifying information, the security of the storage of identifying information or the operation of a
storage system of identifying information. The penalty is imprisonment for 2 years or 120 penalty
units or both.
Where there has been a disclosure to a person who is not an entrusted person and the disclosure is
a permitted disclosure, the offence provision does not apply to any modification or impairment of
that identifying information by a person who is not an entrusted person. These are the
circumstances relating to secondary disclosure. See Chapter 11 - Personal identifiers, specifically
s43(1A).
Modification of identifying information, impairment of the reliability of identifying information,
impairment of the security of identifying information, and impairment of the operation of a system
by which identifying information is stored is unauthorised if the person is not entitled to cause that
modification or impairment. See Chapter 11 - Personal identifiers, specifically at s44.
Having an ulterior purpose is no excuse for knowingly causing an unauthorised modification or
impairment.
A person is said to have caused any such unauthorised modification or impairment if the persons
conduct substantially contributes to it. If so, the person may also have committed an offence.
An unauthorised modification or impairment of the identifying information is allowed if it is required
under a warrant issued under an Australian law, unless identifying information is lawfully disclosed
by an entrusted person to someone who is not an entrusted person who afterwards modifies or
impairs the information, in the manner described above.

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13.3.4 Destroying identifying information (s45)


Under s45 identifying information is to be kept by the department for as long as it is required to be
kept by law.
If there is no longer a purpose or reason for keeping the information, the identifying information
must be destroyed. Further information on destroying identifying information can be found at:

s45 of the Act

Chapter 11 - Personal identifiers.

An offence is committed if a person is responsible for identifying information and the person fails to
destroy the information as soon as possible after the person is no longer required under the Archives
Act 1983 to keep the identifying information. The penalty is imprisonment for 2 years or 120 penalty
units or both (s45(1)).
The offence provision does not apply if the identifying information is a measurement of a persons
height and weight, a photograph or other image of a persons face and shoulders and a persons
signature cannot be destroyed. This also includes any secondary information which has been taken
indirectly from these types of identifiers.

13.4

Part 3 of the Act

13.4.1 False statements or representations (s50)


Under s50 a person commits an offence if they knowingly make, or cause to be made, a false or
misleading statement or representation for a purpose of or in relation to the Act. For example, they
might knowingly provide false or misleading information in their application for citizenship. The
penalty is imprisonment for 12 months.
A person also commits an offence if they behave in a way which conceals a material circumstance for
a purpose in relation to the Act. For example, they may neglect to mention the conviction of a
serious offence in their application for citizenship. The penalty is imprisonment for 12 months.
Where the alleged offence under s50 comes to notice after conferral of citizenship, a primary
consideration is whether the application was likely to have been refused had the decision maker, at
the time of decision, been in possession of the information withheld or obscured by the applicant.
If the outcome of the application is likely to have been affected by this information, serious
consideration should be given to the commencement of prosecution action. A conviction under s50
is necessary to enable consideration to be given to revocation of a persons citizenship.

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In some situations the provision of false statements or representations in the citizenship application
may replicate a deception that occurred in the persons application for entry to Australia. A person
may be prosecuted for such an offence under s234, s236, s243 or s244 of the Migration Act or
s134.1, s134.2, s135.1, s135.2, s135.4 or s136.1 of the Criminal Code. If convicted under these
sections, and if the false information was material to the person obtaining permanent residence,
consideration may be given to revocation of citizenship. Prosecution under the Migration Act or the
Criminal Code may, in some situations, be an alternative to prosecution under s50.
However, if the provision of false or misleading information was only in respect of the citizenship
application, a successful prosecution under s50 would be necessary if revocation of citizenship is to
be considered. The Crimes Act provides that a person cannot be punished twice, which effectively
means that a conviction under a different statute would preclude a subsequent conviction under
s50.
If the information would not have affected the decision, for example a minor conviction or one that
occurred many years ago, it is unlikely that prosecution action would be appropriate.
If an alleged offence under s50 (including failure to disclose charges or convictions as specified in
s24(6)) comes to notice before approval of citizenship, it would be appropriate to consider whether
or not the person is prosecuted in relation to the alleged offence. If a conviction in relation to an
alleged offence of the type referred to in s24(6) is not recorded, the application may proceed to
approval or refusal. If a conviction is recorded after approval but before conferral, cancellation of
approval may be considered under s25(2)(b)(iii) of the Act.

13.4.2 Geographical jurisdiction for offences (s51)


Section 51 of the Act provides that s15.4 of the Criminal Code applies to all offences against the new
Act. Section 15.4 of the Criminal Code states:
If a law of the Commonwealth provides that this section applies to a particular offence, the
offence applies:

whether or not the conduct constituting the alleged offence occurs in


Australia; and

whether or not a result of the conduct constituting the alleged offence occurs
in Australia.

Note:
The expression offence is given an extended meaning by section
11.2(1), section 11.3 and section 11.6(1)

This provides that if an offence under this Act occurs outside Australia, it still constitutes an offence
under Australian law. This is the widest form of geographical jurisdiction for offences.

13.5

Action on offences

The action that should be taken where offences under the Act have occurred, or are alleged to have
occurred, depends on a number of issues including:
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whether the act constituting the offence is material to the decision to approve a citizenship
application

the seriousness of the offence

the need to maintain the integrity of the Australian citizenship process

the prospects of securing a conviction and

the need to pursue revocation under s34, see Chapter 8 - Cessation of Australian citizenship.

Prosecution may be an appropriate response in some situations, particularly if the alleged offender
has acquired Australian citizenship through deceit. A conviction is a pre-condition to consideration of
revocation of Australian citizenship under s34.

13.6

Investigation of possible offences

Investigations in relation to alleged fraud on departmental programmes are the responsibility of the
departments Investigations units in Sydney, Melbourne, Brisbane, Adelaide, Perth and, in certain
circumstances, the National Investigation Section in National Office. The department dob-in Line
receives and deals with allegations of fraud made by members of the public. Department staff who
become aware of any cases of fraud or possible fraud should refer the information to the National
Offices Fraud Investigations Mailbox (Fraud.investigation.central.office.mailbox@immi.gov.au).
This mailbox is only for referral by departmental staff and is not for use by members of the public.
Cases are referred to the respective state or regional Investigations Unit for appropriate action.
Where sufficient evidence of an alleged offence has been obtained, the Investigations Unit may
prepare a brief for evidence for the Commonwealth Director of Public prosecutions (CDPP).
Other possible outcomes include administrative actions such as visa refusal or cancellation.
Decisions are made by the relevant program areas based on information received from the
Investigation units.
Allegations of fraud in relation to the citizenship program, including possible offences under s50
(false statements or representations) or s39 (altering evidentiary notice), and involving possible
offences under s38 (surrender of evidentiary notice) or s41, s42, s43, s44 and s45 (personal
identifiers) should be referred to the relevant state/territory Investigation unit for consideration.
The National Investigation Guidelines provide detailed guidance to departmental investigations staff
on the investigation and prosecution of offences under Citizenship and Migration legislation.
Where it is clear that an offence under s50 has occurred (as opposed to an allegation of an offence),
citizenship staff should consider the factors at section 13.5 Action on offences before referral to an
Investigation Unit. Referral to an Investigation Unit for action would not be necessary where the
incorrect information provided would clearly have been no consequence to the outcome of the
application. Only those s39 offences involving deliberate fraud should be referred to an Investigation
Unit. Decisions on referral in STOs should be made by the Citizenship Manager. Advice can be sought
from the Citizenship Helpdesk.

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If a person is convicted under s50 the Citizenship Helpdesk should be immediately informed so that
consideration can be given to revocation of Australian citizenship.

13.7

Time limits for prosecution

Sometimes there is a time limit on commencing a prosecution for a particular offence.


A prosecution for an offence under s50 can be commenced at any time. Otherwise, s15B of the
Crimes Act 1914, provides that unless a time limitation is specified in the relevant Act, a person may
be prosecuted at any time for any offence which carries a penalty of more than 6 months
imprisonment and a prosecution for any other offence must be commenced within 12 months after
the commission of the offence.

13.8

Historical provisions

From 1958 to 1997 s50(2) of the old Act stated:


a prosecution for an offence against section (1) may be commenced at any time within 10 years
after the commission of the offence
On 10 April 1997 the Act was amended with the addition of the following:
(3) If a person:
(a) is an Australian citizen pursuant to a certificate of Australian citizenship; and
(b) made the application after the commencement of this section
a prosecution of the person for an offence against section (1) in connection with the persons
application for the certificate may be commenced at any time.
In summary, there is no time limit for the prosecution of fraud in relation to a citizenship application
if the application was lodged on or after 10 April 1997.
The migration fraud provisions commenced on 10 April 1997.
The serious offences provision (serious offences committed prior to the grant of citizenship for
which the person was convicted) was introduced in November 1984.

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Chapter 14 - New Zealand citizens in Australia


14

14.1

OVERVIEW TO CHAPTER 14

Overview

Under various arrangements since the 1920s, there has been a free flow of people between
Australia and New Zealand. The most recent of these arrangements, the 1973 Trans-Tasman Travel
Arrangement, allows Australian and New Zealand citizens to enter each others country to visit, live
and work, without the need to apply for authority to enter the other country.
However, the status of New Zealand citizens in Australia for the purposes of Australian citizenship
legislation has changed over time. The key dates are from 26 January 1973 to 31 August 1994; from
1 September 1994 to 26 February 2001 and from 27 February 2001 until the present time.
This chapter covers the status of New Zealand citizens during the above periods in relation their
eligibility for Australian citizenship as well as the Australian citizenship status of their children born
in Australia.

14.2

Status of New Zealand citizens in Australia

14.2.1 26 January 1973 to 31 August 1994


Between 26 January 1973 and 31 August 1994, a New Zealand citizen could enter Australia on
presentation of their New Zealand passport. They were defined as an exempt non-citizen for the
purposes of the Migration Act. This meant that an entry permit was not required.
An exempt non-citizen in Australia was also regarded as a permanent resident, for the purposes
of an application for citizenship under the old Act. This was achieved through a declaration made
under s5A(2) of the old Act which provided that certain non-citizens could be regarded as
permanent residents for the purposes of that Act.
However, a child born in Australia during the period 20 August 1986 to 31 August 1994, to a New
Zealand citizen who was considered to be an exempt non-citizen, is not an Australian citizen by
birth. This is because despite being defined as permanent residents for other purposes during this
period, the citizenship by birth provisions of the old Act (s10(6)) specifically excluded from the
definition of permanent resident those people who were exempt non citizens under the
Migration Act.
The declaration under s5A(2) only extended to periods a New Zealand citizen spent in Australia. A
New Zealand citizen was not considered an exempt non-citizen while outside Australia.

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In addition, a New Zealand citizen may not have been considered an exempt non-citizen for
reasons related to matters of health and character, for example, if the person suffered from certain
health conditions, had criminal convictions, presented bogus documentation when entering
Australia or had been deported from Australia or another country.

14.2.2 1 September 1994 to 26 February 2001


On 1 September 1994 amendments to the Migration Act required all non-citizens to hold visas. A
Special Category Visa (SCV) was introduced for New Zealand citizens.
A New Zealand citizen who was already present in Australia and did not hold any other visa
automatically became a holder of an SCV from 1 September 1994. A New Zealand citizen who
arrived in Australia on or after 1 September 1994, and presented to an immigration clearance officer
a valid New Zealand passport and an incoming passenger card, was generally granted an SCV. The
SCV is not a permanent visa. However, for the period from 1 September 1994 to 26 February 2001,
New Zealand citizens who held a SCV were considered to be permanent residents for citizenship
purposes unless:

the New Zealand citizen was present as a diplomatic representative (or their spouse or
dependent child) of New Zealand and

was the holder of a special purpose visa (granted to certain diplomats, officials, crew or armed
forces and their families).

This was achieved through a declaration under s5(A2) of the old Act.
The declaration under s5A(2) of the old Act was extended on 29 November 2004 to include certain
New Zealand crew members as permanent residents for citizenship purposes if they:

were holders of special purpose visas, granted on the basis of the persons status as an airline
crew member or an airline positioning crew member and

were ordinarily resident in Australia.

14.2.3 27 February 2001 to present


On 26 February 2001 a revised social security arrangement was announced jointly by the
Governments of Australia and New Zealand. On the same date, the Australian Government also
announced that New Zealand citizens would no longer be considered as permanent residents for
Australian citizenship purposes, unless:

they held a permanent visa granted under the Migration Act

were in Australia on 26 February 2001 as holders of a SCV or

were outside Australia on 26 February 2001 but were in Australia as the holder of a SCV for
one or more period totalling 12 months in the 2 years prior to 26 February 2001 or

did not fall within the above two categories but have a Centrelink certificate, issued under the
Social Security Act 1991, that states that the person was, for the purposes of social security,
residing in Australia on a particular date.

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The declaration made under s5A(2) of the old Act continued to include certain New Zealand crew
members as permanent residents for citizenship purposes if they:

were holders of special purpose visas, granted on the basis of the persons status as an airline
crew member or an airline positioning crew member and

were ordinarily resident in Australia.

These people are still considered as permanent residents for the purpose of the new Act.

14.2.4 Centrelink certificates


A Centrelink certificate provides evidence that the person whose name and other particulars appear
on the certificate falls under the transitional provisions and is deemed to be a permanent resident
for citizenship purposes (on or after 27/2/01) in Australia.
Centrelink issued certificates to people who contacted them and who met one of the following
requirements:

were existing recipients of social security payments who were outside Australia on 26
February 2001 but returned within 26 weeks of that date

arrived to reside in Australia between 27 February 2001 and 25 May 2001 (inclusive) and have
a Centrelink certificate certifying that they have, under the Social Security Act, established
residence in Australia. People in this category must have lodged an application for a Centrelink
certificate before 26 February 2004 or

were part of a very small group who established permanent residence in Australia but were
unable to be physically present in Australia in the 3 months immediately following 26 February
2001 and who applied to Centrelink by 26 February 2002. For example, this group includes
business people, church workers and aid workers who would have experienced hardship if
they had to return by 26 May 2001.

Centrelink made assessments and issued certificates until 26 February 2004, for those who had
commenced to reside in Australia within 3 months of 26 February 2001.
For those who were in Australia on 26 February 2001 but temporarily absent and not on income
support, assessments were made and certificates issued until 26 February 2002. Those on income
support and temporarily absent were contacted by Centrelink and issued with certificates as
appropriate.
Centrelink will issue (or reissue) certificates to people who were subject to assessments before the
above dates. In some cases eligible people will not be aware that an assessment was undertaken by
Centrelink or they are eligible to obtain a certificate from Centrelink. If a client does not have the
required Centrelink Certificate and it appears that they may be eligible for one contact the
Citizenship Helpdesk.

14.2.5 Overview of status of New Zealand citizens

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Status of New Zealand


citizens

Visa granted

Considered as permanent
residents for citizenship
purposes?

26 January 1973 to 31
August 1994

No entry permit required.


Considered as exempt noncitizens.

Only for periods present in


Australia.

Special category visa (SCV)

Yes.

Special purpose visa (SPV)

Only if the SPV was granted


on the basis of the persons
status as airline crew
member or airline
positioning crew member
and were ordinarily resident
in Australia.

Special category visa (SCV)

No, unless covered by


transitional provisions,
detailed below.

Permanent visa granted


under the Migration Act

Yes.

Special purpose visa (SPV)

Only if the SPV was granted


on the basis of the persons
status as airline crew
member or airline
positioning crew member
and were ordinarily resident
in Australia.

1 September 1994 to 26
February 2001

27 February 2001 to present

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See also section 14.2.1 26


January 1973 to 31 August
1994.

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Status of New Zealand


citizens

Visa granted

Considered as permanent
residents for citizenship
purposes?

Transitional provisions:
Outside Australia on 26
February 2001

Special category visa (SCV)

Only if they:
(1) were in Australia as the
holder of a SCV for a period
or period totalling 12 months
in the previous 2 years
or
(2) have a Centrelink
certificate stating that they
were residing in Australia.

14.3

Australian citizenship status of children born in Australia to New


Zealand citizen parents

14.3.1 Background
The Australian citizenship status of children born to New Zealand parents has changed over time,
depending on the date of birth and the residence status of the New Zealand parents. An overview of
requirements is given below for the following:

section 14.3.2 27 February 2001 to the present

section 14.3.3 1 September 1994 to 26 February 2001

section 14.3.4 20 August 1986 to 31 August 1994

section 14.3.5 26 January 1949 to 19 August 1986

section 14.3.6 Automatic acquisition of citizenship on 10th birthday

section 14.3.7 Overview of status of the children of New Zealand citizens born in Australia.

14.3.2 27 February 2001 to the present


A child born in Australia to New Zealand citizen parents is an Australian citizen by birth only if the
New Zealand citizen parent/s:

at the time of the childs birth held a permanent visa granted under the Migration Act

was present in Australia on 26 February 2001 as the holder of a special category visa

was outside Australia on 26 February 2001 but had been in Australia as the holder of a special
category visa for a period totalling not less than one year in the two years immediately before
that date

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does not fall within the above two categories but has a Centrelink certificate, issued under the
Social Security Act 1991, that states that they were, for the purposes of that Act, resident in
Australia or

the parent is the holder of special purpose visas, granted on the basis of the persons status as
an airline crew member or an airline positioning crew member; and ordinarily resident in
Australia.

A child born in Australia to New Zealand citizen parents is not an Australian citizen by birth if the
parent is:

the diplomatic representative of New Zealand (or the spouse or dependent child of one) or

the holder of a special purpose visa (granted to certain diplomats, officials, crew or armed
forces and their families) unless the parent is the holder of special purpose visas, granted on
the basis of the persons status as an airline crew member or an airline positioning crew
member; and ordinarily resident in Australia.

14.3.3 1 September 1994 to 26 February 2001


A child born in Australia to a New Zealand citizen parent was an Australian citizen at birth if at the
time of birth the New Zealand citizen parent was a permanent resident as defined for the purposes
of the old Act in force at that time. That is, the New Zealand parent was at the time of the birth the
holder of a permanent visa or a special category visa and was not:

a diplomatic representative of New Zealand (or a spouse or dependent child of one) or

the holder of a special purpose visa (granted to certain diplomats, officials, crew or armed
forces and their families) unless the parent is the holder of special purpose visas, granted on
the basis of the persons status as an airline crew member or an airline positioning crew
member; and ordinarily resident in Australia.

14.3.4 20 August 1986 to 31 August 1994


Between 26 January 1973 and 31 August 1994 a New Zealand citizen was an exempt non-citizen if
they last entered Australia by presenting a New Zealand passport as evidence of their New Zealand
citizenship.
From 20 August 1986 to 31 August 1994 a child born in Australia to New Zealand citizens who were
exempt non-citizens did not automatically acquire Australian citizenship. This is because s10(6) of
the old Act specifically excluded citizenship by birth to a person born to an exempt non-citizen.
These children may have acquired Australian citizenship automatically on their 10th Birthday if they
were ordinarily resident in Australia since their birth in Australia. See section 14.3.6 Automatic
acquisition of citizenship on 10th birthday.

14.3.5 26 January 1949 to 19 August 1986


A child born in Australia was an Australian citizen at birth unless they were the child of a diplomat.
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14.3.6 Automatic acquisition of citizenship on 10th birthday


A child born in Australia on or after 20 August 1986, who did not acquire Australian citizenship at
birth, automatically acquires it on their 10th birthday if they have been ordinarily resident in
Australia for 10 years from birth. This provision operates regardless of the parents migration or
citizenship status, unless the parent was a diplomat.
Hence, a child born in Australia in 1986 and who did not acquire citizenship at birth, but was
ordinarily resident in Australia would have automatically become an Australian citizen on their 10th
birthday in 1996.
For further information on the interpretation of ordinarily resident, see section 1.2 Definitions.

14.3.7 Overview of status of the children of New Zealand citizens born in


Australia
A child born in
Australia

Is an Australian citizen

Is NOT an Australian citizen

27 February 2001 to
present

At birth - only if the parent holds a


permanent visa granted under the
Migration Act, or is a permanent
resident for the purposes of the
Act; or has a Centrelink certificate;
or held a special purpose visa (SPV)
on the basis of the parents status
as airline crew member or airline
positioning crew member and they
were ordinarily resident in
Australia.

If the parent was outside


Australia on 26 February
2001, and did not meet the
transitional provisions.
If the parent is a diplomatic
representative of New
Zealand, spouse or
dependent of one, or holder
of a special purpose visa.

10th birthday - only if the child was


ordinarily resident in Australia
since their birth in Australia.

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A child born in
Australia

Is an Australian citizen

Is NOT an Australian citizen

1 September 1994 to
26 February 2001

At birth - only if the parent held a


special category visa or held a
special purpose visa (SPV) on the
basis of the parents status as
airline crew member or airline
positioning crew member and they
were ordinarily resident in
Australia.

If the parent is a diplomatic


representative of New
Zealand, spouse or
dependent of one, or holder
of a special purpose visa.

10th birthday - only if the child was


ordinarily resident in Australia
since their birth in Australia
20 August 1986 to 31
August 1994

At birth - only if the parent held a


permanent visa granted under the
Migration Act.
10th birthday - only if the child was
ordinarily resident in Australia
since their birth in Australia

26 January 1949 to
19 August 1986

14.4

At birth - unless the parent was a


diplomat.

If the parent was an exempt


non-citizen.
If the parent is a diplomatic
representative of New
Zealand, spouse or
dependent of one, or holder
of a special purpose visa.
If the parent was a diplomat.

Character requirements for New Zealand citizens applying for


citizenship by conferral

See NZ applicants for conferral.

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Chapter 15 - People born in Papua New Guinea


15

15.1

OVERVIEW TO CHAPTER 15

Background

Papua New Guinea (PNG) became a sovereign nation on 16 September 1975, PNG Independence
Day.
Prior to that date the External Territory of Papua (Papua) and Trust Territory of New Guinea (New
Guinea) were two separate territories. Papua was part of Australia for the purposes of the old Act
but New Guinea was not.
Assessing applications for Australian citizenship from people born in Papua, prior to Papua New
Guinea (PNG) Independence on 16 September 1975 can be difficult. This is because of the
interaction between Australian law and the PNG Constitution which together created the
independent country of PNG.
This chapter provides guidance on assessing applications for Australian citizenship and evidence of
Australian citizenship under the Act. The emphasis is on the eligibility of people born in Papua prior
to 16 September 1975, PNG Independence Day.
All descent, evidence and resumptions applications from people born in PNG prior to 16 September
1975 must be sent to the Overseas Citizenship Unit (OCU) for processing. Applications for Australian
citizenship by descent should also be referred to the OCU if the claimed Australian citizen parent was
born in PNG prior to 16 September 1975.

15.2

Prior to Independence

15.2.1 Papua prior to Independence


Papua was defined as part of Australia for the purposes of the Australian Citizenship Act 1948, but
not for the purposes of the Migration Act.
As a result, people born in Papua acquired Australian citizenship at birth. However, people born in
Papua of indigenous descent who wanted to travel to the Australian States and internal territories
were required to apply under the Migration Act for permission to do so. Those of non-indigenous
descent were not required to apply.

15.2.2 New Guinea prior to Independence


New Guinea was a Trust Territory and was not defined as part of Australia under either the
Australian Citizenship Act 1948 or the Migration Act.

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People born in New Guinea who did not have the status of British subject or the citizenship of
another country were Australian protected persons but were not Australian citizens by birth. People
born in New Guinea from 26 January 1949 could be registered as Australian citizens by descent if
they had at least one parent who was an Australian citizen at the time of the birth. People born in
New Guinea could also apply to be naturalised as Australian citizens.

15.3

From Independence Day, 16 September 1975

From 16 September 1975, the former territories of Papua and New Guinea were no longer part of
Australia.
Most Australian citizens of indigenous descent, and Australian protected persons, automatically
became PNG citizens on 16 September 1975 and automatically lost their Australian citizenship, or
Australian protected person status, under the PNG Independence (Australian Citizenship)
Regulations 1975.
The PNG Independence (Australian Citizenship of Young Persons) Regulations 1980, provided that
people who were under the age of 19 years on 16 September 1975, and who, if born in Papua, had a
right of residence in Australia or, if born in New Guinea, had been granted Australian citizenship or
registered as an Australian citizens by descent under the Migration Act, reacquired their Australian
citizenship on Independence Day. The regulations also provided that these people ceased to be
Australian citizens if, before the age of 19 years, they renounced their Australian citizenship and
made a Declaration of Loyalty to PNG.
People under 19 years of age and held a foreign citizenship did not reacquire their Australian
citizenship under the PNG Independence (Australian Citizenship of Young Persons) Regulations 1980.
People born in Papua and over the age of 19 years of age, on Independence Day, and who held a
foreign citizenship in addition to their Australian citizenship did not acquire PNG citizenship and did
not lose their Australian citizenship on 16 September 1975.
Australian citizens who did not automatically acquire PNG citizenship on 16 September 1975
retained their Australian citizenship.
An Australian citizen who acquired PNG citizenship between 16 September 1975 and 4 April 2002 by
making a Declaration of Loyalty to PNG would have lost their Australian citizenship under s17 of the
old Act.
Australian citizens covered by the PNG Independence (Australian Citizenship of Young Persons)
Regulations 1980, and who made a Declaration of Loyalty, lost their Australian citizenship under
Regulation 3 of those regulations.
Important: Decision makers should not to attempt to interpret PNG legislation. Any concerns about
the citizenship status of a person born in Papua prior to 16 September 1975 should be referred to
the Citizenship Policy Section in National Office.

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15.4

Citizenship by descent

15.4.1 People born in Papua before 16 September 1975


People born in the External Territory of Papua prior to 16 September 1975 are not eligible for
Australian citizenship by descent because they were born in Australia. See Chapter 3 - Citizenship by
descent.

15.4.2 People born in New Guinea before 16 September 1975


People born in the Trust Territory of New Guinea prior to 16 September 1975 may be eligible for
Australian citizenship by descent.
Eligibility will depend on whether they had, at the time of their birth, at least one parent who was an
Australian citizen (or became an Australian citizen on 26 January 1949) and whether they are of
good character.
A person born in New Guinea before 16 September 1975 with Papuan born Australian citizen
parents would have ceased to be an Australian citizen on 16 September 1975 and would not be
eligible for Australian citizenship by descent.
People born in the Trust Territory of New Guinea prior to 16 September 1975, and who did not have
the status of British subject or the citizenship of another country (excluding Australia), automatically
became an Australian Protected Person (APP). An APP could be granted Australian citizenship by
naturalisation under the old Act.

15.4.3 People born in PNG on or after 16 September 1975


A person born in PNG on or after 16 September 1975, may be eligible for Australian citizenship by
descent if, at the time of their birth, at least one parent was an Australian citizen and if, aged 18
years or over, they are of good character.

15.5

Citizenship by conferral

There are two circumstances in which a person born in PNG may be eligible for citizenship by
conferral:

if they were born after a parent lost their Australian citizenship because of the operation of
s17 of the old Act (repealed on 4 April 2002) - s21(6) or

if they were born in Papua, between 26 January 1949 and 16 September 1975, to a parent
who was born in Australia as geographically defined at the time the person applies - s21(7).

A person would have lost their Australian citizenship, because of the operation of s17 of the old Act,
if they retained their Australian citizenship on 16 September 1975 at PNG Independence but
subsequently made a declaration of loyalty to PNG before 4 April 2002.

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People born in Papua who were under the age of 19 on 16 September 1975, and had a right of
permanent residence in mainland Australia, or people born in New Guinea who were under the age
of 19 years on 16 September 1975 and had been naturalized or registered by descent, reacquired
their Australian citizenship under the PNG Independence (Australian Citizenship of Young Persons)
Regulations 1980. If they made a Declaration of Loyalty to PNG before the age of 19 years they lost
their Australian citizenship under those regulations and not s17.
See Chapter 5 - Citizenship by conferral.

15.6

Citizenship by resumption

People who lost their citizenship under s17 or s18 of the old Act may be eligible to resume their
Australian citizenship. See Chapter 7 - Resuming citizenship.
People who lost Australian citizenship under the legislation designed to create of an independent
PNG are not eligible to resume Australian citizenship.
The two categories of people born in Papua prior to 16 September 1975 who ceased to be Australian
citizens on Independence Day are not eligible to resume Australian Citizenship are:

people who had two PNG grandparents and did not have a right of permanent residence in
Australia on 16 September 1975 (the PNG Independence (Australian Citizenship) Regulations
1975) and

people who had two PNG grandparents and the right of permanent residence in Australia, and
before the age of 19 years renounced their Australian citizenship and made a Declaration of
Loyalty to PNG. (PNG Independence (Australian Citizenship of Young Persons) Regulations
1980).

PNG grandparents are grandparents born in Papua, New Guinea, the Solomon Islands, Irian Jaya or
certain Torres Strait Islands.
The two categories of people born in New Guinea prior to 16 September 1975 who ceased to be
Australian citizens on Independence Day and are not eligible to resume Australian citizenship are:

people who had two PNG grandparents and had not been registered as Australian citizens by
descent or naturalised as an Australian citizen prior to 16 September 1975 (PNG Independence
(Australian Citizenship) Regulations 1975) and

people who had two PNG grandparents and had been registered as an Australian citizen by
descent or naturalised as an Australian citizen prior to 16 September 1975 and made a
Declaration of Loyalty to PNG before they turned 19 years of age (PNG Independence
(Australian Citizenship of Young Persons) Regulations 1980).

People born in Papua and New Guinea who did not automatically cease to be Australian citizens on
Independence Day may have subsequently lost their Australian citizenship under s17 of the old Act
by making the Declaration of Loyalty to PNG or by acquiring the citizenship of another country, or
lost their Australian citizenship as a child on or after 16 September 1975 when a responsible parent
lost under s17.
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Children did not lose Australian citizenship under s23 when their responsible parent made a
Declaration of Loyalty and lost under s17 of the old Act if the children had become PNG citizens on
16 September 1975. If the children subsequently made a Declaration of Loyalty to PNG they lost
under the PNG Independence (Australian citizenship of Young Persons) Regulations 1980 and are not
eligible to resume.
People may also have ceased to be citizens if they renounced their citizenship under s18 of the old
Act, or lost their Australian citizenship as a child on or after 16 September 1975 when a responsible
parent renounced their citizenship.

15.7

Evidence of Australian citizenship (s37)

15.7.1 People born in Papua before 16 September 1975


Most people born in Papua prior to 16 September 1975 who acquired PNG citizenship automatically
on Independence Day are not Australian citizens and are therefore not eligible for evidence of
Australian citizenship.
The PNG Constitution provided that Australian citizens born in Papua automatically became Papua
New Guinea citizens on 16 September 1975 if:

they had at least two grandparents born in Papua, New Guinea, the Solomon Islands, Irian
Jaya or certain Torres Strait Islands and

in the case of a person over 19 years of age born in Papua, they did not have a right of
permanent residence in Australia nor the citizenship of a country other than Australia.

People born in Papua prior to PNG Independence who did not lose their Australian citizenship on 16
September 1975 are those:

who had no grandparents born in Papua, New Guinea, the Solomon Islands, Irian Jaya or
certain Torres Strait Islands and who held the citizenship of a country other than Australia on
PNG Independence Day or, and whose Australian citizen parent was born in one of the
Australian states or internal territories or

who had at least two grandparents born in Papua, New Guinea, the Solomon Islands, Irian
Jaya or certain Torres Strait Islands and had been granted the right of permanent residence in
Australia or if over 19 years of age, held the citizenship of another country on PNG
Independence Day.

Decision makers should consider whether an applicant in one of these categories has since lost their
Australian citizenship, for example, by making a Declaration of Loyalty to PNG.

15.7.2 People born in New Guinea before 16 September 1975


Most people born in New Guinea prior to 16 September 1975 who acquired PNG citizenship
automatically on Independence Day are not Australian citizens and are therefore not eligible for
evidence of Australian citizenship.
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A person born in New Guinea prior to 16 September 1975 may be eligible for evidence of Australian
citizenship if they:

were naturalised as Australian citizens under the old Act or

had been registered as an Australian citizen by descent under the old Act or

were born in New Guinea and were a British subject immediately prior to 26 January 1949 or

were a British subject and were ordinarily resident in New Guinea and Australian for the 5
year periods between 26 January 1944 and 26 January 1949 and

did not make a Declaration of Loyalty to PNG.

See Chapter 9 - Evidence of Australian citizenship.

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Chapter 16 - Citizenship test


16

OVERVIEW TO CHAPTER 16

16.1

Overview

The requirements for Australian citizenship by conferral are set out in Part 2, Division 2 (Subdivision
B) of the Act - see Chapter 5 - Citizenship by conferral.
Applicants satisfying the criteria under s21(2) of the Act must:

be aged 18 years or over at the time of application

be a permanent resident

satisfy one of the residence requirements set out in section 22, 22A, 22B or section 23

understand the nature of the application

possess a basic knowledge of the English language

have an adequate knowledge of Australia and of the responsibilities and privileges of


Australian citizenship

be likely to reside, or to continue to reside, in Australia or maintain a close and continuing


association and

be of good character.

The requirement for citizenship applicants to possess a basic knowledge of the English language is
understood as having a sufficient knowledge of English to be able to live independently in the wider
Australian community.
The requirement to have an adequate knowledge of Australia and of the responsibilities and
privileges of Australian citizenship is linked to the concepts and information people need to
understand in order to make the Pledge of Commitment.
The Australian citizenship test is designed to assess whether a person understands the nature of the
application, has an adequate knowledge of Australia and the responsibilities and privileges of
citizenship, and a basic knowledge of the English language.
Section 21(2A) provides that the only way the Minister can be satisfied that the applicant meets
s21(2)(d), (e) and (f) is that the person has successfully completed a test approved in a
determination (made by the Minister under s23A). This is referred to as the Ministers
Determination.
The Ministers Determination is updated from time to time. It is important to ensure that you refer
to the current Determination. A copy of the Ministers determination is in LEGEND (and
LEGEND.com) under the Legislative instruments or similar tag. It is also on the departments website.

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16.2

The Ministers determination

16.2.1 Overview of the Ministers Determination


The Ministers Determination sets out:

who may administer an approved test

who is eligible to take a Standard Test

who is eligible to sit an Assisted Test

who is eligible to undertake a Course- based Test

a description of each test

the time allowed to sit each test

the required pass mark for each test

the rules of conduct during a test

what happens if someone fails to comply with the rules of conduct.

Refer to the Ministers Determination for further guidance on these topics.

16.2.2 Citizenship tests approved under section 23A


The Minister has approved three citizenship tests in a Determination made under s23A of the Act.
These tests are:

A Standard Test which comprises of 20 multiple choice questions which must be


answered within a period of 45 minutes.

A client may request assistance with using the computer or ask for the
questions and all possible answers to be read out to them during this period.

For example a person may ask for assistance when:

they can speak and understand English but have difficulty reading English or

they arrive to take a test but find they have forgotten their reading glasses or

they have injured their hand and cannot operate the computer.

To successfully complete a standard test the client must score at least 75%.

An Assisted Test, for people with low levels of literacy or with a physical impairment that
prevents them from completing the standard test. The fully assisted test comprises of 20
multiple choice questions which must be answered within a 90 minute period.

To be eligible for a 90 minute assisted test a client must have completed 400
hours of English language tuition and be assessed as having less than basic
reading skills. Their eligibility must be checked on the ARMS system prior to
commencing the test.

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A person who has an impairment, either temporary or permanent, that


prevents them from taking a standard test may also take an assisted test. A
person who has an impairment that means that they need the additional time
may choose to take an assisted test.

To successfully complete an Assisted Test the client must score at least 75%.

A Course-based Test for vulnerable clients who require assistance in learning and are
unable to successfully complete a computer based test even with assistance. A person
would usually be invited to attend a course-based test after they have failed a standard
or assisted test on at least three separate days. In exceptional circumstances a client may
be invited prior to failing on at least three separate days.

Course-Based tests are available in selected locations in Australia. They are


not available overseas.

To successfully complete a Course-Based Test a person must score at least


75% for each of the nine assessment tasks.

When a Standard Test and an Assisted Test is not available due to a systems failure or in a location
where a computer is not accessible, a paper test may be used. The same rules apply as for a
computer based test.
Refer to the Ministers Determination for further information.

16.2.3 Eligibility to sit a test


To be eligible to sit a Standard Test or a Standard Test with assistance a person must:

Be a permanent resident of Australia and

satisfy the Minister or Ministers delegate as to their identity:

allow a photograph to be taken by the Minister or the Ministers delegate of


their face and shoulders; or

provide to the Minister or the Ministers delegate, a photograph of


themselves which meets the Department of Foreign Affairs and Trades
Passport Photograph Guidelines; and

provide other documentary evidence of identity as requested; and

Have lodged an application for Australian citizenship by conferral under section 21 of the
Act, which must:

be on the relevant form approved by the Minister;

contain the information required by the form this includes the need to
provide at least three documents that collectively contain a photograph,
signature, personal details and current residential address;

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be accompanied by any other information or documents prescribed by the


regulations this means that all documents in a foreign language must be
accompanied by an official English translation; and

be accompanied by the fee (if any) prescribed by the regulations.

It is important to note that if a person has not made a valid application, that is, an application that
meets the requirements set out in section 46 of the Act, they are not eligible to sit a test.
To be eligible to sit an Assisted Test a person must meet all the eligibility criteria above and:

Have completed 400 hours of English language tuition under AMEP and been assessed as
having less than basic reading skills (as evidenced by an ISPLR score of +1 or less); or

Have an impairment that prevents them from sitting a standard test, even with assistance
in the time provided.

To be eligible to be invited to take a Course-based Test (see section 16.3.4 Citizenship Course-based
Test overview) a person must meet all the eligibility criteria for a standard test and:

Have taken and failed a standard test and/or an assisted test on at least three separate
days.

In exceptional circumstances cases involving very vulnerable clients a referral may be


made to National Office without the need to have first failed on at least three separate
days.

If a person was not eligible to sit a test then despite passing the test the person has not met the
requirements in s21(2)(d), (e) and (f).

16.2.4 Who may administer a test


The following persons may administer a standard test or an assisted test:

An APS employee at an APS level 4 or above of the Department of Immigration and


Border Protection (DIBP);

A locally engaged officer who is an Australian citizen with a Protected security


clearance who is working in an overseas mission undertaking work for DIBP;

The Norfolk Island Administrator and the occupants of certain Norfolk Island
Administration office position numbers as long as they are also Australian citizens;

The Administrator and Deputy Administrator of Christmas and Cocos (Keeling) Island.

An APS employee at an APS level 4 or above, of the Department of Human Services (DHS)
who is an Australian citizen.

A DIBP test administrator may undertake any of the following:

Administer a standard test or an assisted test or provide assistance during a standard test
as provided for in the Determination;

Administer a paper based test and complete the required documentation;

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Request personal identifiers as defined in section 10 of the ACA, (such as a photograph)


to assist in the identification of, and to authenticate the identity of a person seeking to sit
a test;

Assess a persons eligibility to sit a test in accordance with the eligibility requirements set
out in this Determination;

Launch a test in the system and generate a test identification number;

Log a client into a computer based test using the clients test identification number; or

Request a person to leave the citizenship test site in certain circumstances refer to
Failure to comply with the rules of conduct while sitting a standard test or an assisted
test.

A DHS test administrator may undertake any of the following:

Administer a standard test or an assisted test or provide assistance during a standard test
as provided for in this Determination;

Administer a paper based test and complete the required documentation;

Request personal identifiers as defined in section 10 of the ACA, (such as a photograph)


to assist in the identification of, and to authenticate the identity of a person seeking to sit
a test;

Log a client into a computer based test using the clients test identification number
provided by DIBP;

Request a person to leave the citizenship test site in certain circumstances refer to
Failure to comply with the rules of conduct while sitting a standard test or an assisted
test.

The following persons may administer a course-based test:

A teacher employed in an organisation that is contracted to provide services under the


Adult Migrant English Program (AMEP) to run citizenship coursebased tests on behalf of
DIBP. They are referred to as course convenors.

A course convenor may:

Access identifying information, such as a document containing a photograph for the


purposes of authenticating the identity of a person prior to commencing a Course-based
Test;

Administer a Course- based Test;

Supervise a person undertaking Course-based Test assessment tasks;

Advise a client that they cannot continue to attend a Course- based Test in the following
circumstances:

The client failed to attend the first or a previous Course- based Test session
and did not provide an acceptable reason; or

The client failed to successfully complete a Course- based Test assessment


task on the second attempt; or

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The client did not comply with the rules of conduct while completing a Coursebased Test assessment task.

16.2.5 Administering an assisted test and providing assistance during a


standard test
When administering an assisted test or providing assistance during a standard test a test
administrator may:

Operate the computer - that is they may use a test ID to log into a test or operate the
mouse for the person;

Read out all the questions and all the possible answers in English in a neutral voice.

A test administrator must not:

Use facial or hand gestures which may indicate a correct answer;

Explain the definition of a word or phrase used in the test;

Re-phrase a question or answer;

Use any other language other than English.

16.2.6 Test invigilators


The following persons may undertake the role of test Invigilator for the purposes of a standard
test:

a DIBP or DHS APS employee at the APS3 level or above;

a locally engaged staff member (LE) employed at an Australian overseas mission, who is
undertaking work for DIBP.

A test invigilator may:

Request a document containing a photograph to confirm a persons identity prior to


logging them onto a computer based test;

Use a test identification number generated by a test administrator to log a person on to


a computer based test;

Supervise one or more persons undertaking a computer based test or a paper test;

Provide the test results to a client who has completed a test.

A test invigilator must not administer an Assisted test or give assistance during a Standard test
that is they may not read out the questions and possible answers to a client or operate the mouse
for a client during an approved test.

16.2.7 Rules of conduct while sitting a test


The rules of conduct while sitting a test must be prominently displayed in the test room and clients
should be reminded of the rules of conduct prior to commencing the test.
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The citizenship test, including the citizenship course based test, is a closed book test. A
person sitting a citizenship test cannot refer to the test resource book or other study aids
such as electronic dictionaries or hand written notes during the test.

Mobile phones, tablet computers, such as iPads or similar devices cannot be used during
the taking of a test.

A person may not communicate with any other person other than the test administrator,
test invigilator or course convenor during the test.

If a person is found using study aids, electronic devices or other reference material or
communicating with a person other than the test administrator, test invigilator or course convenor
while taking a test, the client should be referred to an APS5 or above who will advise them of
consequences and what the next steps will be.

The client must not be allowed to complete the test on that day.

If the client has completed the test and it is then established that they did not abide by
the rules of conduct the test result will not be accepted.

In these circumstances the test invigilator or test administrator must contact


the Citizenship Helpdesk and have the test result invalidated.

If the client passed the test prior to it being identified that they did not comply
with the rules of conduct then the officer should advise the client in writing
that the test result has been invalidated and the reasons for this and that they
must make another appointment if they wish to re-take the test.

If the client has not complied with the rules of conduct during a course based test the
course convenor must request them to leave the course and advise them that they have
failed the test and advise DIBP.

If the client is eligible they may be invited to attend another course at a later
date. (Refer to Eligibility to attend a citizenship course)

It is confirmed that a client did not comply with the rules of conduct during a citizenship
test, including a course based test, a fraud event must be entered in ICSE. See section
17.8 Recording incidents of fraud in citizenship applications.

If an impostor attempts to take a test for a client a fraud event should be recorded in ICSE
against both the client and the impostor. See Chapter 17, section 17.8 Recording
incidents of fraud in citizenship applications.

If a client has attempted to use an impostor to sit a test on their behalf they should be
advised that they will not be permitted to sit the test that day but must make a new
appointment to which they must bring all of their original identity documents.

If a client has not complied with the rules of conduct for the test this should be taken into
consideration when assessing good character.

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16.3

Guidelines for finalising applications where a test has not been


successfully completed

16.3.1 Overview
There is an expectation that when a person makes an application for conferral of citizenship, they
have made that application believing that they meet all the legal requirements for conferral of
citizenship. This includes passing a test if it is a requirement for them to do so.
The purpose of the citizenship test is to assess whether a person understands the nature of the
application they are making, whether they have an adequate knowledge of Australia and the
responsibilities and privileges of citizenship, and a basic knowledge of the English language and
therefore meets certain legal requirements for the conferral of citizenship.
It is expected that a person will successfully complete a citizenship test because they have acquired
the knowledge to do so. It is however accepted that not everyone will pass a citizenship test on their
first attempt.
Each person should be given a reasonable opportunity to sit a test and demonstrate that they have
the knowledge to meet the legal requirements for conferral of citizenship

16.3.2 Computer based tests (Standard Test or Assisted Test)- nonattendance at arranged appointments
If a client fails to attend an appointment, the case officer must call the client to schedule a second
appointment, make a note in ICSE and confirm the new date/time in writing to the client.

The case officer must call the client to schedule an appointment for a Standard Test or an
Assisted Test, make a note in ICSE and confirm the new date/time in writing to the client.

If the case officer is not able to contact the client the case officer must send a letter to
the client asking the client to schedule an appointment for a Standard or an Assisted Test
within 28 days of receiving the letter.

If the client fails to make contact after the final appointment notice, the decision maker
may consider whether it is appropriate to finalise the application.

If the application was an e-lodged application it may be that the application is invalid as
the application process has not been completed. See section 17 Application requirements
under S46 of the Act. In this case the application should be returned to the applicant, the
application fee repaid and the application recorded as invalid in ICSE.

If the application is valid, that is, it meets the requirements of section 46, and refusal of
the application is being considered, an assessment against the eligibility requirements set
out in section 21(2) will be required. In this case a written record setting out the reasons
for the decision must be provided to the applicant using the appropriate decision record
template.

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16.3.3 Computer based test not passed on first attempt

If a client attends an appointment but does not pass a computer based test on their first
attempt they may re-sit the test in the following circumstances:

They may re-sit a computer based test as many times as the client wishes where office
resources permit, as long as their score on each attempt was 50% or more.

Where the score was less than 50% the client should be encouraged to undertake further
study before attempting the test again.

A new appointment should be made for no earlier than 10 working days after the failed
test.

This does not apply to Regional testing conducted by DIBP, however it does
apply where regional testing is conducted by a Service Delivery Partner (SDP).

The client should be advised of the test study resources available, including the DVD and
the test resource books availability in community languages and the availability of
assistance during a test where appropriate.

If the client does not attend the next arranged appointment the policy set out in section 16.3.2
Computer based tests (Standard Test or Assisted Test)- non-attendance at arranged appointments.
If the client continues to attend arranged appointments for Standard or Assisted Test their
application should not be refused.

A client undertaking an Assisted Test would usually only be able to sit one Assisted Test
per appointment because of the resources required to administer Assisted Tests.

16.3.4 Citizenship Course-based Test overview


A client may undertake a Course-based Test if they:

have failed the Standard Test or Assisted Test (or combination of both) on at least three
separate days or

have been assessed after one or two test failures by a test administrator based on
consideration of their individual circumstances, as suitable for participation in the Coursebased Test.

A client may be eligible to undertake the Course-based Test but may choose to continue to sit the
Standard Test or Assisted Test (if eligible).
Clients who meet the eligibility requirements for a Course-based Test should be invited to
participate in a Course-based Test.
Where the client accepts an invitation to participate in a Course-based Test they may continue to sit
a Standard Test or an Assisted Test until the commencement of the Course-based Test.

Once they have commenced a Course-based Test, they may not return to attempt the
Standard Test or Assisted Test unless they do not successfully complete the Course-based
Test or withdraw in writing prior to the Coursebased Test being completed.

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To successfully complete a Course-based Test a client must attend all seven course
sessions and achieve a 75% pass mark on each assessment task.

16.3.5 Client declines or does not respond to invitation to participate in a


Course-based Test
Where a client is eligible to participate in a Course-based Test and declines the first invitation or they
do not respond to the invitation, they may continue to take a computer based test. Refer to
guidelines on computer based test not passed on first attempt.

Eligible clients who decline or do not respond to the first invitation to participate in a
Course-based Test should be invited to one more Course-based Test. This should be
recorded in ICSE.

If they decline or do not respond to a second invitation to participate in a Course-based


Test within 14 days of the invitation, the case officer must call the client to schedule an
appointment for a Standard Test or an Assisted Test, make a note in ICSE and confirm
the new date/time in writing to the client.

If the case officer is not able to contact the client the case officer must send a letter to
the client asking the client to schedule an appointment for a Standard or an Assisted Test
within 28 days of receiving the letter.

If the client fails to make contact after the final appointment notice, the decision maker
may consider whether it is appropriate to finalise the application. Ensure that
correspondence was sent to the last advised address and record all attempts of client
contact on ICSE.

16.3.6 Client does not attend Course-based Test after accepting invitation
In order to successfully complete a Course-based Test a client must attend all seven sessions.

Where the client accepts the invitation to participate in a Course-based Test but does not
attend that Course-based Test they should receive one more invitation to the Coursebased Test.

If they do not accept the second invitation or accept the invitation but do not attend the
next available Course-based Test, the following procedure should be followed:

The case officer must call the client to schedule an appointment for a
Standard Test or an Assisted Test, make a note in ICSE and confirm the new
date/time in writing to the client.

If the case officer is not able to contact the client the case officer must send a
letter to the client asking the client to schedule an appointment for a Standard
or an Assisted Test within 28 days of receiving the letter.

If the client fails to make contact after the final appointment notice, the
decision maker may consider whether it is appropriate to finalise the
application.

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16.3.7 Clients withdraws from Course-based Test


If a client commences the Course-based Test but wishes to withdraw from the course, they must
complete a Withdrawal form. The withdrawal must be recorded in ICSE as an event course
outcome with a qualifier course not completed by the relevant STO.

Where a client formally withdraws from a Course-based Test they should receive one
further invitation to attend a Course-based Test.

Where a client stops attending a Course-based Test but does not formally withdraw from
the Course-based Test they are recorded as having failed the test and the following
procedure should be applied:

The case officer must call the client to schedule an appointment for a
Standard Test or an Assisted Test, make a note in ICSE and confirm the new
date/time in writing to the client.

If the case officer is not able to contact the client the case officer must send a
letter to the client asking the client to schedule an appointment for a Standard
or an Assisted Test within 28 days of receiving the letter.

If the client fails to make contact after the final appointment notice, the
decision maker may consider whether it is appropriate to finalise the
application.

16.3.8 Course based Test not passed


The Ministers Determination provides that a client may only attempt a Course-based Test once per
application unless there are exceptional circumstances. For example - the client provides a medical
certificate stating that they were not able to attend a session. Where there are exceptional
circumstances these should be noted in ICSE and National Office notified to ensure the client
receives another invitation.
When a Course-based Test is not passed the client is recorded as having failed the test and the
following procedure should be applied:

Make an appointment for a standard or assisted test and confirm the date and time with
the client.

If the case officer is not able to reach the client by phone the case officer must send a
letter to the client asking the client to schedule an appointment for a Standard test or an
Assisted Test within 28 days of receiving the letter;

If the client fails to make contact after the final appointment notice, the decision maker
may consider whether it is appropriate to finalise the application.

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Chapter 17 - Application requirements & decision


making
17

17.1

APPLICATION REQUIREMENTS UNDER S46 OF THE ACT

Overview

The following policy has been prepared taking into account requirements set out in the Act, the
Regulations and the Acts Interpretations Act 1901 (the AI Act) and with reference to relevant case
law based on decisions made by the Federal Court of Australia.
The application requirements set out in s46 of the Act apply to all types of citizenship applications
made under the Act. An application for Australian citizenship will be invalid if it does not satisfy the
requirements set out in s46 of the Act.
An application which meets the requirements of s46 and is a valid application may not be a complete
application. It is important to note that there is a difference between a valid application and a
complete application. An application that is valid, that is, it complies with s46, but incomplete should
not be returned to the applicant. Instead the applicant should be given a reasonable opportunity to
provide the information required to complete the application.
For example an application that complies with s46 but does not include overseas penal clearances
where these may be required under policy, or the application has not been signed by the applicant,
would be considered to be incomplete applications and should not be returned to the applicant. The
applicant should be given a reasonable opportunity to complete their application - see section 17.5
Procedural fairness.

17.2

Requirements

17.2.1 Legislative
Section 46 of the Act prescribes the requirements for making an application under that Act,
including:

being on the prescribed form as set out in the Forms Currency Index.

containing the required information - see section 17.2.2 Information required by the form

via regulation 12, that if information or a document accompanying an application is not in


English, the information or document must be accompanied by an official English translation,
and

via regulation 12A, the fee to accompany the application.

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17.2.2 Information required by the form


Citizenship application forms, in the Proof of identity section, require that applicants 18 years of
age or over (in limited circumstances 16 years and over), provide certified copies of at least 3
documents that collectively contain the applicants:

photograph

signature

current address

date of birth and birth name.

In addition, if the applicant has changed their name since birth, the applicant must provide official
evidence of the change of name.
The forms also require a completed Proof of identity declaration (including a correctly endorsed
photograph).
If these documents are not included with the application it should be returned to the applicant.

17.2.3 Who may sign a citizenship application form


It is preferable that application forms are signed at time of lodgment, however if a form has not
been signed at time of lodgment the application should not be made invalid.

A persons signature is considered to be a personal identifier - comparison of signatures


should form part of the identity verification assessment.

The application should be signed before the application is finalised.

In some cases a person with power of attorney may sign an application form where the
applicant has an incapacity which means that they are not able to sign for themselves. In
these cases special care should be taken to establish the identity of the applicant.

16 and 17 years olds may sign their own application forms and do not require the signature
of a responsible parent.

Applications made on behalf of persons under the age of 16 would usually be signed by a
responsible parent see Chapter 20 Responsible parent.

For information on who may sign an application form for a ward of the Minister or an
unaccompanied Humanitarian minor refer to Chapter 5 - Citizenship by conferral.

Where a child is in the care of a State or Territory child protection agency but is not a Ward of
the Minister, or an unaccompanied humanitarian minor, a child protection officer (not the
foster parent) may sign the application form.

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17.2.4 Policy guidelines on returning invalid applications


An application, either paper or electronic, that does not include at least three documents which can
be used to assist in establishing an applicants identity does not substantially comply with the
requirements of s46. If an application for Australian citizenship does not meet the application
requirements of s46 it is considered that no application has been made and therefore no decision
should be made on the application.
Therefore, all officers are strongly encouraged to assess each citizenship application against the
application requirements before proceeding to make a decision on an application.
For paper applications, this assessment should take place at the time of lodgement. Any application
that does not meet the application requirements should be returned to the applicant as soon as
practicable. The application fee should be repaid or consent sought from the client to retain the fee
on the basis that it will be used in relation to a future application (refer to section 17.6 Fees). For
electronically-lodged applications (e-lodgments) the assessment of whether an application meets
the requirements set out in s46 of the Act may take place at the time of appointment. The
appointment is the applicants opportunity to complete the application process. If an applicant
attends an appointment but fails to present the documents they nominated on their application
form, or other documents that satisfy the requirements, their application should be returned to
them and arrangements made for a repayment of the application fee (see section 17.6 Fees).
If an applicant has been invited on more than one occasion to attend an appointment to present
their documents and complete the application process but has failed to do so and has not made
alternative arrangements, their application should be returned to them and arrangements made for
a repayment of the application fee (refer to section 17.6 Fees)
Applicants aged 60 or over who have e-lodged and have not been able to attach the required
documents to their application and they are not required to attend an appointment, (see Chapter 5 Citizenship by conferral for policy on the interviewing of applicants aged 60 and over), a letter
should be sent to the applicant requesting them to provide the required certified documents,
completed identity declaration and endorsed photograph within 35 days of receiving the written
request (28 days if the request is sent by email or fax). Alternatively the request may be made via a
telephone call providing the client 14 days to provide the required documents, however, this should
only occur where the officer is satisfied that the client fully understands the nature of the request. A
note should be added to ICSE recording the date of the call, the information requested and the time
specified for providing the information. Only after the specified time has passed can an assessment
of the validity of the application be made.
If a delegated officer is aware of any particular circumstances which may prevent a citizenship
applicant from making a citizenship application that complies with the requirements of s46 of the
Act, the officer should provide the applicant with information on how the applicant may meet the
application requirements set out in s46 of the Act, by providing alternative and/or additional
documents or information. This may include accessing documents held on departmental files. Such
circumstances may include:
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some refugee and humanitarian entrants who may not have access to sufficient
documentation to meet the requirements

vulnerable clients including those who may be destitute, frail, elderly or suffering an
incapacity which inhibits their understanding of the requirements.

Any information provided to an applicant should be provided in accordance with the DIBP Code of
Conduct Guidelines, which aims to ensure that information given by officers is accurate, up-to-date
and comprehensive.
Note: If an applicant has made a valid citizenship application (that is, they meet the application
requirements set out in s46 of the Act), the Act requires that a decision must be made on that
application. An applicants citizenship application should only be returned to them if they do not
meet the application requirements set out in s46 of the Act or they withdraw their application
before a decision is made on it. Failure to meet an eligibility requirement that is set out in the Act
(for example, the residence requirement) is not a reason to return their application to them as
invalid.

17.2.5 Application date


For paper-based applications, the application date will not be the date the application form is
received, but the date the applicant substantially meets the application requirements of s46 of the
Act - that is, the date the applicant makes a valid citizenship application - see section 17.5 Procedural
fairness.
For e-lodged applications, if a citizenship applicant has not been able to attach the required
documents to their e-lodged application due to a technical issue but presents the nominated
documents at their appointment, or within the specified timeframe if the client is not required to
attend an interview, the application date should be taken as the date of e-lodgment.
In relation to applications for citizenship by conferral where an applicant is required to sit a test, the
Ministers determination for the approval of a citizenship test made under s23A of the Act (IMMI
11/088), provides that an applicant cannot sit a test unless they have made a valid application - that
is, an application which meets the requirements of s46 of the Act.

17.2.6 Forms
For a list of current acceptable prescribed forms for citizenship refer to the Forms Currency Index
available on the Intranet.
An application is not invalid simply because the latest version of the form has not been submitted.
Depending on what the difference is between the form the applicant has submitted and the form
listed on the Forms Currency Index in the Earliest Design Date column, you may need to ask the
applicant to provide any missing information or complete particular questions on a new form and
attach this to the form the applicant has submitted.

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There are two forms which have been approved for the purposes of making an application for
conferral of Australian citizenship under s21 of the Act. If an applicant appears to have applied on
the alternative form it is open to an officer to find that the application meets the requirements of
s46 if all other requirements are met.
If an officer believes that an applicant may have inadvertently completed the incorrect form for their
circumstances the officer should contact the applicant as soon as practicable to discuss their
intentions.
For example
If a person makes an application on Form 1300T and paid the appropriate fee for that form but it is
apparent that the person should have applied on Form 1290 because they are aged 60 or over, the
application may be accepted and processed under the appropriate provision (in this example, s21(4))
and part of the fee may be refunded under regulation 13 on the basis that the person has paid an
incorrect fee.
If a person makes an application using Form 1290 and has paid the correct fee for that form but has
not nominated on the form which provision they wish to be assessed against and it appears that
they should have completed Form 1300T the application may still meet the application requirements
set out in s46. In these circumstances the officer should contact the applicant as soon as practicable
and determine their circumstances. If the applicant has nominated the provision they wished to be
assessed against there is no requirement to contact the applicant.
When appropriate the applicant may choose to pay the additional test component of the fee within
a stated period of time in which case they may be taken to have made a valid application for the
purposes of sitting the citizenship test once that additional component of the fee has been paid. In
these circumstances the application date for the purposes of assessing whether a person meets
certain eligibility requirements would be the date the additional fee was paid.
Applicants should be alerted to any consequences which may occur if they delay paying the
additional component of the application fee including the fact that they may not continue to meet
certain eligibility requirements.
If the additional test component of the fee is not paid within the specified time the applicant will not
be able to take a citizenship test because they have not made a valid application for the purposes of
being assessed under the provisions set out in s21(2) of the Act. However, if the application meets
the application requirements for a Form 1290 it must be assessed and a decision made in
accordance with s24(1) unless the applicant chooses to withdraw their application in which case
there may be no grounds to refund the application fee. Refer to regulation 13 for acceptable reasons
to refund an application fee. See section 17.6 Fees.
In the circumstances set out above the applicant does not need to complete the alternative form.
However the permission request in ICSE should reflect the correct service type (for example,
citizenship - conferral - general eligibility may become citizenship - conferral - no ceremony).

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17.2.7 Additional information requirements to complete or support an


application
All citizenship applicants should be encouraged to make a complete application. If a citizenship
applicant has made their application in accordance with the requirements of s46 of the Act but the
application is not complete, for example an overseas penal certificate has not been provided, the
applicant should be provided with additional opportunities to provide the required information or
documents and complete their application.
As a general practice, a written request for additional information should be made which allows the
applicant 35 days from the date of the written request in the form of a letter (28 days if the written
request is by email or fax) to provide the required information. If the applicant is residing outside
Australia they may be provided with 50 days from the date of the written request (28 days if the
written request is by email or fax). See section 17.4 Notification and notification periods.
If the request for additional information is a simple request, for example, a request to see the
original of a certified document already provided, a verbal request may be made and a record of the
conversation recorded on ICSE, stating the purpose of the request and the timeframes provided to
the citizenship applicant for the provision of the information or documents.

17.2.8 Record keeping


It is important that accurate and up-to-date records are kept in ICSE.
This includes:

a record of appointments made for the applicant which they do not attend

a record of all contact with clients, including letters, emails and telephone calls and requests
for additional information

if a citizenship application is found to be invalid, a record of why it does not meet the
application requirements set out in s46 of the Act

when a citizenship application is found not to meet the application requirements set out in
s46 of the Act and is returned to the applicant, the case must be finalised in ICSE as invalid
other than those applications for evidence of Australian citizenship or Renunciation of
Australian citizenship. Refer to the Procedures Library for up to date information on finalising
these application types.

17.3

Decision making

Sections 17(1), 24(1), 30(1) and 33(2) of the Act require that where a person has made an
application under s16, s21, s29, or s33(1) of the Act, the Minister must, by writing, approve or refuse
to approve the application. Before this may occur, an application must be made in accordance with
the requirements of s46 of the Act (refer to section 17 Application requirements under s46 of the
Act for further guidance).
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17.3.1 Delegations
Section 53 of the Act provides that the Minister may, by writing, delegate all or any of the Ministers
functions or powers under the Act or the Regulations.
The instrument of delegation made under s53 which provides the power to make decisions under
the Act (IMMI10/083) relevantly delegates certain decision making powers to a person who:

is performing duties under or for the purposes of the Act and

is for the time being the holder of, or is performing the duties of, a position in a State,
Territory, Regional or Area Office of the department being an office classified:

as a Senior Executive Service position or

at the level of Executive Level 2 or 1 or

at the level of APS Level 6, 5, or 4.

In addition there are a number of officers in National Office who are delegated to make decisions
under the Act.
A s53 delegate may make decisions under the following sections of the Act:

s17(1) (descent)

s19D(1) (Hague Adoption)

s24(1) (Conferral)

s30(1) (Resumption) and

s33(2) (Renunciation).

These same officers have also been delegated other powers under s53 of the Act, and these
delegations appear in Schedule 2 to the instrument of delegation.
These delegations mean that such officers may also:

cancel the approval of citizenship given under s24(1) of the Act (see s25(1) of the Act)

assess the delayed making of a pledge of commitment (see s26(3) of the Act)

revoke a determination made under s26(3) of the Act (see s26(5) of the Act)

make finding of facts on applications for evidence of Australian citizenship made under s37 of
the Act (see s37(2) and (6) of the Act) and

request that a notice cancelled under s37(6) of the Act be surrendered (see s38(2) of the Act).

A-based officers overseas and a small number of locally engaged staff occupying particular position
numbers overseas may only make decisions under s17(1) (descent) and s19D(1) (Hague Adoption).
Officers delegated by the Minister cannot make decisions to revoke a persons citizenship under s34
or s36 of the Act as the Minister has not delegated these powers to departmental officers.
If you are unsure whether you are delegated to make a decision, you should check with your
supervisor or contact the Citizenship Helpdesk.
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Note: Your office may have policies about who can make certain decisions, but the correct
delegation must be in place regardless of the policy. For example, some offices have policies as to
who may:

approve an application where a ministerial discretion provided for in s22 has been applied to
assist a person to meet the residence requirements

refuse applications and/or whether applications to be refused are to be reviewed by a


supervisor or manager prior to finalisation

where decisions are reviewed by a more senior officer prior to finalisation, that more senior
officer may need to make the decision as they must not direct a decision maker to make a
particular decision.

17.3.2 General principles of decision making


A good decision is lawful, impartial, fair and reasonable:

make sure you are correctly delegated to make the decision

ensure the application you are considering meets the application requirements set out in s46
of the Act - see section 17 Application requirements under s46 of the Act

you must apply the law as it is set out in the Act and the Regulations. Always check that you
have you applied the law correctly before you record the decision

the law and policy that should be applied is that which was in effect at the time the
application was made unless there are transitional provisions that state otherwise. For
example, applications made prior to 1 July 2007 need to be considered against the
provisions contained in the Transitionals Act

if it is a decision to cancel an approval or to defer the making of a pledge, the


relevant legislation to be applied is that which is in effect at the time the decision is taken
to cancel or defer

if you are unsure, check with your supervisor and/or the Citizenship Helpdesk before
you record a decision. Once a decision is recorded it should not be undone - see section
17.3.5 Jurisdictional error.

in most cases you should apply the approved policy as set out in the Australian Citizenship
Instructions. However, depending on the circumstances, it may be appropriate to make a
decision outside policy. Before you make a decision outside policy you must seek advice from
the Citizenship Helpdesk

check the reliability of the information and evidence you intend to take into consideration.
These checks should include:

the integrity of the documents and the information contained in those documents

the consistency between information included in the application, and information


on departmental systems
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the accuracy of the information used by the interval calculator to assess residence
requirements.

applicants must be provided with procedural fairness in relation to any adverse information
you may take into consideration when making your decision - see section 17.5 Procedural
fairness

make sure you have been fair, reasonable and unbiased in your decision making

make sure you have taken into account all relevant information, even if that information is
provided after a set time but before you make the decision

apply discretions where appropriate

check for prohibitions on approval

where an application is refused, explain the reason(s) for your decision clearly, using language
the client can understand - avoid departmental acronyms

make sure your decision and the reason(s) for your decision are recorded correctly.

17.3.3 Assessing the evidence


Evidence that is taken into consideration when making a decision needs to be relevant, credible and
reliable. As a decision maker you must ensure you have sufficient evidence and information on
which to base your decision so you make a fully informed and lawful decision.
If all the evidence points in the same direction, that is, each piece of evidence is supported by other
evidence or information, is credible, was issued over a period of time and is independently verifiable,
it could be considered to be reliable. However, consider:

whether you have considered all the relevant information or evidence that is available. For
example, have you checked the incoming mail for any late lodged documents from the
applicant

how strong or weak the evidence is. For example, a statement from an applicant about their
character which is not supported by any other evidence may not be considered to be strong.
However, if the applicants statement is supported by statements from other trusted persons,
criminal history checks or a report from a parole officer, then a decision maker might consider
that the applicants statement has more weight

how convincing it is. For example, a birth certificate that has been amended in a way that does
not appear to be official may not be very convincing in establishing a persons identity.

whether the evidence could be easily contrived. For example, a character reference may be
easily contrived even though it is purportedly provided by a third party - it is sometimes
important to check with the author of a reference by making a phone call, for example, to
verify the information

whether the evidence or information looks strange or unusual. For example, whether an
applicant has provided information about periods of time spent outside Australia which do not
accord with information contained in departmental systems

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whether there is any other supporting evidence. For example, does information contained in
departmental systems or archive records support the claims made by the client and

whether the source of the evidence is credible. For example, consider whether documents
issued by particular agencies or at particular times are known to be reliable.

17.3.4 Decision record writing


Section 47(3) of the Act provides that if a decision made under the Act is an adverse decision, the
decision notice provided to the applicant must include the reasons for the decision. The Act does not
set out what information must be included in the reasons for the decision. However, under s25D of
the AI Act the statement of reasons for decisions shall also set out the findings on material questions
of fact and refer to the evidence or other material on which those findings were based.
Wherever possible, standard templates for recording reasons for decision that are provided on the
intranet should be used. The templates provide guidance and tips on what to consider when making
your decision.

Tips for writing decision records


When writing decision records:

use clear, simple language - remember that English is the second language for many applicants

use short sentences whenever possible

write in the first person. For example, instead of writing Mr Smith attended an interview on 1
July. ., write, You attended an interview on 1 July. This makes it personal and much
easier for the client to read and understand.

A record of a decision should contain the following:

client information and application details

a summary of the decision outcome

a list of the legislation, evidence or other material taken into consideration

the applicants background - state the facts of the case

your consideration of the application:

state the power in the Act by which you have been delegated the authority to make
the decision

state which legislative provision the application is being assessed against

state the eligibility requirements set out in that legislative provision

consider whether it is appropriate to apply a discretion which may enable the


applicant to meet an eligibility requirement

refer to appropriate policy guidelines

consider whether there is a prohibition on approval.

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your findings and assessment of the application against the legislative requirements:

mention information you relied on and how you weighed that information

if there was information before you that you did not take into consideration, state
your reasons for not considering it

note whether or not it was appropriate to apply a discretion provided in the Act and
give your reasons for applying or not applying the discretion

note any procedural fairness processes that were undertaken.

your decision:

clearly state your decision and the reasons

state the date the decision was made

clearly state who made the decision. You are not required to include your full name
however, signature, first name or first name initial, last name and the position number
that you occupied on the date you made the decision should be stated unless you have
genuine personal security concerns. Refer to Staff Identification Policy on IMMInet for
further information.

17.3.5 Jurisdictional error


A jurisdictional error relates to a legal error being made during decision making. Whether a decision
in respect of a citizenship application is affected by a clear jurisdictional error depends heavily on the
facts of each case. Broadly speaking, however, jurisdictional error may include failing to provide
natural justice, failing to take into account a relevant consideration, applying policy that is
inconsistent with the legislation, or misinterpreting a statutory test (that is, misapplying the law).
Where a decision is affected by a clear jurisdictional error, the decision stands (that is, it is effective)
but it may be revisited (or, more correctly, made properly for the first time) as long as the affected
individual consents to that course of action.
As a decision in respect of a citizenship application can only be revisited if it is affected by a clear
jurisdictional error, such a decision should only be revisited after individual legal advice has been
obtained from the Legal Opinions Sections.
Where a decision to approve or refuse a citizenship application has been made and it is later
discovered that the decision may have been affected by a jurisdictional error, in all instances the
case must be referred to the Citizenship Helpdesk before anything thing is done to change that
decision, including undoing the decision in ICSE.
The Citizenship Helpdesk will seek assistance from Legal Opinions Helpdesk on your behalf where
appropriate. A decision can only be revisited on the basis of a clear jurisdictional error if approval to
revisit that decision has been provided by the Legal Opinions Helpdesk.

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Where a decision in respect of a citizenship application has been affected by a clear jurisdictional
error, and approval to revisit the decision has been provided by the Legal Opinions Section, consent
must be sought from the applicant in writing to revisit the decision. This would usually only occur if
the new decision was going to be more advantageous to the applicant (because an applicant would
be unlikely to consent to a decision being revisited if it would be disadvantageous).
A template letter and consent form will be provided in relation to those cases where Legal Opinions
Helpdesk has provided approval.
Note: Decision makers should be aware that altering a decision record on ICSE amounts to the
alteration of a Commonwealth record. Under s24(1) of the Archives Act 1983, it is an offence to alter
a Commonwealth record, unless one of the exceptions set out in s24(2) of the Archives Act 1983
applies.

17.4

Notification and notification periods

17.4.1 Background
Sections 17(1), 24(1), 30(1) and 33(2) of the Act require that where a person has made an
application under s16, s21, s29, or s33(1) of the Act, the application must be approved or refused in
writing. Before this may occur, the application must have been made in accordance with the
requirements of s46 of the Act. See section 17 Application requirements under s46 of the Act for
further guidance.

17.4.2 Notification requirements


Section 47 of the Act prescribes that, in relation to a decision under the Act:

the applicant must be notified

if the applicant is a child, the notification requirement is satisfied if the notice of the decision
is given to a parent of that child (as child is not defined in the Act and a person aged 16 or 17
may sign the application form, the notification of decision should be sent to applicants aged
16 or 17 rather than to a parent of such applicants)

if the decision is an adverse decision, the notice of the decision must include the reasons for
the decision

the notice of the decision must be given by:

personal delivery

prepaid post to the last address given to the department or

electronic means.

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17.4.3 Policy guidelines


Neither the Act nor the Regulations set out periods by when a person is taken to have been notified
of a decision or of a request for additional information or documents. Instead, the Citizenship
program relies on s29 of the AI Act and s14A of the Electronic Transactions Act 1999 (the ET Act) for
guidance on these matters.
Periods for providing procedural fairness and requests for information or documents
Note: These guidelines are not to be applied to notification of decisions. The policy set out below
refers to timeframes within which clients may respond to departmental requests for information.
In Australia
For the purposes of requesting information or documents and providing procedural fairness to
clients in Australia, it is departmental policy that such clients will be given:

if contacted by letter - 35 days from the date of the letter in which to respond or

if contacted by email or fax - 28 days from the date of sending the email or fax in which to
respond.

If a second request is required for the same information or documents then the client should be
given:

if contacted by letter - 21 days from the date of the letter in which to respond or

if contacted by email or fax - 14 days from the date of sending the email or fax in which to
respond.

Outside Australia
For the purposes of requesting information or documents and providing procedural fairness to
clients outside Australia, it is departmental policy that such clients will be given:

if contacted by letter - 50 days from the date of the letter in which to respond or

if contacted by email or fax - 28 days from the date of sending the email or fax in which to
respond.

If a second request is required for the same information or documents then the client should be
given:

if contacted by letter - 40 days from the date of the letter in which to respond or

if contacted by email or fax - 14 days from the date of sending the email or fax in which to
respond.

Requests for information or documents, and opportunities to respond to procedural fairness letters,
should only be sent to a clients email address or fax number if the client has agreed on their
application form that the department may communicate with them by these means.

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Requests for extensions of time within which to provide information or documents are at the
discretion of the case manager and should be considered where appropriate in order to provide a
fair and reasonable outcome for the client.
Any requests which are returned to the department as return to sender must be attached to the
file along with the envelope, and a note placed in ICSE. In these circumstances, reasonable steps
should be taken to determine the clients current address by telephone or contacting a nominated
recipient.

17.4.4 Notification of decisions


Under s47 of the Act, if a decision is made under the Act in relation to a person, the person must be
given notice of the decision. Relevantly, all applicants must be notified in writing of any decision,
whether it is an approval or a refusal, where that decision has been made under s17 (1), 24(1), 30(1)
or 33(2) of the Act, or where a decision has been made to cancel approval given to a person under
s24 of the Act (see s25 of the Act).
If the applicant is under the age of 16, the notice must be sent to a parent of the applicant.
If the decision is an adverse one, s47(3) of the Act provides that the notice of the decision provided
to the applicant must include the reasons for the decision. It is departmental policy that a record of
decision will be provided to each applicant using the approved decision record templates available
on the intranet. See section 17.3 Decision making for information on preparing records of decisions.
Under the Administrative Appeals Tribunal Act 1976, the department is required to advise an
applicant of their right of review to the Administrative Appeals Tribunal (if this is provided for in s52
of the Act), the time in which they have to apply for that review, and where they may apply for a
review. This information is contained in approved client correspondence located on the intranet and
should not be amended.

17.4.5 When a person is taken to have received a notification of a decision


Section 29(1) of the AI Act provides:
Where an Act authorizes or requires any document to be served by post, whether the
expression serve or the expression give or send or any other expression is used, then
unless the contrary intention appears the service shall be deemed to be effected by properly
addressing prepaying and posting the document as a letter, and unless the contrary is
proved to have been effected at the time at which the letter would be delivered in the
ordinary course of post.

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For the purposes of providing consistent policy guidelines, ordinary course of post within Australia
is based on a publication by Australia Post, Letter Post Guide, which sets out the expected delivery
times after the date of posting, the longest of which is four business days. For notifications sent
internationally, the international post guide at http://auspost.com.au/parcels-mail/deliverytimes.html should be used to locate the time frame for the type of letter and country of destination,
using the maximum of the expected delivery period. Eg, a registered post international letter to
Bhutan is expected to be delivered within 3 to 10 working days, so the deemed delivery would be 10
working days from the date the letter is lodged for posting.
If an applicant is to be notified of an adverse decision, the policy is that the notification should be
sent by registered post, unless the applicant has given their consent to receive correspondence by
electronic means. The registered post number should be recorded in ICSE.
If an applicant has agreed to communication via email or fax they are taken to have received the
notification of a decision on the day the notice was sent to the correct email address or fax number.

17.5

Procedural fairness

17.5.1 When should procedural fairness be given


The common law principle of procedural fairness (also known as natural justice) requires fair and
proper procedures to be used when making a decision. A decision maker who follows a fair
procedure is more likely to reach a fair and correct decision. Officers making a decision under the Act
are expected to follow the procedural fairness guidelines provided.
It is generally accepted that where a decision maker has been delegated the power to do something
which affects a persons rights, interests or legitimate expectations, such as making a decision to
refuse or approve a person becoming an Australian citizen, the decision maker will provide
procedural fairness to that person (that is, the citizenship applicant).
The departments policy is that, in particular, a decision maker should afford procedural fairness to a
citizenship applicant where the decision maker receives information that is adverse to an applicant,
and that information is credible, relevant and significant to the decision to be made under the Act.
An applicant can expect that:

if a decision maker has adverse information about the applicant, the decision maker will
provide that information to the applicant and give them a reasonable time in which to
respond or provide comment.

In most cases a decision maker will write to the applicant setting out the adverse information,
explain why the information is relevant to the decision to be made, and provide 28 days (if the
request for the applicants comment is sent by email or fax) or 35 days if the request is sent by mail,
for the applicant to consider the information and prepare and provide a response. If the applicant is
residing outside Australia they may be provided with 50 days from the date of the written request
(28 days if the written request is by email or fax). See section 17.4 Notification and notification
periods.
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In particularly complex cases a decision maker may wish to interview the applicant after the
adverse information has been provided and the applicant has had sufficient time to consider
the information or as a way of providing adverse information to the applicant.

If an interview is conducted, a record of interview should be made and a summary of the


information given at the interview, in particular responses to adverse information, and should
be kept on file. The decision maker may provide a copy of the summary to the applicant.

If a response in writing is requested, a decision maker should wait a few days after the given
due date to try to ensure that they have all relevant information before them at the time of
decision.

A decision will not be made until the time within which the applicant was requested to
respond has passed:

information received after the timeframe to provide information has passed but
received prior to a decision is considered to be information before the department and
should be taken into consideration when making a decision.

The decision maker will give proper consideration to all relevant information provided.
Their application will be considered without bias.
If a decision maker expects to reach an adverse conclusion based on material that is known to the
applicant, the decision maker will invite comment from the applicant if that conclusion is not
obvious or expected on the basis of the material (for example, if an applicant has disclosed a criminal
history but believes that it will not affect their eligibility for citizenship, or where the department has
found that the applicant had a period of unlawfulness which would impact the residence
requirement); and
If their application is refused, the decision maker will provide substantive reasons for their decision.
There may, however, be circumstances where it would not be appropriate to disclose certain
adverse information (or the source of that information) to an applicant, or where the disclosure of
the information is not permitted.
These circumstances may include:

certain information from law enforcement agencies (this does not include criminal history
checks)

information that has been received from a third party where the third party has not consented
to the disclosure of the information, or was not reasonably likely to have been made aware
that the information would be disclosed to the applicant (see Information Privacy Principle 11
in s14 of the Privacy Act 1988).

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Note: If an applicant is the holder of a permanent visa, or the holder of a special category visa or a
special purpose visa, and the department receives from ASIO an adverse or qualified security
assessment in respect of that applicant, the department is required by s38 of the ASIO Act 1979 to
give the applicant a notice in writing, to which a copy of the assessment is attached, informing them
of the making of the assessment and containing information in the prescribed form concerning the
applicants right to apply to the AAT.
If an Interpol Red Notice (IRN) is received in respect of an applicant, a decision maker should put to
the applicant a sufficiently edited form of information obtained from the IRN for comment, without
disclosing the fact that the information came from the IRN. In other words, the decision maker
should provide an indication of the substance of the material without stating its exact nature, or that
it was obtained from Interpol.
All cases involving an Interpol Notice and/or ASIO involvement must be referred to the Citizenship
Helpdesk. For other cases, if in doubt as to whether it is appropriate to provide adverse information
to an applicant, contact the Citizenship Helpdesk prior to disclosure.

17.5.2 Preparing cases for litigation


Where an application is requested for litigation purposes it is important that the case file is properly
prepared before being referred to the requesting Litigation section within Litigation and Opinions
Branch.
When preparing a case for hearing at the Administrative Appeals Tribunal (AAT) DIBP is required to
provide the AAT with T documents. This means that documents or information considered in the
making of the decision must be provided within a specified time.
To assist the Litigation section to meet prescribed timeframes ensure that:

All information relied on in making the decision is placed on the file including onshore police
clearances where relevant.

If information has been extracted from visa application files this should be noted and copies
of those documents placed on the citizenship file with a reference to which file they were
copied from.

If documents have been scanned and stored in ISR/BAMS ensure that there are copies of
those documents on the file before referring to the Litigation section.

The application and attached documents are folioed before sending to the Litigation section.

A copy of the ICSE notes is attached to file.

The decision record and notification letter is attached.

If the application was refused on residence grounds attach a copy of the residence calculation
screen.

If passenger cards and movement records were used in the assessment of the application
attach these to the application.

All correspondence with the client is to be attached to the file.

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17.6

Fees

17.6.1 When a fee is payable


For:

Descent see section 3.4.4 Fees to accompany applications (reg 12A)

Adopted children see section 4.6.4 Fees to accompany applications (reg 12A)

Conferral see section 5.24.10 Fees

Cessation see section 8.3.3 Fees to accompany applications (reg 12A)

Evidence see section 9.9.3 Fees to accompany application (reg 12A)

resumption see section 7.3.3 Fees to accompany application (reg 12A).

17.6.2 Repayment of an application fee


The department must not keep application fees to which it is not entitled. This includes application
fees paid in relation to invalid citizenship applications on which a decision cannot be made.
Repayment of citizenship application fees are provided for under the Financial Management and
Accountability Act 1997 (FMA Act) not the Australian Citizenship Act.
If an applicants citizenship application does not meet the requirements set out in s46 of the Act
(that is, their application is invalid), arrangements must either be made to:

repay the application fee or

seek the applicants consent, in writing, to retain the application fee (and unlink it from
the application) until such time as the applicant is able to make a valid application that
meets the requirements of s46 of the Act.

In both circumstances a Form 1350 needs to be completed as a record of the F136 delegates
decision.
If a citizenship application is identified as being invalid prior to processing an applicants credit card
details, the application can be returned to the client without processing the credit card transaction.
If a citizenship application is deemed to be invalid (that is, it does not meet the requirements of s46
of the Act), the office that made this determination should arrange for a repayment to be made to
the citizenship applicant. However, if the payment was made at an overseas Post in a foreign
currency, the repayment should be processed by that Post and the repayment made in the same
currency in which it was made.

17.6.3 Refund of an application fee


Refunds can only be approved if they are provided for under regulation 13, which sets out the
circumstances in which the whole or part of a fee that is payable under s46 may be refunded. The
circumstances in which a refund may be paid depend on the type of citizenship application that has
been made.
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A request for a refund should be made in writing by the citizenship applicant unless there are
exceptional circumstances where it would not be appropriate to ask for the request to be made in
writing. For example, the applicant is not literate in the English language and is unable to make such
a request in writing.
Form 1358 (Citizenship refunds), must be completed and signed by an officer delegated to approve a
refund under regulation 13 (APS6 and above in STOs and A-based officers in overseas posts) prior to
an assessment of the refund request being undertaken by a F136 delegate.
For further information, including repayments and refunds for deceased persons, refer to the Chief
Financial Officers Instructions on Refunds and Repayments available on IMMInet.

17.7

Nominated representatives

17.7.1 Who can provide advice on citizenship applications


Any person, including registered and unregistered migration agents, may provide assistance to a
citizenship applicant in relation to an application for Australian citizenship.
Providing assistance to a person for the purposes of an application for citizenship is not immigration
assistance for the purposes of the Migration Act. The Australian Citizenship Act does not make
restrictions on who may provide assistance to applicants.
If an applicant for Australian citizenship has nominated a representative in relation to that
application, the department should not request that the nominated representative complete Form
956 or a Form 956A, regardless of whether or not the nominated representative is a registered
migration agent.
However, if an applicant provides the department with a Form 956 or a Form 956A nominating a
third party to make enquiries on their behalf in relation to their citizenship application, it may be
accepted that the nominated person has the authority to make those inquiries and that the
department may provide information about the applicants citizenship application to the nominated
person.
If a Form 956 or 956A has been completed and the client has indicated that they wish the nominated
person to receive written correspondence, requests for information and notification of decisions
should be addressed to the nominated person with copies to the applicant.
If an applicant has not nominated a representative on their citizenship application form but wishes
to nominate a representative at a later date, they may nominate a representative by way of a letter
to the department. The letter should include the name and address of the nominated representative
authorised by the applicant to make inquiries on the applicants behalf, and state the extent to
which the representative has been authorised by the applicant to act on their behalf.
Information should not be provided to the nominated representative until the department has
received a signed letter to this effect from the applicant.

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If a citizenship applicant has nominated a representative in their citizenship application form, this
means that the applicant has authorised the department to provide information to the
representative about the applicants citizenship application. It does not authorise the department to
send the nominated representative requests for additional documents or information, or
notifications of decisions, unless the applicant has specifically requested this.

17.8

Recording incidents of fraud in citizenship applications

Section 50 of the Act provides that a person commits an offence if the person makes a false
statement or representation in relation to a citizenship application or conceals information relevant
to a citizenship application.
The department takes all attempts to commit fraud seriously. In some circumstances it may be
appropriate to consider whether a client should be prosecuted in relation to citizenship related
fraud. (refer to Chapter 13 - Offences and prosecutions under the Act for further information) Cases
where prosecution may be appropriate should be referred to the Investigations section in each State
or Territory.
It is very important that officers report all incidents of fraud identified while processing citizenship
applications. This enables the department to collect information about fraud and consider options
for combating that fraud.
Fraud may include:

Fraudulent documents - these may be altered documents or counterfeit documents used to


support an identity or an application, including requests for residence discretions

Identity fraud this may include impostors or document fraud

Non-disclosure of criminal convictions or other activities of concern - this may include the
signing of the Character declaration stating no criminal convictions where criminal history
checks show otherwise

Fraudulent relationship claims for the purposes of citizenship by descent this may include in
some circumstances, claims to citizenship by descent through non-biological parents or
adoptive parents

Non compliance with the rules of conduct for taking a citizenship test.

All incidents should be recorded in ICSE using the Fraud Data Management event. This can be done
by going to Client -> New->Request-> Fraud and completing the fields using the dropdown menus.

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Chapter 18 Best interests of the child


18

18.1

OVERVIEW

Introduction

This chapter provides guidance on when and how to consider the best interests of a child.

18.1.1 The status of international conventions in Australian law


The power to approve or refuse citizenship in accordance with the Act is a fundamental exercise of
Australian sovereignty.
Any obligations Australia has under international conventions have no domestic legal force in
Australia unless they are incorporated into, or may be considered under, an Australian law.

18.1.2 The Convention on the Rights of the Child


Australia is a signatory to the Convention on the Rights of the Child (CROC). Article 3 of the CROC
states:
In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests
of the child shall be a primary consideration.
Australias obligations under the CROC only apply to children (that is, persons under the age of 18)
within Australias territory or jurisdiction.

18.2

When to assess the best interests of the child

As Article 3 is worded all actions concerning children, officers should assess the best interests of a
child in relation to:

decisions under the Act directly relating to the child and

decisions under the Act about a family member, primary care giver or other person who
has claimed responsibility for the child, even if the decision does not directly relate to the
child. This is because a decision about a parent or primary care giver may affect the child.
The child concerned may be a non-citizen or an Australian citizen child of a non-citizen
parent.

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When exercising a power that does not specifically address the best interests of the child and which
does not allow the decision maker any discretion, there is generally no scope to consider the best
interests of the child. For example, s16 of the Act requires that an applicant for citizenship by
descent had an Australian citizen parent at the time of the applicants birth. If that requirement is
not met then the decision maker is required under s17 to refuse to approve citizenship for the
applicant, without considering the best interests of the child. However, wherever possible, decision
makers should consider the best interests of the child when making a decision.
Officers must consider a childs best interests when exercising a discretionary power under the
following provisions of the Act:

s19D(3) - refusal of an application for citizenship by a child adopted in accordance with


the Hague Convention on Inter-country Adoption

s19D(7A) discretion to not apply s19D(6)(a)(ii) (convicted of certain offences)

s22(4A) and 22(5) ministerial discretion administrative error

s22(5A) ministerial discretion confinement in prison or psychiatric institution

s22(6) ministerial discretion person in Australia would suffer significant hardship or


disadvantage

s22(9) ministerial discretion spouse, de facto partner or surviving spouse or de facto


partner of Australian citizen

s22(11) ministerial discretion person in an interdependent relationship

s22A(3) confinement in prison or psychiatric institution

s22A(4) and (5) - ministerial discretion administrative error

s22B(3) confinement in prison or psychiatric institution

s22B(4) and (5) - ministerial discretion administrative error

s24(2) refusal of an application for citizenship by conferral

s24(4C) - discretion to not apply s24(4A)(a)(ii) (convicted of certain offences)

s25 minister may cancel approval

s26(3) determination that a person cannot make a pledge

s26(5) revocation of determination that a person cannot make a pledge

s30(2) refusal to approve a person becoming a citizen again

s30(7) - discretion to not apply s30(5)(a)(ii) (convicted of certain offences)

s33(5) minister may refuse to approve the person renouncing his or her citizenship

s34 revocation of citizenship

s36 minister may revoke the citizenship of the child of a responsible parent who ceased
to be a citizen

s37 evidence and cancellation of evidence of citizenship

s38 minister may request a person surrenders an evidentiary notice

s40 request for personal identifiers.

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18.3

What are the best interests of the child

The meaning of best interests of the child is not defined, but is informed, in part, by the principles
in the CROC. The factors that are most likely to be relevant to citizenship decisions are:

children should be protected from all forms of physical or mental violence, injury or
abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual
abuse

families should be able to stay together, as far as possible

the rights and duties of parents and other relevant family members should be respected
and it should be recognised that both parents have common responsibilities for the
upbringing and development of the child

the child has the right to preserve his or her identity, including nationality, name and
family relations as recognised by law

prevention of the illicit transfer and non-return of children abroad

freedom of religion

the views of the child should be given weight in accordance with the childs age, maturity
and level of understanding and

the degree of the childs integration into the Australian community.

Those factors raised by the applicant or a third party, or evident on the available material, must be
considered. Decision makers are not required to request further material for consideration regarding
the rights of a child.
Although the CROC provides that minors are entitled to access public education, public health
services and social welfare, and to not be subject to economic exploitation, these generally will not
be an issue when deciding citizenship applications. This is because:

there is no discretionary power to refuse citizenship applications under Division 2,


Subdivisions A (Descent) and AA (Hague Adoption) and

most applicants under Division 2 Subdivision B (Conferral) are permanent residents, who
have appropriate access to education, health and social welfare services, and when in
Australia are covered by the same labour laws as Australian citizens.

18.3.1 Weighing the best interests of the child against other matters
Article 3 requires that the best interests of the child be a primary consideration in all actions
concerning children. Article 3 does not require that the best interests of the child be the only
primary consideration. The best interests of the child must be weighed with or against any other
primary considerations in the specific circumstances. Other primary considerations may include (but
are not limited to):

the objectives of the relevant provision/s in the Act

community protection and

community expectations.

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This means that although it may be assessed that a particular decision would be in the best interests
of a child, it does not automatically follow that it is the decision that should be made. For example, it
may be in the best interests of a child for a delegate to decide not to revoke an associated persons
Australian citizenship under s34 but, depending on the particular facts and after taking into account
the other primary considerations, the decision maker may conclude that revocation of the persons
citizenship is the decision that should be made.

18.4

Recording the assessment

The assessment of the best interests of the child should be included in the decision record.

18.5

Further information

For the full text of the CROC see: http://www.austlii.edu.au/au/other/dfat/treaties/1991/4.html


Delegates may obtain advice about assessing the best interests of the child in specific cases from the
Citizenship Helpdesk.
Advice on the CROC should be sought from Legal Policy Section through the Citizenship Helpdesk.

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Chapter 19 Determining if a parent-child


relationship exists
19

19.1

OVERVIEW TO CHAPTER 19

Introduction

The Act contains a number of provisions that refer to a persons parent. These include:

s6 (responsible parent)

s12 (automatic acquisition by birth in Australia)

s16 (citizenship by descent)

s21(6) (person born to former Australian citizen)

s21(7) (person born in Papua)

s47(2) (notification).

Whether a person is a parent of a child is a finding of fact, with parent having its meaning in ordinary
contemporary English usage.
In most cases, a persons parents are their biological parents. However, in some circumstances such
as those involving artificial conception procedures and/or surrogacy arrangements, determining who
is a parent can be more complex.

19.2

Meaning of parent

19.2.1 Background
Up until the decision of the Full Federal Court (FFC) in H v Minister for Immigration and Citizenship
[2010] FCAFC 119 (H)) on 15 September 2010, the department interpreted parent in the Act as a
biological parent, unless there was a contrary intention in a specific provision. For example, adoptive
relationships are provided for in s13 and Subdivision AA of the Act. In H, the FFC held that in the
absence of a definition of parent in the Act, the meaning of parent in section 16 (concerning
citizenship by descent) is not limited to biological parents. The FFC held that it is sufficient that, at
the time of birth, an Australian citizen is a parent as that word is understood in ordinary usage.
Therefore citizenship by descent, until then available under the Act to children of Australian citizen
biological parents, can also be accessed by children of Australian citizen non-biological parents.
Under policy, the decision of the FFC in relation to the meaning of the word parent in s16 also is
applied to the word parent where it is used elsewhere in the Act.

19.2.2 Fraud
An application requires additional scrutiny if one or more of the following circumstances apply:
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the person stated to be the childs mother travelled by air in what would have been a
very advanced state of pregnancy (most airlines will not carry a passenger after the 28th
week of pregnancy)

the person stated to be the childs mother is of mature age and the birth certificate
shows the child to be her first born

the person stated to be the childs mother claims to have had no pre-natal attention from
a doctor in Australia

a person stated to be a parent is not contactable

the person stated to be the childs mother claims she had no ante-natal care

an application is lodged by a responsible parent in Australia and the child is off-shore

the birth certificate was issued many years after the birth

the travel movements of the persons stated to be the parents indicate that they could
not have been together at the time the child would have been conceived

a child notionally eligible for citizenship applied for a visa before seeking citizenship or
evidence of citizenship.

There have been fraudulent attempts to register adopted children for citizenship by descent. This is
often difficult to detect because in many countries a new birth certificate is issued without any
reference to the natural parents or the fact that the child has been adopted.
Any fraudulent attempt to obtain citizenship or evidence of citizenship should be reported to the
Citizenship Helpdesk so that details can be included on MAL.

19.3

Applicants claiming a biological relationship to their parent

A decision maker may be satisfied that the parent-child relationship is biological after considering, as
a whole, evidence concerning matters such as:

the nature of the relationship between the claimed parents

travel movements for the claimed parents around the date of conception

the applicants birth, registration of birth and the chain of custody post-birth

physical similarities between the applicant and claimed parent.

19.3.1 DNA testing


In cases where a person applies for Australian citizenship or evidence of citizenship on the grounds
that they are the biological child of:

an Australian citizen (for descent) or

an Australian citizen or permanent resident (for births onshore)

and the decision maker is not satisfied that the person has such a biological relationship, the
decision maker may suggest a DNA test.
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DNA testing facilities and procedures (how tests are conducted and details of recommended
laboratories) is available in PAM3: Div1.2/reg1.12 - Member of the family unit - DNA testing. Letters
requesting DNA testing for Australian citizenship applicants can be found on IMMInet (at
http://dimanet.immi.gov.au/DIMA_services/citizenship/citizenship_letters/general_correspondence
). If the intranet is not available at post, these can be obtained from the Citizenship Helpdesk.
Public information is available on the departments website and on Form 1259i (Information about
DNA testing for visa and citizenship applicants). Translations of this form are available in
Vietnamese, Mandarin, Tagalog, Amharic, Dari, Somali, French and Arabic.
DNA evidence will be most useful in countries where there is a high incidence of document fraud or
where official documentation is simply unavailable. It can also be useful where there is some doubt
about the validity of the claimed relationships and/or credible documentation cannot be provided to
substantiate the claims. A DNA inclusiveness result of 99.5 or more may be taken as persuasive
evidence of the biological relationship.
If the opportunity to provide DNA evidence in support of an application has been offered and not
accepted, the decision maker should consider the applicants reason/s for not accepting the offer
and whether any adverse inference may be drawn.
Decisions on applications should be made on the information available at the time. If the applicant
declines to undertake a DNA test, or if the results of a DNA test do not support the applicants
claims, the decision maker should assess the claimed parent-child relationship in the light of any
other relevant factors see following.

19.4

Applicants who do not claim a biological link or who have


insufficient evidence of a claimed biological link

19.4.1 Background
These cases may occur for a variety of reasons, such as:

the applicant was born through a surrogacy arrangement that did not involve the
contribution of genetic material by either commissioning parent

the applicant and their parent held a genuine but mistaken belief that they were
biologically parent and child

the applicant acknowledges that there is no biological link to their claimed parent but
contends that they nevertheless had a parent-child relationship at the relevant time
(generally as of the date of the applicants birth).

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19.4.2 Factors to be taken into account


For citizenship by birth (s12), the parent-child relationship between the Australian citizen or
permanent resident and the applicant must have existed at the applicants time of birth. Similarly,
for citizenship by descent (s16), the parent-child relationship between the Australian citizen and the
applicant must have existed at the applicants time of birth. The applicant (or, if applicable, their
responsible parent) should be asked to provide evidence of the length and nature of the Australian
citizens or permanent residents parental relationship with the child.
Note: Evidence of the length and nature of the relationship between the claimed parents may
corroborate the evidence of the relationship between the applicant and the Australian citizen
parent, but is not in itself evidence of the parent-child relationship.
It is unlikely that any one piece of non-biological evidence would be sufficient to prove the required
parent-child relationship. The decision maker more likely will be required to weigh up any relevant
factors, including social and legal, to reach a finding of fact as to whether the claimed parent is (was)
or is (was) not a parent of the applicant at the relevant time.
Evidence that the claimed parent-child relationship existed at the time of the applicants birth may
include, but is not limited to:

anything which would show the Australian citizens inclusion as a parent on the birth
certificate was done with their prior consent

evidence that the Australian citizen was involved in providing care for the unborn child
and/or the mother during the pregnancy, for example, emotional, domestic or financial
support, making arrangements for the birth and prenatal and postnatal care

evidence that the child was acknowledged socially from or before birth as the Australian
citizens child, for example, the child was presented within the Australian citizens family
and social groups as being the Australian citizens child and

when a child is born through a surrogacy arrangement - a formal surrogacy agreement


entered into before the child was conceived and lawful transfer of parentage before or at
time of birth in the country in which the surrogacy was carried out.

Evidence that the Australian citizen treated the child as their own from some point in time after
birth would not by itself be evidence that they were the childs parent at time of birth, but would
lend weight to evidence of the types mentioned above.
Under policy, in the absence of satisfactory evidence of biological parentage, any other evidence
provided should be closely scrutinised and verified to the maximum practical extent.

19.4.3 Relevance of foreign law


The status of a person as a parent under a foreign law may be taken into account, but is not
determinative as to whether that person is a parent for the purposes of the Act.

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19.5

Children born as a result of artificial conception procedures

19.5.1 Artificial conception (ACP)


ACP includes artificial insemination or the implantation of an embryo in the body of a woman. An
alternative term is assisted reproduction.

19.5.2 Legislative framework


ACP is regulated in Australia by the States and Territories.
The FLA provides for recognition under family law of certain parent-child relationships created
through ACP. The FLA in turn refers to the following prescribed state and territory laws:

Status of Children Act 1996 (NSW)

Status of Children Act 1974 (Vic)

Status of Children Act 1978 (Qld)

Artificial Conception Act 1985 (WA)

Family Relationships Act 1975 (SA)

Status of Children Act 1974 (Tas)

Parentage Act 2004 (ACT)

Status of Children Act 1978 (NT).

19.5.3 Children born to married or de facto couples through ACP


Section 8 has the effect of limiting who may be considered a parent when a person is a child of
another person under s60H of the Family Law Act 1975 (FLA). Section 8 of the Act provides that if:

a person is a child of a person under s60H of the FLA and

a child of that persons partner under s60H or the biological child of that persons partner

the child is taken to be the child of that married or de facto couple and of no-one else.
Section 8 applies to children born through ACP in Australia or overseas.
For a child covered by s8 of the Act, the immigration or Australian citizenship status of the sperm or
egg donor does not affect the childs eligibility for Australian citizenship. It is the immigration or
Australian citizenship status of the persons who are recognised as the parents of the child under the
FLA that determines whether the child is eligible for Australian citizenship.
If the child is born in Australia they will automatically acquire Australian citizenship at birth under
s12 of the Act if one (or both) of the persons recognised as their parent is an Australian citizen or
permanent resident at the time of the childs birth.
If the child is born overseas and one (or both) of the persons recognised as a parent of the child is an
Australian citizen at the time of the childs birth, the child may be eligible for Australian citizenship
by descent under s16 of the Act.
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19.5.4 Children born to single females and single commissioning male


parents
Section 8 of the Act does not apply to children born to a single woman or single commissioning man.
In such cases, the common meaning of parent applies.
Under policy, if a child is born to a single woman as a result of artificial conception procedure and
the woman is recognised by the FLA as a parent of the child, whether she is the childs biological
parent or not, she should be considered the childs parent for the purposes of Australian citizenship.
Under the common meaning of parent, a single man may be the parent of a child conceived under
ACP using his biological material. However, there may be cases where section 8 of the Act and
section 60H of the FLA have the effect of making the birth mother and her partner the parents of the
child.

19.6

Children born in Australia as a result of a surrogacy arrangement


under a prescribed law of an Australian State or Territory

19.6.1 Surrogacy
Surrogacy is an arrangement, usually contractual, under which a woman (the gestational or birth
mother) agrees to bear a child for another person or persons (the commissioning parent/s) with
the intention that the child be handed over to those persons immediately or very soon after the
birth. The persons involved may or may not be genetically related to the child.

19.6.2 Legislative framework


Surrogacy is regulated in Australia by the States and Territories. As at 1 May 2013:

NSW, Western Australia, South Australia, Queensland, Victoria and the ACT had
legislation in place to allow altruistic surrogacy (surrogacy arrangements without material
benefits) and prohibit commercial surrogacy

the NSW, ACT and Qld legislation make it an offence for people who are ordinarily
resident in those states to enter into a commercial surrogacy arrangement overseas

the Northern Territory did not have any law on surrogacy and

Tasmanian law prohibits both altruistic and commercial surrogacy (a Bill to legalise
altruistic surrogacy was before the Parliament).

The FLA provides for recognition under family law of certain parent-child relationships created
through a surrogacy arrangement. The FLA in turn refers to the following prescribed state and
territory laws:

Surrogacy Act 2010 (QLD)

Surrogacy Act 2008 (WA)

Parentage Act 2004 (ACT)

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Family Relationships Act 1975 (SA)

Surrogacy Act 2010 (NSW)

Status of Children Act 1974 (VIC).

Section 8 of the Act has the effect of limiting who may be considered a parent when a person is a
child of another person under s60HB of the FLA. Section 8 of the Act provides that if:

a person is a child of a person under s60HB of the FLA and

a child of that persons partner under s60HB or the biological child of that persons
partner

the child is taken to be the child of that married or de facto couple and of no-one else.
For the purposes of s8 of the Act and surrogacy, the immigration or Australian citizenship status of
the sperm or egg donor or birth mother does not affect a persons eligibility for Australian
citizenship. It is the immigration or Australian citizenship status of the persons who are recognised
as the parents of the child under the FLA that determine whether the child is eligible for Australian
citizenship.

19.6.3 If the child was born in Australia through a commercial surrogacy


arrangement
Pending development of this part, inquiries concerning the citizenship status of children born in
Australia through a commercial surrogacy arrangement should be referred to Citizenship Policy
Section via the Citizenship Helpdesk.

19.7

Children born overseas as a result of a surrogacy arrangement

19.7.1 Surrogacy
Surrogacy is an arrangement, usually contractual, under which a woman (the gestational or birth
mother) agrees to bear a child for another person or persons (the commissioning parent/s) with
the intention that the child be handed over to those persons immediately or very soon after the
birth. The persons involved may or may not be genetically related to the child.

19.7.2 Caution
As a party to the United Nations Convention on the Rights of the Child and the Hague Convention on
Protection of Children and Co-operation in Respect of Intercountry Adoption, Australia is committed
to protecting the fundamental rights of children. These Conventions include obligations to prevent
the abduction, sale, or trafficking of children. While Australia does not have obligations towards
children who are not within its jurisdiction, extreme caution should be exercised when deciding
cases involving surrogacy arrangements entered into overseas to ensure that Australia's citizenship
provisions are not used to circumvent adoption laws and other child welfare laws.

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19.7.3 Reporting
Because of the legal complexities involved, the Citizenship Helpdesk must be advised of all cases
involving children born overseas through a surrogacy arrangement.

19.7.4 Legislative framework


There is no national legal framework in Australia regarding surrogacy. As at 14 August 2013:

NSW, Western Australia, South Australia, Queensland, Victoria, Tasmania and the ACT
had legislation in place to allow altruistic surrogacy (surrogacy arrangements without
material benefits) and prohibit commercial surrogacy

the NSW, ACT and Qld legislation also bans people who are ordinarily resident in those
states from entering into a commercial surrogacy arrangement overseas and

the Northern Territory did not have any law on surrogacy.

19.7.5 Section 8 of the Act does not apply


Section 8 of the Act has the effect of limiting who may be considered a parent when a person is a
child of another person under s60HB of the FLA. Section 8 of the Act does not extend to surrogacy
arrangements occurring overseas. In such cases, parent takes its common meaning see section
19.2 Meaning of parent.

19.7.6 If the child was born through a commercial surrogacy arrangement


Legislation in Qld, ACT and NSW makes it an offence for a person normally resident in those
jurisdictions to enter into a commercial surrogacy arrangement, whether the arrangement is carried
out in or outside that jurisdiction. It is DIBPs understanding that the offence of entering into a
commercial surrogacy does not prevent the relationship between the commissioning parent/s and
the child being recognised for purposes of the Act.

19.7.7 Verifying biological parentage


In order to verify that the claimed Australian citizen parent was a parent of the child at the time of
birth, the decision maker can request evidence of the parent/child link such as medical procedure
documents, or suggest DNA testing see section 19.3.1 DNA testing.
In some countries, where surrogacy arrangements are regulated and handled through a court
process, the court documentation may already establish the biological link between the Australia
citizen parent and the child. Documentation from the treating doctor of the relevant medical clinic
may also confirm the biological link. In such cases, this documentation may be accepted as evidence
of the biological link.

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If the claimed parentage is not biological, or such a link is not demonstrated to the satisfaction of the
decision maker, it will be necessary to assess whether other factors sufficiently support the claimed
parental relationship see section 19.4 Applicants who do not claim a biological link or who have
insufficient evidence of a claimed biological link.

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Chapter 20 Responsible parent


20

OVERVIEW TO CHAPTER 20

Responsible parent is defined in s6 of the Act. A person may be a responsible parent under one of
more paragraphs of s6(1).
The underlying policy intention is that a person with lawful responsibility for a child, whether or not
they are a parent of the child, may act on behalf of that child for some purposes of the Act.
The term responsible parent is used in the following provisions of the Act and Regulations:

s25(4) - cancellation of childs approval

s28(3) and (4) - day citizenship begins

s36 - children of parents who cease being Australian citizens, and

s46 application requirements.

20.1

Responsible parent

20.1.1 The person is a parent of the child


For the purposes of s6(1)(a), parent has its common meaning and is not limited to a biological
parent see section 19.2 Meaning of parent.
A parent is not a responsible parent if, because of orders made under the FLA, they no longer have
any parental responsibility for the child. Parental responsibility has the same meaning as in Part VII
of the Family Law Act 1975 - all the duties, powers, responsibilities and authority which, by law,
parents have in relation to children.
Note: WA has not referred its family law powers to the Commonwealth. An order removing parental
responsibility made under WA legislation does not cause a parent to cease to be a responsible
parent for the purposes of the Act.

20.1.2 Under a parenting order the child is to live with the person
Parenting order has the same meaning as in the FLA. A parenting order may deal with one or more
of the following:

the person or persons with whom a child is to live

the time a child is to spend with another person or other persons

the allocation of parental responsibility for a child

if 2 or more persons are to share parental responsibility for a child--the form of


consultations those persons are to have with one another about decisions to be made in
the exercise of that responsibility

the communication a child is to have with another person or other persons

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maintenance of a child

the steps to be taken before an application is made to a court for a variation of the order
to take account of the changing needs or circumstances of:

a child to whom the order relates or

the parties to the proceedings in which the order is made

the process to be used for resolving disputes about the terms or operation of the order

any aspect of the care, welfare or development of the child or any other aspect of
parental responsibility for a child.

A person does not need to be a parent in order to meet the requirements of s6(1)(b).
A parenting order that requires the child lives with a person is sufficient evidence that person is a
responsible parent.

20.1.3 Under a parenting order the person has parental responsibility for
the childs long-term or day-to-day care, welfare and development
A person does not need to be a parent in order to meet the requirements of s6(1)(c).
A parenting order that gives a person parental responsibility for a childs long-term or day to day
care, welfare and development is sufficient evidence that the person is are a responsible parent. It
is not necessary for the child to be living with the person.

20.1.4 The person has guardianship or custody of the child, jointly or


otherwise, under an Australian law or a foreign law, whether because
of adoption, operation of law, an order of a court or otherwise
Section 6(1)(d) provides for a person to be considered a responsible parent if they have
guardianship or custody of a child. The person claiming to be a responsible parent must have
guardianship or custody of the child under an Australian or foreign law.
As neither guardianship nor custody are defined in the Act or Acts Interpretation Act 1901, they take
their common or dictionary meaning.
Guardianship is defined in the Macquarie Dictionary as someone who guards, protects or
preserves or someone who is entrusted by law with the care of the person or property, or both, of
another, as of a minor or of some other person legally incapable of managing their own affairs.
Custody is defined as keeping; guardianship; care, or legal guardianship of a child.

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20.2

Application requirements general

20.2.1 Applicants aged 16 and 17


An application by a minor aged 16 or 17 does not ordinarily require the consent of a responsible
parent. An exception would be when there is reason to believe that the minor does not have lawful
capacity to act for themselves.

20.2.2 Applicants aged under 16


An application by a minor under 16 requires the consent of a responsible parent. The consent of all
responsible parents is not necessary.

20.3

Application requirements children born through an international


surrogacy arrangement

As the legal status of surrogacy arrangements differs from country to country, and sometimes,
between different jurisdictions within a country, each surrogacy arrangement needs to be looked at
carefully in the context of the local laws where the child was born.
To satisfy application requirements, one of the following will usually be required:

the commissioning parent can be asked to provide a court order or other evidence from
the country where the child was born, indicating that the commissioning parent who is
signing the citizenship application form has parental responsibility for the child (as
required under s6 of the Act) or

if the commissioning parent does not have parental responsibility for the child, the
surrogate gestational mother (or another person with parental responsibility) would need
to make the application on behalf of the child. Consideration should be given to
interviewing the surrogate gestational mother (or other person with parental
responsibility) to ensure that they have genuinely and voluntarily given their consent to
the application being made.

Citizenship Helpdesk can assist in determining whether there is sufficient evidence to enable the
commissioning parent to be recognised as a responsible parent for the purposes of s6 of the Act.

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20.4

Disputes between responsible parents

20.4.1 Application validity


If the department becomes aware that one responsible parent objects to an unfinalised citizenship
application that was made on behalf of a child by another responsible parent, the objecting
responsible parent should be asked to provide evidence (by way of a court order) demonstrating
that the responsible parent who lodged the application did so without authority. If the evidence is
not provided, the application should continue to be processed. If evidence is provided that the
responsible parent in question did not have authority to unilaterally make the application on behalf
of the child, then the application should be regarded as not having been validly made.

20.4.2 Withdrawal of application


An applicant is able to withdraw their application for citizenship before the Minister makes a
decision in relation to the application. If a responsible parent attempts to withdraw an application
that was validly made on behalf of a child by another responsible parent, the responsible parent
attempting to withdraw the application should be asked to provide evidence demonstrating that
they have the authority to do so (for example, a court order made after the application was lodged
that gives the responsible parent sole authority to act on behalf of the child in such matters).

20.5

Notification requirements

While a responsible parent may sign an application on behalf of a child, notification of a decision
under s47(2) may only be given to a parent. Depending on the particular facts, a person who is a
responsible parent under s6(1)(b), (c) or (d) may also be considered a parent under the common
meaning of that term see Chapter 19 Determining if a parent-child relationship exists.

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