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Citizenship Policy Section, Citizenship Branch, Citizenship, Settlement & Multicultural Affairs Division, National office. Chapters: Chapter 1 - Preliminary and definitions Chapter 2 - Automatic acquisition of citizenship Chapter 3 - Citizenship by descent Chapter 4 - Children Chapter 5 - Citizenship by conferral Chapter 6 - Ceremonies Chapter 7 - Resuming citizenship Chapter 8 - Cessation of Australian citizenship Chapter 9 - Evidence of Australian citizenship Chapter 10 - Character Chapter 11 - Personal identifiers Chapter 12 - National security Chapter 13 - Offences and prosecutions under the Act Chapter 14 - New Zealand citizens in Australia Chapter 15 - People born in Papua New Guinea Chapter 16 - Citizenship test.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 1
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 1
OVERVIEW OF CHAPTER 1
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 Help Desk and information on British subject status before and after 26 January 1949.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 1
COMMENCEMENT (S2)
The Act received Royal Assent on 15 March 2007 and came into effect on 1 July 2007.
DEFINITIONS (S3)
The following terms are defined in s3 of the Act: adverse security assessment - has the meaning given by s35 of the Australian Security Intelligence Organisation Act 1979. Section 35 of the ASIO Act provides that: Adverse security assessment means a security assessment in respect of a person that contains: (a) (b) 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 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).
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office 17 September 2010 Chapter 1 - p 4
ACIs - Chapter 1
artificial conception procedure - For definition, see Children born as a result of artificial conception procedures or surrogacy arrangements under a prescribed law of an Australian state/territory (s8). For policy and procedures see Chapter 4: Part 2 - Children born as a result of artificial conception procedures or surrogacy arrangements. 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. 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. The Australian Antarctic Territory became an Australian territory on 13 June 1933. The Ashmore & Cartier Islands became an Australian territory on 3 May 1934. The Coral Sea Islands became an Australian territory on 30 September 1969. Heard & McDonald Islands became an Australian territory on 24 April 1953.
Cocos (Keeling) Islands and Christmas Island Australian Antarctic Territory Ashmore & Cartier Islands Coral Sea Islands Heard & McDonald Islands
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 Attachment A - Historical provisions in relation to residents of Cocos (Keeling) Islands on 23 November 1955 of Chapter 5 - Citizenship by conferral. Australian citizen - see also Australian citizen (s4). Australian law 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. See Responsible parent (s6) for further information on responsible parent. commencement day 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). disclose - see also Chapter 11 - Personal identifiers. entrusted person - see also Chapter 11 - Personal identifiers. foreign law - A foreign country is any country other than Australia. identifying information - see also Chapter 11 - Personal identifiers.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 1
national security offence - The definition of national security offence makes it clear that certain offences against Australian laws are national security offences, and allows for further offences to be covered by the definition through a determination. Section 6A of the Act provides for such determinations to be made. See also National security offence (s6A). 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 - The old Act was in force from 26 January 1949 up to and including 30 June 2007. ordinarily resident 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 - see also Permanent resident (s5). permanent visa - s3(2) Schedule 3 of the Transitional Act provides an expanded definition or permanent visa. personal identifier prison - also see s9 for information relating to confinement in prison or psychiatric institution. psychiatric institution - also see s9 for information relating to confinement in prison or psychiatric institution. qualified security assessment - s35 of the ASIO Act provides that: Qualified security assessment means a security assessment in respect of a person that: (a) (b) 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 does not contain a recommendation of the kind referred to in paragraph (b) of the definition of adverse security assessment;
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 1
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. responsible parent - see also Responsible parent (s6). serious prison sentence - 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 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 special purpose visa Stateless Persons Convention - Article 1(2)(iii) of the Convention Relating to the Status of Stateless Persons provides that the Stateless Persons Convention does not apply: (iii) To persons with respect to whom there are serious reasons for considering that: (a) 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.
(b) (c)
The Stateless Persons Convention only applies to applications under Division 2, Subdivision A Citizenship by Descent. 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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 1
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 1
CHILDREN BORN AS A RESULT OF ARTIFICIAL CONCEPTION PROCEDURES OR SURROGACY ARRANGEMENTS UNDER A PRESCRIBED LAW OF AN AUSTRALIAN STATE/TERRITORY (S8)
Section 8 was amended with effect from 15 March 2009 by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008. These amendments are consistent with amendments to the Family Law Act 1975. Section 8 applies to children who are covered by s60H (children born as a result of artificial conception procedures) or 60HB (children born under surrogacy arrangements) of the Family Law Act. Section 8 applies to children born as a result of an artificial conception procedure either in Australia or overseas. Section 8 applies only to surrogacy arrangements made under Australian state/territory laws that are prescribed under the Family Law Act 1975. It does not apply to surrogacy arrangements occurring overseas. Because of the complexities involved, all cases involving children born as a result of a surrogacy arrangement must be referred to the Citizenship Help Desk for guidance.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 1
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 1
In relation to periods spent outside Australia, a person is a permanent resident if he or she holds 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). Since 1 September 1994, there has also been provision for certain New Zealand citizens who are outside Australia to be regarded as permanent residents. Note: There are particular complexities regarding the situation of New Zealand citizens. See Chapter 14 - New Zealand citizens in Australia.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 2
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 2
OVERVIEW OF CHAPTER 2
This part comprises: Automatic acquisition of Australian citizenship (Part 2, Division 1) Citizenship by birth (s12) Citizenship by adoption (s13) Citizenship for abandoned children (s14) Citizenship by incorporation of territory (s15). 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 Attachment A - Historical provisions - Birth in Australia and transitional provisions. Most Australian citizens by birth are not recorded in the Departments data storage system. 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 be made to approve or refuse citizenship, there is still a need for a finding of fact to be made that a person satisfied the requirements of a particular section of Part 2 of Division 1 of the Act. A finding of fact will be 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 border control or 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 decision about the citizenship status of a person, the finding of fact should be recorded in the Departments data storage system. 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.
ACIs - Chapter 2
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.
ACIs - Chapter 2
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. For further details on citizenship by adoption, see Chapter 4: Part 1 - Adopted children.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 2
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 2
People 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. During this period the status of Diplomats changed.
Section 25(3) provided for 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) on 26 January 1949 to become 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 - 6 May 1966 on an unrestricted basis (citizenship commenced on the date of entry) or
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office 1 January 2011 Chapter 2 - p 17
ACIs - Chapter 2
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 dead husband who would have if he were still alive) 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 national immediately before 26 January 1949.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 3
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 3
OVERVIEW OF CHAPTER 3
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. Attachment A to Chapter 3 - the old Act outlines the provisions for Australian citizenship by descent between 26 January 1949 and 30 June 2007. 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 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. Decision makers considering applications for citizenship by descent need to take into account the risk of fraud in this caseload. Attachment B - 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. Attachment C - DNA testing has information on DNA testing.
Surrogacy arrangements
Extreme caution should be exercised in cases where the child may be born as a result of offshore surrogacy arrangements. Because of the complexities involved in these cases, all cases involving surrogacy arrangements must be referred to the Citizenship Help Desk. Further information is at Chapter 4: Part 2 - Children born as a result of artificial conception procedures or surrogacy arrangements.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 3
ELIGIBILITY
This part comprises: Persons born outside Australia on or after 26 January 1949 Persons born outside Australia before 26 January 1949.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 3
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 3
APPLICATION REQUIREMENTS
This part comprises: Applicants born before 26 January 1949 Applicants born on or after 26 January 1949 Information and documents to accompany applications (reg 12) Fees to accompany applications (reg 12A). 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. 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 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 a parent was an Australian citizen when the applicant was born 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 penal clearance certificates from overseas countries if, in the last 10 years: the applicant has lived or travelled overseas since the age of 18 years or over and the total time spent overseas added up to 12 months or more and the time spent in any one country was more than 90 days or the applicant is requested to do so by the Department. Note: If the applicant is overseas and spent time in Australia, a penal clearance certificate for Australia may be required. These applicants are also required to complete the National Police Check (NPC) Application Form, which is available from the Australian Federal Police website www.afp.gov.au. Applications made on behalf of a child under 18 years of age needs to be supported by: an endorsed passport size photograph of the child the childs passport, if any identification documents for the responsible parent which include a signature, photograph and current address (eg. passport bio page, driving licence and credit card/utilities bill). Official translations of documents in languages other than English must be provided. In Australia, translators should be accredited by the National Accreditation Authority for Translators and Interpreters (NAATI) as qualified to do official translations from the other language into English. For overseas lodged applications the current guidelines for translations in that post apply.
ACIs - Chapter 3
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 3
DECISION MAKING
This part comprises: An application must be approved or refused (s17) Registration (s18) Day citizenship begins (s19) Notification of decisions (s47) Review of decisions (s52) Revocation by Minister (s34).
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.
ACIs - Chapter 3
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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 3
PEOPLE BORN OUTSIDE AUSTRALIA ON OR AFTER 26 JANUARY 1949 TO AN AUSTRALIAN CITIZEN PARENT
This part comprises: 26 January 1949 to 21 November 1984 Between 22 November 1984 and 30 June 2007 People born out of wedlock.
ACIs - Chapter 3
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 OUTSIDE AUSTRALIA OR NEW GUINEA BEFORE 26 JANUARY 1949 TO A FATHER WHO BECAME AN AUSTRALIAN CITIZEN ON 26 JANUARY 1949
This part comprises: Who became a citizen on 26 January 1949? Descent provisions.
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).
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 3
ATTACHMENT B - 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 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. 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 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 Help Desk so that details can be included on MAL.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 3
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 3
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 3
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 4
CHAPTER 4 - CHILDREN
This Chapter comprises two parts: Part 1 - Adopted children, comprising: Part 1 - Adopted children Overview of adoption provisions & Citizenship Automatic acquisition of Australian citizenship by adoption Acquisition of Australian citizenship by application under full Hague adoption Eligibility for citizenship - full Hague adoption Application requirements (s46) - Full Hague adoption Decision - Full Hague adoption Acquisition of Australian citizenship by application for conferral and Part 2 - Children born as a result of artificial conception procedures or surrogacy arrangements Introduction Children born in Australia as a result of a surrogacy arrangement Children born overseas as a result of a surrogacy arrangement.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 4
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 4
OTHER ADOPTIONS
SIMPLE HAGUE ADOPTION Onshore Some Hague Convention countries do not have full Hague adoption arrangements (ie, do not issue adoption compliance certificates). 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 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
EXPATRIATE ADOPTIONS Generally Offshore Child adopted overseas by Australians residing overseas, with no involvement by Australian adoption authorities. These adoptions are not recognised under Australian law. 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 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
1 January 2011 Chapter 4 - p 36
ACIs - Chapter 4
permanent resident at the time of application and decision to be eligible for Australian citizenship.
child is present in Australia as a permanent resident and at least one adoptive parent is an Australian citizen.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 4
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 4
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. 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 Family Section, Migration Branch.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 4
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 4
A simple Hague adoption occurs when a Convention country, although a signatory 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 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 signatory 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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 4
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 4
Change of name requirements -when childs name is changed 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 in a minor-moderate way 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 in a moderate-major way and/or 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 (eg. change of name document from RBDM).
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office 1 January 2011 Chapter 4 - p 43
ACIs - Chapter 4
A minor change would usually be one in which the childs birth name was essentially retained with the family name changed to the adopting parents family name, for example: Birth name: ROSA MAREE JONES
Current name: ROSA MAREE Smith A moderate change would usually be one in which some of the childs birth name was retained, with the adopting parents family name added, and additional names added/removed, for example: Birth name: ROSA MAREE JONES
Current name: Rose MAREE Smith; ROSA Marie Smith; ROSA Emily Smith; Emily ROSA Smith; Emily MAREE Smith; ROSA Smith; MAREE Smith; Emily ROSA MAREE Smith; MAREE ROSA Smith. A major change would usually be one in which the childs entire birth name has been changed, for example: Birth name: ROSA MAREE JONES Current name: Rose Marie Smith; Rose Smith; Marie Smith; Marie Rose Smith; Rose Emily Smith; Emily Marie Smith; Marie Rose Smith; Emily Smith; Emily Catherine Smith.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 4
ACIs - Chapter 4
REGISTRATION (S19E)
If the person is approved to be an Australian citizen by full and permanent Hague adoption their details must be registered in the Departments data storage system in accordance with the regulations.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 4
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 procedures, see Chapter 5 - Citizenship by conferral.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 4
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 4
INTRODUCTION
The Act contains a number of provisions that refer to a persons parent. These include section 12 (automatic acquisition by birth in Australia), section 16 (citizenship by descent), section 21(6) (person born to former Australian citizen) and section 21(7) (person born in Papua). Sections 30(6) and 47(2) also use the term parent. In cases where a child has been born as a result of surrogacy or artificial conception procedures it may be necessary to see additional evidence of the biological parent-child relationship such as DNA testing. It will also be necessary to see evidence of the parents legal guardianship of the child if they wish to lodge an application on behalf of a child aged under 16 years. The Citizenship Helpdesk can provide further guidance on the types of evidence required to establish the biological link and legal guardianship.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 4
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 4
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 5
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 5
OVERVIEW OF CHAPTER 5
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 18 and a permanent resident or were born outside Australia to a former Australian citizen who ceased to be a citizen under s17 of the old Act (about dual citizenship) or were born in Papua before 16 September 1975 to a parent born in Australia 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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 5
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 5
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 5
Circumstances that could 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), 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. Definition of Australia and external territories 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. 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. 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 within Australian citizenship legislation for people ordinarily resident in those territories before they became Australian territories are at Attachment A - Historical provisions in relation to residents of Cocos (Keeling) Islands on 23 November 1955. 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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office 1 January 2011 Chapter 5 - p 56
ACIs - Chapter 5
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 Help Desk.
Likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia (s21(2)(g))
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 (eg public or private sector) ownership of property in Australia
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office 1 January 2011 Chapter 5 - p 57
ACIs - Chapter 5
evidence of income tax payment in Australia and current bank accounts in Australia. 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 evidence to the contrary.
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 Ministers decision (s24).
ACIs - Chapter 5
For policy and procedures relating to evidence requirements for applicants claiming hearing, speech or sight impairments, see Attachment F to Chapter 5 - Evidence requirements. 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. Other requirements which must be satisfied include identity, national security, and presence in Australia. 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. Where 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. See: Residence requirement (s22, s22A & s22B) and Relevant defence service (s23). 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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office 1 January 2011 Chapter 5 - p 59
ACIs - Chapter 5
Person aged under 18 (5) A person is eligible to become an Australian citizen if the Minister is satisfied that the person: (a) (b) is aged under 18 at the time the person made the application; and is a permanent resident: (i) (ii) at the time the person made the application; and 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. 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. Consent of a responsible parent If an applicant is under 16 years of age a responsible parent must sign the application form. Prohibitions on approval Decision makers must also ensure there are no prohibitions on approval - see Ministers decision (s24). 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.
POLICY GUIDELINES APPLICANTS AGED 16 YEARS AND OVER AND UNDER THE AGE OF 18
Applicants aged 16 years and over and under the age of 18 (that is, aged 16 or 17 years) must make an application on a form that contains no other application.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office 1 January 2011 Chapter 5 - p 60
ACIs - Chapter 5
Applicants aged 16 years and over and under the age of 18 would usually be approved under s24 if they are permanent residents at the time of application and decision and also meet the following policy guidelines: satisfies the residence requirement the applicant need not meet the residence requirements if this would cause significant hardship or disadvantage. See Attachment B - Significant hardship and disadvantage 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 between the ages of 16 and 18 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 from children aged 16 years and over do not need the consent of a responsible parent. Other requirements which must be satisfied relating to identity, national security, offences and former citizens are set out in Ministers decision (s24). 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, 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 National Office through the Citizenship Help Desk.
ACIs - Chapter 5
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 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 National Office through the Citizenship Help Desk. Children under the age of 16 applying on the same form and at the same time as a responsible parent would usually be approved under s24 if 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 Ministers decision (s24). Note: Decision makers must make a separate decision record for each applicant included on the application. 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 interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances. The circumstances would need to be very unusual to warrant approval of an application outside policy. Guidance on whether it may be reasonable to consider a particular set of circumstances as unusual can be obtained from the Citizenship Help Desk, National Office. Note: Where a child under the age of 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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 5
OTHER REQUIREMENTS
Other requirements which must be satisfied relating to identity, national security, offences and former citizens are set out in Ministers decision (s24).
ACIs - Chapter 5
Other requirements which must be satisfied relating to identity, national security, offences and former citizens are set out in Ministers decision (s24).
STATELESSNESS (S21(8))
No further guidance on s21(8) is necessary. Other requirements which must be satisfied relating to identity and national security are set out in the section on Ministers decision (s24). Applications which are considered to meet the requirements of this section must be referred to Citizenship Operations Section, National Office by contacting the Citizenship Help Desk.
ACIs - Chapter 5
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.
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 noncitizen before meeting the general residence requirement, unless they became unlawful because of administrative error - see Ministerial discretion - administrative error (s22(4A) & (5)). Decision makers must be mindful of SREY-affected cases. 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. Where a client of interest note exists in ICSE indicating the person is SREY-affected, contact a Notification Contact Officer (NCO) in your office for assistance (a list of all NCOs is available on TRIM at PCD2009/3758). 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 - Notification - Notification requirements.
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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office 1 January 2011 Chapter 5 - p 65
ACIs - Chapter 5
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. Example Mr Smith entered Australia on 01/01/2004 on a subclass 457 visa. He departs a week later, and reenters on 01/01/2006 on the same subclass 457 visa. He remains in Australia, becomes a permanent resident on 01/01/2008 and applies for citizenship on 01/01/2009. Mr Smiths 4-year lawful period starts on 01/01/2005 (4 years before applying) because although he was outside Australia on this date, he was previously in Australia and was still the holder s/c 457 visa.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 5
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. Under s80 of the Migration Act, certain non-citizens on ships or aircrafts, 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).
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 could include: convictions quashed (set aside by the court) a pardon, that is, a free and absolute pardon granted because the person was wrongly convicted. 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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 5
MINISTERIAL DISCRETION - PERSON IN AUSTRALIA WOULD SUFFER SIGNIFICANT HARDSHIP OR DISADVANTAGE (S22(6))
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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office 1 January 2011 Chapter 5 - p 68
ACIs - Chapter 5
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. Where 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. Guidance on what would constitute significant hardship or disadvantage, including policy which applied immediately prior to the commencement of the Act, is at Attachment B - Significant hardship and disadvantage.
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 22(9) of the Act, and not 22(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, they can only count time while their Australian citizen spouse or de facto partner was alive. Policy is that this discretion would usually only be exercised if the applicant was overseas with their Australian citizen spouse or de facto partner. Factors that may contribute to a close and continuing association with Australia include: Australian citizen children length of relationship with Australian citizen spouse or de facto partner extended family in Australia return visits to Australia
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office 1 January 2011 Chapter 5 - p 69
ACIs - Chapter 5
periods of residence in Australia intention to reside in Australia employment in Australia (eg public or private sector) ownership of property in Australia evidence of income tax payment in Australia and current bank accounts in Australia. In assessing whether a person has a close and continuing association with Australia for the purposes of paragraph 22(9)(d), more weight should be given if they have 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 if they have not been present in Australian for at least this period. Where the applicant is the spouse, de facto partner, or surviving spouse or de facto 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 even though the discretion may not be required for the purposes of meeting the residence requirement.
ACIs - Chapter 5
Where 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 even though the discretion may not be required for the purposes of meeting the residence requirement.
Applications on hand as at 15 March 2009 involving requests for residence discretions under s22(9) or s22(11)
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.
ACTIVITIES BENEFICIAL TO THE INTERESTS OF AUSTRALIA (FOR APPLICATIONS LODGED PRIOR TO 1 JULY 2007)
For applications lodged prior to 1 July 2007, in assessing whether activities are beneficial to the interests of Australia, consider the following: It requires something in the nature of activities providing some advantage to Australia, whether commercial or otherwise. The concept necessarily connotes some public interest of Australia and means more than the private interests of the (applicant). This section requires some objective benefit to Australia. (Federal Court in Roberts.)
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 5
It requires something in the nature of activities which achieve recognition of Australia or Australian achievements or commercial advantage for Australia, or increase the international respect and goodwill for Australia (it) refers to the public interests of Australia. (AAT in Fraser.) the claim that the applicants employer has enhanced the reputation of its Australian parent company and Australian companies in general, falls short of demonstrating the applicants activities were beneficial to the interests of Australia. (AAT in McCarthy.) There should be a close nexus between the overseas activities and the subsequent benefit to Australia to exercise the discretion. (AAT in Tsui.) The benefit should be largely as a result of the applicants activities and must not be residual, remote, indirect or speculative. (For example, AAT in McCarthy.)
SPECIAL RESIDENCE REQUIREMENT - PERSONS ENGAGING IN ACTIVITIES THAT ARE OF BENEFIT TO AUSTRALIA (S22A)
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). 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 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.
ACIs - Chapter 5
Under s22A(5), periods spent in Australia as an unlawful non-citizen because of an administrative error can be treated as periods of lawful residence. Examples of administrative errors include unlawful cancellation of a visa, grant of a temporary visa to a permanent visa holder, and double processing of a visa application. Administrative error does not occur when a decision is overturned as a result of merits review. Decision makers must be satisfied that an administrative error has in fact occurred. Advice can be sought from the Citizenship Help Desk. Note: The spouse and de facto partner ministerial discretion (s22(9)) cannot be used towards the special residence requirements.
SPECIAL RESIDENCE REQUIREMENT - PERSONS ENGAGED IN PARTICULAR KINDS OF WORK REQUIRING REGULAR TRAVEL OUTSIDE AUSTRALIA (S22B)
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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 5
Examples of administrative errors include unlawful cancellation of a visa, grant of a temporary visa to a permanent visa holder, and double processing of a visa application. Administrative error does not occur when a decision is overturned as a result of merits review. Decision makers must be satisfied that an administrative error has in fact occurred. Advice can be sought from the Citizenship Help Desk. Note - The spouse and de facto partner ministerial discretion (s22(9)) cannot be used towards the special residence requirements.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 5
APPLICATION REQUIREMENTS
This part comprises: Application requirements (s46) Information and documents to accompany applications (reg 12) Fees to accompany applications (reg 12A).
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 5
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. New Zealand citizens who do not hold a permanent visa will also need to provide a certificate issued by Centrelink prior to 26 February 2004 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) in respect of periods of confinement in a prison or a 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) as a person who would suffer 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. Applicants seeking exercise of the residence requirement ministerial discretion under s22(9) as the 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 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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office 1 January 2011 Chapter 5 - p 76
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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 as a person in an 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 must also provide evidence which clearly outlines the service completed, or medical discharge papers if applicable.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
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Reduced fee payable where previous application was refused solely on grounds of not meeting residence requirements
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 who paid $130 for their previous application or paid $20 because they were the holder of certain Centrelink or Department of Veterans Affairs 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 who paid $20 for their previous application or paid $130 because they were not the holder of certain Centrelink or Department of Veterans Affairs pension holders and they now are the holder a pension.
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The Child Migrants Trust 8 Sunbury Road VICTORIA PARK WA 6100 Telephone: 08 9472 7582 Fax: 08 9472 7549
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 5
DECISION MAKING
This part comprises: Ministers decision (s24) Minister may cancel approval (s25) Prescribed reasons for failing to make pledge of commitment (reg 7) Pledge of commitment must be made (s26) How pledge of commitment is to be made (s27) Day citizenship begins (s28) Notification of decisions (s47) Review of decisions (s52).
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
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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)). 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. When 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. Where 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 Chapter 1 - Preliminary and 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, please see Chapter 1 - Preliminary and definitions for further guidance in relation to the terms: confined to a prison and serious prison sentence. Where 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, please see Chapter 1 - Preliminary and definitions for further guidance in relation to the terms: confined to a prison serious prison sentence and serious repeat offender. Where 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. 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.
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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 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. 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.
sureties
recognizance
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. 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 paragraphs 24(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. Please refer these cases to the Citizenship Help Desk. Section 24(6)(h)
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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. Cessation of citizenship (s24(7)) Section 24(7) does not apply to applicants who are stateless and covered by s21(8).
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cancel approval (Advice 6 months) cancel approval (Advice 9 months) 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.
On making the pledge Date application is approved On making the pledge Date application is approved Date application is approved Date application is approved Date the responsible parent becomes a citizen
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Child under 16 years at application who applied in their own right (s21(5)) Child 16 years and over at application (s21(5))
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
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ATTACHMENT A - 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. 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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 5
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 5
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
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Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
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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 Newfoundland South Africa New Zealand - after 1/1/1915 - after 5/6/1915 - after 21/5/1926 - after 1/7/1929.
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 Help Desk with particulars of the parents naturalization, the childs birth and residence in Australia.
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.
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 Help Desk.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
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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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 5
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).
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. 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.
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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). 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).
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citizens of Pakistan and South Africa arriving in Australia on or after 1 December 1973 were aliens.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
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APPLICANTS CLAIMING PERMANENT OR ENDURING PHYSICAL OR MENTAL INCAPACITY OR HEARING, SPEECH OR SIGHT IMPAIRMENTS
Applicants claiming permanent or enduring physical or mental 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 4.3 of the Health Insurance Regulations 1975. Applicants claiming permanent or enduring physical or mental incapacity may also provide evidence from a psychologist who is a fellow of the Australian College of Psychological Medicine or equivalent organisation and is registered with Medicare for these purposes. For example, if an applicant is claiming a mental condition, they need to provide evidence from a psychiatrist who is a fellow of the Royal Australian and New Zealand College of Psychiatrists. Case officers can confirm this 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.
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.
SPECIALIST ORGANISATIONS AND QUALIFICATIONS Schedule 4 - Health Insurance Regulations 1975 (Part 1)
Organisation Specialty Qualification Acronym
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Acronym FACEM
The Royal Australasian College of Physicians, Division of Adult Medicine and Division of Paediatric and Child Health
General Medicine General Paediatrics Cardiology Clinical Genetics Clinical Pharmacology Endocrinology Gastroenterology and Hepatology Geriatric Medicine Haematology Immunology and Allergy Infectious Diseases Intensive Care Medical Oncology Nephrology Nuclear Medicine Palliative Medicine Respiratory and Sleep Medicine Rheumatology
The Royal Australasian College of Physicians, Australasian Chapter of Palliative Medicine The Royal Australasian College of Physicians, Australasian Faculty of Occupational Medicine The Royal Australasian College of Physicians, Australasian Faculty of Rehabilitation Medicine
Palliative Medicine
Fellowship of the Australasian Chapter of Palliative Medicine Fellowship of the Australasian Faculty of Occupational Medicine Fellowship of the Australasian Faculty of Rehabilitation Medicine
FAChPM
Occupational Medicine
FAFOM
Rehabilitation Medicine
FAFRM
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Organisation The Royal Australasian College of Physicians, Australasian Faculty of Public Health Medicine Australian and New Zealand College of Anaesthetists
Qualification Fellowship of the Australasian Faculty of Public Health Medicine Fellowship of the Australian and New Zealand College of Anaesthetists Fellowship of the Faculty of Pain Medicine, Australian and New Zealand College of Anaesthetists
Acronym FAFPHM
FANZCA
Pain Medicine
FFPMANZCA
Cardio-thoracic Surgery General Surgery Neurosurgery Orthopaedic Surgery Otolaryngology - Head and Neck Surgery Paediatric Surgery Plastic and Reconstructive Surgery Urology Vascular Surgery
The Australasian College of Dermatologists The Royal Australian and New Zealand College of Radiologists
Dermatology
FACD
Fellowship of the Royal FRANZCR Australian and New Zealand College of Radiologists
Psychiatry
Fellowship of the Royal FRANZCP Australian and New Zealand College of Psychiatrists
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Organisation The Royal Australian and New Zealand College of Obstetricians and Gynaecologists
Specialty Obstetrics and Gynaecology Gynaecological Oncology Maternal-fetal Medicine Obstetrics and Gynaecological Ultrasound Reproductive Endocrinology and Infertility Urogynaecology
Qualification
Acronym
Fellowship of the Royal FRANZCOG Australian and New Zealand College of Obstetricians and Gynaecologists
The Royal Australian and New Zealand College of Ophthalmologists The Royal College of Pathologists of Australasia
Ophthalmology
Fellowship of the Royal FRANZCO Australian and New Zealand College of Ophthalmologists Fellowship of the Royal FRCPA College of Pathologists of Australasia
General Pathology Anatomical Pathology (including Cytopathology and Forensic Pathology) Chemical Pathology Haematology Immunology Microbiology
Fellowship of the Royal FRACDS Australasian College of (OMS) Dental Surgeons (Oral and Maxillofacial Surgery) Fellowship of the Joint Faculty of Intensive Care Medicine FJFICM
Australian and New Zealand College of Anaesthetists and Royal Australasian College of Physicians, Joint Faculty of Intensive Care Medicine
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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 (ie 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. 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, ie 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 1 Dinh Ngoc Middle name 2 Hang Family name 3 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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
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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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
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CHAPTER 6 - CEREMONIES
This Chapter comprises: Overview of Chapter 6 Who conducts citizenship ceremonies Legal requirements for conducting a citizenship ceremony Requirements following a citizenship ceremony Australian citizenship affirmation ceremonies Attachment A - Letter of agreement Attachment B - Expression of interest to host an Australian citizenship ceremony Attachment C - Agreement between DIAC and the party organising a citizenship ceremony Attachment D - Interview / image consent form Attachment E- Overseas ceremony procedures.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
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OVERVIEW OF CHAPTER 6
There are three legal requirements for conducting a citizenship ceremony:
1.
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.
2.
Preamble
The presiding officer must read Schedule 1 of the Regulations (Preamble for citizenship ceremony) to the candidates.
3.
Pledge of commitment
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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
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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 are also encouraged to host citizenship ceremonies. The Department conducts ceremonies as required and to mark special occasions as part of its program to promote Australian citizenship.
Departments role
The Departments role in council ceremonies will vary from office to office. Generally, offices of the Department will: liaise with councils to ensure compliance with the Australian Citizenship Ceremonies Code, ensure that ceremonies are held to respond to demand for timely conferral of prospective citizens, and that pledge verification lists are received from councils within one week of a ceremony distribute citizenship certificates to the councils ensure Department systems databases are updated on the basis of the pledge verification lists received from councils and act as a help desk for council staff. Attendance by Departmental staff to assist with the conduct of local government ceremonies 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.
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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).
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 days such as Australia Day, 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 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 Attachment C - Agreement between DIAC and the party organising a citizenship ceremony. Community organisations may 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 Department should ensure that the community organisation complies with all aspects of the Code. In some cases, this may necessitate attendance by a Departmental representative particularly where the community organisation has not previously conducted a ceremony. They should also be encouraged to consult with their local government council to ensure that the ceremony does not conflict with any planned council ceremony. Representatives of the three levels of elected government must be invited to the ceremony.
THE DEPARTMENT
This part comprises: Routine Departmental ceremonies Special event Departmental ceremonies Overseas post ceremonies.
ACIs - Chapter 6
Departmental ceremonies generally lack the formality and some of the symbolism of public ceremonies but nevertheless must also abide by the Australian Citizenship Ceremonies Code. Prospective citizens should be encouraged to attend a public ceremony. Invitations to (and speeches by) the Ministers representative, 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.
OTHER
This part comprises: Private ceremonies Members of Parliament.
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 where 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. If the MP or Senator already has authorisation to preside at citizenship ceremonies, they should liaise with their closest Departmental office in conducting the ceremony. 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. If the MP or Senator does not already have Authorisation to receive the pledge of commitment at citizenship ceremonies, a request for authorisation should be made in writing to the Minister. Requests should be made well in advance of any proposed ceremony date.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 6
URGENT CEREMONIES
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: 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: 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 whether the persons needs could be accommodated through attendance at a routine council 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 three months for a ceremony and are not scheduled to attend their routine council citizenship ceremony prior to the HECS cut off date. The number of persons able to attend Departmental ceremonies is limited. Therefore it is important that the Department reserves places in these ceremonies for those persons who can demonstrate an urgent and compelling need. Wherever possible, in the first instance, arrangements should be made for the person to be accommodated in a council ceremony.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 6
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 often referred to as presiding officers. Authorisation is given to Australian citizens only and is specific to a position or person. 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 Help Desk. Presiding officers have no power to appoint a proxy. However, if a person is for the time being 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, it is preferable that presiding officers do not confer Australian citizenship on family members, close friends or acquaintances at special purpose ceremonies.
Standing authorisations
Since 2004, Members of the House of Representatives of the Australian Parliament (MPs) have been given, on request, standing authority to preside at citizenship ceremonies following written assurance that they will comply with the Australian Citizenship Ceremonies Code. In 2008, standing authorisation was further extended to Senators. All requests from MPs and Senators seeking authority to preside at citizenship ceremonies should be made in writing to the Minister. The MP or Senator should include with their request a signed letter of agreement (see Attachment A - Letter of agreement) indicating they will abide by the requirements for the conduct of citizenship ceremonies set out in the Australian Citizenship Ceremonies Code. The list of MPs and Senators with standing authorisation is available from the Citizenship Branch, National Office.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 6
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: (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.
PLEDGE OF COMMITMENT
This part comprises: Pledge of commitment must be made - s26 of the Act How the pledge of commitment is to be made.
ACIs - Chapter 6
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. 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 evidence of citizenship. 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. Dandenong office is responsible for forwarding the appropriate number of pledge cards to overseas posts together with citizenship certificates when a ceremony is to be conducted. 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 Help Desk. 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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 6
ACIs - Chapter 6
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. 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. Importantly, it is noted that 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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 6
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 6
I, ,
Federal Member / Senator 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.
Senator Chris Evans Minister for Immigration and Citizenship Parliament House CANBERRA ACT 2601
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 6
Name of the organisation proposing to host the ceremony Contact person within the host organisation Contact postal address Email address Home phone Fax Proposed date and time of the ceremony: Work phone Mobile 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
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 6
I {insert name} 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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 6
ATTACHMENT C - AGREEMENT BETWEEN DIAC AND THE PARTY ORGANISING A CITIZENSHIP CEREMONY
AGREEMENT BETWEEN THE DEPARTMENT OF IMMIGRATION AND CITIZENSHIP (DIAC) 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.
ACIs - Chapter 6
Party organising the citizenship ceremony will provide: volunteers who are responsible for registering conferees 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 DIAC, conferees and guests appropriate venue (with power points and a microphone) seating for the conferees (and their children) seating for DIAC 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.
DIAC 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. Departmental officers may also assist your staff in ushering conferees and/or distributing certificates. To provide citizenship certificates for all candidates. DIAC 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)
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office 1 January 2011 Chapter 6 - p 119
ACIs - Chapter 6
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 DIAC___________________ Planned date of training for the volunteers/community workers _______________(should be within 2 weeks from the ceremony)
The Ministers office and the DIAC 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 DIAC 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 DIAC _____________
THE CEREMONY
MINISTER: ATTENDING NOT ATTENDING CONTINGENCY Venue______________
VENUE:___________________
Total number of conferees:______________________________________ Total number of conferees making pledge 1 ______________________ 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____________________________________
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 6
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 DIAC representative:_______________________________ Signature of representative:__________________________________ Contact number:________________________________________ Email:_________________________________________________ Date:___________________________________________________
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 6
Address:........................................ State/Territory....
Postcode: Date:../.../
E-mail: .................
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 6
I AGREE to being photographed (including still and motion photography formats) without compensation or other rewards; and for DIAC to edit, publish and otherwise make use of the photographs or video recording in current or future promotional material. (Some examples of potential uses are listed on page 1.)
Date:../.../
Interview consent
I AGREE to being interviewed without compensation or other rewards; and for DIAC to edit, publish and otherwise make use of the words in current or future promotional material. (Some examples of potential uses are listed on page 1.)
Date:../.../
Media consent
I AGREE to have my story/images published in both print and electronic media.
Date:../.../
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 6
Disclosure consent
I understand that DIAC may receive a request from other agencies to use my image or comments made during an interview in publicly available training materials about immigration issues or other purposes. Please indicate below whether you agree or disagree to DIAC disclosing this information.
Date:../.../
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 6
3.
4. 5. 6.
7.
8.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 6
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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 7
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 7
OVERVIEW OF CHAPTER 7
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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 7
ELIGIBILITY
This part comprises: Cessation under this Act Cessation under old Act. 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. People aged 18 or over must be of good character. Decision makers must also ensure there are no prohibitions on approval - see Ministers decision (s30). If the applicant is 16 years of age or younger a responsible parent must sign the application form. Responsible parent is defined in s6 of the Act (see Chapter 1 - Preliminary and definitions).
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 7
APPLICATION REQUIREMENTS
This part comprises: Information and documents to accompany applications (reg 12) Fees to accompany application (reg 12A) Refund of fees (reg. 13). 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 Overseas penal clearance certificates 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).
ACIs - Chapter 7
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 7
DECISION MAKING
This part comprises: Ministers decision (s30) Registration (s31) Day citizenship begins again etc (s32) Same kind of citizenship Notification of decision (s47) Review of decisions (s52).
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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 7
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 8
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 8
OVERVIEW TO CHAPTER 8
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, where 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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 8
ELIGIBILITY
Section 33 makes provision for the renunciation of Australian citizenship. No further guidance on s33 is necessary.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 8
APPLICATION REQUIREMENTS
This part comprises: Application requirements (s46) Information and documents to accompany applications (reg 12) Fees to accompany applications (reg 12A).
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 8
DECISION MAKING
This part comprises: Ministers decision (s33) Time citizenship ceases (s33(8)) Notification of decision (s47) Revocation by Minister (s34) Service in armed forces of enemy country (s35) Children of responsible parents who cease to be citizens (s36) Review of decisions (s52(1)).
ACIs - Chapter 8
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 (b) 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. (1B) 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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 8
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 8
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. Where 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. Where there are doubts as to whether a person has ceased their Australian citizenship under s17, the matter should be referred to the Citizenship Help Desk for advice.
ACIs - Chapter 8
the child did not have another responsible parent who was an Australian citizen (this requirement only applied in cases where s18 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. The childs other citizenship does not need to be the same as that of the relevant responsible parent.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 9
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 9
OVERVIEW TO CHAPTER 9
This part comprises: Evidence of Australian citizenship (s37) Form of notice (reg 10). 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. 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. With effect from 1 July 2007, all evidence given under the Act will be in the same form. See Form of notice (reg 10) for more information.
Processing applications for evidence of Australian citizenship, as from 15 September 2010, for children born in Australia to Australian citizen/permanent resident parent
Applications for evidence of Australian citizenship for children born in Australia to Australian citizen/permanent resident parent, where it would appear that the Australian citizen/permanent resident parent is a non biological parent, should be sent to Citizenship Policy Section, National Office, via the Citizenship Help Desk for decision. The decision maker should ask the parent to provide evidence of the length and nature of the relationship with the child, as well as evidence of the length and nature of the relationship with the biological parent of the child. In cases where a person is born in Australia to a biological parent who is an Australian citizen/permanent resident, and subsequently applies for a certificate 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.
ACIs - Chapter 9
Identity is critical to a finding as to whether a person is in fact an Australian citizen and the decision maker is to ensure that the evidence is issued in the persons current legal identity. This is a very high bar and decision makers are to ensure that their decisions are in accordance with this legislative requirement. 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 Help Desk.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 9
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 9
APPLICATION REQUIREMENTS
This part comprises: Application requirements (s46) Information and documents to accompany applications (reg 12) Fees to accompany application (reg 12A) Refund of fees (reg 13) Altering evidentiary notice (s39).
ACIs - Chapter 9
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 9
Death certificate issued by an Australian RBDM and, if necessary, full birth certificate or marriage certificate issued by an Australian RBDM. Medical certificate stating that the person had undergone a complete gender reassignment or change of details certificate - see Chapter 6 of the Citizenship Processing Manual.
Gender reassignment
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 9
2A Series 3C Series
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 Help Desk, with particulars of parents citizenship and of childs birth and residence in Australia.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 9
Dates of issue 1/1/1921 - 31/3/1937 1/1/1921 - 31/3/1937 1/4/1937 - 25/1/1949 13/8/1946 - 25/1/1949 1/4/1937 - 25/1/1949 1/4/1937 - 25/1/1949 1/4/1937 - 25/1/1949 1/4/1937 - 25/1/1949 1/4/1937 - 25/1/1949
To whom issued Minor children Natural-born British subject whose husband was an enemy alien. Any person without children affected by naturalization. Residents of New Guinea. Applicants with children to be included. Same as type D above. Same as type E above. Same as type F above. 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. See also notes on Effect of naturalization of husband upon married women between 1/1/1921 and 25/1/1949.
Nationality and Citizenship Act 1948 - Now the Australian Citizenship Act 1948
Series (A) E(1) E(2) D&F EA (B) C(1) C(2) (C) EM(1) EF(1) EM(2) EF(2) Dates of issue To whom issued
Certificates of Naturalization for Issue to Aliens 26/1/1949 - 25/1/1955 26/1/1949 - 25/1/1955 26/1/1949 - 25/1/1955 26/1/1949 - 4/2/1970 Issued to applicants without children Issued to applicants with children under 21 years to be included Issued to cases of doubt Certificates issued to minors (under 16 years)
Registration Certificates for Issue to British Subjects and Irish Citizens 26/1/1949 - 25/1/1965 26/1/1949 - 25/1/1965 For issue to applicants without children to be included. For issue to applicants with children under 21 years to be included.
Certificates of Naturalization 26/1/1955 - 4/2/1970 26/1/1955 - 4/2/1970 26/1/1955 - 4/2/1970 26/1/1955 - 4/2/1970 For issue to male applicants without children For issue to female applicants without children. For issue to male applicants with children included. For issue to female applicants with children included.
Certificate in case of doubt continued to be issued. (D) CM(1) CF(1) Certificates of Registration 26/1/1965 - 4/2/1970 26/1/1965 - 4/2/1970 For issue to males without children. For issue to females without children.
1 January 2011 Chapter 9 - p 151
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 9
To whom issued For issue to males with children included. 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) AM(1) AF(1) AM(2) AF(2) AE BM(1) BF(1) BM(2) BF(2) (F) Certificates of Citizenship Issued Between 5/2/1970 and 30/11/1973 5/2/1970 - 30/11/1973 5/2/1970 - 30/11/1973 5/2/1970 - 30/11/1973 5/2/1970 - 30/11/1973 5/2/1970 - 30/11/1973 5/2/1970 - 30/11/1973 5/7/1970 - 30/11/1973 5/2/1970 - 30/11/1973 5/2/1970 - 30/11/1973 Issued to male aliens. Issued to female aliens. Issued to male aliens with children included. Issued to female aliens with children included. Issued to minors (u. 16 years) or anyone excluded from taking an oath or making an affirmation of allegiance. Issued to male British subjects. Issued to female British subjects. Issued to male British subjects with children included. Issued to female British subjects with children included.
The Australian Citizenship Act 1973 changed the title of the Principal Act to the Australian Citizenship Act 1948. 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) AC(G) Certificates of Citizenship Issued 1/2/1973 to 30/9/1976 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. Issued in cases of doubt under s32 of the Act. Issued to minors.
Certificates of Citizenship issued 1/10/1976 to 27/11/1980 1/10/1976 - 27/11/1980 1/10/1976 - 27/11/1980 1/10/1976 - 27/11/1980 Issued to people when no children included. Issued to people when children under 16 included. Issued to minors.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 9
Series CG(1) CG(2) CG(M) (J) CAS CAS (K) ACS (L) ACC (M) (i)
To whom issued Issued to people when no children included. Issued to people when children under 16 included. Issued to minors.
Certificates of Citizenship Issued 1/10/1984 to 8/12/1986 1/10/1984 - 23/10/1986 24/10/1986 - 8/12/1986 All grantees. Certificates issued between these dates were printed on thin paper and all details were on the front of the document. All grantees. Certificates issued were printed on thicker paper and details of children were printed on the back of the document.
Certificates of Citizenship Issued 26/11/1986 to 31/1/1989 26/11/1986 - 3/11/1989 All grantees (Note that there is some overlap with the CAS series).
Declaratory Certificates of Australian Citizenship 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.
Miniature declaratories were issued from 1970 - 31/10/1984 concurrently with large certificates if requested. Evidentiary Certificates of Australian Citizenship 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). 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. Extracts from Register of Citizenship by Descent
(ii) (O)
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.
ACIs - Chapter 9
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. 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 Help Desk. Any historical documents that are handed in to offices can be sent to Kerry Edwards, Citizenship Operations and Systems Section, National Office.
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. Between 1/1/1921 and 31/3/1937 the wife of a person who became naturalized ie, 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 Help Desk.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 10
CHAPTER 10 - CHARACTER
This chapter comprises: Overview of Chapter 10 Good character requirement Attachment A - Character summary Attachment B - Processing applications that require an overseas penal clearance certificate Attachment C - Quashed, pardoned and spent convictions.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 10
OVERVIEW OF CHAPTER 10
The Act requires that people aged 18 years and over seeking to become Australian citizens be of good character.
s16(2), s16(3)
s29(2), s29(3)
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 to 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 whilst 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. (Clough v MIMIA, 2005) Criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision maker will take that into account. (Clough v MIMIA, 2005) The standard of good character should be even higher for citizenship cases because of the importance of citizenship and the greater responsibilities and privileges attached to it. (Mlinar v MIMA, 1997)
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 10
ACIs - Chapter 10
Assessing good character involves: establishing whether or not an applicant has a criminal record, and the nature of that record, if any establishing whether or not an applicant may have been involved in crimes against humanity, without having criminal convictions, through having undertaken military or similar service or having held a position of authority in a country that has experienced conflict and serious human rights abuses establishing whether or not there is other information relevant to the issue of character according procedural fairness to the applicant where there is credible, relevant, and adverse information which the decision maker intends to take into account and considering the full circumstances relating to the relevant matters, including any comments by the applicant, character references, and other evidence of the applicants behaviour. A list of factors to which consideration should be given is at Attachment A - Character summary. They include: the seriousness of any offences against ordinary community standards: crimes of violence, sexual abuse, drug trafficking, major fraud, harassment, stalking, armed robbery, crimes against children and other crimes which have incurred a prison sentence or sentences totalling 12 months or more are ordinarily considered to be serious, and should be given due weight in an assessment alternatively, less serious offences would be reflected by the leniency of a sentence and, possibly, in the remarks of the sentencing Judge. Decision makers may wish to obtain the comments made by the Judge in sentencing the applicant association with persons or organisations alleged to have committed crimes against humanity offences committed prior to the grant of a permanent visa that were concealed from the visa decision maker should not normally be given less weight. The fact of deliberate concealment may be an indicator of a continuing lack of good character. whether or not an offence(s) committed overseas would be regarded as an offence in Australia. For example, a person charged with political offences in one country may not be considered guilty of a crime in Australia. whether there are any on-going obligations in relation to the sentence received, such as a good behaviour bond. Section 24(6) provides that an application for citizenship by conferral must not be approved during such periods. whether an offence was a one-off occurrence that can now be considered out of character, or part of an ongoing pattern of behaviour which would suggest that the applicant is not of good character. Where the offence was not out of character, consider whether the applicant has been rehabilitated (see below). whether there were any extenuating circumstances relating to the offence. For example, an offence committed under periods of temporary psychological disturbance (including involuntary effects of medication, post-natal depression, battered wife syndrome) or under duress may be given less weight than if these circumstances did not exist. The onus is on the applicant to provide evidence supporting a claim of extenuating circumstances. the applicants age at the time the offence(s) were committed. If the applicant committed the offence(s) at a young age, they may be given less weight depending on the nature of the crime and the applicants subsequent record. It may be possible that the person has matured and become more law-abiding than as a youth, and that offences from that period in their life are less indicative of their current character than their actions as an adult. A persons behaviour as evidenced by a criminal record is relevant to the assessment of character. Appropriate weight must be given to a persons behaviour immediately prior to the making of a decision.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office 1 January 2011 Chapter 10 - p 158
ACIs - Chapter 10
A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character. The applicants behaviour since commission of a serious crime can in part be evidenced by the existence or otherwise of subsequent convictions. Other relevant factors that may be taken into account include whether or not the applicant has stable employment, their status in the community, involvement in activities indicating contempt/disregard or respect for the law or human rights. The onus is on the applicant to demonstrate that there has been a change in their character since last offending. The applicants present reputation in the community should also be considered. The applicant could demonstrate a good reputation in the community by providing references from reputable Australians, particularly employers (but not family members), attesting to their good character and whether they support the application for citizenship. Decision makers are entitled to give substantially more weight to statutory declarations than to other statements. Declarations from character referees that acknowledge the persons criminal background, and attest to a change in character since, should be given considerable weight.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 10
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 10
Although many of the legislative provisions for this stream were amended with the introduction of the 2007 legislation, the policy regarding overseas police clearances remains unchanged and penal clearances are required for the last 10 years. This instruction reiterates the long standing policy for this application stream. The legislation requires applicants who are 18 years or older to be of good character. Applications by descent differ 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. To assist decision makers in assessing the character requirement, applicants from this stream are to provide an overseas police clearance from: the country in which they have been living where they have visited/lived in another country for a continuous period of 90 days or more and where the country of residence is different to the country of their nationality or where the decision maker considers it appropriate to request an overseas penal clearance. Note: Where the applicant has travelled to Australia, an onshore police clearance from the AFP is also required. Officers are to check the MR database in relation to any travel to Australia undertaken by the applicant. Applications for citizenship by resumption or full Hague adoption. Applicants will need to provide penal clearance certificates from overseas countries if in the last 10 years: they have lived or travelled overseas since the age of 18 years and the total time spent overseas added up to 12 months or more and the time spent in any one country was a continuous period of more than 90 days. Application forms also state that clients must provide penal clearance certificates if requested to do so by the Department. For more information on penal clearance certificates see the Character Requirements Penal Clearance Certificates (formerly known as form 47P): http://www.immi.gov.au/allforms/characterrequirements/index.htm. Applicant unable to obtain police 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 these applicants are outlined in PAM3: Sch4/4001 - Penal checking procedures. This instruction is FOI exempt and is available to Departmental staff with the appropriate security clearance upon request from the Character Section, National Office. Officers should also discuss individual cases with the Citizenship Help Desk. Applicants aged 70 years or older Decision makers may use their discretion to not request an overseas police clearance where an applicant aged 70 years or older who has resided in Australia and has not travelled overseas for the last 20 years. This is particularly relevant where the applicant: suffers from permanent or enduring physical or mental incapacity and the onshore police check indicates that the person has no convictions or spent convictions. In all other cases, where officers consider that discretion is appropriate for applicants aged 70 years or older, officers are to discuss with the Character Team, Citizenship Helpdesk.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office 1 January 2011 Chapter 10 - p 161
ACIs - Chapter 10
Adverse Assessments
An adverse assessment is an important consideration in the assessment of a persons character. The War Crimes Unit will provide a copy of the assessment to the case officer. Procedural fairness must be provided Procedural fairness must be provided to applicants subject to an adverse war crimes assessment. The War Crimes Unit will advise of the information from an adverse assessment that must not be released to the applicant.
Non-adverse assessments
Where the War Crimes Unit has provided an assessment about an applicant with no adverse information, processing of their application for Australian citizenship can proceed as normal.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 10
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 10
CHARACTER - SUMMARY
Criminal record considerations: Seriousness of any offences - for example, crimes of violence, sexual abuse, drug trafficking, major fraud, harassment, stalking, armed robbery, crimes against children, war crimes, violations of human rights. Length of any prison sentence - a sentence totalling 12 months or more, or 2 or more terms of imprisonment where the total is 2 or more years. Repeat convictions for the same offence indicate a serious repeat offender. Repeat criminal behaviour over time - when different offences occur. Concealment of any offences - may be an indicator of a continuing lack of good character. Any on-going obligations in relation to a sentence received - (eg bond, security or parole). Length of time between last offence and application for Australian citizenship. Convictions for offences in another country - for example, political offences which may not be criminal offences in Australia. Existence of extenuating circumstances in relation to the crime(s) committed - for example, temporary psychological disturbance (including post-natal depression, battered wife syndrome, involuntary effects of medication). Age at which the crimes committed - crimes committed as a juvenile may be given less weight than those of an adult. Associations with other criminals or criminal organisations - may indicate poor character. A single offence may be considered out of character - however, due weight must be given to the type of offence. Involvement in crimes against humanity (without conviction) establishing whether or not an applicant may have been involved in crimes against humanity, without having criminal convictions, through having: a) b) directly participated in the commission of crimes against humanity; or an association with persons or organisations alleged to have committed crimes against humanity, while undertaking military or similar service or holding a position of authority in a country that has experienced conflict and serious human rights abuses. Other factors: Evidence of length of employment, stable family life and community involvement can be indicators of character. Reputation in the community should also be considered - referee reports, references and especially statutory declarations from non-family members can indicate changes in character. Financial debts where there is no conviction for an offence or the debts are not being pursued are not grounds for considering an applicant to be of bad character.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office 1 January 2011 Chapter 10 - p 164
ACIs - Chapter 10
Applicants who meet the above criteria must provide penal clearance certificates from all overseas countries where they have spent a continuous period of more than 90 days since the age of 18 years. Applications for citizenship by descent, resumption and full Hague adoption. Movement records should be checked to determine whether an applicant in the previous 10 years: has lived or travelled overseas since the age of 18 years or over; and the total time spent overseas added up to 12 months or more.
Applicants who meet the above criteria must provide penal clearance certificates from all overseas countries where they have spent a continuous period of more than 90 days since the age of 18 years.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 10
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 11
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 11
OVERVIEW OF CHAPTER 11
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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 11
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.
Persons signature
This personal identifier is currently required to be supplied with an application where it is a part of the declaration made in respect of that application.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office 1 January 2011 Chapter 11 - p 169
ACIs - Chapter 11
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. Disclose means provide access to a personal identifier, whether the access is authorised or unauthorised. entrusted person means: (a) (b) (c) (d) 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; 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.
Entrusted person as defined includes all employees of the Department of Immigration and Citizenship, 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) (b) (c) (d) any personal identifier provided under Division 5 of Part 2; any meaningful identifier derived from any such personal identifier; any record of a result of analysing any such personal identifier or any meaningful identifier derived from any such personal identifier; any other information derived from: (i) (ii) any such personal identifier; or any meaningful identifier derived from any such personal identifier; or
(iii) 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. Identifying information is 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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office 1 January 2011 Chapter 11 - p 170
ACIs - Chapter 11
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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 11
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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 11
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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 11
DIAC services - Policy, legislation & forms cycle - Gazette notices and instruments of delegation and authorisation - Instruments of delegation and authorisation - Secretarial instrument for personal identifiers. Otherwise a copy of the instrument can be obtained from the Citizenship Help Desk (email: citizenship.helpdesk@immi.gov.au).
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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office 1 January 2011 Chapter 11 - p 174
ACIs - Chapter 11
(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: 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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 11
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.
ACIs - Chapter 11
Archives Act 1983 and the Departments Records Disposal Authority (902) - (RDA). 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.
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 which may need their own retention period. If the moratorium was lifted, under the guidelines of the RDA the following applications must 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 Deferred, rejected and withdrawn applications Requests for citizenship details (i.e. evidence of citizenship) checking a persons identity or their character NOTE: If the identity or character check is attached to an approved application 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. 80 years after the last action is completed. 80 years after the last action is completed 10 years after the last action is completed. 2 years after the last action is completed 1 year after the last action is completed.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 11
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 11
Requirements Disclosure of personal information to third parties is prohibited unless: 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 (ie Australian law) or the disclosure is reasonably necessary for the enforcement of criminal or revenue law.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 11
Accessing identifying Yes information held by the Department for the purpose of processing a citizenship application.
Disclosing identifying information to the AFP/state/territory police to help with the assessment of a persons good character. Disclosing identifying information to a state/territory or Commonwealth agency to verify a persons citizenship status. 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
Yes
Yes
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 12
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 12
OVERVIEW OF CHAPTER 12
All cases concerning national security must be referred to the Citizenship Help Desk. The national security provisions prohibit the approval of a citizenship application where 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 (please 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 - Children - Ministers decision (s19D) Chapter 5 - Citizenship by conferral - Ministers decision (s24) Chapter 7 - Resuming citizenship - Ministers decision (s30). The following terms are relevant to the national security provisions and are defined by s3 of the Act: adverse security assessment qualified security assessment national security offence. Further guidance on the interpretation of these terms can be found in Chapter 1 - Preliminary and definitions.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 12
WHERE AN ADVERSE SECURITY ASSESSMENT OR QUALIFIED SECURITY ASSESSMENT HAS BEEN ISSUED AGAINST AN APPLICANT
ASIO may provide to DIAC 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, DIAC must: notify the applicant under s38(1) of the 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). All cases concerning national security must be referred to the Citizenship Helpdesk.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 12
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 13
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 13
OVERVIEW OF CHAPTER 13
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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 13
ACIs - Chapter 13
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.
ACIs - Chapter 13
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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 13
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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 13
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: 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 the alleged offender has acquired Australian citizenship through deceit. A conviction is a pre-condition to consideration of revocation of Australian citizenship under s34.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 13
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 13
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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 14
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 14
OVERVIEW OF CHAPTER 14
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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 14
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 14
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 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, certificates were issued until 26 February 2002. Those on income support and temporarily absent were contacted by Centrelink and issued with certificates as appropriate.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 14
Visa granted
Considered as permanent residents for citizenship purposes? Only for periods present in Australia.
No entry permit required. Considered as exempt noncitizens. Special category visa (SCV) Special purpose visa (SPV)
Yes. 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. No, unless covered by transitional provisions, detailed below. Yes. 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. 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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 14
AUSTRALIAN CITIZENSHIP STATUS OF CHILDREN BORN IN AUSTRALIA TO NEW ZEALAND CITIZEN PARENTS
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: 27 February 2001 to the present 1 September 1994 to 26 February 2001 20 August 1986 to 31 August 1994 26 January 1949 to 19 August 1986 Automatic acquisition of citizenship on 10th birthday Overview of status of the children of New Zealand citizens born in Australia.
ACIs - Chapter 14
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 14
Is an Australian citizen 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. 10th birthday - only if the child was ordinarily resident in Australia since their birth in Australia
Is NOT an Australian citizen If the parent is a diplomatic representative of New Zealand, spouse or dependent of one, or holder of a special purpose visa.
At birth - only if the parent held a permanent visa. 10th birthday - only if the child was ordinarily resident in Australia since their birth in Australia
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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 14
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 15
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 15
OVERVIEW OF CHAPTER 15
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. Descent, evidence and resumptions applications from people born in PNG prior to 16 September 1975 must be sent to the Dandenong Office for processing. Applications for Australian citizenship by descent should also be referred to the Dandenong Office where the claimed Australian citizen parent was born in PNG prior to 16 September 1975.
INTRODUCTION
This part comprises: Papua prior to Independence New Guinea prior to Independence From Independence Day, 16 September 1975.
ACIs - Chapter 15
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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 15
CITIZENSHIP BY DESCENT
This part comprises: People born in Papua before 16 September 1975 People born in New Guinea before 16 September 1975 People born in PNG on or after 16 September 1975.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 15
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. 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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 15
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 Straight 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. 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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 15
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 16
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office
ACIs - Chapter 16
OVERVIEW OF CHAPTER 16
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: (a) (b) (c) (d) (e) (f) (g) (h) be aged 18 years or over be a permanent resident satisfy the residence requirements or have completed relevant defence service 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 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. 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). The Ministers determination specifies that a person must successfully complete the citizenship test within 6 months of lodging their application for citizenship by conferral. The Minister has approved three citizenship tests under s23A of the Act: a Standard Test an Assisted Test, for people with low levels of literacy or with a physical impairment that prevents them from completing the standard test and a course-based test for vulnerable clients who require assistance in learning and are unable to undertake a computer based test even with assistance. The Minister has also, by determination, set out the criteria which a person must meet to sit an approved test. If a person does not meet the criteria they cannot sit an approved test. Applicants who satisfy s21(3) - (8) are not required to sit a test. However there is no legal barrier to them doing so unless they do not meet the eligibility criteria in the Ministers 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.
Australian Citizenship Instructions (ACIs) Department of Immigration and Citizenship National Office